Vecca v. State

616 A.2d 823, 29 Conn. App. 559, 1992 Conn. App. LEXIS 417
Connecticut Appellate Court·Decided November 24, 1992·No. 10969·Published·Cited by 7 cases

Opinion

Freedman, J.

The issue presented by this appeal is whether the calculation of “full salary” benefits available to the plaintiff, an injured state employee, under General Statutes (Rev. to 1989) § 5-142 (a)1 is based on the plaintiff’s actual earnings at the time of the injury, which includes overtime pay, shift differential and a maintenance allowance, or whether his benefits under § 5-142 (a) are limited to his base pay at the time of the injury. The compensation review division of the workers’ compensation commission determined that full salary does not include overtime pay, shift differential and a maintenance allowance, limiting the plaintiff to benefits based on his base pay. We affirm the review division’s decision.

The facts were stipulated. On May 10,1989, the plaintiff sustained a compensable injury to his right shoulder and left knee while working as an agency police officer at Whiting Forensic Institute, a state facility. The plaintiff was temporarily totally disabled for approximately six months following his injury. At the time of his injury, the plaintiffs base pay was $667.90 [561] per week. The plaintiffs actual average weekly wage, however, was $885.12, which included his base pay plus shift differential earnings, overtime in a varying number of hours, and a maintenance allowance of $6.25 per week. The plaintiff contends that he should have been paid $1770.24 per biweekly pay period ($885.12 per week) under § 5-142 (a). The defendant, on the other hand, claims that § 5-142 (a) obligates the state to pay the plaintiff only his base pay of $1335.80 biweekly ($667.90 per week) and not other payments, such as overtime, shift differential or maintenance allowance.

The workers’ compensation commissioner concluded that the plaintiff’s “full salary” under § 5-142 (a) included all enhancements to base pay. The review division reversed, however, on the basis of its prior decisions,2 which held that salary is a more restrictive term than wages and thus the “full salary” language in § 5-142 (a) does not include any amounts above base pay. See Vecca v. State, 9 Conn. Workers’ Comp. Rev. Op. 280 (1991). This appeal followed.

Section 5-142 (a) was enacted “in order to provide enhanced benefits by way of disability compensation for employees injured while engaged in special state service. The class of employees eligible for these benefits is those who ‘in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence.’ Lucarelli v. State, 16 Conn. App. 65, 69, 546 A.2d 940 (1988). If injured under the circumstances prescribed in the statute, this class of state employees is entitled to disability compensation based on the employee’s full salary, rather than upon a percentage of his or her weekly earnings, the [562] normal workers’ compensation standard [under General Statutes § 31-307].”3 Jones v. Mansfield Training School, 220 Conn. 721, 725, 601 A.2d 507 (1992).

We commence our analysis of the “full salary” language of § 5-142 (a) by examining the recent decision in Jones v. Mansfield Training School, supra. In Jones, our Supreme Court determined that injured state employees covered by § 5-142 (a) may choose between the full salary compensation rate of § 5-142 (a) or the method of benefits calculation under § 31-307. The benefit calculation in Jones under the latter provision included overtime. Id. If we were to interpret the calculation under § 5-142 (a) to include the same items as those factored into the calculation under § 31-307, then the Jones case could only be understood to hold that a state employee coming within § 5-142 (a) may, instead of receiving 100 percent of such items, choose to accept two thirds of such items.4 We will not ascribe such a [563] bizarre interpretation to our decisional law. Nor do we think that our Supreme Court would choose to address such an issue of statutory interpretation unless the term salary is more restrictive than the terms earnings and wages. We can discern no reason why our Supreme Court in Jones would have addressed the question of whether an injured state employee entitled to her full salary under § 5-142 (a) can instead seek benefits equal to two thirds of that same amount under § 31-307. Because our courts will not address questions that are purely academic due to the absence of an actual and existing controversy; Taylor v. Synergy Productions, Ltd., 21 Conn. App. 661, 667, 575 A.2d 1050 (1990); we can conclude only that our Supreme Court, although it stated that it did not reach the issue, must have sub silentio determined that the term salary is more restrictive than the terms earnings and wages in the context of our workers’ compensation laws.

In addition, this difference between salary and wages and earnings finds support in other authoritative sources. Wages and earnings are broad terms that include “[ejvery form of renumeration payable . . . for personal services . . . .” Black’s Law Dictionary (6th Ed.). Salary, by contrast, is a term that is more limited in its scope. It refers to an employee’s base pay prior to the inclusion of overtime pay or other salary enhancements. See Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990); Black’s Law Dictionary (6th Ed.) (“fixed periodical compensation”). Additionally, the review division has, without exception, calculated the “full salary” under § 5-142 (a) without including overtime. See footnote 2, supra. Great deference must be shown to the statutory construction given by the agency. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 173, 479 A.2d 1191 (1984); see also Jones v. Mansfield Training School, supra, 738 n.6 (Berdon, dissenting).

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Vecca v. State, 616 A.2d 823, 29 Conn. App. 559, 1992 Conn. App. LEXIS 417 (Colo. Ct. App. 1992).

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