Opinion
CASE NO. 31-CRD-3-80
JANUARY 25, 1982
The appellee-claimant was represented by Charles Flynn, Esq.
The appellant-respondent was represented by Gallant, Mednick Gallant and by Robert G. Montstream, Esq.
This Petition for Review from the Corrected Finding and Award of July 29, 1980 by the Commissioner for the Third District was argued March 20, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, Edward F. Bradley and Andrew P. Denuzze.
FINDING AND AWARD
1-14. Paragraphs 1 through 14 of the Commissioner's July 29, 1980 Corrected Finding and Award are affirmed and adopted as the Funding of this Compensation Review Division.
ORDER
1-4. Paragraphs 1 through 4 of the Commissioner's Award are adopted as Paragraphs 1 through 4 of this Division's Award.
5. The matter is remanded to the Third District for further proceedings to determine what benefits, if any, are due claimant after August 7, 1976.
6. It is also ordered that further proceedings be had to determine the liability, if any, of the Second Injury and Compensation Assurance Fund under Sec. 31-349, C.G.S.
OPINION
Two Findings and Awards by the Third District Commissioner, an original one of May 14, 1979 and a corrected one of July 29, 1980, are the subjects of this appeal. When the May 14, 1979 decision found compensability under Chapter 568, the respondent-employer Town of West Haven, through Covenant Insurance Company, its insurer, appealed to the Superior Court in accordance with the procedure then existing.
The July 29, 1980 Corrected Finding restated the 12 paragraphs of the May, 1979 Finding and added Paragraphs 13 and 14 in order to establish a factual basis for compensability under 7-433c. Then the Corrected Finding and Award found compensability both under Chapter 568 and Sec. 7-433c.
The Superior Court for the Judicial District of New Haven on June 30, 1980 had issued a Judgment in accordance with the parties' stipulation remanding the matter to the Third District Commissioner and sustaining the original appeal of the Employer-Respondent. On August 7, 1980, the Employer-Respondent filed an appeal to the Compensation Review Division from the July 29, 1980 Corrected Finding and Award. The parties then all signed a Stipulation August 25, 1980 agreeing that "it would be appropriate for the appeal to the Superior Court to be remanded and transferred to the Compensation Review Division of the Workers' Compensation Commission for consolidation of the appeals. However, despite some question as to whether it was filed earlier a photostat of the document furnished us shows that it was not accepted as filed by the Superior Court until February 19, 1981.
On September 3, 1980 the City through its Insurer filed in the Superior Court a Motion for Correction of Finding and Request for Finding. Counsel for the municipality argues in his brief that the matter was no longer in the Superior Court after the June 30, 1980 Superior Court Judgment sustaining the City's appeal and remanding the matter to the Commissioner. Therefore, his argument continues, the Insurer-Respondent's failure to appeal the July 29, 1980 Corrected Finding of the Commissioner leaves that respondent qua insurer without any further remedy. This argument made in the municipality's brief and in oral argument seems totally inconsistent with the August 25, 1980 Stipulation signed by counsel for all the parties, including the municipality and filed February 19, 1981 in the Superior Court Besides under Sec. 31-300 C.G.S., it would seem that if a Finding and Award is appealed within ten days of being rendered, then its finality is arrested in all respects by such appeal.
It should be noted that on February 23, 1981, the attorney for the claimant Moore filed a "Motion for Supplemental judgment of Remand in Order to Close File" in the Superior Court; but it does not appear that the court acted on said motion.
As we noted in Bakelaar v. West Haven, 8 CRD-3-80, 7 C.L.T. No. 17, Page 14, 4/27/81, despite the fact that the municipal employer respondent may be exactly the same named entity against which Chapter 568 orders and Sec. 7-433c orders are issued, there is in actuality a bifurcation of pecuniary responsibility since the Chapter 568 liability has often been transferred to an insurer whereas the 7-433c liability falls directly on the employer. Thus, the real party in interest for Chapter 568 purposes is the insurance company. However, the named party is the same in both instances.
In the present matter, both the Superior Court appeal from the original 1979 Finding and the Compensation Review Division appeal from the 1980 Corrected Finding were taken by the same named party, albeit by different lawyers. When the City of West Haven on August 7, 1980 filed its Petition to Review from the July 29, 1980 Corrected Finding and Award of the Third District Commissioner, by what schizoid modality was the clerk in the Third District to determine that it was the employer's 7-433c identity and not its Chapter 568 identity which was causing the appeal to be entered? The mere posing of the question demonstrates the logical impossibility if not the absurdity of such a choice. We therefore have no alternative but to treat the August 7, 1980 filing as an appeal from the entire Corrected Finding and Award of the Commissioner, from both the 568 and the 7-433c orders. So we consider all substantive issues raised by each set of respondent's lawyers in both appeals.
The claimant, Richard Moore, was a regular police officer of of the City of West Haven. Prior to entering service, he had successfully passed a reemployment physical showing no evidence of hypertension or heart disease. Claimant while still in such employment suffered a disabling heart attack January 12, 1976.
At that time, claimant held the rank of lieutenant and was the shift commander of the eleven p.m. to seven a.m. shift. He drove a squad car on the night of January 11 and the morning of January 12. At about 2:00 a.m. claimant was having coffee in a Dunkin Donuts establishment in West Haven during a short break when he suddenly suffered an angina attack; but the pain passed, and he continued his squad car driving duty.
