CHRISTOPHER A. CLARK, CLAIMANT-APPELLEE
v.
TOWN OF WATERFORD COHANZIE FIRE DEPARTMENT EMPLOYER, RESPONDENT-APPELLANT
And
CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY INSURER
No. 6339 CRB-2-19-7
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
July 15, 2020
This
Petition for Review from the June 25, 2019 Finding and Award
of Peter C. Mlynarczyk, Commissioner acting for the Second
District, was heard on January 31, 2020 before a Compensation
Review Board panel consisting of Commission Chairman Stephen
M. Morelli and Commissioners Randy L. Cohen and William J.
Watson III.
The
claimant was represented by Eric W. Chester, Esq., and James
N. Demetriades, Esq., Ferguson, Doyle & Chester, P.C.
Respondent Town of Waterford/Cohanzie Fire Department was
represented by Kyle J. Zrenda, Esq., and James P. Berryman,
Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg,
P.C.,
Respondent Connecticut Interlocal Risk Management Agency
(CIRMA) did not appear at oral argument. At proceedings
below, CIRMA was represented by Nancy E. Berdon, Esq.,
Strunk, Dodge, Aiken, Zovas
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
Respondent
Town of Waterford Cohanzie Fire Department has petitioned for
review from the June 25, 2019 Finding and Award (finding) of
Peter C. Mlynarczyk, Commissioner acting for the Second
District (commissioner). We find no error and accordingly
affirm the decision of the commissioner.[1]
The
commissioner identified as the issue for determination the
claimant’s eligibility for heart and hypertension
benefits pursuant to General Statutes § 7-433c as a
result of a myocardial infarction sustained on June 24,
2017.[2] The following factual findings are
pertinent to our review. At trial, the claimant testified
that he was hired as a part-time firefighter by the
respondent municipality on May 24, 1992.[3] His duties included
answering the telephone at the fire station, cleaning the
fire station, responding to medical and fire emergencies, and
performing day-to-day maintenance of the fire apparatus. At
the time the claimant was hired, he also worked for Health
Resources, a contractor at the Millstone nuclear power
station. Although his employment at Millstone was “more
or less” full time at the beginning, his hours were
reduced as time went on. Findings, ¶ 1.k., quoting March
7, 2019 Transcript, p. 21. The claimant also drove for
Waterford Ambulance on an as-needed basis.
In his
position as a firefighter, the claimant wore a uniform
consisting of a shirt, badge, belt, pants and black shoes; he
was also issued protective fire gear in case he had to
respond to a fire call. His uniform was the same as the
uniform worn by the other firefighters. He was paid for the
work he performed while employed by the respondent. The
claimant’s shifts were affected by the time of year,
the vacation and sick time used by the full-time
firefighters, and the injuries sustained by the full-time
staff. In some weeks, he would work multiple shifts, while in
other weeks, he might not receive any assignments. As a part
time employee, he was not eligible for holiday or vacation
pay or pension benefits.
Prior
to being hired as a part-time firefighter, the claimant
underwent and passed a pre employment physical examination.
He worked as a part-time firefighter for five years; in 1997,
he was hired as a full-time firefighter by the respondent.
The responsibilities of the part time and full-time
firefighters were the same; neither the claimant’s
duties nor his uniform changed when he became full-time.
On or
about June 24, 2017, the claimant “suffered an NSTEMI
type of myocardial infarction that resulted in his having
quadruple bypass surgery on June 29, 2017.” Findings,
¶ 1.i. The commissioner took administrative notice of a
form 30C (notice of claim) received by the Workers’
Compensation Commission on August 14, 2017, in which the
claimant asserted a claim for benefits pursuant to §
7-433c. The commissioner also took administrative notice of
the fact that the town of Waterford is a municipality
organized under the laws of the state of Connecticut.
