State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Collingwood v. Town of Branford

CASE NO. 4787 CRB-3-04-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 6, 2005

ROBERT COLLINGWOOD

CLAIMANT-APPELLANT

v.

TOWN OF BRANFORD

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John M. Walsh, Jr., Esq., Licari & Walsh, LLC, 105 Court Street, New Haven, CT 06510.

The respondent was represented by Peter Berdon, Esq., Berdon, Young & Margolis, P.C., 132 Temple Street, New Haven, CT 06510.

This Petition for Review from the January 30, 2004 Finding and Dismissal of the Commissioner acting for the Third District was heard October 22, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 30, 2004 Finding and Dismissal of the Commissioner acting for the Third District. He argues on appeal that the trier erred by ruling that he did not qualify for benefits pursuant to § 7-433c C.G.S. because he had not successfully passed a pre-employment physical examination within the meaning of the statute. We find error, and reverse the trial commissioner’s decision.

The parties stipulated to the following set of facts. The claimant, a paid municipal firefighter for the respondent Town of Branford, filed a claim pursuant to § 7-433c1 and chapter 568 on or about July 13, 1999 for hypertension, with an injury date of October 11, 1998. The respondent has denied liability under both statutes. The claimant was hired by the respondent’s Ambulance Department as an emergency medical technician (EMT) in 1984. No physical examination was required as a condition of hire. The claimant became a paramedic during that term of employment, and continued working for the Ambulance Department part-time until January 4, 1993. The claimant was also hired by the respondent’s Fire Department as a full-time dispatcher on July 10, 1989, which employment likewise continued until January 4, 1993. Prior to his hire for the dispatching job, the claimant was required to submit to a physical/medical examination as a condition of hire. He successfully passed the examination, which did not reveal any evidence of heart disease or hypertension.

On December 1, 1992, the claimant applied for a position as a full-time firefighter with the respondent’s Fire Department. On January 4, 1993, the Branford Ambulance Department was officially merged with the Branford Fire Department. As a result of this merger, the claimant was hired as a full-time uniformed member of the respondent’s Fire Department—as were all of the other members of the Ambulance Department. The claimant’s new position was classified as firefighter/paramedic. As part of that merger, the claimant was credited with his prior service as a full-time dispatcher for the respondent’s Fire Department for purposes of seniority, vacation, longevity and pension. Neither the claimant nor any of his Ambulance Department colleagues were required to take a physical/medical examination as a condition of hire, and the claimant underwent no such examination.

The trial commissioner concluded that the claimant had not sustained his burden of proof under § 7-433c. He reasoned that the claimant’s pre-employment physical for the dispatching job did not meet the standard of § 7-433c, as it had not been performed in conjunction with the claimant’s hiring as a full-time firefighter on January 4, 1993. The trier therefore dismissed the claimant’s request for benefits under § 7-433c. The claimant has petitioned for review from that ruling, which appeal is now before this board.

The claimant argues in his appellate brief that the 1989 pre-employment physical that he passed prior to his being hired by the Fire Department as a dispatcher is sufficient to satisfy § 7-433c’s requirement of “a physical examination on entry into such service” as a uniformed member of a paid municipal fire department. The respondent disagrees, arguing that no physical examination was required upon the claimant’s entry into service as a uniformed firefighter, which precludes the claimant from sustaining his burden of proving that he passed such an examination. “While it is true that the Claimant had a prior physical examination, the prior examination, which is part of the Record, occurred on July 3, 1989 . . . in connection with the claimant being hired by the Town as a dispatcher, not as a uniformed member of the fire department as required by the statute.” Respondent’s Brief, p. 7 (emphasis in original). In support of that argument, the respondent analogizes this case to Peabody v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 25, 3024 CRB-4-95-3 (October 8, 1996), aff’d, 45 Conn. App. 913 (1997)(per curiam), cert. denied, 242 Conn. 906 (1997). There, this board held that § 7-314 C.G.S.2 could not be invoked by a volunteer firefighter who had been granted the job title of “life active member,” but was no longer physically able to perform regular firefighting duties at the time of his heart attack. Rather, the statute’s prerequisite that a claimant be an “active member of a volunteer fire company” in order to receive benefits required participation in the same active firefighting duties that the department demanded of other active members.

