CASE NO. 5689 CRB-8-11-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 4, 2012
JOHN E. NERON
CITY OF MERIDEN-POLICE DEPARTMENT
BERKLEY ADMINISTRATORS OF CONNECTICUT
The claimant was represented by Christopher D. DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, LLC, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.
The respondents were represented by James M. Quinn, Esq., Quinn & Quinn, LLC, Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.
This Petition for Review from the October 5, 2011 Finding and Dismissal of the Commissioner acting for the Eighth District was heard February 17, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Clifton E. Thompson.1
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Dismissal which determined that as he was not a regular member of the Meriden Police Department, he was not statutorily entitled to benefits under § 7-433c C.G.S. We have reviewed the facts presented and the statute at issue. We find the trial commissioner’s decision herein properly applied the law and the claimant is not entitled to heart and hypertension benefits. We affirm the Finding and Dismissal.
The trial commissioner found the following facts. He found the claimant was appointed as an auxiliary police office for the City of Meriden (“Meriden”) on August 23, 1992, and the claimant took his oath on October 19, 1992. At that time the claimant was employed full time at Veterans Memorial Medical Center. Meriden had a paid municipal police department at all times relevant to this appeal. Paid members of the Meriden Police Department were required to belong to the police union while auxiliary officers were not permitted to join the union. Additionally, auxiliary police officers in Meriden were ineligible to participate in career advancement training.
At the time the claimant was an auxiliary police officer with Meriden, auxiliary police officers were required to work a minimum of four hours per month with no set schedule. They reported at any time during the month and were assigned to ride along with a paid officer or were assigned to assist the paid police officers manning barricades for parades and other special events. They were not allowed to operate police cruisers except in an emergency, and did not write reports or conduct investigations. Further, auxiliary police officers were unpaid and therefore did not receive sick time, vacation time, health benefits or any other fringe benefit.
The Compliance Officer for the Police Officer Standards and Training Council (“POST”), William Klein, testified at the formal hearing. He said his agency is the sole agency in Connecticut with the authority to certify that individuals are qualified to serve as municipal police officers within this state. Without this certification a person is unable to serve as a police officer in Connecticut. The claimant participated and successfully completed certification training sponsored by Meriden enabling the claimant to serve as an auxiliary police officer in 1994. The certification requirements for auxiliary and paid officers were the same.
The claimant obtained a full time job with the Enfield Police Department (“Enfield”) in December 1995 and worked there through April 1996. The claimant asserts that he continued as an auxiliary police officer with Meriden while he worked for Enfield. However, the Meriden Police Training Officer notified POST that the claimant resigned from the City of Meriden in December 1995 to obtain a full-time position with Enfield.
The claimant testified on direct examination he worked a short time with Enfield because he looked forward to getting hired full time in Meriden; however, on cross-examination he admitted he had been terminated from the job in Enfield. Findings, ¶ 7. The claimant’s unemployment compensation form represented he had been an auxiliary police office for two and a half years but had received no pay and had served alongside a regular police officer.
The claimant also testified that he had been on the auxiliary police log for Meriden documenting that he performed duties in that capacity while employed by Enfield. The claimant’s name, however, does not appear in the auxiliary police officer log from January 1996 through April 1996. Findings, ¶ 8. The claimant acknowledges on cross-examination he resigned from the Meriden auxiliary when he was hired by Enfield. Id. It was not until May of 1996 that the claimant’s name appeared again on the auxiliary log – after he was terminated by Enfield. Id.
The claimant returned as an auxiliary officer with Meriden in May of 1996. The claimant was eventually hired by Meriden as a paid police officer on July 25, 1997. He subsequently resigned from the Meriden Police Department. On his application for appointment as a paid member with the Meriden Police Department, the claimant did not mention his period of employment with Enfield. Findings, ¶ 12. The claimant underwent a pre-employment physical, polygraph test and psychological testing when he was hired as a paid police officer. He did not remember if he was required to undergo the same tests prior to his appointment as an auxiliary police officer. Auxiliary officers, according to Chief Jeffrey Cossette, of the Meriden Police, were not required to submit to a pre-employment physical as a condition of appointment. Findings, ¶ 13.
