CASE NO. 4020 CRB-03-99-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 4, 2000
ELLEN OBIER, Dependent Widow of JOHN OBIER, JR. (DECEASED)
TOWN OF NORTH HAVEN
The claimant was represented by Howard A. Lawrence, Esq., One Trumbull Street, New Haven, CT 06511, who did not appear at oral argument.
The respondent employer was represented by Michael J. Dorney, Esq., Tyler, Cooper & Alcorn, 205 Church Street, P.O. Box 1936, New Haven, CT 06509-1910.
This Petition for Review from the March 25, 1999 Finding and Award of the Commissioner acting for the Third District was heard March 10, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 25, 1999 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner awarded the claimant (dependent widow) benefits under § 7-433c, but held that the employer was entitled to a credit for payments made to the claimant under its pension plan. In support of her appeal, the claimant contends that she is entitled to both § 7-433c benefits and benefits under the town’s pension plan, without any offset. Additionally, the claimant argues that the trial commissioner did not have subject matter jurisdiction to interpret provisions of the employer’s pension plan.
We will first address whether the claimant’s appeal should be dismissed pursuant to Practice Book § 85-1 for failure to file Reasons of Appeal. Pursuant to Practice Book § 85-1, the dismissal of an appeal for failure to prosecute with due diligence is discretionary. Reaves v. Brownstone Construction, 3930 CRB-4-98-11 (Nov. 30, 1999). As the claimant has filed a timely brief, in our discretion we choose not to dismiss the appeal.
The trial commissioner found the following relevant facts. The decedent began his employment with the North Haven Fire Department on April 1, 1967, after passing a physical examination which failed to reveal any evidence of hypertension or heart disease. On July 17, 1972, he suffered a heart attack which was determined to be compensable under § 7-433c in a March 1, 1976 Finding and Award issued by Commissioner Koletsky. The decedent suffered a second heart attack on May 21, 1988 and filed a workers’ compensation claim on May 10, 1989. The decedent suffered a third heart attack on October 23, 1997 and died as a result on October 24, 1997. His death certificate lists the conditions giving rise to his death as pulmonary edema, ischemic cardiomyopathy and severe coronary artery disease. These conditions were proximately related to the heart condition which first manifested itself on July 17, 1972, the date of the claimant’s first heart attack. (Finding ¶ 7). The claimant was married to the decedent on the date of his death, and at the time of his initial heart attack on July 17, 1972.
The trial commissioner concluded that the claimant, as the surviving spouse, was entitled to benefits under § 7-433c as administered by § 31-306. The trial commissioner determined that the claimant had a compensation rate of $293.73 per week as of October 24, 1997, and with cost of living adjustments the benefit rate increased to $304.80 as of October 1, 1998. Additionally, the trial commissioner found that as the surviving spouse of the decedent, the claimant qualified for a widow’s benefit under Article VII of the Town of North Haven Fire Department Amended and Restated Pension Plan. Pursuant to this pension plan, the claimant was paid $607.11 for the period from October 25, 1997 through October 31, 1997, and thereafter was paid a monthly pension benefit of $2,601.84. The trial commissioner found that § 7-4 of the town’s pension plan provides that the monthly pension benefit to a widow shall be reduced by the monthly benefit payable to such widow under the Workers’ Compensation Act. (Finding ¶ 22). Accordingly, the trial commissioner ordered the respondent employer to pay the claimant’s weekly workers’ compensation benefits “with credit for amounts already paid against this liability pursuant to any monies paid pursuant to the Respondent Town of North Haven Fire Department Amended and Restated Pension Plan .” We note that the trial commissioner effectively reduced the claimant’s workers’ compensation benefits by providing a credit for payments made under the pension plan, whereas the trial commissioner specifically found in Finding ¶ 22 that the pension plan provided that the pension benefits should be reduced due to the receipt of workers’ compensation benefits.
In support of her appeal, the claimant contends that § 7-433c benefits do not constitute a workers’ compensation award; that the claimant is entitled to receive both workers’ compensation benefits and pension benefits without any offset; and that the trial commissioner did not have jurisdiction to interpret the town’s pension plan contract. We will first address the claimant’s argument that § 7-433c benefits do not constitute a workers’ compensation award. To the contrary, both our Appellate Court and our Supreme Court have held that § 7-433c benefits constitute workers’ compensation benefits under similar circumstances as posed in the instant case. Maciejewski v. West Hartford, 194 Conn. 139 (1984); Middletown v. Local 1073, 1 Conn. App. 58 (1983), cert denied, 192 Conn. 803 (1984). In Middletown, supra, the court explained that although a § 7-433c award is “not a workmen’s compensation award because it requires no proof of eligibility or liability under the Workers’ Compensation Act” nevertheless it “is a workmen’s compensation award in the sense that its benefits are payable and procedurally administered under the Workers’ Compensation Act.” Id. at 65-66.
