CASE NO. 101-CRD-6-81Workers’ Compensation Commission
NOVEMBER 19, 1982
The Claimant-Appellant was represented by Henry Zembko, Jr., Esq.
The Respondent-Appellee was represented by Joseph Skelly, Esq., Assistant Corporation Counsel.
This Petition for Review from the October 26, 1981 Decision of the Commissioner for the Sixth District, was argued September 17, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Edward Bradley.
John Arcudi, Chairman John Arcudi, Chairman
A. Paul Berte, Commissioner A. Paul Berte, Commissioner
Edward Bradley, Commissioner Edward Bradley, Commissioner
FINDING AND AWARD
The October 26, 1981 Finding and Award of the Sixth District Commissioner as corrected by him in his Order of November 9, 1981 is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
On October 10, 1980 Claimant Harold Revoir, who had been a regular paid uniformed member of the New Britain Fire Department since 1957, suffered a disabling myocardial infarction. He thereby qualified for benefits under Section 7-433c, C.G.S. as the physical examination he underwent on entering such service failed to show any evidence of hypertension or heart disease. The Board of Trustees of the New Britain Firemen’s Pension Fund retired the Claimant effective January 19, 1981 on a disability pension due to his disabling heart disease.
The Claimant’s heart attack had permanently disabled him from work as a firefighter. However, that disease had not totally disabled him from all work. The Sixth District Commissioner so found in Paragraph 6 of his Finding. Claimant-Appellant does not find fault with this finding, but argues instead that the Commissioner failed to draw the proper legal conclusion from it.
Appellant argues that disability from work as a firefighter under Section 7-433c[1] is sufficient to qualify claimant for total disability benefits. This argument would severely restrict the meaning of language in Section 7-433c providing that claimant “shall receive . . . compensation and medical care in the same amount and the same manner as that provided under chapter 568 . . .” Appellant contends that the “same amount” simply means the “sixty-six and two thirds per cent of his average weekly earnings” formula of Section 31-307, and the “same manner” refers to the weekly time of payments contained in the same statute.
Ducharme vs. Putnam, 161 Conn. 135 (1971) and Grover vs. Manchester, 168 Conn. 84 (1975) are cited by claimant in support of his argument. Ducharme declared unconstitutional the conclusive presumption of compensability in Section 7-433a[2] . The then Justice House in the Ducharme opinion pointed out that the legislature constitutionally could have provided a bonus for policemen and firemen but that it could not without constitutional defect create a conclusive irrebuttable presumption of chapter 568 compensability. Ducharme was decided April 20, 1971 while the General Assembly was in session.
The legislature thus instructed by Ducharme enacted Section 7-433c within two weeks causing it to be effective June 28, 1971. Section 7-433c was a rewrite of Section 7-433a and contained much the same language except that it was preceded by a preamble setting forth the purpose to reward municipal policemen and firemen and to induce individuals to take those positions. It then repeats the “Notwithstanding any provision of chapter 568” introductory clause and most of the rest of the 7-433a sentence but substitutes “shall receive from his municipal employer compensation and medical care in the same amount and same manner as that provided under chapter 568” for the “shall be conclusively presumed to be a personal injury.” MacDonald, J. writing for a unanimous court in Grover agreed that the legislature had indeed created a constitutional method to give a bonus to policemen and firemen by substitution of the new “same amount and same manner” language of 7-433c for the “conclusively presumed” wording of Section 7-433a.
What was the bonus thus granted by the 1971 legislature? The legislative history makes clear that the bonus consisted of substituting a constitutionally permissible method to pay benefits equal to those of chapter 568 for the constitutionally defective method previously enacted. It was not to give every municipal policeman and fireman disabled by heart or hypertension from performing those duties chapter 568 total disability benefits.
To read the “same amount and the same manner” language of Section 7-433c as narrowly as appellant would have us do would be inconsistent with the total holding in Grover. In this regard it must be noted that Grover also considered Section 31-301 and 31-324 of chapter 568 in its jurisdictional ruling on 7-433c
matters. If the “same amount and the same manner” only refers to the fractional computation process and the periodicity of payments, how could the Supreme Court consider the 31-301 and 31-324 language concerning “any case arising under the provisions of this chapter” to be relevant in determining the jurisdictional route needed to be taken for Section 7-433c appeals? Here also we must note the first Grover vs. Manchester, 165 Conn. 615 (1973). In that case the plaintiff argued that 7-433c was so different from its predecessor 7-433a that it was not to be administered by the then Workmens Compensation Commission. The Court, supra, at page 618 italicized “in the same amount and same manner as that provided under chapter 568” and concluded that 7-433c had not created a new civil action justiciable in the Superior Court but rather had simply expanded the scope of the chapter 568 proceeding which had existed even before the unconstitutional 1969 amendment to 7-433a litigated in Ducharme, supra.
Both Grover holdings broadly interpret the “same amount and same manner” language of 7-433c as a legally permissible substitution for the conclusive presumption modality of 7-433a but otherwise treat the substantive remedy created by 7-433c as practically identical with that attempted in 7-433a. Pyne vs. New Haven, 177 Conn. 456 (1979) and Plainville vs. Travelers, 178 Conn. 664 (1979) did not in any way diminish the validity of these Grover holdings. As a matter of fact, Chief Justice Cotter wrote:
“The procedure for obtaining compensation and the measure of that compensation under General Statutes Section 7-433c is the same as that outlined in chapter 568.”
Plainville vs. Travelers Indemnity Co., supra, 671
Given the legislative history of 7-433a and 7-433c and the cases we have cited relating to those two enactments, it is not possible to accept the limited reading of the legislative language advocated by Appellant. Therefore, the appeal is dismissed and the decision of the Commissioner is affirmed.
In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or 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, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467.