Going v. Cromwell Fire Dist., Fire Dept.

• Decision Date: 15 January 1970
• Court: Connecticut Supreme Court
• Parties: Kenneth E. GOING v. ,CROMWELL FIRE DISTRICT, FIRE DEPARTMENT, et al.

Page 428

267 A.2d 428

159 Conn. 53

Kenneth E. GOING v. ,CROMWELL FIRE DISTRICT, FIRE DEPARTMENT, et al.

Supreme Court of Connecticut.

Jan. 15, 1970.

Edward S. Pomeranz, Hartford, for defendant Aetna Insurance Co.

Bernard F. McGovern, Asst. Atty. Gen., with whom were C. Michael Budlong, Asst. Atty. Gen., and, on the brief, Robert K. Killian, Atty. Gen., and F. Michael Ahern, Asst. Atty. Gen., for defendant Gerald A. Lamb, State Treasurer.

Jay W. Jackson, Hartford, filed a brief as amicus curiae, but did not argue the cause.

No appearance for plaintiff.

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

COTTER, Associate Justice.

The defendant the Aetna Insurance Company, the insurer of the liability of the Cromwell fire district, claims that compensation due the plaintiff for an injury should be prorated between it and the second injury and compensation assurance fund pursuant to § 31-310 of the General Statutes, the pertinent portion of which is printed in the footnote. ¹ This section of the statute originated in the 1967 session of the General Assembly as Public Act No. 842, § 17. The workmen's compensation commissioner made a finding and pro forma award in favor of the plaintiff. The facts found have been treated by the parties as the facts in the case. The Superior Court reserved the matter for the advice of this court pursuant to General Statutes § 31-324.

The following facts were found by the commissioner: The plaintiff, when he sustained accidental injuries on March 31, 1968, while in the performance of fire duties, was an 'active member' of the Cromwell fire district 'volunteer fire department,' as the term is used in General Statutes § 7-314a(a)(2). ² As a result of such injuries he was totally incapacitated for a period of five and three-sevenths weeks and thus was entitled to compensation at the maximum rate of $74 a week pursuant to § 7-314a (b). ² During the twenty-six weeks preceding the injury, he was regularly employed by Western Electric Company, Inc., and was so employed on the date of his injury as a volunteer fireman, and his average weekly wage as an employee of that company for the applicable period, computed pursuant to General Statutes § 31-310, was $168.04. The defendant state treasurer is the custodian of the second injury and compensation assurance fund.

The determination whether the claim for accidental injury of a volunteer fireman in the plaintiff's position comes within the meaning of General Statutes § 31-310, which is part of chapter 568, entitled 'Workmen's Compensation Act,' must be governed by the expressed intention of the General Assembly. Smith v. State, 138 Conn. 620, 623, 88 A.2d 117. The pertinent portion of § 31-310 which must be construed for a determination of the issue in the present case originated in the 1967 legislative session as § 17 of Public Act No. 842. It is part of the Workmen's Compensation Act and is designed to protect the concurrent employee such as a wage earner having more than one job who, for instance, might lose his earnings from his principal job because of an injury occurring on another job with a low compensation rate. ³ Cf. Emerick v. Monaco & Sons Motor Sales, Inc., 145 Conn. 101, 102, 105, 139 A.2d 156.

A brief legislative history of the evolution of accident insurance protection provided for Connecticut firemen will help to resolve the ambiguity in the statutes and clarify the question whether General Statutes § 31-310 applies to a claim arising under § 7-314a. In McDonald v. City of New Haven, 94 Conn. 403, 413, 418, 109 A. 176, 10 A.L.R. 193, this court held that a full-time fireman, regularly paid by a municipality, did not hold his position under a 'contract of service' and so was not an 'employee' within the meaning of the Workmen's Compensation Act as it then existed. At the legislative session immediately following that decision, the Workmen's Compensation Act was amended so as specifically to include within the definition of an 'employee's any salaried officer or paid member of any police department or fire department. His 'employer' for the purposes of workmen's compensation was stated to be the municipality which paid him. See Public Acts 1921, c. 306 § 11 (now part of General Statutes § 31-275); Lake v. City of Bridgeport, 102 Conn. 337, 340, 128 A. 782. While this amendment offered standard protection to full-time, regularly paid fireman hired by a municipality, it apparently was not considered to cover all volunteer firemen since the 1941 General Assembly enacted chapter 206, § 1, of the 1941 Public Acts (Sup.1941, § 70f), which applied to 'all active members of such (volunteer) fire company, whether paid or not for their services, except firemen who, because of contract of employment, come under the workmen's compensation act.' See General Statutes § 7-314. Although it gave insurance coverage to volunteer firemen, the benefits were less generous than under the Workmen's Compensation Act. By No. 892 of the 1967 Public Acts (General Statutes § 7-314a), the General Assembly repealed this system of compensation for volunteer firemen who, because of the lack of contract employment, did not come under the Workmen's Compensation Act and provided (§ 2) that they 'shall be compensated in accordance with the provisions of chapter 568 (the Workmen's Compensation Act)' of the General Statutes.

