Fagan v. City of Stamford , 179 Conn. App. 440 ( 2018 )

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PAUL FAGAN v. CITY OF STAMFORD ET AL.
(AC 38836)
Keller, Elgo and Bear, Js.
Syllabus
The plaintiff, who previously had been employed with the defendant city
of Stamford as a police officer and was injured while acting within the
scope of his employment, appealed to the trial court from the decision
of the defendant City of Stamford Policemen’s Pension Trust Fund Board
awarding him a disability pension in the amount of 50 percent of his
annual compensation. At all relevant times, two distinct disability pen-
sions were available to members of the city’s police department under
the city’s charter and the collective bargaining agreement. Under the
city charter, the board was authorized to grant a disability pension equal
to 50 percent of the member’s compensation during the last year of
service to members who, without personal fault or misconduct, were
incapacitated in the performance of duty. Pursuant to the collective
bargaining agreement, the board was authorized to grant a disability
pension equal to 75 percent of the member’s base pay at the time of
application to police officers who suffered a work related injury, but
only when at least two out of three independent medical physicians
selected by the board concurred that the member had a permanent or
partial disability of 30 percent or more of any part of his or her body.
In the present case, in January, 2013, the board approved a 50 percent
disability pension to the plaintiff, pursuant to the charter, after two out
of three independent medical physicians selected by the board, including
C, assigned total disability ratings below 30 percent. Subsequently, in
an April, 2013 letter, C, after noting that the plaintiff had asked him to
reevaluate his prior report and to apply the fifth edition of a medical
guide used to evaluate permanent impairment instead of the sixth edition
of the guide, assigned the plaintiff a new disability rating of 36 percent.
Thereafter, the plaintiff requested that the board reconsider his applica-
tion for a 75 percent disability pension under the collective bargaining
agreement because two out of three independent medical examiners
concurred that his permanent or partial disability ratings totaled 30
percent or more, which the board denied. The trial court subsequently
rendered judgment dismissing the appeal, from which the plaintiff
appealed to this court. Held:
1. The board did not act arbitrarily, capriciously, or in abuse of its discretion
in reaching its January, 2013 decision approving a 50 percent disability
pension to the plaintiff pursuant to the city’s charter; the record con-
tained substantial evidence to support the board’s determination that
the plaintiff did not meet the requirements for an enhanced disability
pension under the collective bargaining agreement, as the evidence
available to the board at the time of its decision indicated that at least
two out of three independent medical physicians did not concur that
the plaintiff had a permanent or partial disability of 30 percent or more,
which was required for the plaintiff to receive an enhanced disability
pension.
2. The board did not act arbitrarily, capriciously, or in abuse of its discretion
in denying the plaintiff’s request for the board to reconsider his applica-
tion for a 75 percent disability pension under the collective bargaining
agreement in light of C’s April, 2013 letter, which contained new disability
calculations that would satisfy the requirements of the collective bar-
gaining agreement for an enhanced disability pension: given the plain
language utilized by C in his April, 2013 letter indicating that, pursuant
to the plaintiff’s request, he had applied the fifth edition of the guide
instead of the sixth edition, the board reasonably could have construed
that letter as a supplement to, rather than a replacement for, C’s prior
report, in which the plaintiff’s impairment was calculated under an
alternative methodology specifically requested by the plaintiff but not
by the board, and the board was well within its discretion in accepting
as valid C’s prior report that applied the sixth edition of the guide, as
neither the charter nor the collective bargaining agreement required
application of any particular edition in the independent medical examina-
tion process; furthermore, the board’s decision to credit C’s prior report
and to accord little weight to C’s later communication in rendering its
decision on the plaintiff’s disability pension application implicated its
exclusive role as arbiter of credibility and the weight to be afforded to
particular evidence, and the board was free, in its discretion, to decline
to credit the substance of C’s later communication because it was made
at the behest of the plaintiff.
Argued October 16, 2017—officially released January 30, 2018
Procedural History
Appeal from the decision of the defendant pension
trust fund board awarding the plaintiff a disability pen-
sion in the amount of 50 percent of his annual compen-
sation, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, Truglia,
J., granted the motion for summary judgment filed by
the defendant city of Stamford et al.; thereafter, the
matter was tried to the court, Hon. A. William Mot-
tolese, judge trial referee; judgment dismissing the
appeal, from which the plaintiff appealed to this
court. Affirmed.
Paul Fagan, self-represented, the appellant
(plaintiff).
Anthony M. Macleod, with whom, on the brief, was
James C. Riley, for the appellees (defendant Police-
men’s Pension Trust Fund Board of the City of Stamford
et al.).
