State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Russo v. City of Hartford

CASE NO. 4769 CRB-1-04-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 15, 2004

NICHOLAS RUSSO

CLAIMANT-APPELLEE

v.

CITY OF HARTFORD

EMPLOYER

and

CONSTITUTION STATE SERVICE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Marjorie H. Drake, Esq., Law Offices of Marjorie H. Drake, 49 North Main Street, West Hartford, CT 06107.

The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the December 31, 2003 Finding and Award of the Commissioner acting for the First District was heard July 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, city of Hartford and Constitution State Service, have appealed from the December 31, 2003 Finding and Award of the Commissioner acting for the First District. We remand the case to the district for further proceedings consistent with this opinion.

The pertinent facts are as follows. In June 1981, the claimant was hired by the respondent, city of Hartford, as a police officer. At that time, the claimant had submitted to a pre-employment physical examination which revealed no evidence of heart disease or hypertension. The claimant was promoted to Detective rank in 1986. The claimant worked for the city as a Detective until December 1997, when he was suspended from active duty. At that point, the claimant was required to turn in his service weapon, badge and credentials which identified him as a police officer. The claimant’s suspension was lifted as of October 29, 2000, at which time his pay was reinstated. While on suspension, the claimant obtained other employment until he was laid off from that other employment in June of 2001 and began collecting unemployment benefits.

In November 2001, the claimant was diagnosed with heart disease which ultimately resulted in his undergoing quadruple bypass surgery on or about December 17, 2001. The claimant never returned to work for the respondent after his initial suspension in December of 1997, although he did attend court regarding cases he had worked on several times throughout the years. February 3, 2003 Transcript, pp. 15, 20, 21. Since his suspension the claimant has been involved in various legal proceeding against the city of Hartford, including a lawsuit in federal court. No evidence was presented that showed that the respondent-employer actually terminated the claimant’s employment. The city of Hartford paid the claimant’s health insurance at least up until July 1, 2002.

The sole issue before the trial commissioner was whether the claimant was a “regular member” of the Hartford Police Department when he was diagnosed with his heart and hypertension conditions and therefore entitled to benefits under § 7-433c C.G.S. The trial commissioner found that the claimant was still an employee of the city of Hartford and member of the Hartford Police Department at that time. The trier further found that “though the Claimant was off-duty and under suspension at the time of the first manifestations of his heart disease, the fact that Claimant was under suspension does not negate his status as a regular member of a paid municipal police force.” Findings, ¶ G.

The respondents have appealed the finding and award. The respondents contend that the claimant was not a “regular member” of the Hartford Police Department at the claimant’s first manifestation of heart disease pursuant to § 7-433c. The respondents allege at that time the claimant was not even employed by the city of Hartford. The respondents further find error in the trial commissioner’s finding that the claimant’s suspension did not negate the claimant’s status as a regular member of the paid municipal force.

The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Nevertheless, where there are inconsistent factual findings and conclusions this board is often obligated to order a remand, as we are not authorized to make our own findings from conflicting facts. Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 196, 1721 CRB-2-93-5 (March 22, 1995); aff’d, 54 Conn. App. 296 (1999), see also Fair, supra, 539.

Here, the trial commissioner made findings that were contradictory with the underlying facts found and the record before him. The trial commissioner found that “the claimant’s suspension was lifted as of October 29, 2000 at which time his pay was reinstated.” Findings, ¶ 13. The trier determined that the claimant was first diagnosed with heart disease in November of 2001. Findings, ¶ 7. However, the trial commissioner also found that the claimant was under suspension at the time he suffered the first manifestations of heart disease. Findings, ¶¶ E, G. Furthermore, the respondents themselves admit that the claimant’s suspension was lifted prior to the claimant’s first manifestation of symptoms. Appellants’ Brief, p. 13.

Additionally, the evidence in the record confirms that the claimant was not under suspension in November of 2001. The city of Hartford’s “Personnel Payroll Activity Form” lists the claimant’s last day of suspension as October 28, 2000. Claimant’s Exhibit D. The city of Hartford’s payroll records indicate a payment to the claimant of $11,404.27 on December 21, 2000. Claimant’s Exhibit E. Frank Szilagyi, Attorney for the Hartford Police Department’s union, testified that the payment represented a period of back-pay awarded to claimant for the period from his return from suspension to the point that the check was issued. June 30, 2002 Transcript, p. 14. Attorney Szilagyi testified that this payment was issued because the city no longer had the right to suspend the claimant from October 28, 2000 going forward. Id., p. 34.

The only evidence in the case reveals that the claimant’s suspension had been lifted when he was diagnosed with heart disease. The trier’s ultimate findings specify the fact that the claimant was under suspension at the time of his manifestation of symptoms. Therefore, further findings and/or proceedings are necessary in order to resolve the findings which are inconsistent with the evidentiary record.

Therefore, the case is remanded for further findings and/or proceedings in accordance with this opinion.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

Workers’ Compensation Commission

Page last revised: December 23, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4769crb.htm

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