The claimant testified that as an auxiliary police officer he performed the same duties and was exposed to the same dangers and risks as paid officers. As an auxiliary officer the claimant claims he operated police cruisers without supervision of a paid officer, conducted investigations without supervision of paid officers, and swore out affidavits for arrest in his capacity as an auxiliary officer. Findings, ¶ 9. A review of the Meriden records database which contains records dating to 1995 demonstrate that the claimant was not assigned a case until he was a paid member of the police department, and the claimant’s first arrest did not occur until after he was hired as a paid member of the Meriden Police Department. Findings, ¶ 10.
After reciting the evidence on the record the trial commissioner reviewed the applicable law. The commissioner noted that § 7-433c C.G.S., has been deemed “bonus” legislation and has been given a more stringent application than Chapter 568. The trial commissioner also noted that this legislation does not cover those police officers hired after July 1, 1996. “Under Chapter 568 of the Connecticut General Statutes an employee includes ‘a volunteer police officer, whether the officer is designated as special or auxiliary’ C.G.S. § 31-275(9)(A)(v). The Claimant undeniably was an auxiliary police officer. The use of the word ‘regular’ within C.G.S. § 7-433c, however, limits the benefits of this section to a specific class of individuals. The statute does not provide benefits to employees of a municipal police department. It limits those benefits to only ‘regular’ members.” The commissioner in reviewing the definition of “regular” found that this term implied events occurring at fixed times. As the claimant’s activities were unpaid and not subject to set hours, the trial commissioner found this relationship to be casual. On the other hand regular members of the Meriden police were paid, performed the full range of police services such as operating vehicles, making arrests and conducting investigations, and had set hours. Therefore, “[t]he Claimant’s service as an auxiliary officer with the Meriden Police Department was not as a ‘regular’ member of that department. Therefore he is not entitled to heart and hypertension benefits pursuant to C.G.S. § 7-433c.” Finding and Dismissal, pp. 4-5. (Emphasis in original.)
Therefore, as the claimant was not a regular employee of the Meriden Police Department until July 1997, the trial commissioner found the claimant was not eligible for benefits under § 7-433c C.G.S. The claim for heart and hypertension benefits was dismissed. The claimant filed a Motion to Correct, which was denied in its entirety. The present appeal then ensued.
This appeal turns on a single question. Was the claimant a regular member of the Meriden Police Department on or before July 1, 1996? The trial commissioner concluded he was not. We must give proper deference to this conclusion. As an appellate panel we must extend “every reasonable presumption in favor of the action” Daniels v. Alander, 268 Conn. 320, 330 (2004). We may only reverse a decision if the trial commissioner has misapplied the facts to the law or relied on an erroneous interpretation of law Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).
The claimant argues that after considering the import of a number of appellate decisions such as Genesky v. East Lyme, 4600 CRB-8-02-12 (December 8, 2003), aff’d, 275 Conn. 246 (2005), and Bucko v. New London, 3 Conn. Workers’ Comp. Rev. Op. 112, 140 CRD-2-82 (December 5, 1986), aff’d, 13 Conn. App. 566 (1988), that the scope of § 7-433c C.G.S. should be read widely so as to include individuals such as the claimant. The claimant argues that the term “regular” is “ambiguous” and therefore “the remedial purposes of the Act” are served by such a broad application. Claimant’s Brief, p. 7. The claimant also undertakes an extensive analysis of the legislative history behind the statute, asserting it supports a finding of coverage for the claimant. Claimant’s Brief, pp. 8-15.