Opinion
ELGO, J. The self-represented plaintiff, Paul Fagan, a
former police officer for the defendant city of Stamford
(city), appeals from the judgment of the Superior Court
dismissing his appeal from the decision of the defendant
Policemen’s Pension Trust Fund Board of the city
(board) awarding him a disability pension in the amount
of 50 percent of his annual compensation.1 On appeal,
the plaintiff contends that the board improperly denied
his request for an enhanced disability pension pursuant
to the collective bargaining agreement (agreement)
between the city and the Stamford Police Association
(association). We disagree and, accordingly, affirm the
judgment of the Superior Court.2
The relevant facts, as gleaned from the amended
return of record that was submitted by agreement of
the parties, are largely undisputed. In 1971, the city
and the association entered into an ‘‘Agreement and
Declaration of Trust’’ (trust agreement), which estab-
lished the city’s ‘‘Policemen’s Pension Trust Fund’’
(fund). The stated purpose of the fund is to provide
‘‘pension and related benefits to [e]mployees, [r]etirees,
their families, dependents, or beneficiaries who satisfy
the eligibility requirements . . . .’’ The fund is adminis-
tered by the board, whose powers and duties are deline-
ated in the trust agreement. Pursuant to article fifth,
§ 2, thereof, the board is empowered, inter alia, to
‘‘[c]onstrue the provisions of this [t]rust [a]greement,
and [its] terms’’ and to ‘‘[f]ormulate, adopt, and promul-
gate any and all rules and regulations necessary or
desirable to facilitate the proper administration of the
[fund] . . . .’’ The board’s authority to administer the
fund also is memorialized in the city charter. See Stam-
ford Charter § C7-10-1 et seq.
At all times relevant to this appeal, two distinct dis-
ability pensions were available to members of the city’s
police department under the city charter and the
agreement, respectively. Pursuant to § C7-20-1 of the
Stamford Charter, the board is authorized to grant a
disability pension ‘‘equal to [50 percent] of the member’s
compensation during the last year of service’’ upon
finding that a member of the police department ‘‘in the
actual performance of duty and without personal fault
or misconduct, shall have become permanently dis-
abled, so as to be incapacitated in the performance
of duty.’’
In addition, the agreement authorizes the board to
award an enhanced disability pension, provided certain
criteria are met. Relevant to this appeal is paragraph 9
(K) of the agreement, which provides in relevant part:
‘‘Active police officers of the Stamford Police Depart-
ment who suffer a work related illness or injury at any
time during their employment as a police officer shall
be eligible for the following [d]isability [p]ension bene-
fits, in addition to those currently existing pursuant to
the [c]harter of the [city] and [trust agreement]. . . .
[2] Such members shall be entitled to a [d]isability [p]en-
sion equal to [75 percent] of his/her base pay at the
time of the [a]pplication if at least two out of three
independent medical physicians selected by the [board]
in accordance with the provisions of [p]aragraph 9 (K)
(1) above,3 concur that same member has a permanent/
partial disability of [30 percent] or a combined perma-
nent/partial disability of [30 percent] or more of any
part of his/her body, including mental disability, and
also at least two out of three of said independent medi-
cal physicians concur that said member is unable to
meet the physical or mental requirements of an entry
level patrolman for the Stamford Police Department.’’
(Footnote added.)
Pursuant to its authority under the trust agreement
to enact rules and regulations related to the proper
administration of the fund, the board promulgated a
retirement guide. The retirement guide details the pro-
tocols and procedures by which members may retire
from the police department. It requires members to
submit a letter to both the chief of police and the board
that ‘‘[m]ust include [the] effective date of retirement
and type of retirement.’’ It also requires members who
are applying for a disability pension to apprise the board
of that request. The retirement guide then explains that
‘‘[t]hree [i]ndependent [m]edical [e]xaminations . . .
will be arranged for you. These exams must not be with
any [d]octor that has seen you in the past. Please review
with the [board’s office] which [independent medical
examination] [d]octors are available for use. . . .’’
Those independent medical examinations, in turn, are
used by the board to determine an applicant’s eligibility
for a disability pension under the city charter and the
agreement.
The plaintiff began his employment with the city’s
police department in July of 2004. On October 1, 2012,
pursuant to the procedures outlined in the retirement
guide, the plaintiff sent a letter to the chief of police
and the board. That letter stated in relevant part: ‘‘I am
submitting my notice to retire from the Stamford Police
Department after more than eight years of service. I
am applying for a disability pension under the
[agreement], as I am eligible for the disability benefits
listed in the [agreement] in addition to those currently
existing pursuant to the charter . . . based on injuries
I received in the line of duty. My projected date of
retirement at this time is December 7, 2012.’’4
In accordance with both paragraph 9 (K) (1) of the
agreement and the retirement guide, three independent
medical examinations of the plaintiff were scheduled
in October and December of 2012. In the two October,
2012 examinations, the board sent a letter to the physi-
cian that stated in relevant part that the board ‘‘would
like you to perform an [i]ndependent [m]edical [e]xami-
nation on [the plaintiff]. Please do not proceed if this
officer has ever been treated by you. Please advise us
if that is the case. The specific information we need in
your report includes: [1] Your diagnosis and prognosis.
