Derrane v. City of Hartford et al.

CASE NO. 5290 CRB-6-07-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 15, 2008

MARTIN DERRANE

CLAIMANT-APPELLEE

v.

CITY OF HARTFORD

EMPLOYER

and

CONSTITUTION STATE SERVICE COMPANY

INSURER

RESPONDENTS-APPELLEES

and

TOWN OF WEST HARTFORD

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Thomas Mullins, Esq., Thomas J. Mullins, LLC, Five Grand Street, Hartford, CT 06106 who did not appear at oral argument as the issue did not involve the claimant.

The respondents City of Hartford and Constitution State Service Company were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The respondent Town of West Hartford was represented by Frank A. May, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the September 24, 2007 Finding and Award of the Commissioner acting for the Sixth District was heard May 16, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns the determination of, which of two respondents is ultimately financially liable for injuries sustained by the claimant. The pertinent facts are as follows. The claimant was a member of the city of Hartford’s [hereafter Hartford] paid fire department. On May 17, 2004 the respondent Hartford received a request for mutual assistance from the respondent town of West Hartford [hereafter West Hartford]. The assistance was sought due to a large fire in West Hartford. At the outset we note that the respondents in this matter had a mutual aid agreement in place at the time of claimant’s injury.

The claimant at the time of the request for mutual assistance by the respondent West Hartford, was on duty at the fire house in Hartford to which he was assigned. Per the instruction of his superior the claimant was directed to proceed to the fire site in West Hartford. The claimant and other members of his unit rode out to the West Hartford fire site in their Hartford Fire Department uniforms, in a Hartford fire truck and utilized Hartford fire equipment in efforts toward extinguishing the blaze. At all times during the attempt to quell the conflagration the claimant took orders and directions from his Hartford Fire Department superior, Officer Ian Tenney. During the course of performing his fire-fighting duties, the claimant injured his hand.

The respondent, city of Hartford, paid all benefits due the claimant pursuant to Chapter 568. Hartford then brought this action under § 7-433d seeking reimbursement from West Hartford for sums paid to the claimant pursuant to Chapter 568. Thereafter, proceedings were held in the Sixth District. The trial commissioner in her September 24, 2007 Finding and Award concluded that the respondent Hartford was entitled to reimbursement pursuant to § 7-433d. The appellant, West Hartford took this appeal.

The appellant raises the following issue, whether the trial commissioner erred in concluding West Hartford was liable for reimbursement of benefits paid to the claimant for injuries sustained while the claimant was fighting a fire in West Hartford pursuant to a call for mutual assistance and while the claimant was on duty as a fire fighter for his employer, Hartford. The appellant argued before the trial commissioner that § 7-433d did not apply to the factual circumstances in this matter and that pursuant to §§ 7-310 and 31-292 the appellee was liable for Chapter 568 payments. Sec. 7-433d provides:

Any uniformed member of a paid fire department who offers his services to an officer or person in charge of another fire company which is actively engaged in fire duties, and whose services are accepted by such officer or person, shall be entitled to receive benefits under chapter 568, and under the contributory or noncontributory retirement system of the municipality for which such services were performed, in the event of his injury or death arising out of such services, as if he were a member of the fire department of such municipality.

The appellant argues that the first prong of § 7-433d was not satisfied. The claimant in this case did not “offer his services to an officer or person in charge of another fire company.” In the instant matter it was the claimant’s superior who offered the services of the claimant, as well as other members of his unit, to the West Hartford fire department.

The appellant also refers us to the reasoning applied by the Supreme Court in Thomas v. Lisbon, 209 Conn. 268 (1988). There the court was presented with a situation where two volunteer firefighters from Lisbon were injured while fighting a fire in Norwich. The Lisbon volunteer fire fighters’ presence at the Norwich fire was in answer to a call made pursuant to the mutual aid agreement between Lisbon and Norwich. The court was asked whether the chapter 568 benefits to which the claimants were entitled were the financial liability of Lisbon or Norwich. To that end the court was asked whether the provisions of § 7-314a or § 7-322a were controlling. If the court found § 7-314a applicable, then liability rested with Norwich. If § 7-322a applied then liability rested with Lisbon. The court concluded that § 7-322a applied to the conduct of individuals, and § 7-314a to the conduct of towns.

The court noted that at the time of the fire neither fire fighter spoke with anyone from Norwich and only communicated with the chief of the Lisbon Fire Department. As the claimants had not responded to the fire in their capacity as individuals but rather responded on behalf of the Town of Lisbon liability rested with Norwich pursuant to § 7-314a. In the court’s analysis it noted that § 7-322a, as it existed at the time of the Thomas claimants injuries provided:

Any active member of a volunteer fire company who offers his services to an officer or person in charge of another fire company which is actively engaged in fire duties, and whose services are accepted by such officer or person, shall be entitled to receive all benefits payable under the provisions of sections 7-314 and 7-314a. Such payments shall be made by the municipality in which the fire company of which such a fireman is a member is located.

The Thomas court thus concluded that as the claimant had not personally offered his services to Norwich, § 7-322a did not apply. The language at issue in the instant matter, i.e. the construction to be accorded the phrase “member … who offers his services to an officer or person in charge of another fire company which is actively engaged in fire duties, and whose services are accepted by such officer or person,” set out in § 7-433d is the same phrasing as was considered by the court in Thomas.1 The trial commissioner’s findings in ¶¶ D, E and F as well as ¶ 1 provide support that the claimant did not “offer his service” and thus, the first prong of § 7-433d has not been met.

In the alternative the appellant argues that pursuant to § 7-310 and § 31-292 liability for benefits due pursuant to Chapter 568 remains with the claimant’s employer, the City of Hartford. We agree. Sec. 31-292 provides:

When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.

Additionally, § 7-310 provides that when a firefighter enters another jurisdiction and pursuant to a mutual aid agreement uses and operates fire fighting equipment the fire fighter retains the same rights as he enjoyed while operating such equipment within the jurisdiction of his fire department.

Any officer or member of a fire department or fire company while operating outside the jurisdictional limits of his fire department or fire company in accord with such an agreement shall have the same rights, privileges and immunities that are granted him when operating within the jurisdictional limits of his fire department or fire company.

We therefore conclude that the trial commissioner’s conclusion should be reversed.

Commissioners Charles Senich and Stephen B. Delaney concur.

1 Although which municipality would bear ultimate liability differed between § 7-433d and 7-322a. BACK TO TEXT