CASE NO. 5266 CRB-4-07-8; Young v. City of Bridgeport;
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 22, 2008
CITY OF BRIDGEPORT
The claimant was represented by David Morrissey, Esq., and Jill Morrissey, Esq., Morrissey, Morrissey & Mooney, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.
The respondents were represented by Marie Gallo-Hall, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.
This Petition for Review from the August 14, 2007 Finding & Award of the Commissioner acting for the Fourth District was heard March 28, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, City of Bridgeport, has taken this appeal from the August 14, 2007 Finding & Award of the Commissioner acting for the Fourth District. In that Finding & Award the trial commissioner concluded the claimant was entitled to benefits pursuant to § 7-433c. The issue for which the appellant seeks review is whether the trial commissioner erred in concluding the claimant satisfied the jurisdictional requirements for benefits pursuant to § 7-433c as there was evidence of hypertension at a pre-employment physical and claimant’s counsel admitted to same. The pertinent facts are as follows.
Although the claimant was not hired until August 1, 1977 his initial steps in joining the Bridgeport Fire Department began in 1975. To that end the claimant applied to be a firefighter, took a written examination and an agility test. The claimant was placed on the list for employment. However, during this period of time an employment discrimination lawsuit was filed. During the pendency of that law suit a hiring injunction was imposed by the court. The injunction seriously impacted fire department staffing levels and the court permitted the respondent to hire a certain number of firefighters beginning October 1976. On September 18, 1976 the claimant underwent a pre-employment physical examination. The examination revealed a blood pressure reading of 140/90.
The commissioner found the respondent considered the September 18, 1976 physical examination “stale” and required the claimant to undergo another physical exam. That examination was performed June 29, 1977, the claimant’s blood pressure at that examination was 130/82. The claimant was hired by the respondent on August 1, 1977. The trial commissioner found the claimant successfully passed his physical examination and on the basis of the failure of the June 29, 1977 examination to reveal evidence of hypertension the claimant met the prerequisites for establishing a claim under § 7-433c.
The respondent contends that in the course of proceedings before the trial commissioner the claimant could have contended that the September 18, 1976 blood pressure reading was not evidence of hypertension. The respondent contends that the claimant admitted on the record that the September 18, 1976 pre-employment physical revealed evidence of hypertension. See Appellant’s Brief pp. 6-7. The respondent argues that the claimant’s concession as to the existence of hypertension in the September 18, 1976 pre-employment physical when read together with the respondent employer’s retention in its files of the September 18, 1976 examination results can only lead to the conclusion that the claimant failed to satisfy the criteria of § 7-433c as there was evidence of hypertension. We disagree.
In the course of the proceedings below, Mr. John Colligan, testified. Mr. Colligan had been employed by the respondent in its personnel office. At one point in his career with the respondent Mr. Colligan was in charge of hiring firefighters. Mr. Colligan testified that as more than 6 months had passed from the time of the September 18, 1976 physical examination, it was the practice of the City to require another physical examination. The witness also testified that the claimant would have been deemed as having passed the September 18, 1976 physical examination. Furthermore, Mr. Colligan testified that had the claimant’s physical examination showed evidence of hypertension he would not have been permitted to proceed with the hiring process. See March 1, 2007 Transcript, pp. 10-12, 17.
Whether the claimant has met the statutory prerequisites for establishing a claim for benefits under § 7-433c is a factual determination to be made by the trial commissioner. Section 7-433c provides in pertinent part:
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….