[2] Your opinion of the percentage of disability. [3]
Your opinion of the permanency of disability. [4] Your
opinion of the causation and job relatedness of the
condition. [5] Your opinion if the [o]fficer would be
unable to meet the physical requirements of an entry
level patrolman.’’ (Emphasis in original.) The relevant
language in a November, 2012 letter is virtually identical
except that it does not require that the physician’s
report include his opinion as to whether the plaintiff
would be unable to meet the physical requirements of
an entry level patrolman. It is undisputed that the board
did not direct the physicians to use any specific edition
of the Guides to the Evaluation of Permanent Impair-
ment (guide),5 published by the American Medical Asso-
ciation, in preparing their reports. It further is
undisputed that, pursuant to the agreement, the physi-
cians were free to utilize whichever edition of the guide
that they preferred.6 As the plaintiff acknowledges in
his principal appellate brief, the agreement ‘‘makes no
mention of any particular guide to permanent impair-
ment [and] the independent medical examiner may use
any guide he/she chooses . . . .’’7
On October 24, 2012, the plaintiff was examined by
Patrick Carolan, a physician with Merritt Orthopaedic
Associates, P.C. In his October 25, 2012 report, Carolan
assigned a 27 percent disability rating to the plaintiff
utilizing the sixth edition of the guide. Carolan further
opined that the plaintiff’s injuries were causally related
to his official duties and that the plaintiff was unable
to meet the physical requirements of an entry level
patrolman.
On October 31, 2012, the plaintiff was examined by
Gary Solomon, a physician with Rehabilitation Consul-
tants, P.C. In his October 31, 2012 report, Solomon
assigned a 38 percent disability rating to the plaintiff.
Significantly, Solomon did not specify in his report
which edition of the guide he utilized in reaching that
determination. Rather, he simply indicated that he was
‘‘[f]ollowing the [American Medical Association] Guides
to the Evaluation of Permanent Impairment . . . .’’8
Like Carolan, Solomon opined that the plaintiff’s injur-
ies were causally related to his official duties and that
he was unable to meet the physical requirements of an
entry level patrolman.
On December 14, 2012, the plaintiff was examined by
Kevin Plancher, a physician at Plancher Orthopaedics &
Sports Medicine.9 In his subsequent report, Plancher
assigned a 13 percent disability rating to the plaintiff
utilizing the sixth edition of the guide. Plancher also
opined that the plaintiff’s injuries were causally related
to his official duties.
On January 8, 2013, a regular meeting of the board
was convened. At that meeting, the board went into an
executive session to discuss three retirements.10 The
minutes of that meeting indicate that, when the execu-
tive session concluded, a motion ‘‘to approve a 50 per-
cent disability pension, as per the charter, to one
officer’’ was unanimously approved by the board. The
board then issued a written resolution dated January
8, 2013, which stated: ‘‘Resolved that the [board] hereby
grant[s] a [d]isability [p]ension, pursuant to [§] 7-20-1
of the [c]harter of the [city], to: [the plaintiff] who has
been a member of the Stamford Police Department for
over eight years. [He] will be entitled to a total pension
of 50 [percent] of [his] annual salary, or $37,427.35 annu-
ally, effective January 11, 2013.’’11 That resolution was
signed by all five members of the board.
Ten days later, the plaintiff sent a letter to Carolan
that lies at the heart of this appeal. In that written
correspondence, the plaintiff informed Carolan that his
October 25, 2012 report was ‘‘vastly different from
another doctor’s opinion of the same injuries.’’ He then
explained that, in the ‘‘spirit of transparency,’’ he
believed that Carolan should know that ‘‘Solomon has
reached a numerical value of 38 [percent disability]
compared to a total of 27 [percent] by [Carolan].’’12 The
plaintiff also informed Carolan that he had ‘‘applied for a
disability pension from the Stamford Police Department
and the requirements were a numerical value [of 30
percent] or more . . . and [Carolan] did not reach that
numerical requirement based on his ratings not totaling
30 [percent] or more.’’ Accordingly, the plaintiff stated
that he had ‘‘included [Solomon’s] medical report for
your review and consideration. If [Carolan] chooses to
review the report and make any amendments, as he
deems [necessary, it] would be greatly appreciated.’’
The plaintiff at that time also opined that the discrep-
ancy between the disability ratings assigned by Carolan
and Solomon ‘‘seem[s] to be based on a different sche-
matic or methodology . . . .’’ The plaintiff then
requested that ‘‘Carolan consider using the same sche-
matic or methodologies that were used by [Solomon] to
come to a similar numerical value.’’ (Emphasis added.)
Notably, the plaintiff in that letter never referenced the
guide or any particular edition thereof.
The plaintiff then stated that Carolan ‘‘has every right
to amend his report as he determines necessary, in light
of this new information he is receiving today, and in
the spirit of accuracy and fairness. Any amendments
to the medical report would be considered an act that
was executed on [Carolan’s] own volition and without
duress or influence by any other person. Purposes of
this letter were solely for informative reasons. The
information provided to [Carolan] was divulged for
transparency and accuracy alone. Any amendment/
changes or additions to the report can be forwarded to
[the plaintiff], his address is listed below. Kindly
respond to this request in writing at your earliest conve-
nience. Thank you in advance for anticipated coopera-
tion concerning this matter regarding the disability
ratings of retired police officer Paul Fagan.’’ The letter
concluded by listing the plaintiff’s home address. It is
undisputed that the board was not copied on that writ-
ten communication or informed in any manner that the
plaintiff had sent it to Carolan ten days after the board’s
January 8, 2013 decision on his application for a disabil-
ity pension.