The analogy between Peabody and the instant case, though pertinent to our analysis here, does not lead us to reach the outcome sought by the respondent. The parties do not dispute that the claimant’s 1989 hire as a dispatcher for the Fire Department did not constitute service as a “uniformed member” of that department. Such service began on January 4, 1993, when the Fire Department was merged with the Branford Ambulance Department, and all members of the latter were automatically reclassified as uniformed firefighters. It is thus agreed that the claimant did not undergo a physical examination upon his entry into service as a uniformed firefighter.

However, the text of a statute must be read as a whole, and in the context of its relationship to other statutes and its purpose in the statutory scheme, in order to avoid unintended or absurd results. Bergeson v. New London, 269 Conn. 763, 769-70 (2004), citing Public Act No. 03-154, § 1 (meaning of statute shall be ascertained from text itself and relationship to other statutes, and if text is plain and unambiguous, extratextual evidence of meaning will not be considered). At the time the claimant was hired as a uniformed firefighter, § 7-433c contained the following language as a statutory preamble:

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.”

The intent of the statute is made clear by this text. In order to encourage people to enter the vital firefighting and police professions, lawmakers directed municipalities to provide a bonus of sorts by making benefits available for heart disease and hypertension suffered by firefighters and police officers, whom the legislature determined “properly occupy a different status from other municipal employees.” Grover v. Manchester, 168 Conn. 84, 88 (1975); see also, Horn v. State/Dept. of Correction, 4764 CRB-3-03-12 (January 24, 2005)(use of “shall” signifies, at minimum, that contemplated act has been directed by legislature, and often denotes that provision is mandatory). The statute constituted3 “special compensation, or even an outright bonus, to qualifying policemen and firemen.” Id., 87. The only prerequisite for collecting such compensation was the successful passage of a physical examination upon entry into service, with said examination revealing no evidence of hypertension or heart disease.

The statute does not address the consequences of a town’s failure to give an applicant a physical examination prior to his or her hire as a firefighter or police officer. It does state, “If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section . . . .” We disagree with the respondents’ argument that this “lost examination” provision also implies that, in cases where no examination was given at the time of hire, the legislature deliberately sought to bar a prospective claimant from making a claim. See Respondent’s Brief, p. 9. One proposition does not necessarily follow the other.

Based on the purpose of § 7-433c and the legislative history discussed in the following paragraph, we do not read the word “if” to imply that medical examinations were intended to be optional. Rather, we read “if” as reflecting the possibility that successful passage of the physical examination might not be required as a condition of employment. A town could always opt to employ individuals who failed the physical examination, with the expectation that they would later be ineligible for § 7-433c benefits. However, the physical examination itself was still presumed to be a requirement by all municipalities hiring firefighters and police officers. To that end, we also observe that the claimant and other members of the Ambulance Department who became uniformed firefighters after its merger with the Fire Department were not treated the same way as other Branford municipal firefighters. At oral argument, respondent’s counsel acknowledged that the municipality generally requires that applicants for uniformed firefighting positions pass a physical examination prior to being hired.

The applicable legislative history suggests that throughout the evolution of the statute now codified as § 7-433c, there has been a consistent legislative assumption that all municipal firefighters and police officers start their employment by undergoing a physical examination. As early as 1951, when § 175b C.G.S. was first enacted to provide that uniformed, paid firefighters who suffered disability due to hypertension or heart disease would be presumed to have suffered work-related injuries for purposes of municipal retirement benefits, the public hearing records indicate that paid firefighters were assumed to undergo medical examinations in every town. 1951 Joint Standing Committee Hearings, Judiciary, Vol. 2, p. 107 (in reply to question of whether volunteer firemen are given medical examination, George Ridder, attorney for Hartford Fire Department, stated, “It depends on the town. I don’t think it’s necessarily true with volunteer firemen.”) The legislative histories for subsequent incarnations of this statute also suggest that lawmakers continued to operate from the premise that physical examinations were a prerequisite for both firefighters and police officers.4

In light of that legislative history, and the express intent of § 7-433c to provide a bonus to municipal firefighters that would help induce people to pursue such occupations, it would run contrary to that legislative design if a town could have circumvented the effects of § 7-433c by omitting the standard physical examination as part of the hiring process for uniformed firefighters. The statute may not expressly create an obligation to conduct such an examination, but the purpose of § 7-433c would have been frustrated if cities and towns were free to opt out of the process. It is also inconceivable to think that the legislature sought to allow each town to devise its own procedure or policy regarding physical examinations for firefighters and police officers. The intent behind § 7-433c clearly presupposed that towns administered examinations to applicants in a substantially uniform fashion.

