Opinion
CASE NO. 862 CRD-6-89-5
JANUARY 3, 1991
The claimant was represented by David A. Baram, Esq.
The respondent-employer was represented by Michael Belzer, Esq., Assistant Attorney General.
This Petition for Review from the April 28, 1989 Finding and Award of the Commissioner for the Sixth District was heard April 27, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr. and James Metro.
OPINION
Although both parties in this appeal have targeted their arguments on the distinctions between Sec. 5-142(a) and Sec. 5-145(a), we must first consider the basic issue of compensability decided liminally by the commissioner below when he granted claimant's Motion to Preclude defenses under Sec. 31-297.
Sec. 5-142. Disability compensation. (a) If . . . any member of the police or fire security force of The University of Connecticut, any member of the police or fire security force of Bradley International Airport, . . . sustains any injury while making an arrest or in the actual performance of such police duties . . . , the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled, . . .
Sec. 5-145a provides in pertinent part: Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a member of the security force or fire department of The University of Connecticut, . . . who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. Any such employee who began such service prior to June 28, 1985, and was not covered by the provisions of this section prior to said date shall not be required, for purposes of this section, to show proof that he successfully passed a physical examination on entry into such service.
Claimant was a police officer employed by the state at its University of Connecticut Health Center. He experienced a heart and hypertension episode requiring Emergency Room treatment on or about October 6, 1986. On October 30, 1986 the state filed by certified mail a notice contesting compensability with the sixth district commissioner. Subsequently, on November 7 the claimant filed a claim for compensation also by certified mail with the sixth district.
Paragraph 3 of the district Finding recites that compensability was presumed under Sec. 31-297(b) "inasmuch as respondent filed its Notice to Contest prior in time to claimant's Notice of Claim." However this appellate tribunal as early as 1985 indicated that an employer's notice of contest even if filed earlier than the employee's claim notice could suffice to forestall the default provisions of Sec. 31-297(b). Gelinas v. St. Mary's Hospital, 7 Conn. Workers' Comp. Rev. Op. 65, 705 CRD-5-88-3 (1989); Lopez v. Peerless Aluminum Foundry, 6 Conn. Workers' Comp. Rev. Op. 46, 654 CRD-4-87 (1988); Elmassri v. Vinco, Inc., 5 Conn. Workers' Comp. Rev. Op. 96, 584 CRD-7-87 (1988); Skorupski v. Commercial Union Insurance Co., 2 Conn. Workers' Comp. Rev. Op. 133, 338 CRD-3-84 (1985). In Elmassri we stated, "The employer here filed such a perfect disclaimer ten days before the employee sent his notice of claim. He (the employee) certainly then knew the employer was contesting his claim." Elmassri v. Vinco, Inc., supra, 97. Later in that same decision we said, "To hold that only those employer Sec 31-297(b) contests issued after a perfect employee Sec. 31-294 notice are valid to bar the irrebuttable presumption would be a tortured reading of the statute and truly elevate form over substance." id, 97.
As the present matter in those respects is on all fours with Elmassri, the sixth district should not have granted claimant's Motion to Preclude defenses. Therefore we must remand for further district proceedings to establish compensability.
As we do not base our decision on any of the conflicting statutory interpretations advocated by the parties, it is not here essential that we discuss their contentions. Nonetheless if the matter is to be fully tried below it may be useful to comment on the differences between Sec. 5-142(a) and Sec. 5-145a. Sec. 145a grants to individuals performing police duties in various state facilities a rebuttable presumption of compensability if they suffer disability or death due to hypertension or heart disease. In order for the presumption to lie the employee involved must have successfully passed a pre-employment physical examination which did not reveal any evidence of hypertension or heart disease. This statute parallels Sec. 29-4a which gives the same presumption to state policemen. However neither the Title 29 or this Title 5 presumption is a conclusive one as was the Sec. 7-433a presumption declared unconstitutional in Ducharme v. Putnam, 161 Conn. 135 (1971). Consequently both the Sec. 5-145a and the Sec. 29-4a presumptions simply shift the initial burden of persuasion. They cease to have any effect once the respondent employer presents evidence to contest compensability.
Sec. 5-145a was enacted considerably after Sec. 5-142. That latter statute granted to state police and University of Connecticut police full pay for five years if they were injured in the performance of police and guard duties. See Lucarelli v. State of Connecticut, 16 Conn. App. 65 (1988). Conversely Sec. 5-145a granted full pay only for the first three months of compensability if that compensability was achieved as a result of the non-conclusive presumption. Simply put Sec. 5-142 compensability needs to be established by proof that the disabling injury occurred in the performance of duty; Sec. 5-145a compensability is established on a prima facie case basis if the employer offers no evidence to contest. If benefits are obtained as a result of the Sec. 5-145a presumption, then the Sec. 5-142 full pay benefits receivable are reduced to the chapter 568 level after three months.
The language employed in Sec. 5-145a is that the condition "shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142." Once that employee completes three months of Sec. 5-142 benefits, then all provisions of chapter 568 apply. This includes dependency allowances under Sec. 31-307b and cost of living adjustments under Sec. 31-307 and Sec. 31-306.
For the reasons stated earlier in this opinion, we reverse and remand to the sixth district for further proceedings.
Commissioners A. Thomas White, Jr. and James Metro concur.