BAKELAAR v. WEST HAVEN, 193 Conn. 59 (1984)

475 A.2d 283

(11519)Supreme Court of Connecticut

PETERS, PARSKEY, GRILLO, SPONZO and MENT, Js.

The plaintiff, who while a member of the police department of the defendant city of West Haven became totally disabled after suffering an acute myocardial infarction, sought relief under the statute (7-433c) which provides benefits for, inter alios, policemen disabled as a result of heart disease. From the decision of the compensation commissioner deter mining, inter alia, that the plaintiff was entitled to 7-433c benefits, the city, which was insured for workers’ compensation claims but not for 7-433c claims, appealed to the compensation review division claiming that there was evidence that the plaintiff’s disability had arisen out of and in the course of his employment. The review division affirmed the commissioner’s finding and award but remanded the matter for further findings on whether the city might also be liable under chapter 568 of the General Statutes, the Workers’ Compensation Act. There after, the defendant U Co., which had been one of the city’s workers’ compensation insurers prior to the date of the plaintiff’s disability and which had been named as a party in the decisions of both the compensation commissioner and the review division, appealed to the Appellate Session of the Superior Court. That court set aside the order of the review division and remanded the matter with direction that judgment be entered in accordance with the finding and award of the compensation commissioner. The city, on the granting of certification, appealed to this court. Held: 1. Because U Co.’s interests were specifically and injuriously affected by the review division’s decision to remand the case for a determination of possible liability under chapter 568, U Co. was an aggrieved party and its appeal was properly before the Appellate Session.

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2. The city’s claim that the workers’ compensation statutes provide the exclusive remedy for injuries which would be compensable either under chapter 568 or under 7-433c was unavailing.

Argued January 13, 1984

Decision released April 24, 1984

Appeal by the named defendant from an order of the workers’ compensation review division, brought to the Appellate Session of the Superior Court and tried to the court, Covello, Corrigan and O’Donnell, Js.; judgment directing an entry of judgment in accordance with the finding and award of the compensation commissioner, from which the named defendant, on the granting of certification, appealed to this court. No error.

The appellant filed a motion for reargument which was denied.

Keith B. Gallant, with whom were Edward Gallant and Peter Culver, and, on the brief, Vincent R. Falcone and Jacqui F. Lazo, for the appellant (named defendant).

Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellee (defendant United States Fidelity and Guaranty Company).

William F. Gallagher, with whom, on the brief, were Robert F. Moran and Elizabeth A. Dorsey, for the appellee (defendant Liberty Mutual Insurance Company).

W. Paul Flynn, for the appellee (plaintiff).

SPONZO, J.

In this appeal from a judgment of the Appellate Session of the Superior Court, the defendant city of West Haven raises two principal claims of error, namely, that the court (1) lacked jurisdiction to entertain the appeal of the defendant United States Fidelity and Guaranty Company (hereinafter USFG) and (2) erroneously concluded that the plaintiff, James Bakelaar, (hereinafter the claimant) was entitled to an election of remedies.

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The undisputed facts may be summarized as follows: The claimant was a regular, paid, uniformed member of the West Haven police department since July 15, 1966. Upon entry into the service of the defendant city, the claimant underwent a physical examination which failed to reveal any evidence of hypertension or heart disease. On August 16, 1976, while actively pursuing an alleged criminal, the plaintiff suffered chest pain which was diagnosed as angina pectoris. The next day, while carrying out routine duties at work, he collapsed and was hospitalized with a diagnosis of angina pectoris and arteriosclerotic heart disease. On October 8, 1976, while resting at home, he sustained an acute myocardial infarction and has since been totally disabled.

On March 15, 1977, the claimant by his attorney filed a notice of claim[1] for compensation. Prior to the commencement of the hearing, the claimant’s counsel stated, “Mr. Bakelaar is here making a claim under 7-433c of the Connecticut General Statutes. . . . Our position . . . is we’re pursuing the benefits of 7-433c.”

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General Statutes 7-433c[2] provides benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease.

At the time of the claimant’s disability the defendant Liberty Mutual Insurance Company (hereinafter Liberty) was the city’s workers’ compensation insurance carrier. Prior to the date of disability, USFG and the defendant Commercial Union Insurance Company, (hereinafter Commercial Union) had been workers compensation insurance carriers for the city. At the time of the hearing before the compensation commissioner, USFG and Commercial Union appeared under protest as a result of Liberty’s request to the commissioner (and her apparent compliance therewith) that these insurers be “cited in” by her. Thereafter, all three

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insurers were represented at the hearing and named as parties in both the commissioner’s and the review division’s decisions.

