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Liano v. City of Bridgeport

CASE NO. 3299 CRB-4-95-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 25, 1997

CARL J. LIANO

CLAIMANT-APPELLANT

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by George C. Springer, Jr., Esq., 99 West Main Street, Suite 301, New Britain, CT 06051.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the February 7, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard September 20, 1996 before a Compensation Review Board panel consisting of Commissioners George Waldron, Robin L. Wilson, and Angelo L. dos Santos.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has petitioned for review from the February 7, 1996 Finding and Dismissal of the trial commissioner acting for the Fourth District. In that decision, the trial commissioner concluded that the claimant’s psychiatric condition did not arise out of or in the course of his employment with the City of Bridgeport (“employer”). In addition, the trial commissioner found that the claimant did not file a timely notice of claim for the psychiatric injury, and thus denied the claimant’s motion to preclude. In support of his appeal, the claimant contends (1) that he was denied due process due to lack of proper notice of the issues which would be addressed at the formal hearing; (2) that the trial commissioner erred in denying his motion to preclude; (3) that the trial commissioner erred by allowing irrelevant evidence; and (4) that the trial commissioner’s conclusion that the claimant’s psychiatric condition did not arise out of or in the course of his employment was not supported by the record. We find no error.

We note that in a related matter, the claimant has filed a petition for review from the October 18, 1995 “Finding Re: Form 36” of the trial commissioner acting for the Fourth District. We addressed that appeal in a separate decision: Liano v. City of Bridgeport, Case No. 3199 CRB-4-96-2 (March 25, 1997).

The trial commissioner found the following relevant facts. The claimant was employed as a police officer with the Bridgeport Police Department from 1968 until he retired in 1983. The trial commissioner took judicial notice of a prior award which granted the claimant’s heart and hypertension claim pursuant to § 7-433c with a date of injury of September 17, 1979. In addition to the heart and hypertension claim and the claim for ongoing temporary total disability relating to that claim, the claimant also alleged that he suffered from a psychiatric disorder which was related to his employment. Specifically, the claimant contended that he had symptoms of stress and anxiety disorder commencing in late 1979.

The claimant contends that Dr. Rama, who treated his cardiovascular condition, also treated his stress condition by prescribing Zoloft and Xanax since 1979. Dr. Rama referred the claimant to Dr. D’Apice, a psychiatrist, in October of 1994. Prior to October of 1994, the claimant had never treated with a psychiatrist, psychologist, or counselor for any emotional or psychiatric condition. An independent medical exam was performed by Dr. Rubinstein, a board certified psychiatrist, who testified during a deposition on July 14, 1995 and issued a report dated June 22, 1995. (Respondent’s Exhibit No. 1). Dr. Rubinstein opined that the claimant has a diagnosis of a long-standing panic disorder with elements of a generalized anxiety disorder. Dr. Rubinstein further opined that the claimant’s psychiatric disorder was not caused, precipitated, or worsened by his employment. Moreover, Dr. Rubinstein opined that the claimant’s psychiatric disorder is in no way related to the claimant’s heart condition.

We will first address the claimant’s contention that he was denied due process. The claimant contends that he did not receive proper notice that the formal hearing would include the issue of causation of the psychiatric claim under Chapter 568 (the Workers’ Compensation Act) in addition to § 7-433c. Our Supreme Court has stated that “notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 2050 CRB-3-94-5 (Sept. 20, 1995), citing Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971).

In the instant case, notice of the July 17, 1995 formal hearing indicated that the issues were “Compensability/Causal Connection” and further indicated “Comp of psych/relation to 9/17/79 injury or relation to police dept from 1983.” We note that the trial commissioner addressed the issues which would be listed in said notice at a related formal hearing.1 Moreover, the formal hearing on July 17, 1995 was continued until September 11, 1995 when a second formal hearing was held. We conclude that proper notice of the issues was provided and that the claimant was not denied due process. Compare Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995).

