Sec. 31-310. Determination of average weekly wage of injured worker. Concurrent employment. Payments from Second Injury Fund. Publication of wage tables. - Connecticut Statutes

      Sec. 31-310. Determination of average weekly wage of injured worker. Concurrent employment. Payments from Second Injury Fund. Publication of wage tables. (a) For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service the employee is injured during the fifty-two calendar weeks immediately preceding the week during which the employee was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer, but, in making the computation, absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than at the beginning of a calendar week, that calendar week and wages earned during that week shall be excluded in making the computation. When the period of employment immediately preceding the injury is computed to be less than a net period of two calendar weeks, the employee's weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the date of the injury except that, when the employer has agreed to pay a certain hourly wage to the employee, the hourly wage so agreed upon shall be the hourly wage for the injured employee and the employee's average weekly wage shall be computed by multiplying the hourly wage by the regular number of hours that is permitted each week in accordance with the agreement. For the purpose of determining the amount of compensation to be paid in the case of a minor under the age of eighteen who has sustained an injury entitling the employee to compensation for total or partial incapacity for a period of fifty-two or more weeks, or to specific indemnity for any injury under the provisions of section 31-308, the commissioner may add fifty per cent to the employee's average weekly wage, except in the case of a minor under the age of sixteen, the commissioner may add one hundred per cent to the minor's average weekly wage. When the injured employee is a trainee or apprentice receiving a subsistence allowance from the United States because of war service, the allowance shall be added to the injured employee's actual earnings in determining the average weekly wage. Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ the injured employee was injured, as determined under the provisions of this section, are insufficient to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, the injured employee's average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs and a portion of the compensation rate equal to seventy-five per cent of the average weekly wage paid by the employer to the injured employee, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contribution Act made from such employee's total wages received from such employer during the period of calculation of such average weekly wage, but not less than an amount equal to the minimum compensation rate prevailing as of the date of the injury. The remaining portion of the applicable compensation rate shall be paid from the Second Injury Fund upon submission to the Treasurer by the employer or the employer's insurer of such vouchers and information as the Treasurer may require. For purposes of this subsection, the Second Injury Fund shall not be deemed an employer or an insurer for any claim brought on behalf of an insolvent insurer and shall be exempt from liability, unless such claim is brought not later than thirty days after a determination of such insurer's bankruptcy. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years from the date on which the employer or its insurer paid such benefits in accordance with this subsection. In cases which involve concurrent employment and in which there is a claim against a third party, the injured employee or the employer in whose employ the injury was sustained or the employer's insurer shall advise the custodian of the Second Injury Fund if there is a third party claim, and the employee, employer or employer's insurer shall pursue its subrogation rights as provided for in section 31-293 and shall include in its claim all compensation paid by the Second Injury Fund and shall reimburse the Second Injury Fund for all payments made for compensation in the event of a recovery against the third party.

      (b) Each August fifteenth, the chairman of the Workers' Compensation Commission, in consultation with the advisory board, shall publish tables of the average weekly wage and seventy-five per cent of the average weekly wage after being reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act, to be effective the following October first, except that not later than June thirtieth, the chairman, in consultation with the advisory board, shall publish tables of the average weekly wage and seventy-five per cent of the average weekly wage after being reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act, to be effective during the period July 1, 1993, to October 1, 1993. Such tables shall be conclusive for the purpose of determining seventy-five per cent of the average weekly earnings of an injured employee after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's average weekly wage for purposes of sections 31-306, 31-307 and 31-308.

      (1949 Rev., S. 7432; 1949, S. 3045d; 1958 Rev., S. 31-163; 1961, P.A. 491, S. 33; 1967, P.A. 842, S. 17; 1969, P.A. 696, S. 11; 1971, P.A. 350, S. 1; P.A. 79-376, S. 77; P.A. 91-32, S. 28, 41; 91-339, S. 30, 55; P.A. 93-228, S. 22, 35; P.A. 95-277, S. 2, 19; P.A. 05-199, S. 7.)