The compensation commissioner heard the evidence and concluded that the city was liable and that the claimant was entitled to the benefits provided by General Statutes 7-433c as a result of suffering a myocardial infarction. The city appealed this finding and award to the compensation review division,[3] claiming that there was adequate evidence that the claimant’s disability arose out of and in the course of his employment and that he was entitled to benefits under chapter 568 of the General Statutes, the Workers’ Compensation Act.

The review division affirmed the commissioner’s finding and award, including the claimant’s entitlement to benefits under 7-433c, but remanded the matter for further findings on whether the city might also be liable

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under chapter 568. The review division stated “if a claimant brings a 7-433c claim, he does not waive Title 31 rights. Once the proceeding is initiated by a claim either under 7-433c or Chapter 568, any of the parties may raise any issues encompassed by either or both the Title 7 and Title 31 legislation and the Commissioner should decide all issues presented.”

The defendant USFG appealed the order of the review division to the Appellate Session of the Superior Court, which set aside the order and remanded the case with direction to enter judgment in accordance with the finding and award of the compensation commissioner.

I
The first assignment of error we shall consider is the city’s claim that the Appellate Session of the Superior Court lacked jurisdiction to entertain the appeal because USFG was not an aggrieved party under General Statutes 31-301b.[4] This section is applicable to appeals from decisions involving awards under 7-433c
as well as those arising under the Workers’ Compensation Act. In Grover v. Manchester, 165 Conn. 615, 617-18, 353 A.2d 719 (1973), we determined that “[n]othing, however, in its legislative history or in its statement of purpose . . . persuades us that 7-433c
was intended by the legislature to require each municipality in Connecticut to create separate administrative machinery duplicating that already available under the Workmen’s Compensation Act for resolving claims by firemen and policemen and further to burden by additional litigation of such claims the courts as well as the municipalities.”

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Before we consider this claim on its merits, we shall discuss USFG’s contention that this appeal should be dismissed because the issue was not distinctly raised at trial. Practice Book 3063.[5] A question whether the court has jurisdiction must first be determined even though the issue was not raised below. Guida v. Public Utilities Commission, 166 Conn. 328, 330-31, 348 A.2d 613 (1974). “It is well settled that the question of aggrievement is a jurisdictional one and that claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiffs who have alleged it.” Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 622, 419 A.2d 346
(1979); Nader v. Altermatt, 166 Conn. 43, 59, 347 A.2d 89 (1974). Pleading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of the appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, `the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party . . . must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.'” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978); Nader v. Altermatt, supra, 51.

The record clearly reflects that the defendant Liberty requested, and the commissioner apparently

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agreed, that the compensation commissioner cite as parties USFG and Commercial Union. Both defendants USFG and Commercial Union appeared at the hearing under protest and participated in the hearing. At no time did the defendant city object to the participation of the prior insurance carriers, USFG and Commercial Union. In her finding and award the compensation commissioner named all the insurance carriers as did the compensation review division in its decision which ordered this matter “remanded . . . for further Findings of Fact concerning any liability which might adhere to the Respondent, City of West Haven, and its respondent insurers under chapter 568 . . .”

“Mere status, however, as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review.” Hartford Distributors, Inc. v. Liquor Control Commission, supra, 620; Beckish v. Manafort, supra, 419. The review division’s decision to remand the case for determination of USFG’s liability under chapter 568 with respect to the plaintiff’s claim, however, constitutes a specific and injurious effect upon USFG’s interests. “Aggrievement is established if `there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.'” Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980); O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660
(1953). USFG was aggrieved by the decision and accordingly its appeal pursuant to 31-301b was properly before the Appellate Session.

II
The determinative issue raised by the city’s appeal is whether a claimant, qualified for compensation, may

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elect recovery under either 7-433c or chapter 568, the workers’ compensation statutes, when the injury arose out of or in the course of employment.

The purpose of chapter 568 of the General Statutes is to provide compensation for any injury “arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.” Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). In order to recover under the Workers’ Compensation Act, “[t]he employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment.” McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979).

