Bakelaar v. City of West Haven

• Decision Date: 24 April 1984
• Citation: 475 A.2d 283,193 Conn. 59
• Court: Connecticut Supreme Court
• Parties: James H. BAKELAAR v. CITY OF WEST HAVEN et al.

Page 283

475 A.2d 283

193 Conn. 59

James H. BAKELAAR v. CITY OF WEST HAVEN et al.

Supreme Court of Connecticut.

Argued Jan. 13, 1983.

Decided April 24, 1984.

Keith B. Gallant, New Haven, with whom were Edward Gallant and Peter Culver, New Haven, and, on the brief, Vincent R. Falcone, New Haven, and Jacqui F. Lazo, Guilford, for appellant (named defendant).

Bruce L. Levin, Milford, with whom, on the brief, was Serge G. Mihaly, Bridgeport, for appellee (defendant United States Fidelity and Guaranty Company).

William F. Gallagher, New Haven, with whom, on the brief, were Robert F. Moran and Elizabeth A. Dorsey, New Haven, for appellee (defendant Liberty Mutual Insurance Company).

W. Paul Flynn, New Haven, for appellee (plaintiff).

Before PETERS, PARSKEY, GRILLO, SPONZO and MENT, JJ.

SPONZO, Associate Justice.

In this appeal from a judgment of the Appellate Session of the Superior Court, 38 Conn.Super. 359, 447 A.2d 755, the defendant city of West Haven raises two principal claims of error, namely, that the court (1) lacked jurisdiction to entertain the appeal of the defendant United States Fidelity and Guaranty Company (hereinafter USFG) and (2) erroneously concluded that the plaintiff, James Bakelaar, (hereinafter the claimant) was entitled to an election of remedies.

The undisputed facts may be summarized as follows: The claimant was a regular, paid, uniformed member of the West Haven police department since July 15, 1966. Upon entry into the service of the defendant city, the claimant underwent a physical examination which failed to reveal any evidence of hypertension or heart disease. On August 16, 1976, while actively pursuing an alleged criminal, the plaintiff suffered chest pain which was diagnosed as angina pectoris. The next day, while carrying out routine duties at work, he collapsed and was hospitalized with a diagnosis of angina pectoris and arteriosclerotic heart disease. On October 8, 1976, while resting at home, he sustained an acute myocardial infarction and has since been totally disabled.

On March 15, 1977, the claimant by his attorney filed a notice of claim ¹ for compensation. Prior to the commencement of the hearing, the claimant's counsel stated, "Mr. Bakelaar is here making a claim under 7-433c of the Connecticut General Statutes.... Our position ... is we're pursuing the benefits of 7-433c." General Statutes § 7-433c ² provides benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease.

At the time of the claimant's disability the defendant Liberty Mutual Insurance Company (hereinafter Liberty) was the city's workers' compensation insurance carrier. Prior to the date of disability, USFG and the defendant Commercial Union Insurance Company (hereinafter Commercial Union) had been workers' compensation insurance carriers for the city. At the time of the hearing before the compensation commissioner, USFG and Commercial Union appeared under protest as a result of Liberty's request to the commissioner (and her apparent compliance therewith) that these insurers be "cited in" by her. Thereafter, all three insurers were represented at the hearing and named as parties in both the commissioner's and the review division's decisions.

The compensation commissioner heard the evidence and concluded that the city was liable and that the claimant was entitled to the benefits provided by General Statutes § 7-433c as a result of suffering a myocardial infarction. The city appealed this finding and award to the compensation review division, ³ claiming that there was adequate evidence that the claimant's disability arose out of and in the course of his employment and that he was entitled to benefits under chapter 568 of the General Statutes, the Workers' Compensation Act.

The review division affirmed the commissioner's finding and award, including the claimant's entitlement to benefits under § 7-433c, but remanded the matter for further findings on whether the city might also be liable under chapter 568. The review division stated "if a claimant brings a 7-433c claim, he does not waive Title 31 rights. Once the proceeding is initiated by a claim either under 7-433c or Chapter 568, any of the parties may raise any issues encompassed by either or both the Title 7 and Title 31 legislation and the Commissioner should decide all issues presented."

The defendant USFG appealed the order of the review division to the Appellate Session of the Superior Court, which set aside the order and remanded the case with direction to enter judgment in accordance with the finding and award of the compensation commissioner.

I

The first assignment of error we shall consider is the city's claim that the Appellate Session of the Superior Court lacked jurisdiction to entertain the appeal because USFG was not an aggrieved party under General Statutes § 31-301b. ⁴ This section is applicable to appeals from decisions involving awards under § 7-433c as well as those arising under the Workers' Compensation Act. In Grover v. Manchester, 165 Conn. 615, 617-18, 353 A.2d 719 (1973), we determined that "[n]othing, however, in its legislative history or in its statement of purpose ... persuades us that § 7-433c was intended by the legislature to require each municipality in Connecticut to create separate administrative machinery duplicating that already available under the Workmen's Compensation Act for resolving claims by firemen and policemen and further to burden by additional litigation of such claims the courts as well as the municipalities."

Before we consider this claim on its merits, we shall discuss USFG's contention that this appeal should be dismissed because the issue was not distinctly raised at trial. Practice Book § 3063. ⁵ A question whether the court has jurisdiction must first be determined even though the issue was not raised below. Guida v. Public Utilities Commission, 166 Conn. 328, 330-31, 348 A.2d 613 (1974). "It is well settled that the question of aggrievement is a jurisdictional one and that claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiffs who have alleged it." Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 622, 419 A.2d 346 (1979); Nader v. Altermatt, 166 Conn. 43, 59, 347 A.2d 89 (1974). Pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of the appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). "The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, 'the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party ... must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.' " Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978); Nader v. Altermatt, supra, 166 Conn. 51, 347 A.2d 89.

The record clearly reflects that the defendant Liberty requested, and the commissioner apparently agreed, that the compensation commissioner cite as parties USFG and Commercial Union. Both defendants USFG and Commercial Union appeared at the hearing under protest and participated in the hearing. At no time did the defendant city object to the participation of the prior insurance carriers, USFG and Commercial Union. In her finding and award the compensation commissioner named all the insurance carriers as did the compensation review division in its decision which ordered this matter "remanded ... for further Findings of Fact concerning any liability which might adhere to the Respondent, City of West Haven, and its respondent insurers under chapter 568 ...."

"Mere status, however, as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review." Hartford Distributors Inc. v. Liquor Control Commission, supra, 177 Conn. 620, 419 A.2d 346; Beckish v. Manafort, supra, 175 Conn. 419, 399 A.2d 1274. The review division's decision to remand the case for determination of USFG's liability under chapter 568 with respect to the plaintiff's claim, however, constitutes a specific and injurious effect upon USFG's interests. "Aggrievement is established if 'there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected.' " Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980); O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). USFG was aggrieved by the decision and accordingly its appeal pursuant to § 31-301b was properly before the Appellate Session.

II

The determinative issue raised by the city's appeal is whether a claimant, qualified for compensation, may elect recovery under either § 7-433c or chapter 568, the workers' compensation statutes, when the injury arose out of or in the course of employment.

The purpose of chapter 568 of the General Statutes is to provide compensation for any injury "arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer." Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). In order to recover under the Workers' Compensation Act, "[t]he employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment." McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979).

Section 7-433c, while similar to the workers' compensation statutes, is a separate and distinct legislation. This statute " 'simply [prov...