Opinion
CASE NO. 253 CRD-6-83
FEBRUARY 5, 1986
The Claimant was represented by Thomas Weaver, Esq.
The Employer-Respondent was represented by Alfred Fordiani, Jr., Esq., Assistant Corporation Counsel.
This Petition for Review from the August 4, 1983 Finding and Award of the Commissioner at Large, Acting for the Sixth District, was argued March 1, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Frank Verrilli.
FINDING AND AWARD
The Finding and Award of the trial Commissioner is adopted as the Finding and Award of this Division.
OPINION
This matter presents another in that whole galaxy of issues generated by 7-433c, C.G.S., the 1971 Heart and Hypertension Act. Claimant became a firefighter for the respondent City of Meriden February 19, 1953 after a pre-employment physical which showed no evidence of heart disease or hypertension.
His duties as a fireman were as an electrician assigned to maintaining fire alarms and other electrical work. In 1966 although claimant's duties remained substantially the same as before, there was an administrative reorganization resulting in the Signal Department's budget being included in the Engineering Department. Claimant's title later became Director of Traffic Signals, but he was also referred to as Superintendent of Signals and Superintendent of Alarms. At a July 13, 1970 meeting of the Meriden Board of Public Safety, when the title of Superintendent of the Signal Department was conferred upon him, there was also discussion of claimant's employment status. It was then decided that should claimant retire, he was to be retired at the level of an assistant fire chief's salary.
On December 9, 1974 claimant suffered a myocardial infarction and made a claim. The City filed a Form 43, Notice of Intention to Contest Liability to Pay Compensation. On that Form the City listed two reasons for contest: "(1) The City disputes the fact that claimant is disabled. (2) The City will dispute the claimant's eligibility for coverage under 433-c." A hearing was first scheduled on this claim February 7, 1975 to take place April 1, 1975.
On March 3, 1981 claimant wrote to Chief Charles Stiegler of the Meriden Fire Department requesting "service connected disability retirement pursuant to Section 7-433c of the Connecticut General Statutes." In that letter claimant mentioned his December 9, 1974 myocardial infarction and that he was then able although remaining under doctor's care to work full-time after a month's absence.
The 1981 letter then states that recent experiences in performing his work duties and the stress of those duties were "detrimental to my health, affecting my heart and respiratory system." Attached to the letter was a written statement from Dr. Daniel Kahn of Meriden certifying to claimant's medical diagnoses:
"1. Ischemic heart disease with old myocardial infarction (sustained 1975) sic
2. Inactive gout.
3. Mild diabetes
4. Hypertension, under treatment."
His letter was acted upon at an April 14, 1981 meeting of the Municipal Pension Board. The minutes of that meeting show a unanimous vote to grant a pension to "Rodney Zimmer, Superintendent of Signals. Zimmer has been a member of the Fire Department pension plan since his employment with the City." Other parts of those same minutes refer to Zimmer's rank as Assistant Fire Chief and to the fact that his pension amount was decided upon in a conference with the Fire Chief and the Personnel Director.
The District file shows that a hearing notice dated March 19, 1981 was issued for an informal hearing to be held May 5, 1981 in Meriden "re: Section 7-433c." Ultimately the Commissioner at Large heard the matter for the Sixth District on April 8 and June 2, 1983. The Finding and Award of the trial Commissioner issued August 4, 1983 found that the City had accepted the September 9, 1974 heart attack as compensable and ordered payment of benefits based on claimant's compensation rate applicable to the 1974 event.
Both parties have appealed. The City's appeal relies mainly on the argument that claimant was not a uniformed or regular member of a paid fire or police department. As additional reasons the employer further argues that claimant's notice was not filed within the year permitted by Sec. 31-294, C.G.S., Janco v. Fairfield, 39 Conn. Sup. 403 (1983) and also that claimant had not proved any disability from hypertension or heart disease. Claimant's cross appeal argues that the date of the compensable event should have been 1981 rather than 1974 as found by the Commissioner.
To dispose first of the City's latter arguments, there was ample evidence as indicated above that claimant gave timely notice of claim both in 1974 and in 1981. Moreover, a hearing was scheduled in both instances well within a year of the compensable event. This evidence is so compelling that the City's argument in this regard borders on the frivolous. As for the argument that no disability was proven, again our summary of the evidence above demonstrates clearly that the trial Commissioner had before him medical evidence of disability from heart disease and hypertension, impairment sufficient for the doctor concerned to recommend retirement. Therefore, this argument is also without merit.
With respect to the respondent's principal attack, i.e. that claimant was not a uniformed fireman, the evidence embodied in the 1970 and 1981 meetings of those respective municipal boards indicate that the City was treating claimant as a fireman. Moreover, there was also evidence before the Commissioner that claimant had been in uniform when the occasion demanded it. Even the City itself in 1974 accepted claimant's status as a fireman but contested the claim on other grounds. Thus, it is really too late in the day for the city now to advance this argument. As there was ample evidence for the trial Commissioner to find as he did, we as an appellate tribunal, must sustain that finding, Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
The same conclusion must be reached with respect to the cross appeal by claimant. There was evidence before the trial Commissioner that claimant had suffered a heart attack in 1974, continuing medical sequelae thereafter, and problems in 1981 deriving from that initial 1974 event creating a lessened capacity for work. This evidence was sufficient to support the Commissioner's Finding.
Therefore both Respondent's appeal and Claimant's Cross Appeal are dismissed. The decision of the Commissioner is affirmed.
Commissioners Andrew Denuzze and Frank Verrilli concur with this opinion.