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Horn v. State of Connecticut/Department of Corrections

CASE NO. 3727 CRB-03-97-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 16, 1998

ROBERT HORN

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTIONS

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 7, 1997 Finding and Award of the Commissioner acting for the Third District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent State of Connecticut Department of Corrections has petitioned for review from the November 7, 1997 Finding and Award of the Commissioner acting for the Third District. It argues that the trial commissioner erred by finding that the claimant met the notice exception for employer-provided medical care in § 31-294c(c), and by failing to find that the presumption of compensability in § 5-145a was successfully rebutted in this case. We affirm the trial commissioner’s decision in part, and also remand for further findings.

We begin by determining whether the trial commissioner correctly ruled that the claimant satisfied the medical care exception to § 31-294c(c). The trier found that the claimant was employed on both November 12, 1992 and November 20, 1992 as a deputy warden for the Department of Corrections. He took a physical examination upon entry into state service in 1975 that revealed no evidence of heart disease or hypertension. The claimant testified that he became a deputy warden in 1990, which position he found overwhelming due to his lack of special training and the overcrowded, frequently violent working conditions. He also admitted to several potentially stress-producing factors in his personal life, such as financial difficulties and child support problems.

During early November 1992, the claimant reportedly began feeling dizzy and nauseated, experiencing numbness in his left arm. On November 12, 1992, while in the jail office, the claimant experienced excruciating chest pain and more numbness in his arm. He was treated by the respondent’s nurse, who took his blood pressure, tested1 his heart, and told a co-worker to take him to the hospital. Yale-New Haven Hospital diagnosed him with dyspepsia and acute chest pain. The claimant was given Maalox, released, and told to return if the pain recurred. Eight days later, while driving home from work, the claimant’s pain returned with severe intensity. He was driven by a friend to Mount Sinai Hospital, where he was diagnosed by Dr. Chamberlain with an acute anterior wall myocardial infarction and congestive heart failure. The hospital records noted that the claimant described the pain he felt while driving home that evening as similar, but more severe in intensity, to the pain he had experienced a week earlier.

The trial commissioner found that the claimant suffered a myocardial infarction, which kept him totally disabled until January 3, 1993. He also found, based on Dr. Chamberlain’s opinion, that the November 12, 1992 incident was a manifestation of coronary insufficiency rather than dyspepsia. The evidence indicated that the claimant failed to file either an accident report or a written notice of claim for compensation. However, the trier found that the claimant satisfied the medical care exception in § 31-294c(c) when the respondent’s nurse followed department protocol by examining the claimant, taking his blood pressure, checking vital signs, checking his heart, and directing that he be taken to the emergency room.

According to § 31-294c(c), failure to provide a notice of claim “shall not bar maintenance of the proceedings if . . . within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section § 31-294d.” Section 31-294d(a), in turn, describes this care as the provision of a “competent physician or surgeon to attend the injured employee,” and the furnishing of “any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.” The respondent argues that the medical care that the claimant received on November 12, 1992 was for symptoms indicative of an upset stomach rather than a heart attack, and does not constitute care for the November 20, 1992 heart attack. It states that it “is fundamentally unfair to impose notice of a heart attack on an employer who is unsure of a diagnosis and is later told that the Claimant’s condition was a stomach ailment.” Brief, p. 8-9. The respondent also contends that the actions of its nurse were not medical care “as deemed reasonable and necessary by a physician” under § 31-294d(a), as she neither diagnosed the claimant’s condition nor treated it.

The rationale behind the “medical care” exception to the notice requirement of § 31-294c(a) is that an employer who has furnished treatment to an employee must know that an injury has been suffered which could be the basis of a compensation claim. Gesmundo v. Bush, 133 Conn. 607, 612 (1947); Infante v. Mansfield Construction Co., 47 Conn. App. 530, 535 (1998). Although “the legislature intended to define and limit, with some degree of specificity, the acts of furnishing medical or surgical care by the employer which would relieve the employee of the statutory requirement to give written notice of his claim for compensation . . . ;” Kulis v. Moll, 172 Conn. 104, 108 (1976) (mere act of driving claimant to hospital at claimant’s request after employer found him lying on the ground did not constitute medical care under § 31-294d); the trial commissioner has a certain degree of discretion within which he can decide whether an employer’s actions constitute medical treatment. Griffith-Patton v. State of Connecticut/ Department of Agriculture, 13 Conn. Workers’ Comp. Rev. Op. 177, 180, 1888 CRB-1-93-11 (March 10, 1995), aff’d, 41 Conn. App. 911 (1996) (per curiam), cert. denied, 237 Conn. 930 (1996). It is the trier’s duty to examine all of the facts, and decide whether the employer’s involvement in the claimant’s receipt of care rises to a level which ought to have put it on notice of a potential claim.