The defendant the Aetna Insurance Company agrees that the plaintiff comes within General Statutes § 7-314a(a)(2) and that it is liable to him under that act for a portion of the compensation due him. It claims, however, that by virtue of § 31-310 it is not liable for the full award. As a matter of statutory interpretation, we must agree with the state treasurer's contention that § 31-310 has no application to claims arising under § 7-314a(a)(2).

Section 31-310 refers to an injured employee who 'has worked for more than one employer.' The basic question is whether the plaintiff, who admittedly worked for Western Electric, also worked for the municipality as a second employer within the meaning of § 31-310, as the Aetna argues. If the plaintiff, in his capacity as a volunteer fireman, had entered into or worked under a contract of employment with the municipality, he would have been an employee of the municipality under § 31-275 ⁴ and been compensated solely because of the provisions of chapter 568 and not because of the provisions of § 7-314a. Public Acts 1967, No. 842, § 17 (General Statutes § 31-310) and No. 892 (General Statutes § 7-314a), pertinent to this discussion, were addressed to entirely different problems. The latter act substituted an upgrading of the benefits for volunteer firemen equated to those in the Workmen's Compensation Act and provides, inter alia, that '(f)or the purpose of this section' the wage rate shall be taken as that producing the maximum benefit rate as provided under § 31-309. General Statutes § 7-314a(b). The former act concerns the problem of the wage earner with two jobs who might be disadvantaged owing to an injury incurred on a lower paying job. There is no relationship between the two situations. The purpose of the workmen's compensation law is to provide for the workman, and it is presumed that the General Assembly acted with the knowledge that the objective in enacting such legislation was to protect the employee. Klapproth v. Turner, 156 Conn. 276, 279, 281, 240 A.2d 886.

It is significant that § 31-310, as quoted above, provides in part that the employee's 'average weekly wages shall be calculated upon the basis of wages earned from all such employers' but that § 7-314a (b), in this connection, provides a different method of computation, viz., '(f)or the purpose of this section, the average weekly wage of a volunteer fireman shall be construed to be the average production wage in the state as determined by the labor commissioner under the provisions of section 31-309.' It is reasonable to suppose that the legislature devised the latter method of computation to benefit and protect volunteer firemen in cases where wages actually 'earned' by them, if any, might be wholly inadequate as a basis for determining their disability benefits. If we were to agree with the Aetna's contention that § 31-310 applied to this case, we would have to ignore § 7-314a(b) and instead determine the plaintiff's average weekly wage on the basis of wages 'earned' from Western Electric and the fire district. Where there are two inconsistent methods of computation such as we have in the present case, the method of computation which covers the subject matter in specific terms, herein as particularly applied to volunteer firemen, will prevail over the general language of another statute which might otherwise prove controlling. Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, 214 A.2d 354. Since the proration provision of § 31-310 is inextricably linked to a method of computation which is incompatible with § 7-314a, it cannot be read into or reconciled with that statute and therefore is inapplicable to the facts of this case.

An historical review of the legislation pertaining to volunteer firemen suggests the conclusion that the General Assembly created a fictitious relationship of employer-employee between volunteer firemen and the municipality only to ensure the payment of benefits to volunteer firemen similar to those provided for regular firemen. The words 'benefits for volunteer firemen' in the title of No. 892 of the 1967 Public Acts may be considered to determine legislative intent in construing legislation which is doubtful or ambiguous in meaning. State v. Faro, 118 Conn. 267, 272, 171 A. 660. The term 'active member of a volunteer fire company,' except for an inconsequential addition, has remained the same in § 7-314 since 1941. If the General Assembly had intended the relationship to exist for all purposes instead of '(f)or the purpose of this section' (§ 7-314a), it would have amended ...