The return of record is silent as to what transpired
over the ensuing months until Carolan mailed a letter
to the plaintiff dated April 9, 2013, which was addressed
to the board. In that letter, Carolan stated: ‘‘I have been
requested by [the plaintiff] to [reevaluate] the indepen-
dent medical report that I had submitted to you on
October 25, 2012. In a letter received from [the plaintiff],
he asked that I use the [fifth] [e]dition of the [guide].
Previously, I had used the [sixth] [e]dition.’’13 Carolan
then detailed eight specific changes ‘‘in the calculations
of the impairment present’’ in the plaintiff ‘‘[w]hen the
[fifth] [e]dition is used,’’ which together resulted in a
disability rating of 36 percent.14 Both the plaintiff and
‘‘Attorney William J. Varese’’ were copied on the bottom
of that letter.
The plaintiff then forwarded a copy of Carolan’s April
9, 2013 letter to the board under cover dated April 14,
2013. In that correspondence, the plaintiff stated: ‘‘I’m
writing to inform you that [Carolan] has amended his
independent medical exam report regarding my injuries
. . . and I am requesting that the [board] reconsider
my application for a 75 [percent] disability pension
under the [agreement]. Two out of three independent
medical examiners [concur] that my permanent/partial
disability ratings . . . total 30 [percent] or more.’’
The board considered the plaintiff’s request for recon-
sideration at its June 12, 2013 meeting. At that time,
the board unanimously denied that request. Michael
Noto, in his capacity as chairman of the board, sent the
plaintiff a letter on June 26, 2013, notifying the plaintiff
of that decision. That correspondence stated in relevant
part: ‘‘[T]he [board] has asked me to confirm to you
the [b]oard’s decision that you do not qualify for a 75
[percent] disability pension under [p]aragraph 9 (K) (2)
of the [agreement]. The [b]oard, by formal vote at its
meeting on January 8, 2013, previously granted you a
50 [percent] disability retirement benefit pursuant to
[§] C7-20-1 of the [city charter] and found at the same
time that you did not meet the criteria for a 75 [percent]
disability pension pursuant to [the agreement]. The
[b]oard, in reaching that decision, had before it three
[i]ndependent [m]edical [e]xamination reports which it
accepts as valid reports. Examining physicians may use
either the [fourth], [fifth], or [sixth] editions of the
[guide], and the [b]oard did not specify or request that
any physician who examined you use a particular edi-
tion. Consequently, the [b]oard does not believe it is
necessary now to ask for a reevaluation of your condi-
tion using any specific edition. A motion for such a
reevaluation was made at the [b]oard’s June 12, 2013
meeting . . . but failed on a unanimous negative vote.’’
The plaintiff appealed from that decision to the Supe-
rior Court, claiming that the board’s decision was ‘‘arbi-
trary and capricious, and an abuse of discretion.’’
Following a hearing, the court rendered judgment dis-
missing the appeal. In so doing, the court determined
that the agreement does not permit an applicant for a
disability pension, following the submission of three
independent medical examination reports to the board,
to thereafter petition one of the medical examiners to
reevaluate the applicant’s disability rating in light of the
report of another medical examiner. The court further
determined that such communications, particularly
when done without notice to the board, compromise
the independence of those examinations. As the court
noted in its memorandum of decision, the agreement
‘‘evinces an unmistakable intent that the parties to the
agreement wish to keep the examination process free
from any outside influences or biases and have a pro-
cess that would promote honesty and integrity.’’ It con-
tinued: ‘‘[T]he element of independence is essential to
the process [set forth in paragraph 9 (K) (2) of the
agreement]. To permit either the applicant or the board
to communicate with an examiner when dissatisfied
with a disability rating would invite attempts to exert
improper influence on the decision maker not only by
the applicant but perhaps by the board itself if it was
unhappy with an examiner’s opinion.’’ The court there-
fore concluded that substantial evidence in the record
supported the board’s decision not to reconsider its
prior disability pension determination. From that judg-
ment, the plaintiff appealed to this court.
Preliminarily, we note the standard applicable to our
review of administrative decisions. The board is a crea-
ture of municipal enactment and its powers and duties
are recognized in both the city charter and the trust
agreement. It, therefore, is tantamount to a municipal
administrative agency for purposes of appellate review.
See O’Connor v. Waterbury, 286 Conn. 732, 740–41, 945
A.2d 936 (2008). The scope of review of an administra-
tive decision ‘‘is very restricted. . . . With regard to
questions of fact, it is neither the function of the trial
court nor of this court to retry the case or to substitute
its judgment for that of the administrative agency. . . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding . . . . Substantial
evidence exists if the administrative record affords a
substantial basis of fact from which the fact in issue can
be reasonably inferred. . . . This substantial evidence
standard is highly deferential and permits less judicial
scrutiny than a clearly erroneous or weight of the evi-
dence standard of review. . . . The burden is on the
[plaintiff] to demonstrate that the [agency’s] factual
conclusions were not supported by the weight of sub-
stantial evidence on the whole record. . . .
