Menard v. Willimantic Waste Paper Co. ( 2016 )

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KEVIN J. MENARD v. WILLIMANTIC WASTE PAPER
COMPANY ET AL.
(AC 37252)
Beach, Sheldon and Harper, Js.
Argued October 21, 2015—officially released March 1, 2016
(Appeal from the Workers’ Compensation Review
Board.)
Howard B. Schiller, with whom was G. Randal Hor-
naday, for the appellant (plaintiff).
David J. Weil, with whom, on the brief, was Natalie
E. Wayne, for the appellees (defendants).
Opinion
BEACH, J. A factor in determining an injured employ-
ee’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.
The plaintiff, Kevin J. Menard, appeals from the deci-
sion 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 forty1 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.
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
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 com-
missioner 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 vaca-
tion, and did not have any absences for seven consecu-
tive days not in the same calendar week.’’ The
commissioner found the average weekly wage to be
$1022, and, after making required adjustments, found
the compensation rate to be $584.92 per week.
In his appeal to the board, the plaintiff claimed that
the commissioner misapplied § 31-310 (a) when he cal-
culated the average weekly wage by dividing the total
amount of wages by fifty-two. He argued that the two
weeks of paid vacation time should not have been
included in the divisor of the formula because § 31-310
(a) provides that where there has been an ‘‘absence of
seven consecutive calendar days,’’ the week is to be
subtracted from the divisor. The board disagreed, stat-
ing that ‘‘the purpose of § 31-310 (a) . . . is to ensure
that the parties arrive at a fair and equitable average
weekly wage which accurately reflects both the total
wages paid to the claimant and the number of weeks
for which these wages were paid. In light of this inter-
pretation, we reject the notion that the statute requires
that every seven-day absence from the workplace,
whether paid or unpaid, necessarily merits exclusion
from the wage calculations. Under the facts of this
matter, excluding the weeks for which the [plaintiff]
was paid, albeit in the form of vacation pay rather than
regular wages, would be sharply at variance with the
underlying purpose of the statute and . . . would
essentially penalize employers for granting this benefit
. . . .’’ The board affirmed the finding and award of
the commissioner. This appeal followed.
‘‘As a threshold matter, we set forth the standard of
review applicable to workers’ compensation appeals.
The principles that govern our standard of review in
workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them. . . . It is well established that [a]lthough
not dispositive, we accord great weight to the construc-
tion given to the workers’ compensation statutes by the
commissioner and [the] board. . . . A state agency is
not entitled, however, to special deference when its
determination of a question of law has not previously
been subject to judicial scrutiny . . . or when its con-
struction of a statute has not been time-tested.’’ (Cita-
tion omitted; internal quotation marks omitted.) Gill v.
Brescome Barton, Inc., 317 Conn. 33, 42, 114 A.3d 1210
(2015). In this case, we are required to interpret lan-
guage of § 31-310 (a) that has not been previously sub-
ject to judicial scrutiny. Thus, the decision of the board
is not entitled to special deference,4 and we turn our
focus to the basic tenets of statutory construction.
This appeal involves a legal question regarding the
statutory interpretation of § 31-310 (a), which provides
in relevant part: ‘‘[T]he average weekly wage shall be
ascertained by dividing the total wages received by the
injured employee from the employer in whose service
the employee is injured during the fifty-two calendar
weeks immediately preceding the week during which
the employee was injured, by the number of calendar
weeks during which, or any portion of which, the
employee was actually employed by the employer, but,
in making the computation, absence for seven consecu-
tive calendar days, although not in the same calendar
week, shall be considered as absence for a calendar
week. When the employment commenced otherwise
than at the beginning of a calendar week, that calendar
week and wages earned during that week shall be
excluded in making the computation. . . .’’
Questions of statutory interpretation are subject to
plenary review by this court. See State v. Courchesne,
296 Conn. 622, 668, 998 A.2d 1 (2010). ‘‘When construing
a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In seeking to determine that meaning [we] first
. . . consider the text of the statute itself and its rela-
tionship to other statutes. If, after examining such text
and considering such relationship, the meaning of such
text is plain and unambiguous and does not yield absurd
or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered. . . .
