Opinion
CASE NO. 381 CRD-3-85
JUNE 12, 1987
The claimant was represented by David J. Morrissey, Esq.
The respondent-employer was represented by Michael J. Dorney, Esq., Tyler, Cooper Alcorn.
The respondent-insurer was represented at the trial level by Kevin J. Maher, Esq., and on appeal by Scott Williams, Esq.
This Petition for Review from the January 30, 1985 Finding and Award of the Acting Commissioner for the Third District was heard October 31, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Darius Spain.
FINDING AND AWARD
1-5. Paragraphs 1 through 5 of the Commissioner's Finding and Award are affirmed and adopted as paragraphs 1 through 5 of this Division's Finding and Award.
6. Sec. 7-433c became effective June 28, 1971.
7-12. Paragraphs 7 through 12 of the Commissioner's Finding and Award are affirmed and adopted as paragraphs 7 through 12 of this Division's Finding and Award.
OPINION
This appeal relies on the novel proposition that the claimant's successfully completed physical examination performed by an unrelated private employer August 14, 1982 nine months before commencement of the municipal employment satisfied the requirements of the Heart and Hypertension Act, Sec. 7-433c, C.G.S. We need not here review all of this tribunal's many Sec. 7-433c decisions. It is sufficient only to quote a paragraph from an early one:
"What is required to bring a claimant within the group for which the protection is intended? There must be: (1) a claimant whose pre-employment physical exam revealed no evidence of hypertension or heart disease; (2) a condition or impairment of health caused by hypertension or heart disease; (3) resulting in death temporary or permanent total or partial disability; economic less resulting therefrom."
Stachelczyk v. Norwalk, 19 CRD-7-80, 1 Conn. Workers' Comp. Rev. Op. 51 (August 20, 1981).
In the instant case, appellant seems to have satisfied requirements (2), (3) and (4) of the cited paragraph. To comply with (1) he must have "successfully passed a physical examination on entry into such service" as a member of the police department of the Town of Orange. His police service commenced May 20, 1983. An August 14, 1982 physical examination performed without any contemplation of the Orange employment, so far as the record discloses, cannot qualify as an examination "on entry into such service". Moreover, the contract of employment theory underlying much of our Workers' Compensation Act necessitates privity between employer and employee. The 1982 private employer, Avco Lycoming, had no privity with the contracting parties here. Sec. 7-433c prescribes the physical examination as a condition precedent to the employment contract and Heart and Hypertension Act liability. Such examination must be that one defined and required by the contracting municipality, not by some party foreign to the relationship.
Sec. 31-275(5) "Employee means any person who has entered into or works under any contract of service. . .with an employer,. . . ."
The appeal is dismissed and the Commissioner's decision is affirmed.
Commissioners Rhoda Loeb and Darius Spain concur.