In Gesmundo, supra, the employer sent the claimant to a doctor as soon as the claimant mentioned that his feet were bothering him. Initially, frostbite was diagnosed, but the claimant (who continued to work) was later told by a physician that he may have early symptoms of Buerger’s disease, which presumably would not have been a compensable condition. Thus, the claimant did not file a written notice of claim. Later, it was decided that his foot problems were indeed related to frostbite that he suffered on the job. The Supreme Court affirmed the trial commissioner’s conclusion that the treatment obtained by the claimant at the employer’s behest dispensed with the need for written notice, even though the claimant did not initially believe his injury to be serious, and later thought (temporarily) that it was due to a non-work-related disease.

The similarity to the instant case is apparent. The respondent’s nurse testified that she sent the claimant to a doctor after examining him because he was exhibiting symptoms characteristic of a myocardial infarction. April 25, 1997 Transcript, p. 123. He was diagnosed with dyspepsia at the hospital, but suffered a heart attack only eight days later. The trial commissioner found that his symptoms on November 12 were, in fact, coronary insufficiency, based on Dr. Chamberlain’s opinion. See Findings, ¶ 26; Claimant’s Exhibit E. We cannot disturb the trier’s decision to credit that medical report. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Given the proximity in time and nature between the symptoms exhibited by the claimant on November 12 and November 20, 1992, we must therefore hold that the trier had a reasonable basis upon which to conclude that the respondent was aware of the claimant’s condition, and that it should have been aware that a claim for compensation was possible. See Griffith-Patton, supra, 180.

The respondent also argues that, even presuming subject matter jurisdiction exists over the instant claim, the respondent still overcame the statutory presumption of compensability in § 5-145a,2 and the claimant did not respond by meeting his burden of proof. We have stated that § 5-145a “grants to individuals . . . a rebuttable presumption of compensability if they suffer disability or death due to hypertension or heart disease.” DiBenedetto v. State of Connecticut/University of Connecticut Health Center, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRD-6-89-5 (Jan. 3, 1991). The function of this presumption is to shift the initial burden of persuasion. It “cease[s] to have any effect once the respondent employer presents evidence to contest compensability.” Id.

The trial commissioner did not accept as credible the claimant’s testimony regarding workplace stress prior to November 1992. Findings, ¶ B. However, because the claimant sought benefits under § 5-145a C.G.S., it was not necessary for him to prove that his condition arose out of and in the course of his employment unless the respondent first met its burden of introducing evidence to contest compensability. See Grant v. State of Connecticut/Department of Corrections, 11 Conn. Workers’ Comp. Rev. Op. 93, 95, 1265 CRD-5-91-8 (May 14, 1993). The trial commissioner cited the testimony of Dr. Silverstein in his findings. Dr. Silverstein testified that cigarette smoking, rather than workplace stress, caused the claimant’s myocardial infarction. He also noted that many doctors do not share his general viewpoint that stress does not cause heart attacks, and stated that he did not ask the claimant about job stress. Findings, ¶ 29, 30. Although the trier did not cite any of this testimony in his conclusions, he also noted that there was no evidence presented that the claimant experienced job stress before he had his heart attack. Findings, ¶ B. The claimant passed a physical examination when he entered his employment that revealed no signs of heart disease or hypertension. Finding, ¶ J.

The commissioner noted the applicability of § 5-145a to this case, and the statutory presumption of compensability. He did not elaborate in any way on the respondent’s attempt to rebut that presumption, even though he cited evidence in the subordinate findings that would accomplish that task, if believed. Meanwhile, he specifically noted that he did not believe that the claimant suffered from workplace stress prior to his myocardial infarction. We are unable on review to determine whether or not the trial commissioner applied the correct legal test from these conclusions. The findings suggest that the respondent offered evidence to rebut the presumption, but the trier does not address that issue in his conclusions. Where there is an inconsistency of this nature in a Finding and Award, the best solution is often for this board to remand the case for further findings. See Vasilescu v. Consolidated Freightways, 16 Conn. Workers’ Comp. Rev. Op. 53, 55-56, 2225 CRB-7-94-12 (October 18, 1996). We order such action to be taken here.

The trial commissioner’s decision is affirmed in part, and remanded for further findings on the issue of compensability.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 The respondent claims error in the trier’s failure to substitute the words “listened to” for the word “tested.” The trier’s denial of this correction was permissible. The key action of the respondent’s nurse in this matter was sending the claimant to a doctor; it is of little consequence legally that the nurse may have only listened to his heart with a stethoscope rather than taking an EKG or a blood sample before sending him to the hospital. See Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). BACK TO TEXT

2 The pertinent language in § 5-145a provides that “[a]ny condition of impairment caused by hypertension or heart disease resulting in total or partial disability or death to . . . state personnel engaged in guard or instructional duties . . . or to any state employee designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. Any such employee who began such service prior to June 28, 1985, and was not covered by the provisions of this section prior to said date shall not be required, for purposes of this section, to show proof that he successfully passed a physical examination on entry into such service.” BACK TO TEXT

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