Summary
In Ericson v. Perreault Spring Equipment Co., 9 Conn. Workers' Comp. Rev. Op. 171, 1008 CRD-5-90-4 (1991), the claimant sought modification of a Voluntary Agreement to recalculate the average weekly wage by adding the contractually earned year end bonus to the wages earned in the twenty-six weeks preceding the injury.
Summary of this case from Graziano v. St. Mary's HospitalOpinion
CASE NO. 1008 CRD-5-90-4
JULY 17, 1991
The claimant was represented by Edward T. Dodd, Esq.
The respondents were represented by Robert Montstream, Esq., Montstream May.
This Petition for Review from the April 16, 1990 Finding and Award of the Commissioner for the Fifth District was heard January 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Michael S. Sherman.
OPINION
Claimant suffered a compensable left eye injury September 28, 1988. The parties acknowledged the compensability of that injury in a February 3, 1989 Voluntary Agreement the agreement established $401.88 as claimant's average weekly wage entitling him to a $267.92 weekly compensation rate. Claimant sought to set aside those computations and to open the agreement in order to have certain profit sharing sums paid employees at year end included in the computation of average weekly wage. The commissioner granted the request and permitted presentation of the further evidence in his April 16, 1990 Finding and Award.
Respondents argue it was error to open the Voluntary Agreement for that purpose. The matter is largely controlled by Sec. 31-315 C.G.S. which provides:
Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify a judgment of such court. The compensation compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
Respondents' Reasons of Appeal and Motion to Correct the Finding addressed only the issue of whether the Voluntary Agreement could be reopened under Sec. 31-315. In their brief they also contend that under Sec. 31-310, governing the calculation of claimant's average weekly wage, the amounts paid at the year's end could not be allocated to the twenty-six weeks remuneration preceding claimant's injury. The trial commissioner has not ruled on that latter issue. We therefore will not consider it. However, if the evidence shows that the year end payment was understood by the parties to be allocable to all the weeks worked in the preceding year, then those amounts may very well be included in the Sec. 31-310 calculation of average weekly wage.
Sec. 31-315 permits the modification of a Voluntary Agreement where "changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter." Further, Sec. 31-315 states, "The commissioner shall also have the same power to open and modify and award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question."
As we are dealing with a Voluntary Agreement and as Sec. 31-315 provides a commissioner with ongoing jurisdiction we rule that a commissioner may open a Voluntary Agreement where the further evidence to be proffered may result in changing claimant's average weekly wage and compensation rate. Certainly the determination of the average weekly wage is fundamental to the remedy provided by the Workers' Compensation Act. To limit the commissioner in utilizing his discretion to open a Voluntary Agreement where the average weekly wage may be incorrectly stated or determined would be a complete misreading of the powers granted in Sec. 310-315. Moreover Sec. 31-315 permits modification where "changed conditions of fact have arisen which necessitate a change of such agreement . . . in order properly to carry out the spirit of this chapter." The claimant must not be denied the opportunity to demonstrate his entitlement to an average weekly wage different from that recited in the February 3, 1989 Voluntary Agreement.
We therefore affirm the Commissioner of the Fifth District's April 16, 1990 Finding and Award and dismiss the appeal.
Commissioners Andrew Denuzze and Michael S. Sherman concur.