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Carriero v. Borough of Naugatuck

CASE NO. 1690 CRB-5-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 26, 1995

ROBERT CARRIERO

CLAIMANT-APPELLEE

v.

BOROUGH OF NAUGATUCK

EMPLOYER

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by David J. Morrissey, Esq., 203 Church Street, P. O. Box 31, Naugatuck, CT 06770.

The respondents were represented by William J. Ward, Esq., 102 Water St., P. O. Box 222, Naugatuck, CT 06770.

The Second Injury Fund was represented at trial by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. The Fund was not represented at oral argument.

This Petition for Review from the March 31, 1993 Finding and Award of the Commissioner acting for the Fifth District was heard June 24, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the March 31, 1993 Finding and Award of the Commissioner for the Fifth District. The respondent argues that the commissioner improperly held that the ceiling imposed by § 7-433b(b) C.G.S. was not applicable to the claimant’s retirement pension in this case. We affirm the trial commissioner’s decision.

The claimant, a retired Naugatuck police officer, has been collecting benefits under § 7-433c C.G.S. for a 42.5 percent permanent partial disability to his heart pursuant to a voluntary agreement approved on March 1, 1991. On or about January 10, 1991, he was awarded a pension from the respondent based solely on his thirty years of service with the police department. The pension was unrelated to his § 7-433c claim, and the claimant’s disability was unrelated to the respondent’s decision to grant the pension. Rather, the pension was granted as a result of a pension plan negotiated between the respondent and the International Brotherhood of Police Officers.

The commissioner concluded from these facts that the claimant’s entitlement to permanent partial disability benefits under § 7-433c and a retirement pension based solely on length of service did not constitute a duplication of payments as a result of a single cause. Therefore, he ruled that § 7-433b(b) was not applicable to the instant case. The respondent has appealed, arguing that the cap under that statute should apply.

Section 7-433c entitles a qualified hypertensive or heart-disabled police officer or firefighter to receive compensation equivalent to that available under the Workers’ Compensation Act. The officer may also recover the same retirement or survivor benefits from “the municipal or state retirement system under which he is covered . . . 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.” Lambert v. Bridgeport, 204 Conn. 563, 566 (1987), quoting § 7-433c.

Section 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 section 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.

The legislature intended this statute to limit the total payments to a retired municipal police officer under § 7-433c to the same amount that his or her working counterpart was being paid. Costello v. Fairfield, 214 Conn. 189, 193 (1990); Lambert, supra, 569. Prior to the enactment of the statute in 1977, there was no limitation on the amount of benefits available to a claimant under § 7-433c. Id., 567.

Here, it is undisputed that the claimant was receiving permanent partial disability benefits under § 7-433c. The parties have also stipulated that the claimant’s retirement pension was not paid by a municipal or state retirement system as the result of death or disability within the meaning of § 7-433c. Despite the fact that § 7-433b(b) explicitly refers only to the cumulative payments for compensation and retirement benefits made under § 7-433c, the respondent argues that the cap should apply to the retirement benefits received by the claimant even though those benefits have no relationship to the claimant’s disability. We disagree.

The language of § 7-433b(b) clearly limits the statutory cap to compensation and retirement benefits made under § 7-433c. This limitation is consistent with the purpose of § 7-433b(b), which is to prevent a claimant from receiving more money “going out on Heart and Hypertension than when he was actually working.” Costello, supra, 195 n. 3, quoting 20 H.R. Proc., Pt. 5, 1977 Sess., p. 1816 (remarks of Rep. Samuel Gejdenson). If the claimant were collecting permanent partial disability payments and disability-related retirement benefits in excess of an active officer’s salary, § 7-433b(b) would be implicated because the claimant would be receiving more money from his disability than he would have had he continued his employment. In fact, such a windfall has not taken place, because the claimant’s pension has nothing to do with his disability. There is no risk that the claimant was induced to retire because he could make more money being disabled than he could by remaining employed. Thus, we see no reason to interpret the statute any differently than it is written.

Moreover, the commissioner’s decision is consistent with our Supreme Court’s decision in Costello. There, the Court affirmed this Board’s determination that § 7-433b(b) did not bar the payment of specific indemnity benefits awarded to a claimant as a supplement to his salary during a period of reemployment. Although the Court held that the term “compensation” in § 7-433b (b) encompassed specific indemnity payments in general, our legislature’s choice to base the statutory salary comparison on “the weekly compensation being paid . . . to members of such department in the same position which was held by such member at the time of his death or retirement” led the Court to affirm this Board’s ruling. The Court stated that it should not enlarge the limitations on recovery imposed by remedial legislation like the Heart and Hypertension Act. Costello, supra, 194; see also Kinney v. State, 213 Conn. 54, 59 (1989). We think it appropriate for this Board to observe the same principle here.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

Page last revised: January 21, 2005

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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