Opinion
CASE NO. 30 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 August 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 August 8, 1980, is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
John J. Meaney 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 May 12, 1965, while still in the employ of the respondent-appellee, City of Waterbury, he died as a result of coronary occlusion, leaving his wife surviving him as a dependent.
The Commissioner found that Section 7-433c, Connecticut General Statutes, enacted in its present form by the Connecticut Legislature, became effective on June 28, 1971.
The claimant-widow brought this action alleging that she is entitled to compensation as a surviving dependent-widow of a policeman who dies of a heart attack after having passed a pre-employment physical examination which failed to disclose evidence of heart disease or hypertension.
The Commissioner found that Section 7-433c, Connecticut General Statutes, had no retroactive effect, and accordingly dismissed the claim of the widow on the ground that Officer Meaney had died prior to the effective date of the statute.
It should be noted that the claimant's attorney filed an unsigned, one-page document entitled "Reasons for Appeal", requesting that the case be reserved to the Appellate Session of the Superior Court, and raising as issues the following:
1) Whether or not Section 7-433c, Connecticut General Statutes, has retroactive effect,
2) Notice required in said statute, and
3) A question relative to the dates upon which a claimant's benefits are to begin.
Such document and an exhaustive brief were filed on March 18, 1981.
Thereafter, on October 16, 1981, the attorney for the claimant filed another extensive brief containing, inter alia, following issue: "Did the Commissioner err in concluding that he would have to give retroactive effect to Section 7-433c, C.G.S., in order to allow the claimant dependent-widow benefits under Section 7-433c, C.G.S., 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 said claimant has a burden of proof under the act occurred prior to June 28, 1971?"
The primary thrust of the claimant-appellant's argument is that Section 7-433c, Connecticut General Statutes, is procedural and not substantive in nature, and accordingly, its provisions may be given retroactive force and effect.
The respondent-appellee asserts that that statute is substantive in nature and therefore may not be given retroactive effect.
As a fundamental principal of law, it is clear that, "Statutes should be construed retrospectively only when the mandate of the legislature is imperative." Michaud vs. Fitzryk, 148 Conn. 447, 448(1961).
In this regard, it should be noted that Section 7-433c of the Connecticut General Statutes, enacted on June 28, 1971, contained no language to indicate that it was designed to act retroactively.
Nor may we infer from the statute an exception to its provisions which the legislature has not prescribed either by word or implication. As stated by the Court in Busko vs. DeFilippo, 162 Conn. 462, 471(1972), "It is true that in some instances statutes general in their terms are construed to admit implied exceptions. . . This interpretation, however, is made when the intent of the lawmakers is clear not withstanding the literal sense and precise letter of the statute. . . No such interpretation may be made in this instance." (Citations omitted.)
As the statute in question does not specifically give itself retroactive effect, we turn now to the issue as to whether or not the statute is substantive or procedural. If substantive it may not be construed to have retroactive effect, but if procedural, the cases are clear in allowing retroactivity insofar as a remedy is concerned.
Substantive law had been defined as, "That part of law which creates, defines, and regulates rights, as opposed to `adjective or remedial law', which prescribes methods of enforcing the rights or obtaining redress for their invasion. That which creates duties, rights and obligations, while `procedural or remedial law' prescribes methods of enforcement of rights or obtaining redress. . . The basic law of rights and duties (contract law, criminal law, tort law, law of wills, etc.) as opposed to procedural (law of pleading, law of evidence, law of jurisdiction, etc.). (Citations omitted) Black's Law Dictionary, Fifth Edition, 1979.
Not withstanding the lengthy and erudite briefs submitted in this case by claimant's counsel, in which the legislative development of Section 7-433c is exhaustively detailed, certain facts are inescapable: The Connecticut Legislature enacted Section 7-433a, Connecticut General Statutes, granting policemen an irrebuttable presumption that any heart disease suffered was due to their work and compensable under the Workers' Compensation Law in 1969. The Connecticut Supreme Court declared Section 7-433a invalid in the case of Ducharme v. City of Putnam, 161 Conn. 135 (1971). Officer Meaney died as a result of coronary occlusion in 1965, prior to the adoption of Section 7-433a and the only relationship with either the existing statute or its predecessor is the fact that the claimant-widow instituted proceedings hereunder subsequent to the enactment of the present Section 7-433c.
It is clear to this panel that the rights conferred upon police officers and firefighters by virtue of Section 7-433c, Connecticut General Statutes, created new rights as to police officers and firefighters and imposed duties and obligations upon municipal employers. In such regard the statute is clearly substantive in nature and we are of the opinion, and agree with the Commissioner below, that the statute has no retroactive effect.
That being so, we affirm the decision of the Commissioner.