Workers’ Comp Average Wage Includes Paid Vacation

In this Connecticut Appeal, the Appellate Court concluded that an employee’s vacation time should be included in determining his average weekly wage for workers’ compensation purposes.  The decision in Menard v. Willimantic Waste Paper Company, to be officially released on March 1, 2016, involved the interpretation of CGS § 31-310.

More specifically, the statute provides that an employee’s average weekly wage is his total weekly wages for the 52 calendar weeks preceding his injury, divided by the number of weeks the employee was actually employed by the employer during those 52 calendar weeks. “[A]bsence[s] for seven consecutive calendar days” are excluded when determining the number of weeks the employee was employed.

Plaintiff took two weeks of paid vacation in the 52 calendar weeks preceding his injury. He claimed that, because he was not present at work during those two weeks, his average weekly wage was his total weekly wages for the preceding 52 weeks divided by 50 weeks, not 52 weeks. The Workers’ Compensation Commissioner rejected that argument and the Workers’ Compensation Review Board affirmed. Plaintiff appealed to the Appellate Court, which affirmed the Board.

Plaintiff’s Main Argument on Appeal

Plaintiff “argue[d] 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.”

Appellate Court Concludes Workers’ Comp Average Wage Includes Paid Vacation

The Appellate Court noted that § 31-310 was ambiguous because plaintiff’s and defendants’ interpretations were both superficially plausible.”The legislative history of § 31-310 [was] not helpful.” The court ultimately affirmed the Board on the following rationale:

[Plaintiff’s] interpretation leads to bizarre results: for instance, not performing work related tasks for one’s employer during paid vacation increases the average weekly wage, while performing activities benefiting the employer during that time decreases the compensation rate. 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 dividend, but the same two weeks would be subtracted from the divisor, thereby artificially inflating the average. 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.