CHARLES ZIMMER, Claimant-Appellant vs. TOWN OF ESSEX, Respondent-Appellee

CASE NO. 42-CRD-2-80Workers’ Compensation Commission
NOVEMBER 2, 1981

The claimant-appellant was represented by Dean E. Peckham, Esq.

The respondent-appellee was represented by John McClain, Esq.

This Petition for Review from the November 18, 1980 Decision of the Commissioner for the Second District was argued May 22, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, Edward Bradley and Andrew Denuzze.

John Arcudi, Chairman, Edward F. Bradley, Commissioner, Andrew P. Denuzze, Commissioner

FINDING AND AWARD

The Commissioner’s Finding and Award are affirmed and adopted as the Finding and Award of the Compensation Review Division.

OPINION

Claimant served as constable of the Town of Essex from 1967 through 1976, first by appointment and later by election. From 1969 until the end of his service the claimant regularly worked a full week, 40 to 45 hours, in performing police duties for the town. The town had also contracted for the services of a Resident State Trooper.

This State Trooper actually supervised the police activities of the claimant. However, the First Selectman of the chief executive of the town was referred to as “chief of police.”

The Claimant was clearly an employee of the town, and this fact was recognized as the municipality’s Workers’ Compensation insurance carrier paid compensation benefits to Claimant for an injury to his right elbow suffered June 22, 1976 in the course of the employment.

At the end of 1976, Claimant became disabled as the result of ischemic heart disease. He no longer was able to perform police duties. The record is silent as to whether he still held the elective title “Constable.” Subsequently claimant was able to work part-time in private employment earning considerable less than the town job had paid. As a result, claimant is making a claim under Sec. 7-433c, C.G.S. for heart and hypertension benefits.

To be eligible for 7-433c benefits a claimant must satisfy three requirements. (A) he must be a regular member of a paid municipal police department, (B) he must have successfully passed a pre-employment physical which revealed no evidence of hypertension or heart disease, and (C) he must suffer disability due to hypertension or heart disease. The claimant would clearly satisfy (C) as he was disabled and still remains at least partially disabled.

The Commissioner below found that claimant had under gone a physical examination at the direction of the respondent municipality. This examination failed to show any evidence of hypertension and heart disease, and claimant’s contract of employment with the town was renewed after this medical test. In fact the examination was done in order to qualify the claimant for the municipal employees’ pension plan. We think that successful passage of this physical examination satisfies (B) since it was pre-employment at least with respect to the last part of that employment.

However requirement (A) is another matter. The only statutory authority for the creation of municipal police departments is Sec. 7-274, C.G.S. It is conceded that Essex did not have a police department organized under that statute. As municipal entities only possess the specific powers granted by the legislature, BREDICE v. NORWALK, 152 Conn. 287, 292 (1964), it would then seem to follow that Essex had no police department. Therefore the appellant cannot satisfy (A) as he cannot be a member of a department which does not exist.

But counsel present an imaginative argument. They contend that Essex has constructively satisfied the police department requirement by using the powers granted under Secs. 7-148(c)(2) and 7-88 through 7-97. 7-148(e)(2) gives to each town, city or borough the power to pass ordinances to provide for police and fire protection. Sec. 7-88 through 7-97 concerns the method of election or appointment of constables, their powers and duties. Though we admire counsel’s ingenuity, we fail to be persuaded.

Counsel are correct that the statutes cited give towns alternative powers to provide for police protection, but these alternative methods of police protection do not constitute the establishment of a police department. 7-274 remains the only legislatively sanctioned method by which a Connecticut municipality may provide itself police protection through the organization of a police department.

Certainly then, claimant was a regular employee of the town regularly performing police duties and probably also a regular member of the town employees’ pension plan. But he was not a “regular member of a paid municipal police department” as no such department existed. Under the circumstances, the Commissioner was correct to deny 7-433c benefits.