Noting
that the provisions of § 7-433c do not define the term
“member” or distinguish between part time and
full time status, the commissioner determined that the
claimant’s date of hire was May 24, 1992.[4] The
commissioner concluded that because the claimant had been
employed by the municipality prior to July 1, 1996, he was
entitled to heart and hypertension benefits pursuant to the
provisions of § 7-433c. The commissioner therefore
ordered the respondent to accept as compensable the
claimant’s myocardial infarction of June 24, 2017.
The
respondent filed a motion for articulation, which was
granted, and a motion to correct, which was denied in its
entirety. The respondent has appealed the finding, the
articulation, and the denial of its motion to correct,
stating that “[t]he essential issue with respect to all
three decisions lies with the Commissioner’s
interpretation of the term ‘member’ as it is used
in General Statutes § 7-433c.” Appellant’s
Brief, pp. 1-2. More specifically, it is the
respondent’s contention that the commissioner should
have utilized the definition of member contained in General
Statutes § 7-425 (5) rather than applying his own
definition of the term.[5] The respondent avers that had the
commissioner done so, he “would have been
compelled” to conclude that the myocardial infarction
sustained by the claimant on June 24, 2017, was not
compensable pursuant to the provisions of § 7-433c.
Id., 2.
We
begin our analysis with the well-settled standard of review
we are obliged to apply to a trial commissioner’s
findings and legal conclusions. “The trial
commissioner’s factual findings and conclusions must
stand unless they are without evidence, contrary to law or
based on unreasonable or impermissible factual
inferences.” Russo v. Hartford, 4769
CRB-1-04-1 (December 15, 2004), citing Fair v.
People’s Savings Bank, 207 Conn. 535, 539 (1988).
Moreover, “[a]s with any discretionary action of the
trial court, appellate review requires every reasonable
presumption in favor of the action, and the ultimate issue
for us is whether the trial court could have reasonably
concluded as it did.” Burton v. Mottolese, 267
Conn. 1, 54 (2003), quoting Thalheim v. Greenwich,
256 Conn. 628, 656 (2001). Thus, “it is …
immaterial that the facts permit the drawing of diverse
inferences. The [commissioner] alone is charged with the duty
of initially selecting the inference which seems most
reasonable and his choice, if otherwise sustainable, may not
be disturbed by a reviewing court.” Fair v.
People’s Savings Bank, 207 Conn. 535, 540 (1988),
quoting Del Vecchio v. Bowers, 296 U.S. 280, 287
(1935).
The
respondent’s first claim of error implicates Findings,
¶ 1.l, in which the commissioner found that the claimant
had testified that his “hours were consistent.”
The respondent points out that in fact, the claimant
testified that his shifts were “inconsistent and
variable, and that some weeks he may not have worked any
hours at all.” Appellant’s Brief, p. 8. However,
we note that the commissioner, in the same finding, went on
to state that the claimant’s hours “were affected
by the time of year, as well as vacation, sick time, and
injuries sustained by the full-time staff. There were some
weeks when he worked multiple shifts and others when he might
not get any assignments.” Findings, ¶ 1.l. As
such, while the use of the word “consistent” to
describe the claimant’s hours was perhaps inartful, our
review of the formal hearing transcript indicates that the
balance of the finding accurately reflects the
claimant’s testimony on this issue. See March 7, 2019
Transcript, p. 22.
The
respondent also contends that the commissioner’s
decision to reject the application of the definition of the
term “member” as set forth in § 7-425 (5)
constituted an abuse of discretion. The respondent points out
that “Section 7-425 is contained in Part II of Chapter
113 of Title 7 of the Connecticut General Statutes,”
Appellant Brief, p. 10, and although “this Part does
govern the Municipal Employees Retirement Fund, it also
includes General Statutes § 7-433c.”
(Emphasis in the original.) Id. The respondent
further notes that § 7-425 (5) “does not limit
itself to those statutes in the part governing the Municipal
Employees Retirement Fund,” id., and the
legislature did not “see … fit to move or place
§ 7-433c into a different part of the General Statutes,
or even into a different part of Chapter 113.”
Id.
It is
of course axiomatic that we must...