‘‘Even as to questions of law, [t]he court’s ultimate
duty is only to decide whether, in light of the evidence,
the [agency] has acted unreasonably, arbitrarily, ille-
gally, or in abuse of its discretion. . . . Conclusions of
law reached by the administrative agency must stand
if the court determines that they resulted from a correct
application of the law to the facts found and could
reasonably and logically follow from such facts.’’ (Cita-
tions omitted; internal quotation marks omitted.) MacD-
ermid, Inc. v. Dept. of Environmental Protection, 257
Conn. 128, 136–37, 778 A.2d 7 (2001); accord Ferrier v.
Personnel & Pension Appeals Board, 8 Conn. App. 165,
167, 510 A.2d 1385 (1986) (court’s function in reviewing
decision of municipal pension board ‘‘is limited to the
examination of the record to determine whether the
ultimate decision was factually and legally supported
to ensure that the board did not act illegally, arbitrarily
or in abuse of its discretion’’). ‘‘It is fundamental that
a plaintiff [bears] the burden of proving that the [munici-
pal board], on the facts before [it], acted contrary to
law and in abuse of [its] discretion . . . .’’ (Internal
quotation marks omitted.) O’Connor v. Waterbury,
supra, 286 Conn. 741–42; see also Fonfara v. Reappor-
tionment Commission, 222 Conn. 166, 177, 610 A.2d
153 (1992) (‘‘well established judicial principles . . .
attach a presumption of validity to decisions of author-
ized public agencies’’ and burden therefore rests with
party challenging agency determination to demon-
strate impropriety).
In addition, ‘‘[b]ecause the . . . appeal to the [Supe-
rior Court was] based solely on the record, the scope
of the [Superior Court’s] review of the [board’s] decision
and the scope of our review of that decision are the
same. . . . In other words, the [Superior Court’s] deci-
sion in this administrative appeal is entitled to no defer-
ence from this court.’’ (Internal quotation marks
omitted.) Pictometry International Corp. v. Freedom
of Information Commission, 307 Conn. 648, 670 n.21,
59 A.3d 172 (2013). In reviewing this administrative
appeal, we therefore focus our attention on the propri-
ety of the decisions of the board.
I
BOARD’S JANUARY 8, 2013 DECISION
We first consider the propriety of the board’s decision
on January 8, 2013, in which it granted the plaintiff a
50 percent disability pension pursuant to § C7-20-1 of
the Stamford Charter. In so doing, the board determined
that the plaintiff did not meet the requirements for an
enhanced disability pension under the agreement.
The record contains substantial evidence to support
that determination. When the board met at its January 8,
2013 meeting, it had before it three independent medical
examination reports prepared by Carolan, Solomon,
and Plancher. Only Solomon’s report assigned the plain-
tiff a disability rating of 30 percent or more; Carolan
and Plancher’s reports assigned disability ratings of 27
and 13 percent, respectively. That evidence indicated
that ‘‘at least two out of three independent medical
physicians’’ did not ‘‘concur that [the plaintiff] has a
permanent/partial disability of [30 percent] or a com-
bined permanent/partial disability of [30 percent] or
more,’’ as required by paragraph 9 (K) (2) of the
agreement. On that evidence, the board concluded that
the plaintiff was eligible for a disability pension pursu-
ant to § C7-20-1 of the charter, but not an enhanced
one pursuant to paragraph 9 (K) (2) of the agreement.
In light of the substantial evidence in the record, we
conclude that the board did not act arbitrarily, capri-
ciously, or in abuse of its discretion in reaching its
January 8, 2013 decision. The plaintiff has not suggested
otherwise in this administrative appeal.
II
BOARD’S JUNE 12, 2013 DECISION
The plaintiff nevertheless asserts that the board acted
arbitrarily, capriciously, and in abuse of its discretion
in denying his April 14, 2013 request ‘‘that the [board]
reconsider [his] application for a 75 [percent] disability
pension under the [agreement].’’ He claims that once
the board received the April 9, 2013 letter from Carolan
containing calculations that resulted in a disability rat-
ing of 36 percent, the board was obligated, pursuant to
paragraph 9 (K) (2) of the agreement, to discard its
prior decision and grant his request for an enhanced
disability pension. We disagree.
