Opinion
CASE NO. 377 CRD-7-85
JULY 22, 1988
The claimant was represented by Leo Gold, Esq.
The respondent was represented by George Waldron, Esq.
This Petition for Review from the January 3, 1985 Finding and Award of the Commissioner for the Seventh District was heard December 5, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Darius J. Spain and Frank J. Verrilli and reheard June 24, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Robin Waller.
OPINION
Claimant, a regular uniformed member of the Stamford fire department suffered smoke and gas poisoning while fighting a fire February 15, 1962. In February, 1965 a medical examination disclosed he was suffering from hypertension. Claimant alleged in 1969 that he suffered smoke exposure again in the course of the employment, but the Commissioner did not so find. Claimant was granted a disability retirement effective November 3, 1973 since his hypertensive condition at that time made continued employment as a firefighter dangerous. Additionally, a medical examination in July, 1973 revealed he was suffering bronchial asthma due to smoke exposure. At the time of retirement, Claimant held the rank of Deputy Fire Chief.
The Seventh District Commissioner's January 3, 1985 Finding and Award found Claimant had suffered a twenty-two and one-half percent (22 1/2%) permanent partial disability of each lung and ordered Respondents to pay 78.75 weeks of compensation at the February, 1962 compensation rate. He also concluded that Claimant had suffered a forty percent (40%) permanent partial disability of the cardiovascular system and awarded Claimant 312 weeks of benefits to be paid at the compensation rate in effect March 1, 1965. He further found maximum medical improvement had been reached October 1, 1982.
Claimant's appeal raises two issues: (1) the applicable compensation rate should be that in effect in November, 1973 when the two conditions first caused incapacity, not those of of February, 1962 and March, 1965, and (2) Claimant should have been found totally disabled because unemployable.
Claimant also included in his reasons of appeal the issue of whether it was error for the trial Commissioner to disregard the treating physician's opinion in determining the degree of permanent partial disability with respect to Claimant's lungs. This issue was not argued in Claimant's brief nor raised at oral argument. We deem it abandoned.
The respondent city did not itself appeal; it opposes Claimant's contentions and supports the Commissioner's decision. All parties seem to have proceeded throughout as if the benefits package in effect under the 1973 law or the 1982 law defined the appropriate remedies here available. Not until the C.R.D. panel of Commissioners referred to subject matter jurisdiction over the proceedings at the time of oral argument did that issue first arise. Yet it would seem that such jurisdictional and constitutional concerns are here highly relevant, Broaca v. Broaca, 181 Conn. 463 (1980); Castro v. Viera, 207 Conn. 420 (1988), Gorman v. Waterbury, 4 Conn. App. 226 (1985); Connors v. West Haven, 477 CRD-3-86 (May 20, 1988). In this case, there is a 1962 event causing an accidental injury to the lungs, and the award grants benefits for permanent partial specific injury benefits under a part of the statute, now Sec. 31-308(d), C.G.S., which did not come into existence until 1967. Similarly, Claimant's hypertension first surfaced in 1965, and the award grants benefits for cardiovascular permanent partial disability under Sec. 7-433c, a statute whose effective date was six years later, June 28, 1971.
1967 P.A. 842.
1971 P.A. 524, Sec. 1.
Although appellant did not expressly allude to the problem, his arguments at least impliedly seek to counter the unuttered jurisdictional challenge. His basic contention that the date of injury should be the date of first incapacity to work in 1973 is footed in the premise that the claim involves occupational disease or repetitive trauma injuries rather than accidental injuries definitely located in time and place. This reasoning relies in turn on the principle codified by the 1980 legislature into Sec. 31-307, C.G.S., "In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease". The principle itself, as appellant notes in his brief, predated the 1980 amendment by a half century, Rousu v. Collins Co., 114 Conn. 24, 31 (1931); O'Leary v. New Britain, 236 CRD-6-83, 3 Conn. Workers' Comp. Rev. Op. 108 (December 2, 1986), Boutin v. Industrial Components, 237 CRD-6-83, 4 Conn. Workers' Comp. Rev. Op. 19 (March 3, 1987), Pich v. Pratt Whitney, 354 CRD-6-84, 4 Conn. Workers' Comp. Rev. Op. 163 (March 9, 1988). It follows if the date of injury were held to be the first date of incapacity in 1973, then there would be workers' compensation jurisdiction over both the smoke exposure February, 1962 event and the hypertension condition.
P.A. 80-124.
But the trial Commissioner found the injury dates to be 1962 and 1965 respectively. Should those dates be held correct, then following Broaca, Castro, Gorman and Collins, supra, there can be no jurisdiction to grant the benefits awarded. One possible exception might be an award for partial incapacity under Sec. 31-308(a), C.G.S. concerning the 1962 smoke exposure rather than the award made for specific under Sec. 31-308(d).
For convenience, we have designated the statute Sec. 31-308 as presently labeled rather than to refer to the identical language in 1961 P.A. 491, Sec. 31 and 1967 P.A. 842, Sec. 15. Sec. 31-308 was not divided into its present subsections until 1979, P.A. 79-376.
The matter is being remanded in any event, and if on remand the date of injury is still found to be 1962, then the Commissioner may find that the smoke exposure resulted in partial incapacity under Sec. 31-308(a) and award a weekly partial benefit rate for any weeks during which that situation existed.
Since the date of injury found will not sustain the award made for the jurisdictional reasons we have enumerated, the rulings below are inconsistent. The award must be vacated and the matter remanded for further proceedings. We cannot determine from the record before us whether the 1962 smoke exposure was a single accident setting in motion a process eventually resulting in incapacity to work without any further involvement from Claimant's work or whether the 1962 incident was simply the first event in a continuing disease process contributed to by elements involved in the work. Similarly, with respect to the hypertension, did that condition remain as it was in 1965, did it then develop into a partially or totally disabling condition without any further work involvement, or did work after 1967 contribute to a continuing deterioration in the process resulting in the disability which occurred in 1973?
Dombrowski v. Jennings Griffin Co., 103 Conn. 720 (1926) provides some guidance in the further inquiry we have ordered. That case involved a 1924 claim for disabling pneumoconiosis first discovered in October, 1923 but probably existent long before that date. The defendant employers argued that it existed before 1919 when occupational disease first became compensable under Connecticut law and that they were responsible only for that portion of the claim represented by the aggravation of the disease between July 1, 1919, the effective date of the occupational disease amendment and December 6, 1924, the last day worked. The Supreme Court affirmed the Commissioner's award of benefits holding that the employer had not sustained the burden of proof that the disease pre-existed July 1, 1919. We do not suggest Dombrowski governs here but simply point to its reasoning and analysis as parallel in many respects to this case.
Appellant's other contention on appeal, i.e. that he should have received total rather than partial disability benefits does not necessitate extensive analysis. Revoir v. New Britain, 2 Conn. App. 255 (1984), aff'g our decision, 101 CRD-6-81, 1 Conn. Workers' Comp. Rev. Op. 213 holds that Sec. 7-433c did not create a permanent total disability benefit for those who could no longer perform a municipal police or fire job. Rather, those individuals had to satisfy the requirements of chapter 568 to receive total rather than partial benefits. Those determinations are for the trial Commissioner to make on a case by case basis. He found here Claimant partially not totally disabled. We cannot retry the facts, Fair v. People's Savings Bank, 207 Conn. 535 (1988). Therefore, we affirm the Seventh District on that point.
The appeal is sustained, the award is vacated and the matter is remanded for further proceedings consistent with this opinion.
Commissioners A. Paul Berte and Robin Waller concur.