      History: 1961 act entirely replaced previous provisions; 1967 act added provisions re calculation of and liability for compensation payments when injured employee worked for more than one employer; 1969 act expanded provisions added in 1967 to specify applicability to cases where wages at time of injury would not enable injured employee to receive maximum benefits, to change basis of calculation in such cases, to require that injured person receive at least minimum prevailing rate from employer and dependency allowance if he is totally incapacitated; 1971 act added provisions re third party claims; P.A. 79-376 substituted "worker" for "workman" and rephrased reference to Sec. 31-308; P.A. 91-32 made technical changes; P.A. 91-339 designated existing section as Subsec. (a), deleted provisions re dependency allowance, added provisions re submission of vouchers and information to the treasurer and added Subsec. (b) re average weekly wage tables; P.A. 93-228 amended Subsec. (a) to change the basis of calculation for an employee's average weekly wage from 26 to 52 weeks and amended Subsec. (b) to require the chairman of the workers' compensation commission to publish tables of 75%, rather than 80%, of the average weekly wage less deductions for state and federal taxes and for the federal Insurance Contributions Act, effective July 1, 1993, except that Subsec. (b) effective June 30, 1993; P.A. 95-277 amended Subsec. (a) to change portion of wages paid by the employer in whose employ the injury incurred from a "pro-rata" share to a portion equal to 75% of the "average weekly wage paid by him to the injured employee" after such earnings has been reduced by the applicable federal and state taxes and the federal Insurance Contribution Act and made technical corrections for clarity by substituting "insurer" for "insurance carrier", effective July 1, 1995; P.A. 05-199 amended Subsec. (a) to make technical changes, to provide that Second Injury Fund not be deemed an employer or insurer and be exempt from liability for claim brought by insolvent insurer unless claim brought not later then 30 days after determination of bankruptcy, and to require claims for payment of retroactive benefits under subsection to be made to Second Injury Fund not more than two years after payment by employer or insurer, effective July 1, 2006.

      Construed. 95 C. 607. Applies if employee worked two weeks in all within the last twenty-six, though not continuously. 98 C. 820. Basis of compensation is average wage 26 weeks before incapacity occurs, though not in employ of employer in whose service disease is contracted. 114 C. 24; 116 C. 193. When allowance for board and room is added to weekly wage. 114 C. 410. Cited. 121 C. 152. Determination of average wage on basis of allowance for truck and hourly rate. 124 C. 433. Average weekly wage. 126 C. 265; 129 C. 591. Prevailing wage in same locality. Id., 234. Working for more than one employer. 133 C. 215. Cited. 135 C. 500. "Prevailing" wage held to be the wage earned by part-time workers engaged for one day a week. 136 C. 107. Construed with section 31-308 when employee holds two jobs. 145 C. 101. Industrial corporation employee who was member of volunteer fire department was not person who worked for more than one employer within meaning of this section. 159 C. 53. Cited. 203 C. 34. Cited. 220 C. 721. Recovery of either salary benefits under Sec. 5-142(a) or workers' compensation benefits including right to receive concurrent employment benefits under this section discussed. Id., 739. Cited. 221 C. 356. Cited. 223 C. 911. Injured volunteer firefighters do not come within concurrent employment provisions of this section. 224 C. 479. Injured employee's workers' compensation benefit rate to be determined in case of traumatic injury by reference to his earnings preceding the date on which he became incapacitated. 231 C. 529. Provides method for calculating average weekly wage of individual who was unemployed when disease manifested itself. 245 C. 66. "Wages" do not include insurance and pension benefits. 247 C. 126.

      Cited. 12 CA 138. Cited. 29 CA 559. Cited. 44 CA 112; Id., 397. Formula to establish average weekly wage is clear and unambiguous, includes employee's part-time employment and does not include earnings from another part-time job during year prior to injury. 47 CA 628.

      Cited. 5 CS 10. When plaintiff on "call" or "daily list", held that each day is an independent contract of employment. Id., 49. Where part time worker is injured, wages criterion is that of men similarly employed. 16 CS 30. Cited. Id., 164. Where apprentice employee was totally incapacitated, amount received as war service subsistence allowance was not to be computed as "amount he is able to earn", thus classifying employee as partially incapacitated under section 31-162. Id., 481.

      Subsec. (b):

      Applies only to those employees whose income is subject to deduction for contribution to FICA. 259 C. 783. Because it would be inefficient and unduly burdensome to require case-by-case calculations of compensation rates, there is a rational basis for treating employees who contribute to FICA different from employees who do not contribute to FICA, and statute thus does not violate equal protection clauses of federal and state constitutions. Id.