Section 7-433c, while similar to the workers’ compensation statutes, is a separate and distinct legislation. This statute “`simply [provides] special compensation, or even an outright bonus, to qualifying policemen and firemen,’ [and] serves a proper public purpose . . . .” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 668, 425 A.2d 131 (1979). The city contends that the workers’ compensation statutes are the exclusive remedy for injuries arising out of and in the course of employment, even if the injuries claimed are compensable under 7-433c. We do not agree.

General Statutes 7-433c, as amended, was enacted in 1971 in response to Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971), where this court held that the conclusive presumption prescribed by General Statutes 7-433a was in contravention of the due process clauses of both the state and federal constitutions.[6]
Thereafter, the validity of 7-433c was sustained in

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Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S.Ct. 14, 46 L.Ed.2d 26 (1975).

The procedure for determining recovery under 7-433c is the same as that outlined in chapter 568, presumably because “the legislature saw fit to limit the `procedural avenue’ for bringing claims under 7-433c
to that already existing under chapter 568 rather than require the duplication of the administrative machinery available . . . and further burden the courts and the municipalities . . . .” Plainville v. Travelers Indemnity Co., supra, 671-72. The city contends that because 7-433c is administered through chapter 568 procedures, it is also bound by the exclusive remedy provisions contained within the workers’ compensation statutes. Specifically, the city argues that a 7-433c
claim is not delineated as an exception to the exclusiveness of the act, nor is the plaintiff within the category of persons who may elect not to be covered by the act.[7]
Therefore, if the plaintiff’s claim falls within chapter 568 he may not elect recovery under 7-433c.

To adopt this reasoning would contravene the legislative mandate of 7-433c, which “specifically requires the payment of compensation to firemen and policemen who have successfully passed a physical examination which failed to reveal any evidence of hypertension or heart disease and who subsequently die or are disabled as a result of such conditions.” Plainville v. Travelers Indemnity Co., supra, 670. Furthermore, 7-433c, unlike the workers’ compensation statutes, confers benefits to qualifying claimants for impairments

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sustained “either off duty or on duty,” without proof that the condition arose out of and in the course of employment. Recovery under 7-433c is not premised upon the plaintiff showing that the “disease resulted from the employee’s occupation or that it occurred in the line and scope of his employment.” Plainville v. Travelers Indemnity Co., supra, 670.

The imposition of a burden to show whether injuries occurred “on duty” is not warranted by the relief afforded to claimants under 7-433c. In fact, the statute specifically states that “[n]otwithstanding any provision of chapter 568” a qualifying claimant shall receive compensation. “The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); Kulis v. Moll, 172 Conn. 104, 110, 374 A.2d 133 (1976); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167
(1975); United Aircraft Corporation v. Fusari, 163 Conn. 401, 410-11, 311 A.2d 65 (1972). Where there is no ambiguity in the legislative commandment, this court cannot, in the interest of public policy, engraft amendments onto the statutory language.” Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008
(1981).

A final claim presented by the defendant city involves an alleged denial of its right to equal protection of the law as well as to due process. The city carries insurance coverage for claims under the Workers’ Compensation Act but has no coverage on 7-433c claims. It contends that if 7-433c is interpreted to include those policemen and firemen whose disability arose out of and in the course of their employment as well as those disabled not in the course of their employment, this is an overbroad classification and deprives the city of a vested property right, thereby denying it equal protection

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and due process of the law. This claim is without merit. Grover v. Manchester, supra, has upheld the constitutionality of 7-433c despite the claim that it unconstitutionally constituted “class preference” legislation. In Plainville v. Travelers Indemnity Co., supra, 673, the court made it clear that 7-433c covers all policemen and firemen whether they qualified under the workers’ compensation laws or not. There we held that 7-433c “does not compel a conclusion that the statute implicitly includes an affirmative legislative finding of work-relatedness in all cases.”

The question of coverage and payment of compensation for claims under 7-433c was debated in the House of Representatives wherein the sponsor of the bill stated that a particular municipality “could either choose to insure against this particular risk or pay for it out of the general revenues of the municipality if they chose to be a self-insurer for the purposes of this legislation.” See Plainville v. Travelers Indemnity Co., supra, 674 n. 3. That the defendant city in this case chose to be a self-insurer for the purposes of 7-433c
therefore gives that defendant no special right to insist that the plaintiff’s claim be governed by workers’ compensation.

There is no error.

In this opinion the other judges concurred.