Opinion
CASE NO. 254 CRD-4-83
MAY 16, 1984
The Claimant-Appellee was represented by Gerald Stevens, Esq.
The Respondent-Appellant was represented by Mark Anastasia, Esq., Assistant Corporation Counsel of the City of Bridgeport.
This Petition for Review from the August 4, 1983 Finding and Award of the Commissioner for the Fourth District was argued February 24, 1984 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Andrew Denuzze.
FINDING AND AWARD
The Finding and Award of the Commissioner below is adopted as the Finding and Award of this Division.
The appeal of the Respondent-Appellant is DISMISSED.
This Finding and Award was written by Commissioner Gerald Kolinsky for the entire panel.
OPINION
The claimant-appellee was a regular member of the municipal Fire Department of the respondent-appellant, having entered into such employment in 1958 after successfully passing a physical examination which failed to reveal any evidence of heart disease or hypertension.
On May 27, 1982, the claimant-appellee was diagnosed as suffering from three vessel coronary artery stenosis, and shortly thereafter underwent triple coronary by-pass surgery.
Following his surgery, the claimant-appellee recovered sufficiently to return to work as a regular member of the Bridgeport Fire Department, and while so employed, the Compensation Commissioner entered a Finding and Award in which he ordered the respondent-appellant City to provide to the claimant appellee employee (1) the benefits provided by Section 7-433c, Connecticut General Statutes, and (2) to pay a scarring award for the by-pass surgery scars "subject to lawful limitations."
It is from the portion of the Award granting compensation benefits for scarring from which this appeal has been taken, the respondent-appellant alleging as its reason for appeal that such scar award is "contrary to Sec. 7-433b of the Connecticut General Statutes, since the claimant is a regular member of the Fire Department at this time (par. 9 of Finding) and such award will result in the claimant's receiving more than one hundred per cent of his weekly compensation."
Thus, the appellant has raised the issue as to whether an employed firefighter may collect a scar award at the same time that he is collecting full pay.
Section 7-433b, Connecticut General Statutes, contains the provisions for the so-called "cap" or allowable maximum statute, Section 7-433c.
An examination of Section 7-433b (b) provides as follows:
"Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation."
We hold this statute not here applicable. The operative portions of subsection (b) may be read as stating, ". . . the cumulative payment . . . for compensation and retirement or survivors benefits under Section 7-433c shall be adjusted so that the total of such cumulative payments . . . shall not exceed one hundred per cent of the weekly compensation being paid during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement." (Emphasis added.)
Respondent-appellant would have us so interpret the statute that a municipal policeman or fireman who returned to work would not be entitled to a disfigurement award. This is contrary to the practice under Chapter 568 and could only occur if we read into Sec. 7-433b language which the legislature did not include.
The most recent appellate court pronouncement on scarring awards is Scalora v. Dattco, 39 Conn. Sup. 449 (1983). There the court permitted the simultaneous payment of two different types of compensation benefits, total disability benefits plus disfigurement benefits. Here the claimant does not seek double benefits. He only seeks one type, disfigurement, to be paid after he returns to work.
Section 7-433b (b) does not apply. The maximum ceiling it imposes applies only to workers' compensation and retirement benefits. It is not applicable to this situation where workers' compensation benefits are being paid after weekly earnings have resumed.
The decision of the Commissioner is Affirmed.
Chairman Arcudi and Commissioner Denuzze join in this opinion.