Opinion
CASE NO. 40 CRD-5-80
NOVEMBER 23, 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 24, 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.
OPINION
Frederick G. Kelley was a regular member of the City of Waterbury Fire Department prior to his retirement therefrom on July 10, 1971.
Mr. Kelley had suffered from arteriosclerotic heart disease for a long time prior to his retirement, and his medical bells were paid for by a combination of group insurance and payment by the City.
Frederick Kelley died of arteriosclerotic heart disease on May 26, 1974, leaving the claimant-widow surviving him as a presumptive dependent.
The claimant-widow did not make a claim for benefits under Section 7-433c, Connecticut General Statutes, until January 4, 1977.
The Commissioner found that since the employer had furnished medical attention to Frederick Kelley within one year of the appearance of arteriosclerotic heart disease, the claimant-widow's claim was not barred by the Statute of Non-claim.
The Commissioner found that the decedent's arteriosclerotic heart disease pre-existed the effective date of Section 7-433c, to wit, June 28, 1971, and as a consequence dismissed the claimant-widow's claim on the grounds that Section 7-433c had no retroactive effect.
This Review Division has recently issued opinions in two similar cases in which we agreed that Section 7-433c had no retroactive effect. Those cases were Gorman v. City of Waterbury, 2 Conn. Workers' Comp. Rev. Op. 17 (1983) and Meaney v. City of Waterbury, 2 Conn. Workers' Comp. Rev. Op. 13 (1983). Though similar, the instant case is somewhat distinguishable on the facts.
In the Meaney case, the decedent died in 1965, some six years prior to the effective date of Section 7-433c, C.G.S.
In the Gorman case, the decedent retired four months after the effective date of the statute and died about one year later. The Commissioner expressly found that there had been no proof of disability of Officer Gorman during his period of service.
As was stated by the Compensation Review Division in Stachelczyk v. City of Norwalk, 1 Conn. Workers' Comp. Rev. Op. 51 (1981) at page 52, four conditions must exist in order to qualify a claimant for benefits under Section 7-433c of the Connecticut General Statutes, as follows:
"What is required to bring a claimant within the group for which the protection is intended? There must be: (1) a claimant whose pre-employment physical exam revealed no evidence of hypertension or heart disease; (2) a condition or impairment of health caused by hypertension or heart disease; (3) resulting in death or temporary or permanent total or partial disability; (4) economic loss resulting therefrom."
The findings in the instant case are silent on the issue of whether of not Frederick Kelley had suffered from any disability, total or partial, permanent or temporary, between the effective date of Section 7-433c, C.G.S., on June 28, 1971 and the date of his retirement on July 10, 1971, which is the only period we believe to have relevance in this case.
As the Commissioner omitted such findings, we hereby remand this case to the Commissioner for further action in accordance with this opinion.
Commissioners Berte and Loeb concurred in this opinion.