21-10WC. Franjo Baric v. Velan Valve Corp.

• Court: Vermont

Vermont Workers Compensation 2010. 21-10WC. Franjo Baric v. Velan Valve Corp Franjo Baric v. Velan Valve Corp.STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 21-10WCBy: Sal Spinosa, Esq. Hearing OfficerFor: Patricia Moulton Powden CommissionerState File No. Y-58658RULING ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENTATTORNEYS:Joseph O'Hara, Esq., for Claimant William Blake, Esq., for DefendantISSUE PRESENTED: Is Claimant precluded as a matter of law from asserting his right to a higher average weekly wage and compensation rate than the one stated in a previously signed and approved Agreement for Temporary Total Disability Compensation? FINDINGS OF FACT: The following facts are undisputed:

1.On January 23, 2007 Claimant suffered a work-related injury to his right hand and wrist. Defendant accepted the claim and paid workers' compensation benefits accordingly.

2.On February 13, 2007 Defendant's investigator interviewed Claimant as to the facts surrounding his injury. According to the investigator's affidavit, among the questions he asked was whether Claimant was concurrently employed at the time of his injury. Claimant replied that he was not.

3.Thereafter, Defendant prepared an Agreement for Temporary Total Disability Compensation (Form 21) for Claimant's review and signature. Claimant, who was unrepresented at the time, signed the Form 21 on February 22, 2007. The Department approved the form on March 12, 2007.

4.According to the Form 21, Claimant's average weekly wage at the time of his injury was $1,099.13. This yielded a weekly compensation rate (including one dependent) of $742.75. Both of these amounts were calculated solely on the basis of Claimant's wages from Defendant.

5.Late in 2009 Claimant revealed for the first time that on the date of his injury he had been concurrently employed by another employer, Loso Professional Janitorial Services, Inc. (hereinafter "Loso"). Claimant testified in his deposition that he had been confused at the time of his injury as to why his Loso employment would have had any bearing on an injury he suffered while in Defendant's employ; presumably this is why he did not advise Defendant's investigator of it initially.

6.According to Loso's payroll summary, Claimant's average weekly wage for the twelve weeks prior to his January 24, 2007 injury was $420.00. Had this amount been added to his

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