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Riccitelli v. City of New Haven

CASE NO. 2090 CRB-3-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 18, 1996

ANGELO RICCITELLI

CLAIMANT-APPELLANT

v.

CITY OF NEW HAVEN

EMPLOYER

SELF INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Thomas E. Farver, Esq., Farver & DeMarco, 2842 Dixwell Ave., Hamden, CT 06518.

The employer was represented by Judith A. Sarathy, Esq., Assistant Corporation Counsel, City of New Haven, 165 Church St., New Haven, CT 06510, who did not appear at oral argument.

This Petition for Review from the July 1, 1994 Finding of Dismissal of the Commissioner acting for the Third District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has appealed from the July 1, 1994 Finding and Dismissal of the Commissioner acting for the Third District. In that decision, the trial commissioner found that the claimant failed to file a timely notice of claim pursuant to § 31-294c, and thus dismissed the claim for lack of jurisdiction. The trial commissioner found that the claimant was employed as a firefighter for the City of New Haven from July 25, 1961 to July 2, 1990; that the claimant’s pre-employment physical did not indicate hypertension; and that the claimant was treated for hypertension on February 15, 1974 and commenced taking prescription medication for hypertension on that date. The trial commissioner thus concluded that the claimant’s notice of claim filed on December 27, 1978 was untimely.

On appeal, the claimant contends that his notice of claim was timely because the hypertension did not cause him to miss any time from work until July 27, 1977, and thus the hypertension did not constitute a disability until that date. The claimant further contends that the three year statute of limitations for occupational disease should apply. In the alternative, the claimant contends that the hypertension constituted repetitive trauma which continued until the claimant’s retirement, and thus the notice of claim was timely. We find no error on the part of the trial commissioner.

The statute of limitation contained in C.G.S. § 31-294c applies to § 7-433c hypertension claims. Zaleta v. Fairfield, 38 Conn. App. 1, 6 (1995); Murach v. City of New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 91, 1172 CRD-6-91-2 (April 20, 1992). Section 31-294c provides 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....” Section 7-433c of the Connecticut General Statutes provides in pertinent part:

Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he.... shall receive from his municipal employer compensation and medical care in the same amount and in the same manner as that provided under chapter 568.... (Emphasis added)

This board has specifically ruled that the disease of hypertension, when it requires medical care and prescription drugs, constitutes a disability pursuant to § 7-433c C.G.S. Murach, supra, 91. This board held in Murach, supra, that even where a claimant has not missed any time from work, his medical care and use of prescriptive drugs for the treatment of hypertension caused the statute of limitation period to commence running. In the instant case, it is undisputed that the claimant was taking prescription medication under his physician’s direction for the treatment of hypertension commencing February 15, 1974. Accordingly, we agree with the trial commissioner’s determination that the statute of limitation began running on that date. Murach, supra.

The claimant contends that the trial commissioner erred in denying his motion to correct the findings to indicate that the prescription medication was not “necessary” in order for the claimant to perform his work duties from February 15, 1974 to July of 1977. There is no support in the record for the claimant’s requested correction, nor does the claimant cite any page of the transcript or exhibits. Moreover, the claimant’s requested correction would not affect the trial commissioner’s determination. See Murach, supra. The trial commissioner thus properly denied the claimant’s motion to correct. See Moffett v. Tighe Williams Salon, 12 Conn. Workers’ Comp. Rev. Op. 83, 1489 CRB-4-92-8 (Feb. 9, 1994).

The claimant further contends on appeal that his hypertension constituted an occupational disease.1 The Appellate Court has recently held that a § 7-433c hypertension claim is not presumed to be an occupational disease. Zaleta v. Fairfield, 38 Conn. App. 1, 7 (1995). The Appellate court stated: “Without evidence establishing that the claimant’s injury is a result of an occupational disease, the one year statute of limitations applies.” Id. at 6. In the instant case, there was no evidence presented at the formal hearing which would indicate that the claimant’s hypertension constituted an occupational disease. In fact, there was no evidence presented that the hypertension was causally related to the claimant’s employment. Moreover, even if we were to find that the claimant’s hypertension constituted an occupational disease, the claim was nevertheless untimely as notice was not filed within three years of the manifestation of the hypertension on February 15, 1974.

We will now address the claimant’s contention that the hypertension constituted a repetitive trauma injury, and thus that the statute of limitation period did not commence until his final date of exposure. The claimant contends under this theory that because the claimant was still employed as a firefighter on the date he filed his notice of claim, the notice must be deemed timely. This argument is being made for the first time on appeal, but was not raised at the trial level. Moreover, there is absolutely no evidence in the record that the claimant’s hypertension was causally related to his employment, nor is there any evidence that the claimant was exposed to repetitive trauma during his employment. Accordingly, there is no basis in the record for finding that the claimant’s hypertension was caused by repetitive trauma.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 Section 31-275(15) defines an occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such....” BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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