In further support of his appeal, the claimant contends that the trial commissioner erred in denying his motion to preclude. We disagree. In the instant case, the trial commissioner found that the claimant did not file a timely notice of claim under either § 7-433c or under Chapter 568 for a psychiatric injury within one year of the September 17, 1979 date of injury or within one year of his 1983 date of retirement. The claimant contends that the employer’s payment of his medical bills relating to treatment of his psychiatric disorder is sufficient to support a motion to preclude. In addition, the claimant notes that the employer was aware of his psychiatric condition due to a grievance which he had filed through his union. (See Finding No. 6). The claimant does not cite any authority in support of the contention that a written notice of claim is not necessary in order to grant a motion to preclude.

Pursuant to § 31-297(b)2 (now § 31-294c (b)), an employer is required to file a Notice to Contest Liability, also known as a Form 43, with the Workers’ Compensation Commission within twenty-eight days after receiving a written notice of claim. Failure to do so results in the employer being “conclusively presumed to have accepted the compensability of the alleged injury or death and [the loss of any] right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” The proper test in granting a motion to preclude is whether the notice of claim gave the employer sufficient notice to be able to investigate the claimant’s alleged injury. Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 111, 1777 CRB-4-93-7 (Jan. 31, 1995); Knapp v. UTC Sikorsky Aircraft, 14 Conn. Workers’ Comp. Rev. Op. 9, 2016 CRB-4-94-4 (April 28, 1995); see also Pereira v. State, 228 Conn. 535, 543, n. 8 (1994). “Although minor errors in a notice of claim will no longer prevent preclusion, the basic elements of a notice of claim must still be present in order to trigger the employer’s responsibility to investigate the claim promptly.” Bennings v. State of Connecticut, 14 Conn. Workers’ Comp. Rev. Op. 350, 2105 CRB-3-94-7 (Sept. 22, 1995).

The Appellate Court has specifically held that “a timely notice pursuant to § 31-294 is a necessary prerequisite to the preclusion provision of § 31-297(b).” Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 279 (1988). The court explained that the history and the purpose of § 31-297(b) “compel the conclusion that the timeliness of the employee’s claim is essential to the operation of the preclusion provision.” Id. In this case, as there was no timely written notice of claim for a psychiatric disorder filed by the claimant, the trial commissioner was required to deny the claimant’s motion to preclude.

The claimant contends on appeal that the trial commission erred in allowing cross-examination of the claimant regarding his brother. We find no error. The issue regarding whether the claimant was suffering stress or anxiety due to his brother’s prior criminal conviction of murder was certainly relevant to the claimant’s claim for a psychiatric disorder. (See Findings of Fact No. 12 and 13). Moreover, the claimant’s treater, Dr. D’Apice, mentioned the issue of the claimant’s brother in a report dated October 31, 1994 (Claimant’s Exhibit D), and thus the issue was proper on cross-examination.

Finally, we will address the claimant’s contention that the record does not support the trial commissioner’s determination that the claimant’s psychiatric disorder did not arise out of or during the course of his employment. In support of this argument, the claimant cites the medical reports of Dr. D’Apice. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner relied upon the medical reports and testimony of Dr. Rubinstein, who opined that the claimant’s psychiatric disorders were not caused by his employment. (See Findings No. 20-23). The trial commissioner, as the trier of fact, was entitled “to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)).

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Angelo L. dos Santos concur.

1 On May 8, 1995, the trial commissioner explained to the parties that a formal hearing would be scheduled regarding the employer’s filing of a Form 43. The trial commissioner explained that the “issue is going to be compensability of the psychiatric stress and anxiety claims for treatment and the causal relationship of such to the compensable 9/17/1979 issue or compensability of stress and anxiety claimed from the treatment at the police department to the claimant from 1983 to the present.” (5/8/95 TR. at p. 82-83). BACK TO TEXT

2 Public Act 93-228, Sec. 8 (b) has significantly changed the language of this provision so that an employer who fails to file a timely notice of intent to contest compensability may commence payment and still contest the employee’s right to receive compensation or the extent of his disability within one year from the receipt of written notice of claim. BACK TO TEXT

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