In addressing the claimant’s next two arguments, we find an examination of the Middletown decision to be instructive. In Middletown, supra, the defendant was the widow of a uniformed member of the city’s fire department who died from a heart attack while off duty. The defendant widow was awarded benefits under § 7-433c, and the issue addressed by the Appellate Court was whether the widow was entitled to pension benefits from the employer City of Middletown without reducing the pension benefits due to the receipt of § 7-433c benefits. The Appellate Court explained: “The purpose of General Statutes § 7-433c is to protect against a wage loss, not to give some firemen and policemen a double recovery for the same wage loss.” Id. at 63 (emphasis added).
The court in Middletown, supra, stated: “Cases involving city charters with language indicating that benefits thereunder should be reduced by payments made under other legislation have almost uniformly been held to require a set-off of such other payments so that the city may be relieved of paying twice for the same industrial liability.” Id. at 64 (citations omitted). Furthermore, “[c]ourts are particularly sensitive to claims which would give rise to solutions providing the plaintiff either with greater benefits for disability or death than if the worker had lived and worked or with greater benefits than other workers similarly situated.” Id. at 64 (citation omitted). Indeed, “the United States Supreme Court has also held that even in the absence of a specific limitation, the Employment Retirement Income Security Act must be interpreted as requiring a deduction from the benefits due under a private pension plan of those benefits due under a workmen’s compensation act.” Id. at 63, citing Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 516-17, 101 S.Ct. 1895, 68 L. Ed. 2d 402 (1981).
Similarly, in Maciejewski, supra, our state’s Supreme Court addressed the issue of whether a town may deduct § 7-433c benefits from the town’s pension benefits. In that case, the plaintiff, a uniformed policeman, was awarded § 7-433c benefits after suffering a heart attack. The plaintiff also requested pension benefits, which the town denied on the basis that the pension plan provided that no payment under the pension plan, “including social security and workmen’s compensation payments, if any, shall exceed seventy-five (75) percent of his average final compensation.” Id. at 142, fn. 2. The trial court held that the town’s pension board properly refused to pay the plaintiff pension benefits which (together with his § 7-433c award) would exceed the above limitation.
The court affirmed this holding. In Maciejewski, supra, the court cited the Middletown decision as a “well reasoned decision.” Id. at 150. Additionally, the court examined the legislative history of § 7-433c. Significantly, in 1977 legislation was proposed “which provided for a deduction of pension benefits from heart and hypertension benefits.” Maciejewski, supra, at 145. The court disagreed with the plaintiff’s argument that the legislature’s rejection of this proposal evinced an intention to allow double recovery. Rather, the court explained: “The floor debates referred only to a proposal which would have provided for a deduction of pension benefits from heart and hypertension benefits and not, as in this case, a deduction of heart and hypertension benefits from pension benefits.” Id. at 146. The court further explained that there “is no reference in those debates to any limitation on the power of a municipality to take into account heart and hypertension benefits when calculating the maximum amount of pension benefits due to a member of that municipality’s pension plan.” Id.
In the instant case, we are mindful of the “general rule” against double recovery. Middletown, supra, at 64. However, as explained above, the legislature rejected legislation which would have allowed for the reduction of heart and hypertension benefits due to the receipt of pension benefits. Accordingly, in order to avoid double recovery, the issue of whether the town’s pension plan may be reduced must be decided in another forum. Indeed, we have specifically held that “(w)hether a municipal employee’s pension plan may be reduced due to receipt of workers’ compensation benefits is an issue for a superior court to determine.” Sbona v. Middletown, 3449 CRB-8-96-10 (April 23, 1998), aff’d., 55 Conn. App. 906 (1999)(per curiam). In Sbona, supra, we held that the employer was obligated to pay the claimant his full workers’ compensation benefits, and explained that the employer could “pursue the reduction of the pension benefits in another forum.” Id.; see also LaBoda v. Watertown, 1 Conn. Workers’ Comp. Rev. Op. 63, 51 CRD-5-81 (1981) (Commissioner has no power to reduce statutory benefits because of other pension benefits).
In accordance with our holdings in Sbona, supra, and LaBoda, supra, the trial commissioner in the instant case was required to order the respondent employer to pay the claimant her full benefits.
The trial commissioner’s decision is thus reversed in accordance with the above.
Commissioners Robin L. Wilson and Leonard S. Paoletta concurs.