We are not persuaded by these arguments. The claimant proceeds without addressing the clear imprimatur mandated in § 1-2z C.G.S. that administrative bodies are limited to the “plain meaning” of statutes. While Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007), stated the enactment of this statute it did not undo prior interpretations of law arguably inconsistent with such a statutory interpretation, the fact is that we are presented herein with an issue of first impression. We find the case law advanced by the claimant clearly distinguishable and therefore must rely on the statute as our guidepost. We also note, to the extent we may continue to discern legislative intent subsequent to the enactment of § 1-2z C.G.S., that it is patently obvious the intent of the revisions to § 7-433c C.G.S. enacted in 1996 were to strictly limit the class of beneficiaries to those first responders already actively employed at that time.
The heart and hypertension statute reads as follows:
Benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease. (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.
The plain language of this statute requires someone to pass a pre-employment physical prior to becoming entitled to coverage. It also requires someone to be a “regular” member of a paid police department to be entitled to coverage.2 The trial commissioner found neither condition had been met. In accordance with Christensen, supra, we must ascertain if there is evidence in the record to support this conclusion.
The trial commissioner cited evidence in the record to support his findings. We also note that the trial commissioner did not find the testimony of the claimant credible, and as an appellate body we may not revisit this conclusion. Burton v. Mottolese, 267 Conn. 1, 40 (2003) “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . .” Id. Therefore, we may infer the evidence presented by the claimant not adopted by the trial commissioner in his Finding and Dismissal was given no weight, especially as the commissioner denied the claimant’s Motion to Correct. Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam). We therefore look to the findings to ascertain if they are supportive of the conclusions herein.
The trial commissioner found that the duties of auxiliary police officers in Meriden were extremely limited, and substantially dissimilar from the duties of the paid staff. See Findings, ¶¶ 2 and 4. The commissioner noted that auxiliary officers received neither pay nor any benefits, and were ineligible to participate in career advancement training. The description of the duties they were allowed to perform demonstrated no autonomy on the part of the auxiliary officer, as they could not operate vehicles except in emergencies, write reports or conduct investigations. The auxiliary staff was used to assist the paid police officers manning barricades for parades and other special events. The records of the Meriden Police Department demonstrate the claimant did not make any arrests until after he was hired in 1997. In addition, the record reflects that the claimant was not administered a pre-employment physical as a member of the auxiliary police staff. Findings, ¶ 13.
In reviewing the evidence presented, we find the trial commissioner relied in large part on the testimony of Meriden Police Chief Jeffrey Cossette and Assistant Police Chief Timothy Topolus, whom he found credible witnesses. In addition, we find the claimant himself testified as to many of the limitations on auxiliary officers enumerated in the Finding and Dismissal. See January 14, 2011 Transcript, pp. 83, 88-89, where the claimant admitted he was not paid nor did he receive benefits as an auxiliary police officer. The documentary evidence before the commissioner, such as Respondent’s Exhibit 6, also delineates a series of limitations on Meriden auxiliary police officers making them subordinate and separate from the regular police force.
The trial commissioner conducted an analysis of the dictionary definition of the word “regular” and concluded that the claimant’s position with the Meriden police department did not constitute membership as a “regular” member of the department. We note that the commissioner reviewed the limited number of hours the claimant spent as an auxiliary officer as part of this analysis. The compensation review board conducted a similar analysis of the job responsibilities of a correctional nurse in Cadore v. State/UConn Health Center, 5581 CRB-4-10-8 (July 18, 2012), and concluded she was an integral, full time “member” of the correctional institution. The trial commissioner’s conclusion herein that the claimant’s activities did not make him a regular member of the Meriden police department was a reasonable conclusion based on the law and the evidence.
In particular we note the trial commissioner indicated that the claimant did not have a pre-employment physical performed as an auxiliary officer. This is not a case akin to the “lost examination” cases such as Lembrick v. State/Department of Correction, 5543 CRB-1-10-4 (February 10, 2011) or Collingwood v. Branford, 4787 CRB-3-04-2 (July 6, 2005). In those cases, the parties acknowledged a pre-employment physical was a requirement for the claimant to be hired, but in Lembrick the document was not provided to the tribunal and in Collingwood, the respondent argued a prior physical examination performed when the claimant was hired as a dispatcher should not be deemed relevant. The absence of an examination indicates the respondent did not believe auxiliary officers were part of the regular police force, as performing a pre-employment physical was a condition precedent for coverage under § 7-433c C.G.S. As the trial commissioner did not find the claimant had a pre-employment physical, nor was such an examination a requirement to serve, we may reasonably ascertain that the parties at all relevant times did not believe auxiliary officers were within the scope of § 7-433c C.G.S.