A
As an initial matter, we note that the plaintiff’s posi-
tion in this administrative appeal is premised on a faulty
presumption—that Carolan’s April 9, 2013 letter consti-
tuted an amendment of his medical opinion on the plain-
tiff’s disability rating intended to supplant that
contained in his earlier report of October 25, 2012. The
record before us contains no such finding by the board.15
To the contrary, Noto’s June 26, 2013 letter to the plain-
tiff suggests that the board regarded Carolan’s April 9,
2013 letter as merely a submission of alternate calcula-
tions under a different methodology.16 Substantial evi-
dence in the record supports such a determination. In
his April 9, 2013 letter to the board, Carolan stated in
relevant part: ‘‘I have been requested by [the plaintiff]
to [reevaluate] the independent medical report that I
had submitted to you on October 25, 2012. . . . [The
plaintiff] asked that I use the [fifth] [e]dition of the
[guide]. . . . When the [fifth] [e]dition is used, the fol-
lowing changes occur in the calculation of the impair-
ment . . . .’’ Nowhere in that written correspondence
does Carolan disavow his earlier medical opinion or
otherwise indicate that the calculations contained in
the April 9, 2013 letter were intended to supplant that
prior opinion. See footnote 14 of this opinion. Given
the plain language utilized therein by Carolan, the board
reasonably could construe that letter as a supplement
to, rather than a replacement for, Carolan’s prior report,
in which the plaintiff’s impairment was calculated under
an alternative methodology specifically requested by
the plaintiff but not by the board.
Furthermore, the board was not required, under
either the terms of the agreement or its own protocols
and procedures, to give any weight to the alternative
calculations contained in Carolan’s April 9, 2013 letter.
The plaintiff concedes, as he must, that neither the
charter nor the agreement requires application of any
particular edition of the guide in the independent medi-
cal examination process. As the plaintiff recognizes in
his principal appellate brief, ‘‘the independent medical
examiner may use any guide he/she chooses . . . .’’17
After conducting his examination of the plaintiff on
October 24, 2012, Carolan chose to utilize the sixth
edition of the guide in preparing his report to the board.
Accordingly, the board was well within its discretion
in accepting ‘‘as valid’’ that report, a determination that
Noto confirmed in his June 26, 2013 letter to the
plaintiff.
B
On a more fundamental level, the board’s decision
to credit Carolan’s October 25, 2012 report in rendering
its decision on the plaintiff’s disability pension applica-
tion implicates its exclusive role as arbiter of credibility
and the weight to be afforded to particular evidence.
As our Supreme Court has observed, ‘‘weighing the
accuracy and credibility of the evidence’’ is the province
of the administrative agency. Connecticut Natural Gas
Corp. v. Public Utilities Control Authority, 183 Conn.
128, 136, 439 A.2d 282 (1981). Reviewing courts thus
‘‘must defer to the agency’s assessment of the credibility
of the witnesses and to the agency’s right to believe or
disbelieve the evidence presented by any witness, even
an expert, in whole or in part.’’ Briggs v. State Employ-
ees Retirement Commission, 210 Conn. 214, 217, 554
A.2d 292 (1989); see also Standard Oil of Connecticut,
Inc. v. Administrator, Unemployment Compensation
Act, 320 Conn. 611, 623, 134 A.3d 581 (2016) (reviewing
court cannot ‘‘substitute its own judgment for that of the
administrative agency on the weight of the evidence’’
[internal quotation marks omitted]); Tarasovic v. Zon-
ing Commission, 147 Conn. 65, 69, 157 A.2d 103 (1959)
(‘‘[i]t is not the function of the court to pass upon the
credibility of the evidence heard’’ by administrative
agency).
The board in the present case credited Carolan’s
October 25, 2012 report in rendering its January 8, 2013
decision on the plaintiff’s disability pension application.
Noto’s June 26, 2013 letter further confirms that the
board adhered to that credibility determination even
after it was presented with Carolan’s subsequent letter
offering different calculations of the plaintiff’s disability
pursuant to an alternative edition of the guide. Although
the record of the board’s proceedings on the plaintiff’s
motion for reconsideration is sparse, Noto’s letter sug-
gests that the board accorded little weight to Carolan’s
supplemental communication, as it indicates that recon-
sideration of the board’s prior decision was not war-
ranted. This appellate tribunal cannot revisit that
determination. Id.
Moreover, in making that credibility determination,
the board also could consider the undisputed circum-
stances that gave rise to Carolan’s April 9, 2013 letter.
As the Superior Court emphasized in its memorandum
of decision, the independence of examining physicians
is a crucial component of the medical examination pro-
cess detailed in paragraph 9 (K) (2) of the agreement
and the board’s retirement guide.18 In the present case,
it is undisputed that, after being notified of the board’s
January 8, 2013 decision on his disability pension appli-
cation, the plaintiff unilaterally contacted Carolan with-
out providing any notice to the board and apprised
Carolan (1) that a disability rating of ‘‘30 percent or
more’’ was required to qualify for the requested disabil-
ity pension; (2) that Carolan’s October 25, 2012 report
was ‘‘vastly different’’ from that submitted by Solomon;
(3) that Solomon had assigned a 38 percent disability
rating to the plaintiff; and (4) that the plaintiff was
‘‘requesting that [Carolan] consider using the same
schematic or methodologies that were used by [Solo-
mon] to come to a similar numerical value.’’ That corre-
spondence also included a copy of Solomon’s medical
report ‘‘for [Carolan’s] review and consideration.’’ By
so doing, the plaintiff undermined, if not eviscerated,
the independence that is integral to the medical exami-
nation process outlined in paragraph 9 (K) (2) of the
agreement and the retirement guide.19 Because Car-
olan’s April 9, 2013 communication to the board
expressly states that it was made at the behest of the
plaintiff, the board was free, in its discretion, to decline
to credit the substance of that communication. See
Briggs v. State Employees Retirement Commission,
supra, 210 Conn. 217.