The test to determine ambiguity is whether the statute,
when read in context, is susceptible to more than one
reasonable interpretation. . . . When a statute is not
plain and unambiguous, we also look for interpretive
guidance to the legislative history and circumstances
surrounding its enactment, to the legislative policy it
was designed to implement, and to its relationship to
existing legislation and common law principles govern-
ing the same general subject matter . . . .’’ (Internal
quotation marks omitted.) Chairperson, Connecticut
Medical Examining Board v. Freedom of Information
Commission, 310 Conn. 276, 283, 77 A.3d 121 (2013).
The plaintiff claims that the board erred in its calcula-
tion of average weekly wage because the plain language
of § 31-310 (a) mandates the exclusion of all periods
of absence of seven consecutive days, including those
absences for paid vacation, from the number of weeks
used in the calculation of average weekly wage. He
argues that the phrase ‘‘absence for seven consecutive
days’’ in § 31-310 (a) is not ambiguous and dictates that
his vacation related seven consecutive day absences
should be subtracted, leaving the total amount of wages
received during the fifty-two calendar weeks preceding
his injury to be divided by fifty. Dividing by fifty, of
course, results in a higher average weekly wage than
dividing by fifty-two.
Section 31-310 (a) provides that the average weekly
wage is computed by dividing the total wages received
during the fifty-two week period preceding the injury
by the number of calendar weeks during which the
injured employee was ‘‘actually employed,’’ with the
exception of an ‘‘absence’’ for seven consecutive calen-
dar days. It is uncontested that the plaintiff was
employed by, and received wages in the amount of
$53,131.91 from, the employer for the entire fifty-two
week period preceding his injury. The amount of com-
pensation included the two weeks of vacation pay at
issue.5 The statute clearly states that the total wages
are to be divided by the number of calendar weeks that
the employee was ‘‘actually employed’’ which, here, is
fifty-two. The dispute is whether the two weeks of paid
vacation constitute an ‘‘absence’’ for seven consecutive
calendar days that must be subtracted from the divisor.
Both the plaintiff and the defendants argue that the
statutory language is clear and unambiguous, and both
offer different, yet linguistically plausible, interpreta-
tions. The plaintiff contends that § 31-310 (a) mandates
that all absences for seven consecutive days, including
the two weeks at issue, be deducted from the divisor.6
The plaintiff stresses that, regardless of whether this
construction may seem somewhat implausible, the lan-
guage of the statute literally compels this construction.7
The defendants counter that the qualifying language
‘‘although not in the same calendar week’’ renders the
language ‘‘an absence for seven consecutive days’’ inap-
plicable to the present case, as ‘‘split weeks’’ are not
involved here. They also argue that the statute does not
expressly mandate that weeks in which the plaintiff is
not physically present at work, but paid as if he were
engaged in his normal employment, be excluded.
Because both interpretations are superficially plausible,
we conclude that the statutory language is ambiguous.
