COSTELLO v. TOWN OF FAIRFIELD, 629 CRD-4-87 (6-30-89)

ANTHONY COSTELLO, CLAIMANT-APPELLEE vs. TOWN OF FAIRFIELD, EMPLOYER and SELF-INSURED, INSURER, RESPONDENTS-APPELLANTS

CASE NO. 629 CRD-4-87Workers’ Compensation Commission
JUNE 30, 1989

The claimant was represented by Michael Sucoll Esq.

The respondent was represented by Donal C. Collimore, Esq.

This Petition for Review from the August 7, 1987 Finding and Award of the Commissioner for the Fourth District was heard January 27, 1989 before Compensation Review Division panel consisting the Commission Chairman, John Arcudi, and Commissioners Darius Spain and Andrew Denuzze.

OPINION

JOHN ARCUDI, CHAIRMAN.

The Town of Fairfield’s appeal from the Fourth District August 7, 1989 Finding and Award attacks the holding that claimant was entitled to sec. 7-433c
specific indemnity benefits while receiving full pay as a working active member of the Police Department. Phrased another way, respondent’s appeal seeks a ruling that the trial Commissioner erred in not applying the salary and benefits cap of sec. 7-433b to the instant matter.[1]

Section 7-433c[2] is our state’s Heart and Hypertension Act which permits qualifying police officers to receive benefits under chapter 568 without the ordinary burden of proof for chapter 568 claims.

Sec. 7-433b(b)[3] provides a statutory ceiling or cap on the cumulative amount of retirement and sec. 7-433c payments received by a claimant, Lundgren v. Stratford, 12 Conn. App. 138, 144 (1987). However, as discussed in Lambert v. Bridgeport, 204 Conn. 563 (1987) the purpose of sec. 7-433c is to place qualified police officers “who die or are disabled as a result of hypertension in the same position vis-a-vis compensation benefits as policemen who die or are disabled as a result of service related injuries” Id. quoting Pyne v. New Haven, 177 Conn. 456, 460-61 (1979). Sec. 7-433(b) contains no monetary limit concerning payment for those actually working. The limitation concerning cumulative payments refers to retirement and survivor benefits.

If we were to apply sec. 7-433b(b) in the manner respondent proposes we would clearly thwart the intended purpose of sec. 7-433c. Under respondent’s reading of the act, an injured police officer suffering a heart attack arising in and out of employment and seeking benefits chapter 568 is in a better position than one claiming compensation under the heart and hypertension act. The claimant pursuing relief under chapter 568 could collect both his full salary for active duty and full payment for specific indemnity while the heart and hypertension claimant could not. That clearly contravenes the intent of the act and case law decided under it, Maciejewski v. Town of West Hartford, 194 Conn. 139 (1984), Middletown v. Local 1073, 1 Conn. App. 58 (1983).

We, therefore, affirm the trial Commissioner’s Finding and Award.

Commissioners Darius Spain and Andrew Denuzze concur.

[1] Upon receiving the respondent’s brief and filed Reasons of Appeal we are satisfied that the only issue on appeal is whether the trial Commissioner erred in failing to apply the provisions of sec. 7-433b. The respondent did not raise any issue as to whether the trial Commissioner had jurisdiction to award specific indemnity benefits under sec. 7-433c as a matter of law.

[2] Sec. 7-433c C.G.S. provides that: In the event a . . . member of a . . . paid municipal police department who successfully passed a physical examination on entry into such service, which failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease . . . shall receive from his municipal employer compensation and medical care in the same amount and same manner as that provided under chapter 568 . . . .

[3] Sec. 7-433b(b) provides: Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under sec 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.