Our review of the record reveals substantial evidence
on which the board could determine that reconsidera-
tion of its January 8, 2013 decision was unwarranted.
The plaintiff, therefore, has not demonstrated that the
board’s June 12, 2013 decision was arbitrary, capricious,
or an abuse of the board’s discretion. We, therefore,
conclude that the court properly dismissed the plain-
tiff’s administrative appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also named as defendants in the plaintiff’s complaint were the city’s
police department and the individual members of the board—Michael Noto,
Michael Merenda, Michael Berkoff, Thomas E. Deegan, and Frank J. Mer-
cede. Approximately thirteen months after that appeal was commenced in
the Superior Court, the court rendered summary judgment in favor of the
city and the police department. The plaintiff does not contest the propriety
of that judgment in this appeal.
2
In hearing administrative appeals such as the present one, the Superior
Court acts as an appellate body. See General Statutes § 4-183 (j); see also
Connecticut Coalition Against Millstone v. Connecticut Siting Council,
286 Conn. 57, 85, 942 A.2d 345 (2008) (noting that Superior Court sits ‘‘in an
appellate capacity’’ when reviewing administrative appeal); Par Developers,
Ltd. v. Planning & Zoning Commission, 37 Conn. App. 348, 353, 655 A.2d
1164 (1995) (distinguishing administrative appeals in which Superior Court
‘‘reviewed the agency’s decision in an appellate capacity’’).
3
Paragraph 9 (K) (1) of the agreement provides in relevant part that
the board ‘‘shall select the independent medical examiners from [b]oard
[c]ertified [p]hysicians who are specialists in the field which involves the
particular physical or mental disability claimed by such member.’’ It is
undisputed that the board complied with that mandate in the present case.
4
The plaintiff subsequently notified the board of his request to ‘‘extend
[his] retirement date until January 11, 2013.’’
5
The return of record contains a documentary presentation prepared by
the American Medical Association regarding the sixth edition of the guide.
It states in relevant part that ‘‘[t]he state of Connecticut allows the use
of the [f]ourth, [f]ifth, and [s]ixth editions of the [guide]. However, the
Connecticut State Medical Society recommends the use of the most recent
edition.’’ The record also contains the minutes of the March 6, 2009 meeting
of the Connecticut Workers’ Compensation Commission, at which the chair-
man of that commission ‘‘advised that it is Commission policy to encourage
but not require the use of the [guide]. Physicians are not limited to a particular
edition of the [guide] but are expected to be able to objectively justify the
basis for their rating.’’
6
The return of record in this case does not include any edition of the
guide or any excerpt therefrom.
7
Later in his appellate brief, the plaintiff states that the agreement ‘‘essen-
tially leaves the ultimate decision [as to which edition to utilize] to whichever
independent medical examiner that the board chooses, and the board is
then governed by the [agreement] to follow what the Physician then reports
to the board.’’
8
In their respective appellate briefs, the parties state that Solomon’s report
indicates that he utilized the fifth edition of the guide in determining the
plaintiff’s disability. That report, however, contains no reference to any
edition of the guide. Moreover, in a May 27, 2013 letter addressed to the
president and the vice president of the association, which is contained in the
return of record, the plaintiff stated that the reports of the three independent
medical examiners that were relied on by the board in reaching their January
8, 2013 decision ‘‘all used the sixth edition’’ of the guide.
9
At the time of his examination by Plancher, the plaintiff was thirty-five
years old.
10
Because the board conducted its review of the plaintiff’s application
for a disability retirement and the corresponding independent medical evalu-
ations in an executive session, the record necessarily lacks evidence of the
board’s deliberations at that time.
11
The return of record also contains a ‘‘Retirement Worksheet’’ that the
board completed on behalf of the plaintiff on January 9, 2013. That worksheet
specifies that the plaintiff was to receive a monthly pension of $3118.95
commencing on January 11, 2013. In its appellate brief, the board notes that
the plaintiff at that time began collecting his disability benefits ‘‘without
objection.’’ The plaintiff did not dispute that contention in either his reply
brief or at oral argument before this court.
12
Although the plaintiff represented to Carolan that the information con-
tained in his January 18, 2013 letter was communicated in ‘‘the spirit of
transparency’’ and ‘‘the spirit of accuracy and fairness,’’ he failed to mention
in that letter that a third medical examiner had assigned a 13 percent
disability rating utilizing the same edition of the guide as Carolan.
13
Carolan’s reference to the fifth edition of the guide in his April 9, 2013
letter is, in a word, curious. Although he directly attributes that reference
to the written request of the plaintiff, we repeat that, in his January 18, 2013
letter to Carolan, the plaintiff made no mention of the guide or any particular
edition. To the extent that further communications transpired between Car-
olan and either the plaintiff or the legal counsel copied on Carolan’s April 9,
2013 letter, those communications are not contained in the record before us.
