CASE NO. 140 CRD-2-82Workers’ Compensation Commission
DECEMBER 5, 1986
The claimant was represented by Charles L. Flynn, Esq., Flynn Flynn, P.C.
Respondent-Employer was represented by Gary S. Starr, Esq., Siegel, O’Connor Kainen, P.C.
Respondent Insurer was represented by James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the March 17, 1982 Finding and Award of the Commissioner for the Second District was heard February 25, 1983 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Frank Verrilli.
FINDING AND AWARD
1-11. Paragraphs 1 through 11 of the Commissioner’s Finding and Award are made paragraphs 1 through 11 of this Division’s Finding and Award.
12. On September 10, 1947, the claimant was examined by Dr. Joseph Wool for the respondents and was found to have mild hypertension based on a reading of 150/108. (Respondent’s Exhibit 10)
13-15. Paragraphs 13 through 15 of the Commissioner’s Finding and Award are made paragraphs 13 through 15 of this Division’s Finding and Award.
IT IS ADJUDGED, DECREED, ORDERED AND AWARDED ACCORDINGLY.
OPINION
JOHN ARCUDI, Chairman.
We have here another in the long series of Section 7-433(c) cases which have faced the Commission since the passage of that law, June 28, 1971. This particular matter involves the interpretation of the language “. . . a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease. . .” Claimant was appointed a supernumerary policeman by the City of New London November 6, 1940. Before, on September 29, 1939, he underwent a physical examination which did not reveal any evidence of heart disease or hypertension. As such a supernumerary, claimant worked irregularly and intermittently until May 1, 1945 when he was appointed a full-time “Temporary C” patrolman. This was a permanent employment status subject only to the condition subsequent that a returning World War II serviceman could reclaim his previously held partrolman’s [patrolman’s] position under the pertinent federal legislation.
On October 6, 1947 claimant became a “Patrolman B” with no condition subsequent as apparently by that time all returning servicemen who wanted to had had sufficient opportunity to reclaim their former employment, and there were none who displaced claimant. But before that date claimant underwent a physical examination September 10, 1947 as a result of which he was found to have mild hypertension based on a reading of 150/108.[1]
The respondent city argues in this appeal that claimant therefore did not become a “regular member of a paid municipal department” until October 6, 1947 and that he did not successfully pass his pre-employment physical September 10, 1947 with no evidence of heart disease or hypertension. Should the respondent’s view prevail, the claimant would not qualify for heart and hypertension benefits as a successful Pre-employment physical is a necessary sine qua non for such benefits. However, the trial Commissioner ruled that the employee had become a regular member of a paid municipal police department May 1, 1945 when he achieved full-time “Temporary C” status and that the 1939 physical was the pre-employment medical examination which had been successfully passed.
We agree with the Commissioner below. There was no functional change in claimant’s employment status between May 1, 1945 and October 6, 1947. The only change was that on the latter date he was no longer subject to be replaced. Since he did become such a regular member of a paid department May 1, 1945 and since he had successfully passed a physical before that, the claimant is entitled to Section 7-433(c) benefits for the heart condition he suffered in 1976.
The decision below granting benefits is affirmed, and the appeal is dismissed.
Commissioners Gerald Kolinsky and Frank Verrilli concur.