State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Peabody v. City of Shelton

CASE NO. 3024 CRB-4-95-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 8, 1996

JOSEPH PEABODY

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

CITY OF SHELTON

EMPLOYER

and

ALEXIS, INC.

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by William J. Curran, Esq., 115 Main Street, Suite 502, Bridgeport, CT 06604.

The respondents were represented by James T. Baldwin, Esq., Cotter, Cotter & Sohon, P.C., 500 Boston Post Road, Milford, CT 06460. James T. Baldwin, Esq., Coles, Baldwin & Craft, LLC, 1200 Post Road East, Westport, CT 06880.

This Petition for Review from the March 21, 1995 Finding and Dismissal of the Commissioner acting for the Fourth District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 21, 1995 Finding and Dismissal of the Commissioner acting for the Fourth District. He is appealing from the commissioner’s decision that, at the time of his heart attack, he was not an active member of the Huntington Fire Company No. 3 and therefore did not qualify for benefits pursuant to § 7-314 and § 7-314a C.G.S. After careful review, we affirm the trial commissioner’s decision.

The trial commissioner made the following findings of fact. The claimant, Joseph Peabody, was a regular active member of the Huntington Fire Company No. 3 prior to February 9, 1994. On February 9, 1994, the claimant became a “life active member” of the fire company. On said date the claimant was physically unable to perform the regular duties of an active member of the fire company. On March 6, 1994, the claimant went to the firehouse for the purpose of updating the fire hydrant and street index in accordance with his duties and the order of Captain Albert. While waiting in the station house for the computer room to become available so he could perform his assigned duties, the claimant suffered a heart attack. The commissioner concluded that, at the time of the claimant’s heart attack, he was not an active member of the Huntington Fire Company No. 3 as set forth in §§ 7-314 and 7-314a, and thus not qualified for the benefits provided therein.

The claimant contends that his heart attack is compensable under § 7-314 and § 7-314a because he satisfies the criteria of being an “active member of the volunteer fire company,” and was engaged in volunteer fire duties at the time of his heart attack. The claimant asserts that evidence does not exist to support the finding that he was physically unable to perform his duties to the degree expected of an active member of the fire company, and asserts that an individual classified as a life-active member of the Huntington Fire Department, though officially excused from an active member’s duties, still holds the position of an active member within the Department. The claimant thus believes that he should be classified as an active member pursuant to §§ 7-314 and -314a. He also alleges that he was engaged in a “volunteer fire duty” at the time of his heart attack, as he had been in the process of complying with his lieutenant’s request to “go upstairs and have a cup of coffee or do something” when it occurred. Thus, the claimant concludes that the commissioner incorrectly found that he was ineligible for benefits.

Regarding the issue of claimant’s ability to physically perform the duties required of a regular active member of the fire company, it is important to keep in mind that the trial commissioner is the finder of fact during a formal hearing, and that this board is bound by those factual findings if there is evidence in the record to support them. Fair v. People’s Bank, 207 Conn. 535, 540 (1980). The claimant stated in the record that he was unable to do any heavy lifting and that he would only participate in a Sunday work party if it involved no lifting. (September 16, 1994 Tr. p. 52-53). He further made clear that others had to drive him where he had to go, because he himself was unable to. (Id., p. 51-52). It was not unreasonable for the trial commissioner to conclude from this testimony that the claimant lacked the physical ability to fight fires or perform fire duties at the level required of a regular active member of the fire company.

In evaluating claimant’s assertion that, as a “life active” member of his fire company he held active member status, but was excused from having to perform duties required of “active” members of the company, this board must take into consideration § 7-314. That statute states in pertinent part that “the term “active member of a volunteer fire company” includes all active members of said fire company, fire patrol or fire and police patrol company, whether paid or not paid for their services . . . .” This board presumes that the legislature did not intend for “all active members of said fire company” to include individuals whose job status included the title “active,” but who did not in fact fulfill the conditions required by their fire company of its “active” members. Otherwise, any member of such a group could conceivably gain “active” status via the bestowment of a job title, no matter how little he actually participated in his company’s activities. Thus, the claimant was not necessarily an “active member” of his volunteer fire company, even though he held the honorary position of a “life active member” in it. It follows that the trial commissioner did not err in finding that the claimant was not an active member of the Huntington Fire Company No. 3 as set forth in § 7-314 and § 7-314a, and therefore does not qualify for the exceptional benefits provided therein.

The respondent filed a cross-appeal in which it alleged that the claim should also have been dismissed on the ground that the claimant was not “in training for or engaged in volunteer fire duty” when he suffered his heart attack. Because we have upheld the commissioner’s finding that the claimant was not an “active member” of his fire department, the issue of whether claimant was engaged in an employment related activity at the time of his heart attack is moot. Thus, we decline to address the cross-appeal.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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