5432 CRB-7-09-2 (2010). Partlow v. Petroleum Heat and Power Company, Inc.

CourtConnecticut
Connecticut Workers Compensation 2010. 5432 CRB-7-09-2 (2010). Partlow v. Petroleum Heat and Power Company, Inc CASE NO. 5432 CRB-7-09-2COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONFEBRUARY 9, 2010FRANK PARTLOW CLAIMANT-APPELLANT v. PETROLEUM HEAT and POWER COMPANY, INC. EMPLOYER and CRUM and FORSTER INSURER RESPONDENTS-APPELLEES APPEARANCES: The claimant was represented by Jessica L. Braus, Esq., Glass and Braus, 2452 Black Rock Turnpike, Suite 7, Fairfield, CT 06825-2407. The respondents were represented by Karen Acquarulo, Esq., and Dominick C. Statile, Esq., Montstream and May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087. This Petition for Review from the February 17, 2009 Finding of the Commissioner acting for the Seventh District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. This appeal is based specifically on the legal interpretation of when the claimant's average weekly wage should be calculated under Chapter 568. The claimant in this case was injured many years prior to seeking benefits for temporary total disability. The trial commissioner determined that the "date of injury" is the appropriate date to calculate a wage rate, which is consistent with the plain language of § 31-310(a) C.G.S. and § 31-307 C.G.S. The claimant has appealed this decision, and argues that precedent such as Mulligan v. F.S. Electric, 231 Conn. 529 (1994) and Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995) establish a "date of incapacity" standard for the determination of a wage rate when there is a gap between date of injury and date of incapacity. Upon review of the law, we believe appellate precedent is controlling over the circumstances herein. We accept the claimant's interpretation of law and sustain his appeal. The following facts were stipulated to by the parties and are pertinent to our consideration of this appeal. The claimant suffered an injury to his right master shoulder on November 8, 2000; he did not miss any time from work due to this injury until he underwent shoulder surgery on March 7, 2008. Following that surgery he returned to work May 5, 2008. The claimant missed eight weeks of work as a result of the surgery and was previously paid $3,500 by the respondent; which amounts to seven weeks of benefits at an estimated compensation rate of $500/week. The claimant maintained that his wages as of his date of disability should be used to calculate an average weekly wage and a base compensation rate. The respondents maintain that these rates must be calculated as of the date of injury. Based on these stipulated facts, the trial commissioner decided...

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