State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Genesky v. Town of East Lyme

CASE NO. 4600 CRB-8-02-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 8, 2003

EDWARD GENESKY

CLAIMANT-APPELLANT

v.

TOWN OF EAST LYME

EMPLOYER

and

CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Nathan J. Shafner, Esq., Embry & Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340-1409.

The Town of East Lyme was represented by James Berryman, Esq. Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, 2 Union Plaza, Suite 200, P.O. Box 1591, New London, CT 06320.

Connecticut Interlocal Risk Management Agency[CIRMA] and Town of East Lyme were represented at proceedings below by Robert Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.1 CIRMA did not participate in proceedings before the Compensation Review Board.

This Petition for Review from the December 5, 2002 Finding and Dismissal of the Commissioner acting for the Eighth District was heard June 20, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 5, 2002 Finding and Dismissal of the Commissioner acting for the Eighth District.2 In that Finding and Dismissal, the trial commissioner dismissed the claimant’s claim for benefits pursuant to § 7-433c. The claimant filed this appeal.3

The pertinent facts are as follows. In 1989 the claimant was employed by the respondent municipality, East Lyme, as a full time police officer. The Town of East Lyme is a constabulary and has a contract with the Connecticut Department of Public Safety by which it participates in the Resident Trooper Program. Thus, the claimant was actually a constable. See Finding, ¶ M.

On or around September 30, 1999 the claimant experienced what were initially thought to be back spasms. Ultimately, it was found claimant’s back spasms were the result of a myocardial infarction. Thereafter the claimant filed a claim for heart and hypertension benefits pursuant to § 7-433c with a claimed injury date of October 8, 1999.

Prior to the claimant’s claim for benefits due to the myocardial infarction in the Fall of 1999, the employee claimed he sustained an injury to his right knee while in the course of his employment. That injury was alleged to have occurred January 21, 1992. Following that injury claimant was treated by Dr. Joseph Zeppieri, an orthopedic surgeon. Dr. Zeppieri counseled against going forward with knee surgery as the claimant’s blood pressure readings were elevated. Dr. Zeppieri referred the claimant to Dr. George Burton. Dr. Burton’s records indicate the claimant was diagnosed as having hypertension on January 21, 1992. Following that date there were several documented elevated blood pressure readings. Dr. Burton prescribed blood pressure medication to the claimant. The claimant testified he treated with Drs. Mark Fiengo, John Elefteriades as well as Dr. Burton, all for his heart problems.

In his Finding and Dismissal, the trial commissioner concluded the claimant’s claim for § 7-433c benefits due to the Fall 1999 myocardial infarction should be dismissed. The trial commissioner based his ultimate conclusion dismissing the § 7-433c claim on numerous grounds which are challenged by the claimant appellant. However, the threshold issue for review is whether the claimant falls within the class of employees to whom § 7-433c benefits apply, i.e., the claimant must be a “regular member of a paid municipal police department.” 4

Central to the respondent appellee’s defense of the trial commissioner’s conclusion in this matter is its contention the claimant’s employment with the Town of East Lyme was not as a regular member of a municipal police force. The appellee contends, and the trail commissioner agreed, the instant matter was sufficiently analogous to Zimmer v. Essex, 38 Conn. Sup. 419 (1982) so as to compel the same outcome. See Finding, ¶ 37.

In Zimmer, the court held that a constable who worked for a municipal police force which was not organized consistent with the provisions of § 7-274 was a police force to which the provisions of § 7-433c did not apply. In this appeal the appellant relies on this tribunal’s opinion in Gallucci v. Waterbury, 2 Conn. Workers’ Comp. Rev. Op. 76, 313 CRD-5-84 (July 24, 1984). We think the instant case more closely resembles the facts in Zimmer. Nothing in the Compensation Review Division’s opinion in Gallucci suggests that the police officer claiming benefits was part of a constabulary and the municipality contracted some part of its police services to the Connecticut State Police Resident Trooper Program. In the instant matter there was testimony that the municipality did not have a lock up, the First Selectman served as the Chief of Police and that an East Lyme police officer’s arrest powers were limited. See Findings, ¶ 9 O-P, Claimant’s Exhibit G pp. 20-22, June 29, 2001 Deposition of T. William Knapp.

Before we reach the question of the legal structure and legal authority under which the municipality’s police force operates, we have the fact that the claimant’s duties as a police officer/constable differ from those of a “regular member of a paid municipal police force.” Additionally, § 7-433c has been characterized as “bonus” legislation.5 See Revoir v. New Britain, 2 Conn. App. 255 (1984). The original intent of the legislation was to provide a remedy to qualifying persons without the need to prove traditional elements of causation under the Workers’ Compensation Act. Thus, the eligibility requirements set out in the statute must be strictly construed. Cf. Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, (1997)(held § 31-293 permitting an employer to recover sums paid to an employee under chapter 568 in a third party action does not permit an employer to make a claim against a claimant’s own uninsured motorist automobile insurance policy as the statute’s provisions are in derogation of the common law and thus, are to be strictly construed.)

While a number of other issues were raised by the appellant we need not reach those issues. Our affirmance of the commissioner’s conclusion on the threshold issue that the claimant was not a member of the class of persons to which § 7-433c applies controls. We therefore affirm the December 5, 2002 Finding and Dismissal of the Commissioner acting for the Eighth District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 We note that all claims filed pursuant to the claimant’s rights under chapter 568 were settled by way of a stipulation, thus, the Connecticut Interlocal Risk Management Agency and its representative did not appear. BACK TO TEXT

2 Although the December 5, 2002 Finding and Dismissal indicates that the trial commissioner was acting on behalf of the Fourth District he was, in fact, acting on behalf of the Eighth District. BACK TO TEXT

3 We note following oral argument the appellant filed pursuant to § 31-324 a Motion to Reserve. By filing that motion the appellant sought to reserve this threshold issue to the Appellate Court. By virtue of our decision announced today the appellant’s motion is now moot. BACK TO TEXT

4 Sec. 7-433c provides in pertinent part:

(a) 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. BACK TO TEXT

5 We note that Public Act 96-231 deleted from § 7-433c the statute’s preamble which provided:

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 unusually 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:

Subsequent legislative activity has removed persons whose employment began on or after July 1, 1996 from eligibility under § 7-433c. BACK TO TEXT

Workers’ Compensation Commission

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