Opinion
CASE NO. 681 CRD-4-88-1
AUGUST 28, 1989
The claimant was represented by David J. Morrissey, Esq., Morrissey Murphy.
The respondent was represented by Donal C. Collimore, Esq., Collimore and Collimore.
This Petition for Review from the December 31, 1987 Finding and Dismissal of the Commissioner for the Fourth District was heard April 28, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and A. Thomas White, Jr.
OPINION
Claimant's appeal from the Fourth District December 31, 1987 Finding and Dismissal objects to the method employed by the Fourth District Commissioner in calculating the Sec. 7-433b(b) payments cap. From July 1, 1951 until July 11, 1985 claimant was employed as a police officer by the Town of Fairfield. He retired on July 11 and was eligible for heart and hypertension benefits under Sec. 7-433c due to cardiac disability. The commissioner found he had a twenty-five per cent permanent partial disability of the heart and awarded 195 weeks of benefits in his August 28, 1985 decision. He was also receiving a pension from the town during the period that heart and hypertension benefits were payable.
Sec. 7-433b(b) provides: Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors 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. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member of his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.
Under Sec. 7-433b(b) the "total of such cumulative payments. . .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 retirement." The trial commissioner held that the cumulative total received by claimant could not exceed "the base salary of other police officers in the same position which was held by the claimant at the time of his retirement."
In his appeal claimant argues that restricting the total to the base salary is incorrect as it does not include any consideration of overtime payments beyond the base salary level. The two Stipulations of Facts, July 2, 1985 and August 10, 1987, submitted by the parties constitute the basic evidentiary record employed by the commissioner in arriving at his August 28, 1985 and his December 31, 1987 decisions. The stipulations do not include the monetary amounts earned by the claimant prior to his retirement, but appellant's brief asserts that from 1981 to 1984 claimant was among the five highest paid officers in the department because of the substantial overtime he earned. Based on those asserted earnings, not denied by the town, claimant reasons that the cap to be applied would be the average weekly earnings over that four-year period prior to retirement.
We think that argument faulty because it is not the statutory standard contained in Sec. 7-433b(b). The statute addresses the cap in terms of "compensation" being received, during the time of claimant's heart and hypertension benefits, by employees in a comparable status to the position that the claimant had held prior to retirement. But neither do we agree with the commissioner below that the cap should simply be the "base salary." That is not the statutory standard either.
In Lundgren v. Stratford, 12 Conn. App. 138 (1987), the court reviewed the legislative history of Sec. 7-433b(b), Public Act No. 77 520. It pointed out that the original house bill proposed language that payments not exceed "one hundred percent of the base salary of such person prior to his disability retirement." H.B. 8095, January Session, 1977. However that bill was replaced, and the substitute bill which was eventually enacted did not limit payments to the base salary level.
The statute speaks of the "compensation" of those employees in like categories. It should not be too difficult a mathematical computation to compute the average earnings, including overtime, of all Fairfield officers employed during the compensable period in the same position that claimant had. That average compensation would then constitute the cap applicable to payments being received by the claimant during the 195 weeks of heart and hypertension benefits. It might be necessary to compute such average compensation on a periodic basis, but that too should not be too difficult an arithmetical problem.
Claimant's appeal is sustained. The matter is remanded to the Fourth District for further proceedings in conformity with this opinion.
Commissioners Gerald Kolinsky and A. Thomas White, Jr. concur.