This is borne out by the holding of our Appellate Court in Gillette v. Town of Monroe, 56 Conn. App. 235 (1999), in which the court explained that the role of a town’s police surgeon was no different in 1965, when § 7-433a was still in force, as it was in 1971 upon the enactment of its successor statute, § 7-433c. The court observed, “the town’s police surgeon had the same incentive to give, and the town had the same duty to ensure, a thorough examination and production of a thorough report thereof with any findings relative to the plaintiff’s condition regarding heart disease and hypertension.” Id., 244 (emphasis added). In analyzing the practical effect of § 7-433c, the court identified a duty on the part of the town to arrange a thorough examination, given the possible compensatory ramifications of any symptoms of hypertension or heart disease. Id., 243.

We thus hold that the respondent was not at liberty to preclude the claimant from availing himself of statutory presumptions that the legislature created for his benefit by failing to administer a medical examination at the time of his hire as a uniformed firefighter. The town cannot be allowed to benefit by that omission, particularly given the fact that, where a physical examination is required as a condition of employment, a claimant is not required to produce proof or record of the examination under § 7-433c.

The trial commissioner’s decision is accordingly reversed, and remanded for further proceedings consistent with this opinion.

Commissioners Leonard S. Paoletta and Howard H. Belkin concur.

1 Section 7-433c C.G.S. provides, “(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. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of 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. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467.

(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section.” BACK TO TEXT

2 Section 7-314 C.G.S. defines “active member of a volunteer fire company” to include “all active members of said fire company, fire patrol or fire and police patrol company, whether paid or not paid for their services, except firemen who, because of contract of employment, come under the Workers’ Compensation Act.” Benefits for volunteer firefighters are made available under § 7-314a(a), which states that active members of volunteer fire departments are deemed to be municipal employees “and shall be subject to the jurisdiction of the Workers’ Compensation Commission and shall be compensated in accordance with the provisions of chapter 568 for death, disability or injury incurred while in training for or engaged in volunteer fire duty.” BACK TO TEXT

3 Persons beginning their employment on or after July 1, 1996 are not eligible for such benefits, pursuant to Public Act 96-230. BACK TO TEXT

4 See, e.g., 14 H.R. Proc., Pt. 8, 1971 Sess, pp. 3527-28 (remarks of Herbert Camp)(“. . . Apparently we started with the conclusive presumption in the ‘69 session that the towns would get hit if somebody that was on a fire department and police department started off by having a health report that showed he was satisfactory”); 9 H.R. Proc. 1961, Pt. 5, p. 2226 (remarks of Rep. from Stafford)(“We have had experience in Newington where we do not have any coverage for a policeman who recently died, the autopsy showed that it was from heart failure and I believe and am sure this young man went into the police[] department and submitted to an examination and was in perfect health . . . .”); 1961 Joint Hearings, Judicial and Governmental Functions, Pt. 1, pp. 297 (remarks of Gaynard Brennan, Counsel for Connecticut Police Association)(“We are protected, of course, by the fact that policemen upon being admitted to the police force, undergo a very thorough physical examination.”); Id., p. 303 (remarks of Leonard Kirschner, Secretary-Treasurer of Firefighters Association of Connecticut)(“[I]t should be repeated and emphasized that, prior to 1959, presumption was established by statute that any firemen or any policemen who passed the physical examination upon entrance into the department” were eligible for compensation under the retirement system). Also, our research uncovers no reference to any other instance when a physical examination was not given prior to someone’s having been hired by a municipal fire department. BACK TO TEXT

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