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Tanner v. Town of Wilton

CASE NO. 3197 CRB-7-95-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 5, 1997

BENJAMIN TANNER

CLAIMANT-APPELLANT

v.

TOWN OF WILTON

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by George C. Guidera, Esq., Guidera & Major, 177 Weston Road, Weston, CT 06883.

The respondent was represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the October 25, 1995 Finding and Dismissal of the Commissioner acting for the Seventh District was heard August 30, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 25, 1995 Finding and Dismissal of the Commissioner acting for the Seventh District. He argues on appeal that the commissioner erroneously dismissed his claims that his heart attack and stroke were compensable. We find error on review, and reverse the trial commissioner’s decision.

The commissioner found that the claimant began working for the respondent Town of Wilton in 1960 as a special constable, and was appointed as a regular police officer in 1969. He moved up the ranks of the department, eventually becoming Deputy Chief in 1989. Back on December 18, 1973, while he was a lieutenant, the claimant suffered a heart attack after working a 48-60 hour continuous shift. He filed a workers’ compensation claim, and his bills were paid by the town and its insurers.1 During the next 16 years, the claimant did not file another claim against the town, receiving benefits only for prescriptions related to his 1973 heart attack and other medicines and some medical care. This was so even though the claimant suffered a second heart attack in 1983, resulting in five months of incapacity and bypass surgery.

The commissioner specifically noted that the claimant’s duties included processing the workers’ compensation claims of fellow employees, and that he was familiar with the necessary documentation for filing such a claim. The claimant alleged that the town paid all of the medical bills related to his second heart attack, and that he received salary continuation during his incapacity. According to the claimant, he filed a workers’ compensation claim in 1989 “because he said he just found out that he could file a claim, or that he was just informed that he may have a permanent disability.” He suffered a stroke on November 20, 1990, and was unable to return to work thereafter. He retired effective March 1, 1992.

The commissioner cited the medical opinions of three doctors regarding the 1990 stroke. All of them stated that the claimant did not have hypertension, and none said that there was a relationship between either of his prior heart attacks and the stroke. The commissioner accepted these diagnoses in her conclusion, stating that there was no causal relationship established between the stroke and the claimant’s long-standing heart disease. She also found that the payment of medical bills by the town’s health and life insurers, and the claimant’s salary continuation during the times of his disability, did not constitute an exception to the statutory requirement of written notice. She found that the claimant did not submit a claim under § 7-433c for his heart attack in 1973, while the 1989 notice of claim for his 1983 heart attack was late. Thus, the commissioner ruled that his heart disease claims were barred by § 31-294. The claimant then petitioned for review from her dismissal of his heart attack and stroke claims.

The claimant’s first argument on appeal is that the commissioner incorrectly concluded that he did not submit a claim for benefits for his December 18, 1973 heart attack pursuant to § 7-433c. That section requires police officers who did not suffer from heart disease or hypertension when they began their employment to be compensated in the same manner as they would be for a compensable injury under Chapter 568 if they suffer any disability, condition or health impairment because of hypertension or heart disease, whether off or on duty at the time. The commissioner found that the claimant passed his pre-employment physical before assuming his duties as a police officer. There is also no question that he suffered a heart attack in 1973 that would have medically qualified him for compensation under § 7-433c. See Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670 (1979). The issue here is simply one of proper notice.

Although § 7-433c is not a workers’ compensation law; Lambert v. Bridgeport, 204 Conn. 563, 568 (1987); Plainville, supra, 673-74; it specifically requires “compensation and medical care in the same amount and the same manner as that provided under chapter 568,” and the procedures for obtaining such benefits and adjudicating such claims are the same as the ones in the Workers’ Compensation Act. Id., 671-72. As such, our courts have referred to § 31-294 in outlining the procedure for giving notice of a § 7-433c claim. That statute requires written notice to be given to the employer within one year of the injury, stating in simple language the employee’s name, the claimant’s name, the date and place of the accident, and the nature of the resultant injury. Compliance with this statute is an essential jurisdictional prerequisite to the maintenance of a claim. Janco v. Fairfield, 39 Conn. Sup. 403 (1983).

In Collins v. West Haven, 210 Conn. 423 (1989), our Supreme Court held that a claimant was not required to specifically refer to § 7-433c in his notice of claim for heart and hypertension disability benefits. The notice in question was on a standardized form that this commission provides for all notices of claim, and simply stated that the claimant had sustained “acute myocardial infarction - hypertension, heart disease.” No particular reference was made to any statute. Observing that § 7-433c adopts the procedures of the Workers’ Compensation Act as directions on how to proceed with a claim, and that the claimant had met the requirements of § 31-294, the court held that the claimant had simultaneously raised a § 7-433c claim when he filed his notice under Chapter 568. “[T]he legislature intended the average lay person to be able to give notice of his claim without citing specific statutory provisions that would require substantial legal advice. The argument posed by the city [that the claimant should have explicitly referred to § 7-433c on the form] would require otherwise.” Id., 431.

Here, the commissioner found that the claimant filed a workers’ compensation claim on account of his 1973 heart attack, but that he did not file a claim under § 7-433c. This finding is inconsistent with the Collins decision. Although the original notice of the 1973 claim is not in evidence, neither the testimony of witnesses, the hearing notices in the file nor the respondents’ Form 43 provide any kind of evidence that the claimant’s notice was somehow limited to the Workers’ Compensation Act rather than § 7-433c. Indeed, no such limitation is alleged. In fact, the district file contains hearing notices from December 1975 and January 1976 that refer to a claim under § 7-433c, and the claimant cited testimony in his brief indicating that it was the understanding of all parties involved that the claimant was proceeding under heart and hypertension laws in his 1973 heart attack claim. Therefore, absent any evidence to distinguish this case from Collins, we must presume that the claimant’s notice legally sufficed under § 7-433c as well as Chapter 568.

Because our decision on this issue significantly changes the complexion of this case, we believe it unnecessary to address any of the claimant’s other claims of error at this time. This matter is remanded to the trial commissioner for further proceedings.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 At that time, the town was insured by the Hartford Accident and Indemnity Company. The commissioner did not make a finding as to whether or not the respondent currently carries workers’ compensation insurance. However, the hearing notices in the file indicate that the town is now self-insured. On remand, it will likely be necessary for the commissioner to clarify this situation. BACK TO TEXT

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