Opinion
CASE NO. 1014 CRD-6-90-4
NOVEMBER 19, 1991
The claimant was represented by Gerald Stevens, Esq. and Kristin Dorney, Esq., Stevens, Carroll Carveth.
The respondents were represented by Joseph Skelly, Esq. and Joseph Musco, Esq., Corporation Counsel, City of New Britain.
This Petition for Review from the April 6, 1990 Finding and Award of the Commissioner at Large acting for the Sixth District was heard March 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and James Metro.
OPINION
Claimant, a New Britain firefighter, was awarded Sec. 7-433c benefits for heart disease. The city has appealed the April 6, 1990 ruling. It argues that claimant failed to satisfy the statutory prerequisites for Sec. 7-433c eligibility. Sec. 7-433c provides:
Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment . . .
In Gatewood v. City of Hartford, 1006 CRD-1-90-4 (decided October 21, 1991) we upheld the trial commissioner who found a claimant ineligible as his pre-employment physicals showed evidence of hypertension. We relied on Horkheimer v. Town of Stratford, 4 Conn. Workers' Comp. Rev. Op. 139, 163 CRD-4-82 (1987) in affirming the trial commissioner's denial of Sec. 7-433c benefits. Specifically the Horkheimer majority opinion stated:
Section 7-433c is clear and unambiguous that the physical examination on entry into service must fail `to reveal any evidence of hypertension or heart disease . . .' That means the physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of Sec. 7-433c (Underlining ours)." Id. at 143.
As to the argument that the trier failed to include a specific finding of hypertension, Paragraphs 7 8 of the Finding and Award show claimant had hypertension at the time of the pre-employment physical. See Deposition, Dr. Harry A. Parlato, M.D., pp. 12, 13, 17. As there was such evidence of hypertension at the pre-employment physical Horkheimer mandates that claimant was ineligible for Sec. 7-433c benefits.
Claimant argues that the pre-employment physical evidence of hypertension does not preclude him from Sec. 7-433c: benefits for heart disease as there was no pre-employment evidence of heart disease. This argument rests on a strained construction of the statute. The statutory prerequisites provide:
"[I]n the event a unformed member of a paid municipal fire . . . or . . . police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers . . . any condition or impairment of health caused by hypertension or heart disease . . . ." (emphasis ours)
Claimant contends that by use of the disjunctive conjunction "or", Sec. 7-433c was intended to cover two distinct conditions, heart disease or hypertension. Horkheimer ruled otherwise. It held that a condition precedent to eligibility for Sec. 7-433c benefits was no evidence of hypertension or heart disease at the pre-employment stage. Once evidence of either condition is revealed, a claimant is ineligible for those benefits[.]
We therefore reverse the April 6, 1990 Finding and Award.
Commissioners Robin Waller and James Metro concur.