14
Carolan’s April 9, 2013 letter to the board states in full: ‘‘I have been
requested by [the plaintiff] to [reevaluate] the independent medical report
that I had submitted to you on October 25, 2012. In a letter received from [the
plaintiff], he asked that I use the [fifth] [e]dition of the [guide]. Previously,
I had used the [sixth] [e]dition. When the [fifth] [e]dition is used, the following
changes occur in the calculation of the impairment present within [the
plaintiff’s] various body parts:
1. Cervical spine, 18 [percent] of the cervical spine.
2. Lumbar spine, 6 [percent] of the lumbar spine.
3. Right shoulder, 4 [percent] of the right upper extremity.
4. Right elbow, 0 [percent] of the right upper extremity.
5. Right wrist, 2 [percent] of the right upper extremity.
6. Right knee, 2 [percent] of the right lower extremity.
7. Left knee, 2 [percent] of the left lower extremity.
8. Right foot and ankle, 2 [percent] of the right lower extremity.
If there is any further information necessary regarding this matter, please
contact me at the above address.’’
15
The return of record does not contain a transcript or minutes of the
board’s June 12, 2013 hearing, at which it considered the plaintiff’s request
for reconsideration.
16
We repeat that, in his January 18, 2013 letter to Carolan, the plaintiff
represented that he was requesting a reevaluation of his disability rating
‘‘solely for informative reasons.’’ In his subsequent letter to the board, Car-
olan stated that, at the behest of the plaintiff, he was providing a calculation
of the plaintiff’s impairment pursuant to the fifth edition of the guide. In
response, Noto, in his June 26, 2013 letter to the plaintiff, stated in relevant
part that ‘‘[e]xamining physicians may use either the [fourth], [fifth], or
[sixth] editions of the [guide], and the [b]oard did not specify or request
that any physician who examined you use a particular edition. Consequently,
the [b]oard does not believe it is necessary now to ask for a reevaluation
of your condition using any specific edition.’’ The plain inference of that
response is that the board considered Carolan’s disability calculations under
an alternative edition of the guide to be an unnecessary supplement to the
administrative record on which it predicated its January 8, 2013 decision.
17
It bears repeating that, apart from the abstract assertion contained in
the plaintiff’s January 18, 2013 letter, there is no evidence in the record
indicating that Solomon utilized a different edition of the guide or methodol-
ogy from that employed in Carolan’s October 25, 2012 report. See footnote
8 of this opinion.
18
For that reason, the retirement guide mandates that an applicant’s three
independent medical examinations ‘‘must not be with any doctor that has
seen you in the past.’’ The board’s appointment letter to those physicians
likewise cautioned: ‘‘Please do not proceed if this officer has ever been
treated by you.’’ (Emphasis omitted.) In the letters that were sent to Carolan,
Solomon, and Plancher, that sentence was underlined for emphasis.
19
In his principal appellate brief, the plaintiff makes much of the use of
the term ‘‘concur’’ in paragraph 9 (K) (2) of the agreement, which provides
in relevant part that a member of the city’s police department is eligible for
an enhanced disability pension ‘‘if at least two out of three independent
medical physicians . . . concur that same member has a permanent/partial
disability of [30 percent] or a combined permanent/partial disability of [30
percent] or more . . . .’’ The plaintiff thus argues that the agreement
requires that the three independent medical examiners ‘‘must review each
other’s reports [prior to making] a decision.’’
It is well established that individual words or clauses of a contract ‘‘cannot
be construed by taking them out of context and giving them an interpretation
apart from the contract of which they are a part.’’ Levine v. Advest, Inc.,
244 Conn. 732, 753, 714 A.2d 649 (1998); see also Restatement (Second),
Contracts § 202, comment (d), p. 88 (1981) (‘‘Meaning is inevitably dependent
on context. A word changes meaning when it becomes part of a sentence,
the sentence when it becomes part of a paragraph.’’). When properly read
in the context in which the word ‘‘concur’’ arises in the agreement between
the city and the association, the plaintiff’s assertion is absurd, as it contra-
venes the plain intent of those parties in setting forth a mechanism for the
independent medical evaluation of a member’s physical impairment by three
different physicians. See Welch v. Stonybrook Gardens Cooperative, Inc.,
158 Conn. App. 185, 198, 118 A.3d 675 (courts ‘‘will not construe a contract’s
language in such a way that it would lead to an absurd result’’), cert. denied,
318 Conn. 905, 122 A.3d 634 (2015); see also Foley v. Huntington Co., 42
Conn. App. 712, 729, 682 A.2d 1026 (‘‘[t]he law is clear that a contract
includes not only what is expressly stated therein but also what is necessarily
implied from the language used’’ [internal quotation marks omitted]), cert.
denied, 239 Conn. 931, 683 A.2d 397 (1996). The examination process outlined
in the agreement and the retirement guide requires separate examinations
and reports, and not a group effort by the physicians.