Opinion
CASE NO. 1123 CRD-8-90-10
DECEMBER 16, 1991
The claimant was represented at the trial level by Barry Scheinberg Esq., and on appeal by Jonathan L. Gould, Esq. of Gould, Livingston, Adler and Pulda.
The respondents were represented by Robin L. Wilson, Esq., and Brewster Blackall, Esq., Assistant Attorneys General.
This Petition for Review from the October 9, 1990 Finding and Award of the Commissioner for the Eighth District was heard May 31, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and Andrew Denuzze.
OPINION
In this appeal the respondent State of Connecticut contests the Eighth District's October 9, 1990 Finding and Award. That decision included overtime pay, shift differential and maintenance allowance sums in computing full salary under the provisions of Sec. 5-142(a).
The parties below submitted the matter to the commissioner on stipulated facts. Claimant at the time of injury was an agency police officer at Whiting Forensic Institute. On May 10, 1989, he sustained a compensable injury to his right shoulder and left knee. The appeal involves the definition of the elements which constitute "full salary" in Sec. 5-142(a). If overtime pay, shift differential and maintenance allowance are included, then the employee would receive greater compensation.
Section 5-142(a) provides in pertinent part:
Sec. 5-142. Disability compensation. (a) If any member of the division of state police within the department of public safety or of any correctional institution, or any institution, or facility of the department of mental health giving care and treatment to persons afflicted with a mental disorder or disease, or any institution for the care and treatment of persons afflicted with any mental defect, . . . any staff member or employee of the division of criminal justice or of the division of public defender services, or any judicial department employee sustains any injury while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or prosecution or public defender or courthouse duties, or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deduction, requiring in the case of active employees for a period of two hundred sixty weeks from the date of the beginning of such incapacity. . . .
Palmer v. State of Connecticut/Fairfield Hills, 9 Conn. Workers' Comp. Rev. Op. 53, 900 CRD-4-89-7 (1991) and Jones v. State of Connecticut/Mansfield Training School, 9 Conn. Workers' Comp. Rev. Op. 53, 986 CRD 2-90-2 (1991) held that the "full salary" language in Sec. 5-142(a) does not include overtime. Palmer, supra, reviewed the distinctions between the definitions of "salary" and "wages". See Palmer, id at 56-57 quoting Black's Law Dictionary, 5th edition. Palmer quoted Walsh v. Bridgeport, 88 Conn. 528, 535-36 (1914). We concluded that "salary" is a more restrictive term than "wages" and thus the "full salary" language in Sec. 5-142(a) did not include overtime pay.
Palmer and Jones are dispositive of the issue raised in the instant appeal insofar as it relates overtime. The reasoning in Palmer and Jones applies also the the argument that Sec. 5-142(a)'s full salary provision includes shift differential and a maintenance allowance. We therefore conclude that Sec. 5-142(a) does not permit the inclusion of the shift differential and maintenance allowance in calculating full salary.
We therefore reverse the decision of the commissioner and sustain the State's appeal. The matter is remanded for further proceedings consistent with this opinion.
Commissioners Robin Waller and Andrew Denuzze concur.