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