Opinion
CASE NO. 51-CRD-5-81
OCTOBER 26, 1981
The claimant-appellee was represented by Dennis M. Buckley, Esq.
The respondent-appellant was represented by James Caulfield, Esq.
This Petition for Review from the February 6, 1981 Decision of the Commissioner for the Fifth District was argued May 22, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, Andrew P. Denuzze and A. Paul Berte'.
FINDING AND AWARD
1-4. Paragraphs 1 through 4 of the Fifth District Commissioner's Finding and Award of February 6, 1981 are affirmed and adopted as the Finding and Award of the Compensation Review Division.
It is therefore ORDERED, AWARDED, ADJUDGED AND DECREED that Respondent pay to claimant all benefits due under Sec. 7-433c, C.G.S. in the same amount as would be payable under Chapter 568 subject to the limitation of Sec. 7-433b(b) less amounts already paid, these benefits being due and payable from December 18, 1978, the date when disability commenced, and weekly thereafter at the rate of $160.00 per week until February 6, 1981, the date of the Commissioner's decision.
It is further ORDERED that the Respondent pay the sum of $250.00 each as a fee for the testimony of Dr. Wilbur H. Caney and Dr. John F. Summa.
It is further ORDERED that the Respondent municipality pay all medical expenses incurred or to be incurred by the claimant for the treatment of his hypertension and heart disease.
The matter is remanded to the District Commissioner for further proceedings to determine whether after February 6, 1981 the claimant continued to be entitled to Sec. 31-307 or 31-308 benefits.
OPINION
As requested by the appellant municipality, we have reviewed the entire transcript of the proceedings below. Claimant LaBoda was a regular member of the police department of the respondent Town of Watertown. He had successfully passed a pre-employment physical. He then suffered total disability as the result of hypertension and heart impairment December 18, 1978.
The Commissioner below ruled that as claimant had satisfied the three requirements of Sec. 7-433c, i.e. (A) regular membership and employment in a municipal police department, (B) successful passage of a preemployment physical, (C) disability from work due to hypertension and heart disease, he was entitled to compensation benefits the same as those provided in Chapter 568.
The appellant municipality in its appeal of this ruling advances two arguments:
(1) The claimant is not totally disabled as a doctor testified that the claimant had only a 75% impairment of the whole body, and
(2) Whatever benefits claimant is entitled to should be offset by the receipt of (a) Town pension, (b) Crown Life disability benefits and (c) Social security benefits.
The record does not reveal that respondent presented any medical testimony. The two doctors who testified for the claimant were Dr. Wilbur H. Caney of Watertown and Dr. John Summa of Waterbury. Dr. Caney rated the claimant's heart as 75% impaired June 11, 1979 and 90% impaired January 16, 1980, the latter being the day he gave his testimony.
When the doctor gave this last opinion, the Commissioner intervened in the examination as follows:
"COMMISSIONER: So what you are saying is that his heart has been damaged 90%. How about his ability to function?
WITNESS: It is equivalent to what his heart will let him do, which is roughly 90%."
Dr. Summa testified that claimant had a 75% impairment of the heart and was 75% disabled. In further testimony Dr. Summa stated:
"Based on the history, my exam, and the exercise tolerance test performed November 16, 1978, I concluded that in August of 1979, he was totally disabled, but agreed and felt that this man at the time of his retirement was totally and completely disabled."
Clearly, the portions of the transcript cited provide an evidentiary basis for Paragraph 4 of the Finding wherein the Commissioner concluded that claimant had a total incapacity for work. To argue, as does appellant, that since the medical evidence showed a permanent impairment of a specific organ of the body, the Commissioner could only award benefits under 31-308 for permanent partial disability or specific injury rather than total disability benefits under 31-307 flies in the face of well established legal precedent, Osterlund v. State, 135 Conn. 498 (1949), Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951).
In Osterlund, the Supreme Court overruled both the Superior Court and the Commissioner by holding essentially that unemployability could constitute total incapacity for work even if there may have been some residual physical ability left in the claimant to perform some light tasks. Osterlund could be held to be totally incapacitated under the Workers' Compensation law though eligible to receive unemployment compensation benefits.
Czeplicki involved a claimant with a back injury resulting in a permanent partial disability of 10%. There the Court upheld the Commissioner and ruled that it was in the Commissioner's discretion to continue temporary total disability benefits rather than award permanent partial benefits for the permanent partial impairment of a specific part of the body. If a 10% permanent partial disability of the back may permit a ruling of total incapacity to work, we are satisfied a Commissioner has discretion to make a total incapacity award when 75% or 90% impairment of the heart, the major body organ, is involved.
But even if we put aside for the purposes of argument the Osterlund and Czeplicki rationale and the great diminution of physical function caused by a major heart impairment, the respondent offered no evidence to show that claimant was in fact employable and that there were employment opportunities in the labor market for his greatly lessened abilities to do work. Nor did it offer any medical evidence to contradict the massive impairment of heart function testified to by the claimant's medical witnesses. Certain such evidence would be relevant in future proceedings to determine the nature of claimant's disability after February 6, 1981.
The municipality's second argument concerning monetary offsets against workers' compensation disability benefits due should have been addressed to the General Assembly, and not to the district commissioner or the review panel. The Commission and its Compensation Review Division are creatures of the legislature cloaked with limited administrative law powers, a part of the executive branch of the government. We are not a court and have no Article Fifth powers to decide questions of contract law and interpret retirement plan provisions.
Sec. 7-433c simply gives the Commission the power to award benefits equal to Chapter 568 benefits to municipal policemen and firemen disabled on account of heart disease or hypertension, Sec. 7-433b(b) holds that no policeman, fireman, or surviving dependents of them may receive compensation benefits and retirement system benefits, which together exceed the pay of an active member of the department then serving in the same position,
Sec. 7-433b does not mention social security benefits or benefits for disability from private insurance plans funded by the municipality. But even this omission cannot concern us. For the Commission to compute how much should be paid by way of pension benefits and how much by way of compensation would of necessity involve us in a declaration of rights under the retirement system plan and statute. This is beyond our power. Our task is completed under 7-433c, Grover v. Manchester, 168 Conn. 84 (1975) when we have decided eligibility or lack of eligibility for compensation benefits and the amount thereof.