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Costello v. Town of Fairfield

Supreme Court of Connecticut

March 13, 1990

Anthony COSTELLO, Jr.

Argued Feb. 8, 1990.

Page 94

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

Michael Sucoll, Hartford, for appellee (plaintiff).


PETERS, Chief Justice.

This appeal concerns the relationship between various provisions of the Heart and Hypertension Act, General Statutes §§ 7-433c and 7-433b (b) [1] [214 Conn. 190] which provide and

Page 95

limit the benefits available to disabled members of municipal police and fire departments. On the basis of stipulated facts, a workers' compensation commissioner determined that § 7-433c entitled the plaintiff, Anthony Costello, Jr., to an award of "specific indemnity" for his permanent partial cardiovascular disability, despite the ceiling on pension and [214 Conn. 191] workers' compensation benefits prescribed by § 7-433b(b). Upon an appeal of this determination by the defendant, the town of Fairfield, the compensation review division affirmed the commissioner's finding and award. The defendant appealed to the Appellate Court and we transferred the appeal here pursuant to Practice Book § 4023. We find no error.

The commissioner made the following findings of fact, in accordance with the parties' stipulation. The plaintiff was a regular member of the police department of the defendant town, and had passed the required physical examination at the time of his employment. As of November 19, 1982, however, the plaintiff had a permanent partial disability of 30 to 35 percent of his cardiovascular system. The plaintiff nonetheless returned to work as a police officer from November 19, 1982, to October 1, 1984, when he retired. During his period of reemployment, the plaintiff received his regular salary as a police officer, but no compensation for his permanent partial disability.

The plaintiff received an original award of benefits under § 7-433c on April 14, 1983, that was reaffirmed on May 8, 1987. In the instant proceedings, the commissioner held that the plaintiff was entitled to a supplemental award of "specific indemnity" for the period of his reemployment, despite the provision in § 7-433b(b) that imposes limits on the total award that a § 7-433c [214 Conn. 192] beneficiary may receive. The defendant challenged this conclusion of law in its appeal to the compensation review division. The compensation review division affirmed the finding and award of the commissioner.

The defendant claims on appeal that the compensation review division erred because: (1) § 7-433c does not authorize an award of "specific indemnity" benefits; and (2) § 7-433b(b) imposes a ceiling on any award of benefits under § 7-433c. We decline, however, to consider the first claim, because the compensation review division expressly noted that the defendant had not preserved "any issue as to whether the trial commissioner had jurisdiction to award specific indemnity benefits under sec. 7-433c as a matter of law." [2] Only the defendant's second claim is properly Before us.

It is uncontested that § 7-433b(b) imposes a ceiling on a disabled policeman's award of "specific indemnity" benefits under § 7-433c at the time of his retirement. The subsection provides, in relevant part, that "cumulative payments, not including

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payments for medical care, for compensation and retirement or survivors benefits under section 7-433c ... shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement." The defendant argues that this subsection imposes a ceiling even on special compensation that supplements a regular salary during a period of employment, while the plaintiff contends that the subsection limits special compensation only when it is awarded to supplement a retirement pension.

In order to evaluate these disparate constructions of § 7-433b(b), it is useful to clarify what is not at issue. [214 Conn. 193] The plaintiff's cardiovascular disability entitles him to coverage under § 7-433c for the benefits therein conferred. In enacting § 7-433c, the legislature intended the measurement of a claimant's benefits to be identical to the benefits that may be awarded to a claimant under chapter 568, the Workers' Compensation Act. Felia v. Westport, 214 Conn. 181, 185-86, 571 A.2d 89 (1990), and cases cited therein. Accordingly, the use of the term "compensation" in § 7-443c, as a general matter, incorporates the compensation benefits provided in § 31-308. Id., at 187-88, 571 A.2d 89. Notwithstanding these general principles, in enacting § 7-433b(b), the legislature intended to limit the total payments to a retired municipal police officer to the amount that was being paid to his working counterpart. Id., at 188, 571 A.2d 89; Lambert v. Bridgeport, 204 Conn. 563, 569, 529 A.2d 184 (1987).

The defendant argues that the benefits "cap" imposed by § 7-433b(b) includes all special indemnity benefits, regardless of the time period for which they are awarded, because subsection (b) expressly limits "the cumulative payments ... for compensation and retirement or survivors benefits under section 7-433c" (emphasis added) to the weekly compensation of comparable police officers. The compensation review division was, indeed, mistaken when it described the ceiling on cumulative payments as limited to a claimant's retirement and survivor benefits. In our construction of § 7-433b(b), we strive to attach independent meaning to every phrase contained in a legislative enactment. Rawling v. New Haven, 206 Conn. 100, 112, 537 A.2d 439 (1988); DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985). It is, accordingly, significant that the legislature included "compensation" as a specific component to be considered in comparing the cumulative payments of a § 7-433c beneficiary and a healthy working police officer. In determining what the legislature intended to [214 Conn. 194] encompass by "compensation" in § 7-433b, we are, furthermore, bound to search for a construction of that term that is consistent with its usage in § 7-433c, since both statutes relate to the same subject matter. Felia v. Westport, supra, 214 Conn. at 187-88, 571 A.2d 89, and cases therein cited. In Felia v. Westport, supra, at 187-88, 571 A.2d 89, we concluded that "compensation" in § 7-433c includes special compensatory benefits, as provided in § 31-308. It follows that "compensation" in § 7-433b(b) also includes the "specific indemnity" that the plaintiff was awarded in this case.

The difficulty with the defendant's argument arises, however, upon further examination of the comparative standard that § 7-433b invokes to determine whether a § 7-433c beneficiary has exceeded the statutory ceiling imposed by the legislature. Subsection (b) might have compared such a beneficiary's payments with the salary actually paid to any comparable police or fire officer who was working without the handicap of a cardiovascular disability. Instead, the legislature chose a narrower basis for comparison: "the weekly compensation being paid ... to members of such department in the same position which was held by such member at the time of his death or ...

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