Opinion
CASE NO. 2121 CRB-4-94-8
JULY 21, 1995
The claimant was represented by George C. Springer, Jr., Esq.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the August 3, 1994 Finding and Award of the Commissioner acting for the Fourth District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D'Oyen and Amado J. Vargas.
OPINION
The respondent has petitioned for review from the Finding and Award of the Commissioner for the Fourth District. It challenges the commissioner's inclusion of outside overtime benefits in the claimant's "weekly compensation" under § 7-433b(b) C.G.S. for the purpose of determining the benefit cap under that section. We dismiss the respondent's appeal.
The claimant's cross-appeal was withdrawn January 5, 1995 in light of a stipulation regarding payment of inside and outside overtime benefits between the parties. In addition, the respondent has limited the issue to the claimant's entitlement to outside overtime benefits after October 31, 1994, pursuant to a withdrawal of appeal accepted on January 13, 1995.
The claimant was employed by the Bridgeport Police Department, and has made a claim under § 7-433c C.G.S. based on a stroke he suffered on November 9, 1990 in the course of his duties as a police officer. He was found to be entitled to benefits under § 7-433c for his resulting total disability. The claimant subsequently claimed that the city owed him additional benefits, as it had failed to include in the § 7-433b(b) cap on his weekly payments inside and outside overtime paid to active members of the police department in the same employment status that the claimant held at the time of his injury. The commissioner awarded him inside and outside overtime benefits under the authority of Szudora v. Fairfield, 214 Conn. 552 (1990). The respondent has appealed the award of outside overtime benefits, conceding liability for inside overtime.
Section 7-433b(b) provides in relevant part that "the cumulative payments . . . for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. . . ."
In Szudora, our Supreme Court affirmed the holding of this Board that the § 7-433b(b) ceiling required consideration of overtime payments to similarly situated working members of the Fairfield police department. Taking into account the remedial purpose of the Workers' Compensation Act, the Court noted that the legislative history of § 7-433b(b) and other parts of the Act both support the conclusion that "weekly compensation" includes every form of weekly remuneration. Id., 558. The Court noted that this Board had not distinguished between the sources from which overtime payments are derived, and quoted the town of Fairfield's brief, which explained that its police officers work at various overtime jobs, some of which were for the police department, and others which were for outside contractors, "with the department acting as a conduit for payment." Id., 559. The Court held that this Board had reasonably construed § 7-433b(b), and chose to defer to our decision as "the considered judgment of the governmental agency vested with primary authority for enforcing our workers' compensation statutes." Id., quoting Felia v. Westport, 214 Conn. 188 (1990).
The respondent argues that the character of the outside overtime payments in this case warrants a different result from that in Szudora. It maintains that the failure of the commissioner to make findings regarding the meaning of "outside overtime" as applied to the Bridgeport police department invalidates his conclusion that these payments should be considered part of the "weekly compensation" in § 7-433b(b). We disagree. In Szudora, the Supreme Court noted that the town of Fairfield contended that the town merely acted as a "conduit" for payment with regard to outside overtime, but admitted that the earnings all went on the officer's W-2 form as "total earnings for a year." Id., 559. Here, the respondent cites testimony to the effect that outside overtime is "voluntary work performed by officers on other than regularly scheduled shift days, paid by private parties . . . and for which the officers are paid at the rate of $2.00 above their regular hourly pay. . . . All overtime payments are reported by the City of Bridgeport on an IRS Form W2." (Respondent's brief, p. 4.)
Based on the information provided by the respondent, we see little difference between the situation in this case and the situation in Szudora. Indeed, one could argue Szudora suggests that the commissioner is not required to distinguish between the sources from which overtime payments are derived. Although we do not make such a holding here, we do hold that the commissioner was entitled to rely on Szudora with respect to both inside and outside overtime, and was not required to make additional findings regarding outside overtime. We thus affirm the trial commissioner's decision.
Commissioners Roberta S. D'Oyen and Amado J. Vargas concur.