Rothholz v. The Chesterfield Fire Company, Inc.

CASE NO. 4827 CRB-2-04-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 12, 2005

RICHARD K. ROTHHOLZ

CLAIMANT-APPELLEE

v.

THE CHESTERFIELD FIRE COMPANY, INC.

EMPLOYER

and

CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Lori M. Comforti, Esq., Law Office of Lori Comforti, LLC, 12 Case Street, Suite 303, Norwich, CT 06360.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the June 23, 2004 Finding and Award of the Commissioner acting for the Second District was considered on the basis of papers submitted for the January 21, 2005 Compensation Review Board hearing. The parties waived oral argument and this matter was reviewed by a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have appealed from the June 23, 2004 Finding and Award of the Commissioner acting for the Second District.1 In that Finding and Award the trial commissioner concluded the claimant was an active member of a volunteer fire department at the time of his injury engaged in volunteer fire duty subject to the provisions of § 7-314a(a).

The pertinent facts are as follows. On August 19, 2003 the claimant injured his right upper extremity while attempting to move a partially empty four-drawer file cabinet at the Chesterfield Fire Company’s office. At the time of the injury the claimant was president of the volunteer fire company having been elected to that position in November 2002. As president of the volunteer fire company, the claimant handled administrative matters including the fire company’s finances and paper work.

In order to qualify for the benefits prescribed in § 7-314a(a) a claimant must be an active member of a volunteer fire department and the injury must have occurred while in training or engaged in volunteer fire duty. The trial commissioner concluded the claimant satisfied both requirements and awarded benefits. The respondents filed this appeal; (1) whether the trial commissioner erred in concluding the claimant was an “active member” of the volunteer fire department, (2) whether the trial commissioner erred in finding the claimant was engaged in volunteer “fire duties” as defined in § 7-314b(b) and whether the trial commissioner erred in failing to grant the respondents’ Motion to Correct.

We first consider whether the trial commissioner erred in concluding the claimant was an active member of the volunteer fire department at the time of the injury. The respondents cite 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) in support of its contention that the claimant was not an “active member” of the volunteer fire department. The respondents predicate their argument on the fact that at the time of the injury the claimant was totally disabled from his job with Backus Hospital. According to the claimant in May or June of 2003 he injured his neck and left shoulder while working at Backus Hospital. On August 19, 2003 the claimant’s treating physician, Dr. Mittelman, determined the claimant was totally disabled through August 20, 2003. The respondents argue that Peabody, supra, stands for the proposition that in order to be an “active member” of a volunteer fire company the claimant must have the “physical ability to fight fires or perform fire duties at the level required of a regular active member of the fire company.” (emphasis ours).

Among the claims of error cited by the respondents is their assertion that the trial commissioner erred in relying on the fire company’s by-laws in making his determination the claimant was an active member. The respondents contend the term “active member” is not adequately defined. Additionally, they argue that as the claimant was totally disabled from his regular employment, ipso facto, he cannot be considered an active member of the fire company as he is physically unable to actively engage in what is generally considered fire-fighting activities.

We note that in making his determination the trial commissioner construed the term “active member” consistent with the use of the term in common parlance. See Finding ¶¶ 15-16.2 In Lehn v. Dailey, 77 Conn. App. 621, 626 (2003) our Appellate Court noted:

Where the legislature has not provided a specific definition of a word in a statute, “we look to the common understanding of [that word] as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Russo, 259 Conn. 436, 449, 790 A.2d 1132, cert. denied, 537 U.S. 879, 123 S.Ct. 79, 154 L.Ed.2d 134 (2002); see General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly”).

We think the commissioner’s conclusion is further buttressed by § 7-314(a)’s identification of activities which constitute fire duties. Section 7-314(a) provides in pertinent part:

[T]he term “fire duties” includes duties performed while at fires, while answering alarms of fire, while answering calls for mutual aid assistance, while returning from calls for mutual aid assistance, while directly returning from fires, while at fire drills or parades, while going directly to or returning directly from fire drills or parades, while at tests or trials of any apparatus or equipment normally used by the fire department, while going directly to or returning directly from such tests or trials, while instructing or being instructed in fire duties, while answering or returning from ambulance calls where the ambulance service is part of the fire service, while answering or returning from fire department emergency calls and any other duty ordered to be performed by a superior or commanding officer in the fire department; (emphasis ours).

Here, the claimant was an officer in the volunteer fire company organization and arguably by virtue of his election as president,3 he is a superior officer. The claimant’s injuries occurred while he was performing his duties as president of the fire company. As the claimant was actually performing fire duties as set out in § 7-314(a), it stands to reason that the claimant was an “active member” of the fire company.

Additionally, we note the appellants contend it was error for the trial commissioner to rely on the by-laws of the respondents’ fire company in reaching his determination as to claimant’s status as an active member. Reference to the fire company’s by-laws is found in ¶¶ 3-5 of the Finding and Award. We think even if we were to strike the findings referencing the company’s by-laws, the conclusion would stand. However, we note the appellants have not preserved any objection to the trier’s admission of the by-laws. If the appellants were of the mind that the Chesterfield Fire Company’s by-laws were of no relevance then an objection to their admission should have been made at the time they were offered into the record. In the instant matter the appellants have not provided a transcript of the June 1, 2004 formal hearing at which the documents were proffered. Without a transcript of the formal hearing it is impossible to determine if the appellants objected to the admission of the by-laws into the record.

A point of clarification may be in order. We are not making any determination as to the issue raised by the appellants that the trier’s reference and reliance in part on the fire company’s by-laws was inappropriate. We are merely stating we do not reach that issue as the appellants have not provided a transcript of the June 1, 2004 formal hearing proceedings and thus, we cannot engage in a meaningful review on this issue nor the appropriateness of the denial of the Motion to Correct. See Mackiewicz v. Aetna Life & Casualty, 4558 CRB-8-02-8 (August 14, 2003); Drew v. Sears Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002), appeal dismissed, A.C. 23094 (August 21, 2002).

We therefore affirm the June 23, 2004 Finding and Award of the Commissioner acting for the Second District. Insofar as benefits may have remained due and owing to the claimant pending the outcome of this appeal, we are required to order the payment of interest pursuant to § 31-301c(b) C.G.S.

Commissioners Stephen B. Delaney and Michelle T. Truglia concur.

1 We note an extension of time was granted to the appellants during the pendency of this appeal. BACK TO TEXT

2 Findings ¶ 15 and ¶ 16 state “Webster’s II New Riverside University Dictionary defines “active” as a participating member of an organization,” and “Webster’s II New Riverside University Dictionary defines “duty” as an act or a course of action required of one by position, a service, action, or task assigned to one.” BACK TO TEXT

3 Merriam-Webster’s II New College Dictionary (1995) defines “President” in pertinent part as; “the chief officer of an organization (as a corporation or institution) usually entrusted with the direction and administration of its policies.” BACK TO TEXT