The claimant discusses Genesky, supra, and Bucko, supra, at length in his brief. At oral argument before our board, counsel for the claimant asserted they created a “penumbra” of coverage for the claimant under the facts of this case. Our examination of these cases leads us to determine that they are too dissimilar to shed any light on this dispute. In Genesky, supra, the claimant was a constable employed by a town that utilized resident state troopers to manage their local police force. In that case, the Supreme Court affirmed the decision of this tribunal that the heart and hypertension statute did not extend to constables hired by a town that did not maintain a paid police force established under Chapter 104 of the General Statutes. The Supreme Court pointed out that even if the duties of a constable were deemed similar to that of a member of a paid police department, the terms of the statute could not be read to extend heart and hypertension benefits to constables. Id., 260-266.
In Bucko, supra, the claimant was a full time employee of a paid police department who had been hired in 1945 on a “Temporary C” basis where he was subject to being dismissed if a returning veteran from World War II was entitled to the job. The claimant in Bucko passed his pre-employment examination at the time of his original hiring, but when offered a police officer’s position on an unconditional basis in 1947 the claimant had a slightly elevated blood pressure reading. The Compensation Review Division affirmed the factual determination by the trial commissioner that the claimant was entitled to benefits, as it found “there was no functional change in claimant’s employment status” between 1945 and 1947 and therefore deemed the first successful physical applicable for the purposes of § 7-433c C.G.S. coverage.
On appeal, the respondents asked the Appellate Court to construe the term “regular member” of a paid police department as “including some sense of permanency.” Id., 570. The Appellate Court declined to do so, and affirmed the determination of our commission. “The facts and circumstances of this case fully warranted the conclusion that the plaintiff was a ‘regular paid member of a municipal police department’ and thereby entitled to benefits under General Statutes § 7-433c... [t]he commissioner’s decision not only reflected a correct application of the appropriate law, it also promoted a manifestly just result.”
Since the fact pattern in Bucko reflected a trial commissioner’s finding of facts being upheld by the Compensation Review Division and the Appellate Court, as well as there being no dispute as to the claimant’s duties, we find no authority in Bucko that suggests the trial commissioner erred in the present case. Nor do we find that the Genesky case, where both this tribunal and the Supreme Court determined a class of claimants were ineligible for coverage, supports reversal of the commissioner’s decision.
In the present case, the claimant was not paid and had no set hours. The testimony credited by the trial commissioner was that the claimant’s duties as a Meriden auxiliary officer were not the same as the duties performed by the paid officers of the Meriden Police Department. The claimant had not undergone a pre-employment physical prior to the statute being amended to remove § 7-433c C.G.S. benefits from newly hired officers. Given these subordinate facts, we believe the trial commissioner’s decision that the claimant was not a “regular” member of the Meriden force on or before July 1, 1996, both legally correct and fully supported by the facts presented to the commissioner.
Since the claimant was not a “regular member” of the Meriden Police Department during the period when he would have been eligible for § 7-433c C.G.S. benefits, we affirm the Finding and Dismissal.
Commissioner Ernie R. Walker concurs in this opinion.
1 Commissioner Clifton E. Thompson heard this appeal but passed away prior to the issuance of this opinion. BACK TO TEXT
2 The claimant discusses at great length in his brief the certification process for police officers and whether the claimant had the ability to perform the role of a regular police officer. Claimant’s Brief, pp. 20-25. The trial commissioner’s decision herein was based not on the potentiality of what the claimant could have done for the Meriden Police Department, but on the factual predicate of the actual duties he was assigned and performed. BACK TO TEXT