During that duty at about 5:00 a.m. he drove to St. Lawrence Cemetery in West Haven, responding to a radio call indicating a burglary was occurring at that location. The weather was cold and windy and the ground was covered with snow. At the cemetery claimant walked through deep snow and assisted in apprehending a suspect, arresting him and gathering necessary evidence. While thus engaged, claimant suffered a heart attack accompanied by chest pains and difficulty in breathing. He was admitted to the coronary care unit of St. Raphael's Hospital in New Haven about 8:00 a.m.
The Commissioner found that this heart attack arose out of and during the course of the employment. He further found that claimant was totally disabled by that attack from January 13, 1976 to January 9, 1977 when he was able to return to some gainful employment less stressful than police duty. On August 7, 1976 the claimant was retired on a half pay disability pension as disqualified from police duty.
This finding of Chapter 568 work relatedness was disputed by the respondent insurer. Its dispute centers on the testimony of Dr. Oscar Roth, the New Haven cardiologist who testified for claimant. The testimony of the doctor relied on by the commissioner was that claimant's myocardial infarction of January 12, 1976 was caused by claimant's efforts and the work events of January 11-12. These job happenings combined with claimant's pre-existing arteriosclerotic heart disease precipitated the morning heart attack, according to the doctor. In his direct and cross-examination responses, the doctor identified these work related items as exposure to the cold, the nervous stress created in a police officer responding to an alarm, and the actual physical exertions in the snow.
The insurer respondent in cross-examining Dr. Roth attempted to show that the attack occurred just as claimant was getting out of the squad car upon arrival at the cemetery and before the physical exertions in the snow. This line of questioning was based on claimant's own testimony in which he did not exactly recall when the chest-pain started in the cemetery.
The doctor answered these questions by first pointing out that if the first pains experienced at the cemetery were short lasting, then they probably evidenced another angina bout rather than an infarct. An infarct, the doctor testified would be characterized by persistent pain. Other evidence showed that claimant certainly had such persistent in later in the morning when he was admitted to the hospital and the myocardial infarction was diagnosed.
Moreover, the doctor replied to respondent's counsel that the occurrence of nervous and emotional stress necessitated by a response to an alarm and a necessary part of claimant's job that morning was itself a job related cause of the heart attack. Finally, at the conclusion of his testimony, the doctor reiterated his opinion that work events had more probably than not caused the heart attack at that time.
In Donato v. Pantry Pride, 37 Conn. Sup. 836 (1981) the Appellate Session of the Superior Court had occasion to review our law with respect to work related heart attacks. It cited Stier v. Derby, 119 Conn. 44, 52 (1934) where the Supreme Court had held that a heart attack "if caused by unusual excitement and over-exertion is an accidental injury within the compensation law." The Conn. Supreme Court in a decision subsequent to Stier, Jones v. Hamden, 129 Conn. 532 (1942) struck down a Commissioner's decision which had required "unusual activity and physical exertion," supra at 534, as necessary to a finding of accidental injury where an employee had died from the rupture of an aneurysm. The court ruled in Jones "that an internal injury that is itself sudden, unusual and unexpected is none the less accidental, because it is incurred in the course of the employee's ordinary work;" supra at 534.
Given those precedents, the commissioner certainly had a sufficient evidentiary basis in the testimony of Dr. Roth and the claimant to conclude that the January 12, 1976 myocardial infarction was an accidental injury arising out of and in the course of the employment. We cannot substitute our own conclusions of fact, Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974), Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), for the Commissioner's. Therefore, to address the issues raised by the insurer respondent, we affirm the decision of the Commissioner and conclude that Paragraphs 1 through 12 of the Finding were properly found.
As to the Paragraphs 13 and 14 of the Finding and the orders based on those factual conclusions, there is no dispute. The claimant met all the requirements for 7-433c liability on the City's part. He had successfully passed a pre-employment physical. He suffered a heart attack during the employment as a regular police officer and was totally disabled for a year as a result.
But the City argues, the Commissioner should never have corrected the original May 14, 1979 Award. We ruled otherwise in Bakelaar, vide supra. When evidence is presented on both Chapter 568 and 7-433c issues, the commissioner must make findings as to both. In the instant case, this may have been an academic exercise since the claimant could not collect both 568 and 7-433c benefits. However, the insurer respondent had a right to have the 7-433c issues litigated and decided. If the insurer had reversed the 568 orders on appeal, the 7-433c orders would still have remained payable. As a matter of fact in this very case, we ordered the municipality to make 7-433c payments due during the period when the 568 appeal was being decided with the expectation that if the 568 appeal were decided against the insurer, then the insurer would reimburse the municipality for the benefits paid.
We therefore affirm the decision of the commissioner in all respects, and order that further proceedings be had to determine what benefits, if any, are due claimant for the period after August 7, 1976 when the municipality ceased to pay claimant's salary. In addition, it is ordered that the respondent-insurer's claim that liability lies under Sec. 31-349, C.G.S. against the Second Injury and Compensation Assurance Fund be heard and decided by the Commissioner below.