Summary
In Chodkowski v. UTC/Pratt Whitney, 8 Conn. Workers' Comp. Rev. Op. 4, 736 CRD-3-88-5 (Dec. 18, 1989), this board was confronted with a claimant who sought to include her pay from the United States Army Reserve in her weekly compensation rate under the concurrent employment provision.
Summary of this case from Lemieux v. General Dynamics Corp.Opinion
CASE NO. 736 CRD-3-88-5
DECEMBER 18, 1989
The claimant was represented by Brian Mahon, Esq. and A. Elaine Rogers Parsons, Esq., both of Weigand, Mahon Adelman.
The respondents-employer. and insurer were represented by James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick.
The respondent-Second Injury Fund was represented by Robin Wilson, Esq., Assistant Attorney General.
This Petition for Review from the May 18, 1988 Finding and Award of the Commissioner of the Eighth District acting for the Third District was heard August 18, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and James J. Metro.
OPINION
At the time of her compensable injury while in the employ of UTC/Pratt Whitney at North Haven, April 6, 1987, claimant was being paid wages from that employer and was also receiving remuneration for service in the United States Army Reserve. A voluntary Agreement was approved by the Third District August 24, 1987. It established that claimant's average weekly wage from the Pratt Whitney employment was $424.81 entitling claimant to a $283.22 compensation rate. During the same twenty-six weeks covered by that computation claimant received $753.21 in payment for her reserve service.
After the claimant had executed the August, 1987 voluntary agreement, she requested it be reconsidered and amended as it did not include the $753.21 military remuneration alleged by her to be wages for concurrent employment under. Sec. 31-310, C.G.S. The trial commissioner agreed and awarded claimant a compensation rate of $302.52 to be paid initially by the insurer and the employer respondents. However he also ordered that $19.30 of that amount be reimbursed to those respondents by the Second Injury Fund. The Fund has appealed that determination.
On appeal the Fund argues that the United States is not an employer under our act and that therefore money received for United States Army Reserve service does not constitute wages earned for Sec. 31-310 purposes. We agree.
Section 31-310 provides in pertinent part: When the injured employee is a trainee or apprentice receiving a subsistence allowance from the United States because of war service, such allowance shall be added to his actual earnings in determining the average weekly wage. Where the injured employee has worked for more than one employer at the time of injury and the average weekly wage received from the employer in whose employ he was injured, as determined under the provisions of this section, are insufficient for him to obtain the maximum weekly compensation rate from such employer under section 31-309 prevailing at the time of his injury, his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of such concurrent employment not in excess of twenty-six weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs, a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in such average week but not less than an amount equal to the minimum compensation rate prevailing at the time of injury and, if he is totally incapacitated, the applicable dependency allowance, if any, due under section 31-308b. The remaining portion of applicable compensation rate shall be paid from the second injury and assurance fund.
The claimant and the employer and insurer respondents rely on a novel interpretation of that part of Sec. 31-275(5) which defines employer as "any person, corporation, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay. . ." They contend that the United States Army Reserve is a public corporation within the state. Such an interpretation is inconceivable the light of two centuries of constitutional law and the problems engendered by federal state relations. How can the Connecticut, legislature by the use of this six word statutory formula empower the Workers' Compensation Commission to have jurisdiction over the federal government as a Connecticut employer?
Even if the federal government is not a Sec. 31-275(5) employer, nonetheless claimant argues further that remuneration received from such service may be considered concurrent employment Sec. 31-310 wages. This argument would lead to the conclusion that the words "employer" and "employment" have different meanings for different parts of the Workers' Compensation Law. In the absence of statutory language specifically mandating such a result, we as an administrative quasi-judicial body cannot so rule.
Claimant's final argument is based on the following part of Sec. 31-310, "When the injured employee is a trainee or apprentice receiving a subsistence allowance from the United States because of war service, such allowance shall be added to his actual earnings in determining his average weekly wage." There is no evidence nor was there any allegation that claimant was such a trainee or apprentice. However the contention is that since this particular sentence treated sums paid by the United States government as the equivalent of wages from concurrent employment, then a United States Army reservist's remuneration should be similarly viewed. Again, the General Assembly knew how to legislate such a specific result. It did not choose to do so. If anything, the use of the subsistence allowance language militates against the interpretation sought by claimant. Under the doctrine of inclusio unius exclusio alterius, the specific statutory inclusion of one type of non-employment military service based remuneration militates against any interpretation that other military service remuneration be included.
Our view is reinforced by the Supreme Court's recent opinion, Kinney v. State of Connecticut, 213 Conn. 54 (1989). Although the Kinney holding involved jurisdictional issues, it was based on the statutory definition of "employer" and "employer-employee" relationship. Kinney essentially ruled that such statutory definitions cannot be expanded by judicial interpretation, but only by specific legislative enactment.
We therefore sustain the Second Injury Funds Appeal and reverse the decision of the trial commissioner. The August 24, 1987 voluntary agreement approved by the Third District is reinstated.
Commissioners Andrew P. Denuzze and James J. Metro concur.