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Menard v. Willimantic Waste Paper Co.

Appellate Court of Connecticut

March 1, 2016

KEVIN J. MENARD
v.
WILLIMANTIC WASTE PAPER COMPANY ET AL

         Argued October 21, 2015.

          Appeal from the decision of the Workers' Compensation Commissioner for the Second District determining the proper calculation of the plaintiff's average weekly wage, brought to the Workers' Compensation Review Board, which affirmed the commissioner's decision, and the plaintiff appealed to this court.

          SYLLABUS

         The plaintiff employee, who had been injured while employed by the defendant employer, appealed to this court from the decision of the Workers' Compensation Review Board affirming the finding and award of the Workers' Compensation Commissioner in favor of the employer and its defendant workers' compensation insurer. In affirming the commissioner's decision, the board determined that in computing the plaintiff's average weekly wage, two weeks of paid vacation during which the plaintiff did not report to work should be included in the divisor of the statutory (§ 31-310) formula for calculating his average weekly wage. Pursuant to that statute, the average weekly wage of an injured employee is calculated by dividing the total wages the employee received during the fifty-two week period preceding the injury by the number of calendar weeks during which the employee was actually employed by the employer, with the exception of an absence for seven consecutive calendar days. On appeal, the plaintiff claimed that the board erred in its calculation of his average weekly wage because the two weeks of paid vacation each constituted an absence for seven consecutive calendar days under the statute, and, therefore, they should have been excluded from the number of weeks used to calculate his average weekly wage. Held that the board properly included the two weeks of paid vacation in its calculation of the plaintiff's average weekly wage: the board's conclusion was reasonable, as a logical interpretation of the phrase " average weekly wage" in the context of § 31-310 as a whole contemplates that all wages earned by the plaintiff in the relevant time period are to be included in the formula's dividend, and that all weeks in which the plaintiff was actually employed by the employer and earning wages, including paid vacation weeks, are to be included in the formula's divisor; moreover, the interpretation of the statute advanced by the plaintiff that the two weeks of paid vacation should have been excluded from the formula's divisor would unduly complicate the calculation of his average weekly wage and would lead to bizarre and unworkable results.

         Howard B. Schiller, with whom was G. Randal Hornaday, for the appellant (plaintiff).

         David J. Weil, with whom, on the brief, was Natalie E. Wayne, for the appellees (defendants).

         Beach, Sheldon and Harper, Js. BEACH, J. In this opinion the other justices concurred.

          OPINION

Page 1249

          [163 Conn.App. 363] BEACH, J.

          A factor in determining an injured employee's wage replacement benefit is the employee's average weekly wage, generally computed, pursuant to General Statutes § 31-310, by dividing the total compensation received in the year prior to the injury by the number of weeks of employment within that year. The issue in this case is whether weeks for which an employee has received vacation pay, and was not physically at work, are to be included in the divisor of the formula.

          [163 Conn.App. 364] The plaintiff, Kevin J. Menard, appeals from the decision of the Workers' Compensation Review Board (board) affirming the finding and award of the Workers' Compensation Commissioner for the Second District (commissioner) in favor of the defendants, his employer, Willimantic Waste Paper Company (employer), and the employer's insurer, EMC Insurance Company. On appeal, the plaintiff claims that the board erred by including paid vacation time into the divisor of the formula for calculating average weekly wage under § 31-310. We disagree and therefore affirm the decision of the board.

         The parties stipulated to the following facts before the commissioner. During the relevant fifty-two week period prior to the plaintiff's injury, from the week of March 17, 2010 to the week of March 11, 2011, the plaintiff's wages totaled $53,131.91. During that time period, the plaintiff was compensated for a total of 112 vacation hours. The plaintiff was compensated at a rate of $16.99 per hour for forty[1] vacation hours and eight hours of holiday pay, during both the week ending on July 7, 2010, and the week ending on September 8, 2010.[2] The plaintiff did not perform any labor for his employer during those two weeks. During the week ending on November 24, 2010, the plaintiff received vacation pay and also worked and was paid for forty hours.

Page 1250

          The plaintiff's position before the commissioner was that his pay for the two weeks for which he received vacation pay, during which he was not working, should be included in the amount of total wages, but in order [163 Conn.App. 365] to calculate the average weekly wage, the total amount of wages should be divided by fifty, rather than fifty-two, because he did not perform work during the two paid vacation weeks. The defendants' position was that the pay for the two weeks of paid vacation should be included in the amount of total wages and that the amount of earnings should be divided by fifty-two in order to calculate the average weekly wage.[3] The commissioner agreed with the defendants in determining that " [t]here is no reason to eliminate any wages received or to eliminate any weeks of employment as the [plaintiff] was employed and received wages from the [employer] throughout the entire 52 week period preceding his injury, including the periods of paid ...


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