In order for the claimant to prevail he would have to had to persuade the trial commissioner that at the time of his hiring he successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease. Before we review the legal appropriateness of the commissioner’s factual inferences, we must construe the pertinent language at issue. Section 1-2z instructs that we are to determine the meaning of a statute from the statute’s text and its relationship to other statutes. Next we examine the text of § 7-433c and construe its terms consistent with “commonly approved usage of the language.” Section 1-1(a). When confronted with what is the commonly approved usage of the language we turn to the dictionary. See Hummel v. Marten Transport, 282 Conn. 477, 488 (2007). In the issue before us we are to consider what is meant by the text “physical examination on entry into such service.” Reference to the dictionary informs us that “on,” in part, is “used to indicate, “Occurrence at a given time…. b. The particular occasion or circumstance….” Webster’s II New College Dictionary (1999), p. 764. Entry is defined, in part, as “An act or instance of entering. The right or privilege of entering.” Id., 376. Entering, in part is defined as, “To embark on: begin…. To make a beginning in …. To become a member of a group.” Id., 375. The plain language of the statute indicates that the appropriate physical examination to which we must look for evidence of hypertension is that which was performed on entry or, most temporally proximate to, the time when the claimant gained admission into the fire department.1
While the appellant presents an interesting argument that appellee’s counsel’s statement in his opening remarks before the trial commissioner constitutes an “admission against interest” and should be considered conclusive as to whether the blood pressure reading in the September 18, 1976 exam indicated hypertension, we think it is of no moment.2 Applying the plain language of the statute to the issue before us compels the conclusion that the only exam where evidence of hypertension is at issue is that which was done when the claimant joined the respondent’s fire department, i.e., the June 29, 1977 exam.3
We therefore affirm the August 14, 2007 Finding and Award of the Commissioner acting for the Fourth District.4
Commissioners Ernie R. Walker and Charles f. Senich concur.
1 We also note § 7-433c provides in part:
If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems…
Thus, arguably, the claimant need not have proffered the results of either of his physical exams in order to proceed in his claim. BACK TO TEXT
2 While we need not decide the effect of counsel’s remarks and the appellant’s contention that it was an admission against interest we do think the appellant may have over estimated the persuasive value such statements are accorded. See Spears v. Spears, 2082 CRB-2-94-6 (October 30, 1997). See also Peiter v. Degenring, 136 Conn. 331, 337-38 (1949)(citations omitted) where the Court stated:
The allegations and stipulation together constitute a judicial admission of the facts stated. ‘… [S]uch an admission should ordinarily be adopted by a trial court in the decision of a case.’ It is not, however, necessarily binding upon the court, and under the circumstances of a particular case the court may be justified in disregarding it. This follows from the fact … that a judge is not a mere umpire in a forensic encounter but a minister of justice. BACK TO TEXT
3 The statement to which the appellant refers was as follows:
COMMISSIONER SALERNO: Good morning. It is Monday, May 2nd, 2005, and I am opening up the record in the case of Charles Young versus the City of Bridgeport. Will the counsel for the respective parties please identify themselves?
MR. MORRISSEY: Good morning, Commissioner. Attorney David Morrissey, Naugatuck, Connecticut, representing the claimant, Charles Young.
COMMISSIONER SALERNO: Good morning.
MS. GALLO-HALL: Attorney Marie Gallo-Hall from Montstream and May representing the respondents, City of Bridgeport and Berkley Administrators.
COMMISSIONER SALERNO: Good morning. Attorney Morrissey, will you please identify the issues for this formal?
MR. MORRISSEY: Thank you, Commissioner. The issue today is really a jurisdictional issue. Mr. Young was a fire fighter for the City of Bridgeport. He originally applied for his position in 1975, and due to some hiring issues with the City, did not start employment until 1977. As a result of the hiring issues that were going on, he actually took two pre-employment physicals, one in 1976 and one in 1977, both of which have been or will be entered into the record.
The 1976 physical does show evidence of hypertension. The 1977 physical does not. It’s our position that the physical examination that should be looked at is the one that was on entry into service, which was the 1977 physical which showed no evidence of hypertension or heart disease.
May 2, 2005 Transcript, pp. 2-3. BACK TO TEXT
4 Concluding as we have we need not consider the other issues raised; (1) whether the trial commissioner erred in failing to grant the appellant’s Motion to Correct and (2) whether the trial commissioner erred in failing to grant the appellant’s Motion for Articulation.