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Discuillo v. Stone & Webster

CASE NO. 1935 CRB-2-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 19, 1995

PETER DISCUILLO

CLAIMANT-APPELLEE

v.

STONE & WEBSTER

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Carolyn Kelly, Esq., Nathan Shafner, Esq., and Amy Stone, Esq. all of O’Brien, Shafner, Stuart, Kelly and Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondents, Stone & Webster and Aetna Casualty & Surety were represented by James Pomeranz, Esq., Lucas Strunk, Esq., Jason Dodge, Esq., and Margaret Corrigan, Esq., all of Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury was represented at the trial level by Richard Hine, Esq., Assistant Attorney General, P.O. Box 120, 55 Elm St., Hartford, CT 06101. On appeal no one appeared at oral argument nor was a brief filed on behalf of the Second Injury Fund.

This Petition for Review from the December 13, 1993 Finding and Award of the Second District Commissioner was heard December 2, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent-insurer [hereinafter respondents] has petitioned for review from the December 13, 1993 Finding and Award of the Second District Commissioner.1 In that Finding and Award the trial commissioner concluded, inter alia, that the claimant’s claim for compensation benefits due to a heart attack was not barred by the time limitations set out in Sec. 31-294 C.G.S. The pertinent facts are as follows.

On or about November 12, 1982 the claimant suffered a heart attack. For some time prior to and at the time of the heart attack, the claimant was employed as a painter. As part of his job, the claimant was required to climb ladders, walk on scaffolding, and use a grinding machine for hours at a time. The claimant testified that for a period prior to his November, 1982 heart attack he felt a great deal of job pressure from his supervisors to complete work within certain time constraints and to keep pace with the productivity of younger workers. For some two months prior to the November, 1982 heart attack the claimant worked overtime.

The claimant filed a Notice of Claim for Compensation on September 27, 1984. In that Notice of Claim, the claimant identified his injury as a November, 1982 heart attack while in the employ of the respondent-employer. The trial commissioner concluded that the claimant’s claim was not time barred as it was filed “within one year from the time the claimant understood the causal relationship between the myocardial infarction and the job stress.” Paragraph #39. The respondents took the instant appeal and we reverse the conclusion of the trial commissioner as to the timeliness of the claim.

The case of Deck v. City of Groton, 8 Conn. Workers’ Comp. Rev. Op. 1, 745 CRD-2-88-6 (Dec. 12, 1989) is directly on point. In Deck, this tribunal reviewed the applicable period of limitations under Sec. 31-294 C.G.S. for claims due to heart attack. We stated in that case:

In our law a heart attack has been treated in the language of our definition statute, Sec. 31-275(8), as an injury “which may be definitely located as [to] the time when and the place where the accident occurred” and not as an “injury . . . which . . . is the direct result of repetitive trauma: or occupational disease as herein defined.” See Stier v. Derby, 119 Conn. 44 (1934); Jones v. Hamden, 129 Conn. 532 (1942); McDonough v.Connecticut Bank & Trust, 204 Conn. 104 (1987); Donato v. PantryPride, 37 Conn. Sup. 836 (1981).

Deck, supra at 2.

We, therefore, conclude that the trial commissioner misapplied the law as to the timeliness of the claimant’s claim for benefits due to his November, 1982 heart attack. The claim was time barred by our act’s statute of limitations contained in Sec. 31-294 C.G.S.2

Having concluded as we have, we need not consider any of the other issues raised in the respondents’ appeal. However, we do feel it is necessary to comment on certain administrative aspects surrounding the litigation of this claim before the former District Commissioner of the Second District. Hearings were held in the instant matter May 27, 1986, July 31, 1986, January 29, 1987, December 13, 1991 and September 28, 1993. The trial commissioner originally issued a Finding and Award on December 23, 1991. It is apparent from the briefs of the parties, that the December 23, 1991 Finding and Award was withdrawn because the transcript of the January 29, 1987 hearing could not be produced. See Claimant-Appellee’s Brief p.4 and Respondent Appellant’s Brief at 2.3

However, we are most concerned that nearly 5 years passed between formal hearings. Although we are mindful of the large, in fact some might describe crushing, caseloads that existed in certain districts prior to the legislature’s addition of commissionerships,4 we think a delay of nearly five years between formal hearings is unconscionable.

We therefore reverse the trial commissioner and dismiss the instant matter.

Commissioner Nancy A. Brouillet concurs.

ANGELO L. dos SANTOS, COMMISSIONER, concurring. After considering the facts found in this claim, I concur with the majority opinion that the claim was barred by § 31-294 C.G.S. The claimant’s heart attack occurred on November 12, 1982 and the claim arises from that event. The Notice of Claim was filed on September 27, 1984, almost two years after the incident of injury. The claimant’s understanding of the causal relationship is immaterial. The Award of Compensation ought to be reversed.

1 At the time that proceedings commenced the trial commissioner was the Commissioner for the Second District. BACK TO TEXT

2 At the time of claimant’s November, 1982 heart attack, Sec. 31-294 C.G.S. provided in pertinent part:

No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury.... BACK TO TEXT

3 The Compensation Review Board’s records indicate that an appeal was taken by the respondents from the trial Commissioner’s decision of December 23, 1991. Because the trial commissioner withdrew his December 23, 1991 decision, the Compensation Review Board in its January 4, 1994 ruling dismissed the respondents’ appeal from the December 23, 1991 Finding and Award. See Discuillo v. Stone & Webster, 12 Conn. Workers’ Comp. Rev. Op. 1, 1366-CRB-2-91-12 (1994). BACK TO TEXT

4 See e.g., Public Act 88-184 Sec. 2, Public Act 91-339, Sec. 2, Public Act 93-228, Sec. 2 BACK TO TEXT

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