Opinion
CASE NO. 39 CRD-5-80
MAY 20, 1983
The Claimant-Appellant was represented by Charles L. Flynn, Esq.
The Respondent-Appellee was represented by Ellis Wooden, Esq., Assistant Corporation Counsel, City of Waterbury.
This Petition for Review from the October 8, 1980 Decision of Commissioner John Arcudi, Acting for the Fifth District, was submitted on briefs on October 13, 1981, to a Compensation Review Division Panel consisting of Commissioners Gerald Kolinsky, A. Paul Berte and Rhoda Loeb.
FINDING AND AWARD
The Finding and Award of the Commissioner, dated October 8, 1980, is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
Joseph Gorman was a regular, uniformed police officer of the City of Waterbury, having successfully passed a pre-employment physical examination at the time of his employment, which failed to disclose any evidence of heart disease or hypertension.
On October 30, 1971, Officer Gorman retired from said police department, due primarily to his failing vision.
Officer Gorman had a hypertensive condition from 1967 until his death, which occurred on September 7, 1972, due to heart disease.
There was no evidence that the hypertension caused any disability prior to Officer Gorman's retirement on October 30, 1971.
There was no evidence presented that the Respondent, City of Waterbury, furnished medical attention for the hypertension condition between June 28, 1971, which is the effective date of Section 7-433c of the Connecticut General Statutes, and the date of Officer Gorman's death, but the Commissioner assumed that such medical attention may have been furnished in order to satisfy the requirements of Section 31-294, Connecticut General Statutes.
The claimant-widow herein did not make a claim for benefits under Section 7-433c, Connecticut General Statutes, until three years and four months after her husband's death.
At the time of his death, the decedent left his wife surviving him as a dependent.
In dismissing the Claimant-Appellant widow's claim for benefits, the Commissioner found that Section 7-433c, C.G.S., had no retroactive effect inasmuch as the decedent's hypertension was first diagnosed in 1967 at a time prior to the effective date of the statute, and had never proven disabling during Officer Gorman's service.
Notwithstanding the fact that the claimant's attorney has failed to file Reasons for Appeal in this case, in the absence of a Motion to Dismiss by the Respondent, we treat such defect as having been waived, and in view of the importance of the issues presented herein act as though the Reasons for Appeal raise issues set forth in the respective briefs of the parties.
The statement of issue raised in the claimant's brief dated September 8, 1981 is as follows: "Did the Commissioner err in concluding that, because the claimant, dependent-widow's police officer husband died prior to June 28, 1971, on the basis that, to do so, would give Section 7-433c retroactive effect; or, in the alternative, is the claimant-dependent-widow barred from receiving benefits under Section 7-433c, C.G.S., if any element for which the claimant had the burden of proof under the Act, occurred prior to June 28, 1971? or in the alternative: Do the benefits of Section 7-433c C.G.S. inure to the dependent-widow-claimant whose husband was a regular paid member of a municipal police department who, while so employed, suffered death caused by heart disease if that widow files a claim for such benefits and meets the burden of proof as to all the elements required as proof as a prerequisite to benefits under Section 7-433c even though said husband died on May 12, 1965. (sic)." It should be noted that the date of death attributed to the decedent herein is incorrect, said stated date being the date of death in a companion case and not the date of the decedent herein, who died on September 7, 1972.
Notwithstanding the manner in which the claimant presents her claim for benefits, the ultimate issue to be resolved by this Compensation Review Division is whether or not, under the facts of this case, Section 7-433c, Connecticut General Statutes, may be given retroactive effect, where it appears that the decedent developed hypertension prior to June 28, 1971, the effective date of Section 7-433c, when said hypertension resulted in no disability whatsoever during his service as a police officer, prior to his retirement.
As this tribunal stated in Adams vs. New Haven, 1 Conn. Workers' Comp. Rev. Op. 121, page 124: "Section 7-433c creates substantive rights, and it is well settled that Connecticut has a strong policy of giving retrospective application to statutes only when the mandate of the legislature to do so is imperative."
We hold in this case as we did in the case of Margaret Meaney, Dependent widow of John J. Meaney (Deceased) vs. City of Waterbury, Case No. 30-CRD-5-80, decided contemporaneously herewith by this panel that Section 7-433c of the Connecticut General Statutes had no retroactive effect. We hold such to be the case for the same reasons and upon the same principles enunciated by us in the decision in the case of Meaney vs. City of Waterbury, supra.
Without listing the citations given by us in said companion case, we held that the statute in question created substantive rights as opposed to procedural rights, and accordingly, could not be given retroactive effect.
Such being the case, we affirm the decision of the Commissioner.
/s/ Gerald Kolinsky Gerald Kolinsky, Commissioner
/s/ A. Paul Berte A. Paul Berte, Commissioner
/s/ Rhoda Loeb Rhoda Loeb, Commissioner