163 Conn.App. 362
Conn. App. Ct.2016Background
- Kevin J. Menard (plaintiff) was injured and the Workers’ Compensation Commissioner calculated his average weekly wage under Conn. Gen. Stat. § 31-310(a).
- In the 52-week period before injury plaintiff earned $53,131.91, which included pay for 112 vacation hours (two full weeks of paid vacation during which he did not work and one week with vacation pay where he also worked).
- Plaintiff argued the two paid vacation weeks should be counted in total wages but excluded from the divisor (divide by 50 rather than 52) because they were "absences for seven consecutive calendar days."
- Employer/insurer argued vacation pay should be included in total wages and the divisor should remain 52 weeks.
- Commissioner and the Workers’ Compensation Review Board agreed with the employer, including the paid vacation weeks in the 52-week divisor; plaintiff appealed to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether paid vacation weeks that include seven consecutive days off must be excluded from the § 31-310(a) divisor | Menard: any "absence for seven consecutive days" (including paid vacation) must be subtracted from the divisor, so divide by 50 | Employer: paid vacation weeks are weeks "actually employed" because employee was paid; statute does not require excluding paid vacation weeks | Court: statutory text ambiguous but context and purpose support including paid vacation weeks in the 52-week divisor; affirmed board/commissioner |
Key Cases Cited
- Gill v. Brescome Barton, Inc., 317 Conn. 33 (discusses standard of review and deference to agency interpretations)
- State v. Courchesne, 296 Conn. 622 (statutory interpretation subject to plenary review)
- Chairperson, Conn. Med. Examining Bd. v. Freedom of Info. Comm’n, 310 Conn. 276 (framework for construing statutes)
- Smith v. Yurkovsky, 265 Conn. 816 (purpose of adjusting divisor to temper seasonal/temporary effects)
- Trankovich v. Frenish, Inc., 47 Conn. App. 628 (formula: total wages over number of calendar weeks actually employed)
- Sanzone v. Bd. of Police Comm’rs, 219 Conn. 179 (avoid statutory constructions producing absurd or unworkable results)
- Luce v. United Techs. Corp., 247 Conn. 126 (treatment of vacation pay as a question not reached when not contested)