179 Conn. App. 440
Conn. App. Ct.2018Background
- Paul Fagan, a Stamford police officer, applied for disability retirement after line-of-duty injuries; two separate pensions exist: 50% under the city charter and an enhanced 75% under the collective bargaining agreement if at least two of three independent medical examiners ‘‘concur’’ of ≥30% permanent/partial disability.
- The board ordered three independent IMEs. Reports: Carolan — 27% (6th edition of AMA Guides); Solomon — 38% (report does not specify edition); Plancher — 13% (6th edition).
- On January 8, 2013 the board granted Fagan a 50% disability pension under the charter, finding the agreement’s 2-of-3 ≥30% threshold was not met (only Solomon’s report met ≥30%).
- Fagan privately asked Carolan to re-evaluate and later sent Carolan’s April 9, 2013 letter (showing a 36% rating using the 5th edition of the AMA Guides) to the board and requested reconsideration. The board denied reconsideration on June 12, 2013.
- Fagan appealed the board’s denial to Superior Court and then to the Appellate Court, arguing the board acted arbitrarily/capriciously by refusing to credit Carolan’s later calculations and grant the 75% pension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether board’s Jan. 8, 2013 award of 50% (not 75%) was supported by evidence | Fagan: board should have granted 75% because two of three IMEs (counting Carolan’s later 36% recalculation) met ≥30% | Board: at decision time only one IME met ≥30%; substantial evidence supported awarding only 50% | Affirmed — substantial evidence supported board’s Jan. 8 decision |
| Whether board had to treat Carolan’s April 9 letter as an amendment supplanting his Oct. 25 report | Fagan: Carolan’s April letter created two-of-three concurrence and required 75% award | Board: April letter was a plaintiff-requested alternate calculation/supplement; board could credit original IME report and reject post-hoc recalculation | Affirmed — board reasonably treated April letter as supplemental and did not have to accept it |
| Whether board abused discretion by denying reconsideration after receiving April 9 letter | Fagan: board’s refusal to reconsider was arbitrary because new medical evidence satisfied agreement criteria | Board: procedures require independent IMEs; private communications threatened independence; board discretion to weigh credibility and exclude post-exam influence | Affirmed — board did not act arbitrarily; independence and credibility determinations support denial |
| Interpretation of "concur" in 2-of-3 requirement (whether IMEs must review each other) | Fagan: "concur" requires examiners to review others’ reports and effectively reach the 2-of-3 conclusion after comparison | Board: "concur" means two of the three independent reports must independently reach ≥30%; the process requires separate independent exams | Affirmed — "concur" does not require examiner collaboration; separate independent reports satisfy the clause |
Key Cases Cited
- O’Connor v. Waterbury, 286 Conn. 732 (standard of review for municipal administrative agency decisions)
- MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128 (scope of review and substantial evidence rule)
- Ferrier v. Personnel & Pension Appeals Board, 8 Conn. App. 165 (court’s role in reviewing municipal pension board decisions)
- Pictometry International Corp. v. Freedom of Information Commission, 307 Conn. 648 (appellate scope when Superior Court reviews administrative record)
- Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128 (agency credibility and evidence-weight deference)
- Briggs v. State Employees Retirement Commission, 210 Conn. 214 (deference to agency credibility assessments, even for expert testimony)
- Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, 320 Conn. 611 (court may not substitute its judgment for agency on weight of evidence)
- Tarasovic v. Zoning Commission, 147 Conn. 65 (court not to pass on credibility found by administrative agency)
- Fonfara v. Reapportionment Commission, 222 Conn. 166 (presumption of validity for authorized public agencies)
- Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57 (Superior Court sitting in appellate capacity in administrative appeals)
- Par Developers, Ltd. v. Planning & Zoning Commission, 37 Conn. App. 348 (distinguishing administrative appeals where Superior Court reviews in appellate capacity)
- Levine v. Advest, Inc., 244 Conn. 732 (contract terms must be read in context; avoid absurd results)
- Welch v. Stonybrook Gardens Cooperative, Inc., 158 Conn. App. 185 (courts avoid contract interpretations producing absurd results)
- Foley v. Huntington Co., 42 Conn. App. 712 (contract includes what is necessarily implied from language)