MARY ROSE ADAMS, CLAIMANT-APPELLANT vs. CITY OF NEW HAVEN, RESPONDENT-APPELLANT

CASE NO. 49-CRD-3-81Workers’ Compensation Commission
MARCH 19, 1982

The Claimant-Appellant was represented by Paul B. Whitman, Esq.

The Respondent-Appellee was represented by Horace F. Trotta, Esq., of Trotta, Trotta Trotta.

This Petition for Review from January 19, 1981 decision of the Chairman of the Workers’ Compensation Commission acting for the Commission for the Third District was argued May 22, 1981 before a Compensation Review Division Panel consisting of Commissioners A. Paul Berte’, Edward F. Bradley, and Andrew P. Denuzze.

A. PAUL BERTE’, COMMISSIONER, EDWARD F. BRADLEY, COMMISSIONER, ANDREW P. DENUZZE, COMMISSIONER

CORRECTED FINDING AND AWARD

The Finding and Dismissal of Claim of the Commissioner is affirmed, and adopted as the Finding and Award of the Compensation Review Division.

CORRECTED OPINION

This matter came before the Commissioner below on disqualification by the Commissioner for the Third District. The case was heard December 10, 1980, and the issue noticed for the hearing was “7-433c”. The Commissioner entered his Finding and Dismissal of Claim dismissing the claims which he found to be for 7-433c benefits and benefits under Section 258a of the New Haven City Charter.

The Claimant has appealed the Commissioner’s decision, stating four (4). grounds of appeal which essentially are as follows:

(1) Failure to reopen the Finding and Award by stipulation between Raymond J. Adams (hereinafter the deceased) and Mary Rose Adams (hereinafter the Claimant) and the City of New Haven, approved by the Commissioner for the Third District August 13, 1970, for benefits claimed under the provisions of Chapter 568 of the Connecticut General Statutes, the Workers’ Compensation Act;
(2) Failure to take jurisdiction over Claimant’s claim for benefits under Section 258a of the New Haven City Charter;
(3) Failure to rule that Section 7-433c of the Connecticut General Statutes was applicable to the Claimant widow’s claim;
(4) Failure to find that the Claimant remains a widow, and has not remarried since the date of the deceased’s death, although that fact was stipulated by the parties at the Formal Hearing December 10, 1980.

The hearing before the Commissioner was brief, and we have reviewed the entire transcript which consists of one page. At the hearing, two (2) exhibits were entered into the record: Exhibit A — FINDING AND AWARD BY STIPULATION dated August 5, 1970, and approved August 13, 1970; and Exhibit B — The Death Certificate of the deceased, certifying date of death February 21, 1979, and cause of death, pulmonary edema due to congestive heart failure. The parties also agreed to two stipulations of fact at that hearing — 1. That the Claimant remains a widow, and has not remarried since the date of the deceased’s death; and 2. That the deceased, on his entry into the police force of the city of New Haven in the early 1950’s, passed a pre-employment physical which did not show any evidence of hypertension or heart disease. No evidence was offered other than the two exhibits, and the two stipulations of fact, and the parties agreed to submit briefs to support their claims and contentions.

The Appellant has requested that we consider as part of our review the exhibits in the record before the Commissioner below, and we have done so.

The relevant facts surrounding this claim are not in dispute and, in summary, in addition to those above, include that the deceased was a regular member of the paid Municipal Police Department of the City of New Haven continually from his employment in the early 1950’s, to August 3, 1969, when while in the course of his employment he, claimed he felt a sharp pain in his chest, and on August 25, 1969, he suffered a heart attack while on vacation in New Hampshire. After his heart attack, his condition was diagnosed as hypertensive arteriosclerotic heart disease with coronary insufficiency, and he was no longer able to perform his duties as a police officer. It is an undisputed fact recited by the parties in their briefs that the deceased was retired by the City of New Haven on September 8, 1970.

Concerning Appellant’s contention that the Commissioner erred in failing to reopen the Finding and Award by Stipulation approved August 13, 1970, the only issue noticed for the Formal Hearing December 10, 1980 was “7-433c”, and the Commissioner limited his decision to the 7-433c issue. Our Supreme Court has held that it is unconstitutional for a Commissioner to act on an aspect of a claim, unless the parties have legally sufficient notice. Osterlund v. State, 129 Conn. 591 (1943). The circumstances that the Commissioner accepted into the record the Finding and Award by Stipulation approved August 13, 1970, and stated in his memorandum of law that the Claimant is “attempting to reopen the Stipulated Award of August 5, 1970.” did not place that issue before the Commissioner for decision.

The Appellant’s second ground of appeal is the Commissioner’s failure to take jurisdiction over Claimant’s claim for benefits under Section 258a of, the New Haven City Charter. All proceedings under the Workers’ Compensation Act are governed exclusively by statute, Chzrislonk v. New York, N.H. H.R. Co., 101 Conn. 356 (1924). And jurisdiction cannot be conferred on the Workers’ Compensation Commissioner by agreement. Walsh v. Waldron Sons, 112 Conn. 579 (1931). The Commission and the Compensation Review Division are creatures of the Legislature with limited administrative law powers, not a court with judicial powers to interpret charter provisions. The Commissioner had no statutory authority to consider the Claimant’s claim for benefits under the New Haven City Charter, and he quite properly dismissed that claim for lack of jurisdiction.

The Appellant’s third ground of appeal is that the Commissioner failed to rule that Section 7-433c, which became effective June 28, 1971, applied. Section 7-433c creates substantive rights and it is well settled that Connecticut has a strong policy of giving retrospective application to statutes only when the mandate of the Legislature to do so is imperative. Michaud v. Fitzryk, 148 Conn. 447 (1961). The Appellant in her brief contended that the relevant compensable event for purposes of Section 7-433c should be the deceased’s death from heart disease in 1979. The deceased retired from employment September 8, 1970 so that when he died on February 21, 1979 of pulmonary edema and congestive heart failure, he no longer met the Section 7-433c statutory requirement — that the Claimant be a regular member of a paid municipal police department. Since the deceased retired September 8, 1970, which was prior to the effective date of 7-433c, to accept the Appellant’s argument would require giving Section 7-433c retrospective effect. The Commissioner found no grounds to apply Section 7-433c retrospectively. We affirm that decision.

The Appellant’s fourth ground of appeal assigns as error the Commissioner’s failure to include in his finding the parties’ stipulation that the Claimant remains a widow, and has not remarried since the date of the deceased’s death. It is clear from the Commissioner’s finding that he accepted that stipulation, and recognized the Claimant’s status as a Claimant dependent widow. Were it found in this appeal that Section 7-433c
was applicable to this claim, the Appellant’s contention that the Commissioner committed error in failure to include the stipulated fact that the Claimant had not remarried would have some merit. Since Section 7-433c is not applicable, however, the Commissioner’s failure to find the stipulated fact is immaterial, and any error is harmless.

None of the Appellant’s grounds of appeal are sustained. The award of the Commissioner is affirmed, and the appeal is dismissed.