The legislative history of § 31-310 is not helpful. In
1961, the General Assembly enacted No. 491 of the 1961
Public Acts, which amended the Workers’ Compensa-
tion Act, General Statutes § 31-275 et seq., that had been
first enacted in 1913. The legislative history does not
illuminate the specifics of the language at issue in § 31-
310. Some guidance has been provided by our Supreme
Court, which has stated that the adjustment of weeks
in the divisor ‘‘presumably . . . temper[s] seasonal and
temporary effects . . . .’’ Smith v. Yurkovsky, 265
Conn. 816, 828, 830 A.2d 743 (2003).8
The language of the statute as a whole provides con-
text for the specific language at issue. The statute estab-
lishes the formula for determining average weekly wage
and defines the dividend and divisor. The term ‘‘aver-
age’’ is defined by Webster’s Third New International
Dictionary (2002) as ‘‘an arithmetical term to indicate
the figure arrived at by finding the sum of a given num-
ber of unequal figures and dividing by the number of
figures . . . .’’ The plaintiff argues that the two weeks
of paid vacation, each of which included one day of
holiday pay, should be considered an ‘‘absence’’ under
the statute. This interpretation leads to bizarre results:
for instance, not performing work related tasks for
one’s employer during paid vacation increases the aver-
age weekly wage, while performing activities benefiting
the employer during that time decreases the compensa-
tion rate.9 The plaintiff’s proffered interpretation unduly
complicates the determination of the average weekly
wage. Under the plaintiff’s interpretation, the amount
of pay received by him from his employer for the two
weeks of paid vacation would be included in the divi-
dend, but the same two weeks would be subtracted
from the divisor, thereby artificially inflating the aver-
age.10 A logical interpretation of the phrase ‘‘average
weekly wage’’ contemplates that all wages earned by the
plaintiff in the relevant time period are to be included in
the dividend and that all weeks in which the plaintiff
was ‘‘actually employed’’ and earning wages are to be
included in the divisor.11
This court’s interpretation of § 31-310 in Trankovich
v. Frenish, Inc., 47 Conn. App. 628, 706 A.2d 998 (1998),
is informative. In Trankovich, we held that § 31-310
commands that average weekly wage be determined by
‘‘adding the total wages received’’ by the plaintiff from
the employer ‘‘during the fifty-two calendar weeks
immediately preceding the week during which [the
plaintiff] was injured and dividing by the number of
calendar weeks during which [the plaintiff] was actually
employed by the employer.’’ Id., 631. In order to avoid
bizarre and unworkable results; see Sanzone v. Board
of Police Commissioners, 219 Conn. 179, 187, 592 A.2d
912 (1991) (statutory constructions that lead to absurd,
unworkable or bizarre results to be avoided); we con-
clude that the conclusion of the board was reasonable.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
The commissioner’s original decision stated the number of vacation
hours as ‘‘4.’’ The plaintiff filed a motion to correct the scrivener’s error to
reflect the proper number of vacation hours, which was forty. The motion
was granted as to this request.
2
The commissioner found that the two weeks of paid vacation time pro-
vided to the plaintiff by his employer either had to be used as paid vacation
or the time would be forfeited.
3
The defendants argued before the commissioner, in the alternative, that
the two weeks of paid vacation should not be included in calculating total
wages and that amount should be divided by fifty in order to determine the
average weekly wage. The commissioner did not agree with this alterna-
tive position.
4
The defendants have not argued that the board’s construction of § 31-
310 (a) has been tested by time.
5
The compensation for the third week of paid vacation during which the
plaintiff also worked was included by the board in total wages, and the
week was not subtracted from the divisor. The plaintiff does not contest
the board’s conclusion regarding the third week. Additionally, the parties
do not contest the board’s inclusion of vacation pay in the calculation of
total compensation, and, thus, we do not review this issue. See Luce v.
United Technologies Corp., 247 Conn. 126, 141–42, 717 A.2d 747 (1998)
(leaving issue of whether vacation pay is included in ‘‘wages’’ under § 31-
310 undecided where issue not properly before court).
6
The plaintiff makes several additional arguments that relate to the reason-
ing used by the board in reaching its decision. We have considered these
arguments, subsets of the primary argument, but do not discuss them indi-
vidually.
7
The plaintiff seems to suggest that when an employer provides for paid
vacation time, the employer is really compensating only for nonvacation
weeks, and functionally is simply spreading out the paychecks evenly over
the full year.
8
An obvious purpose of subtracting from the divisor weeks during which
an employee has not worked is to address equitably situations in which an
employee does not get paid when he or she does not work.
9
The construction advanced by the plaintiff introduces, as well, several
conundrums. For example, if an employee is away from work for a week
and receiving vacation pay, but nonetheless is engaged electronically, does
the week count in the divisor of the calculation of average weekly wage?
10
In the context of unpaid leave or absence from work, or periods of no
employment at all, neither the pay nor the weeks are used in the statu-
tory formula.
11
We make no determination on whether vacation pay constitutes wages
for purposes of § 31-310. See footnote 5 of this opinion.