Zaleta v. Town of Fairfield

• Decision Date: 10 July 1995
• Docket Number: No. 13419,13419
• Citation: 38 Conn.App. 1,658 A.2d 166
• Court: Connecticut Court of Appeals
• Parties: Gary ZALETA v. TOWN OF FAIRFIELD.

Page 166

658 A.2d 166

38 Conn.App. 1

Gary ZALETA v. TOWN OF FAIRFIELD.

No. 13419.

Appellate Court of Connecticut.

Argued Feb. 6, 1995.

Decided May 23, 1995.

Certification Denied July 10, 1995.

Donal C. Collimore, Asst. Town Atty., for appellant (defendant).

George W. Boath, Jr., with whom, on the brief, was Vincent M. Zanella, Jr., Stratford, for appellee (plaintiff).

Before FOTI, LAVERY and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals, pursuant to General Statutes § 31-301b, ¹ from the decision of the compensation review board of the workers' compensation commission finding the plaintiff entitled to benefits under the statute providing compensation for heart disease and hypertension to police officers and firefighters, General Statutes § 7-433c. ² On appeal, the defendant claims that the review board improperly determined that the plaintiff's hypertension was an occupational disease and, therefore, subject to the three year statute of limitations provided in General Statutes § 31-294c. ³

The following facts, stipulated to by the parties, are necessary for the resolution of this appeal. In 1977, the plaintiff was hired by the defendant as a firefighter after passing a physical examination in which no evidence of heart disease or hypertension was revealed. On September 14, 1987, the plaintiff was diagnosed as hypertensive and treated with medication. On January 4, 1988, the plaintiff developed a severe headache while at work and an emergency medical technician was asked to check his blood pressure. The medical technician found the plaintiff's blood pressure to be 160/100, and the plaintiff was sent home for the day. The plaintiff was able to return to work the next day.

On December 1, 1989, the plaintiff requested the first of a series of formal hearings with the defendant, seeking benefits under General Statutes § 7-433c. He subsequently filed a form 30-C on December 3, 1990. The defendant timely contested liability on December 10, 1990, claiming that the plaintiff failed to make a claim within one year of his diagnosis.

A formal hearing was held on August 30, 1991, before the workers' compensation commissioner for the fourth district, who found in favor of the plaintiff. The commissioner found that the plaintiff's claim was timely because "hypertension is an occupational disease and thus governed by the three year statute for filing that type of claim."

On July 14, 1992, the defendant moved to correct the finding of the commissioner that hypertension is an occupational disease governed by the three year statute of limitations. In support of its motion, the defendant claimed that the plaintiff failed to introduce any evidence to justify such a finding. This motion was denied and the defendant timely appealed to the compensation review board of the workers' compensation commission. See General Statutes § 31-301.

The board affirmed the decision of the commissioner, determining that the language of the statute evinces "that the legislature has determined, without the necessity of further evidentiary support in the record, that hypertension is so distinctively associated with the occupations of police officer and firefighter that there is a direct causal connection between the occupational duties and hypertension sufficient to qualify hypertension as an occupational disease for purposes of a claim under § 7-433c."

On appeal to this court, the defendant claims that the compensation review board improperly determined that a claimant seeking benefits under § 7-433c need not submit evidence to establish that hypertension is an occupational disease in order to benefit from the three year statute of limitations. We agree with the defendant and reverse the decision of the compensation review board.

Before reaching the merits of the defendant's appeal, we reiterate the standards governing our review of decisions by the compensation review board. "[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. Peoples Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979) ]. Id. Our scope of review of the actions of the review [board] is similarly limited. DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 (1990). Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991)." (Internal quotation marks omitted.) Romanski v. West Hartford, 34 Conn.App. 307, 316, 641 A.2d 439 (1994).

Section 7-433c provides compensation to police officers and firefighters who suffer from heart disease or hypertension and who meet the requirements set forth in the statute. In order to collect the benefits provided by § 7-433c, a claimant need show only that he or she is a uniformed member of a paid fire department or a regular member of a paid police department, whose preemployment physical examination revealed no evidence of hypertension or heart disease, who now suffers a condition or an impairment of health caused by hypertension or heart disease that has resulted in death or disability, and has suffered a resultant economic loss. Suprenant v. New Britain, 28 Conn.App. 754, 758, 611 A.2d 941 (1992).

Unlike eligibility for benefits under the Workers' Compensation Act, a claimant under § 7-433c need not show that "the disease resulted from the employee's occupation or ... occurred in the line and scope of his employment." (Internal quotation marks omitted.) Collins v. West Haven, 210 Conn. 423, 427, 555 A.2d 981 (1989), citing Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984), and Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670, 425 A.2d 131 (1979). In this way, § 7-433c acts as bonus legislation that provides "special compensation"; Collins v. West Haven, supra, at 426, 555 A.2d 981; to firefighters and police officers by allowing those who suffer from heart disease or hypertension outside the line of duty to collect benefits in the same manner as those who are injured in the line of duty. Lambert v. Bridgeport, 204 Conn. 563, 566-67, 529 A.2d 184 (1987); Pyne v. New Haven, 177 Conn. 456, 460-61, 418 A.2d 899 (1979).

"While the Workers' Compensation Act and § 7-433c are separate pieces of legislation, '[t]he procedure for determining recovery under General Statutes § 7-433c is the same as that outlined in chapter 568 [General Statutes § 31-275 et seq.]....' " Hyatt v Milford, 26 Conn.App. 194, 199, 600 A.2d 5 (1991), appeal dismissed, 224 Conn. 441, 619 A.2d 450 (1993), quoting Bakelaar v. West Haven, supra, 193 Conn. at 68, 475 A.2d 283; see also Felia v. Westport, 214 Conn. 181, 184-85, 571 A.2d 89 (1990). This includes compliance with the notice provisions of § 31-294c. Cuccuro v. West Haven, 6 Conn.App. 265, 267, 505 A.2d 1, cert. denied, 199 Conn. 804, 508 A.2d 31 (1986) (referring to the predecessor to § 31-294c, General Statutes [Rev. to 1989] § 31-294). "Compliance with [§ 31-294c] is essential to maintaining a claim for compensation under chapter 568 and therefore under § 7-433c because timely notice is a jurisdictional requirement that cannot be waived." Collins v. West Haven, supra, 210 Conn. at 430, 555 A.2d 981.

Under § 31-294c, a claimant must notify his employer of a claim for compensation "within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease ... which caused the personal injury...." An occupational disease is further defined as "any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such...." General Statutes § 31-275(15). Without evidence establishing that the claimant's injury is a result of an occupational disease, the one year statute of limitations applies. See Crochiere v. Board of Education, 227 Conn. 333, 352, 630 A.2d 1027 (1993).

The plaintiff here produced no evidence to establish that hypertension is an occupational disease entitling him to the benefit of the three year statute of limitations. The plaintiff instead relied only on the language of § 7-433c, claiming that it evinces legislative recognition of heart disease and hypertension as occupational diseases vis-a-vis police officers and firefighters. A brief look at the history of § 7-433c reveals that the language of the statute makes no such presumption.

The statute concerning heart disease and hypertension was originally drafted as part of the Workers' Compensation Act and provided police officers and firefighters with a rebuttable presumption that heart disease and hypertension were causally connected to their occupations. Morgan v. East Haven, 208 Conn. 576, 580, ...