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Pernacchio v. City of New Haven

CASE NO. 3911 CRB-03-98-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 27, 1999

NICHOLAS PERNACCHIO

CLAIMANT-APPELLEE

v.

CITY OF NEW HAVEN

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Howard Lawrence, Esq., Flynn & Flynn, 1 Trumbull Street, New Haven, CT 06511.

The employer and its insurer were represented by Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the October 7, 1998 Finding of Compensability of the Commissioner acting for the Third District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The respondents have petitioned for review from the October 7, 1998 Finding of Compensability of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant provided timely notice of his hypertension claim pursuant to § 31-294c. In support of their appeal, the respondents contend that the trier incorrectly found that claimant’s first report of injury was adequate to fulfill the notice requirements set forth in § 31-294c. We find no error.

The trial commissioner found the following relevant facts. The claimant was employed as a uniformed firefighter for the respondent City of New Haven. Prior to being hired, the claimant underwent a medical examination which did not show any evidence of hypertension. On May 4, 1989, while at the firehouse, the claimant experienced an episode of high blood pressure symptoms including dizziness, lightheadedness, and nausea. A paramedic with the Emergency Medical Response Unit, which was stationed at the firehouse, responded to the claimant’s request for assistance. The paramedic took the claimant’s blood pressure which was 184/124, and called for the fire department’s Emergency One Unit to transport the claimant to the hospital. The claimant underwent a series of tests at the hospital and was released on that day.

When the claimant returned to work on May 11, 1989, he filed a First Report of Injury for high blood pressure with the Workers’ Compensation Division of the City of New Haven, which then completed an accident investigation form. That investigation form indicates that the claimant was transported to the hospital by the employer’s Emergency Unit and treated for high blood pressure on May 4, 1989. The trial commissioner found that the employer had notice of the claimant’s high blood pressure incident on May 4, 1989 through the investigative report from the employer’s Workers’ Compensation Division. Additionally, the trial commissioner found that the employer had notice of the high blood pressure incident because the claimant was transported to the hospital in the employer’s Emergency Unit which was staffed with the fire Department’s paramedics. Accordingly, the trial commissioner concluded that the employer was provided with sufficient notice of the claimant’s hypertension claim, and thus that the claimant’s failure to file a timely Notice of Claim did not bar his claim for benefits pursuant to § 7-433c.

In support of their appeal, the respondents contend that the First Report of Injury was not adequate to fulfill the notice requirements set forth in § 31-294c, which requires that a Notice of Claim be filed within one year from the date of injury. “A claimant for workers’ compensation benefits must provide both notice of injury; General Statutes § 31-294b, formerly 31-294; and notice of claim.” Funaioli v. New London, 52 Conn. App. 194, 195 (1999). Section 31-294 (Rev. to 1989) (now § 31-294c) provides in pertinent part: “No proceedings for compensation . . . 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. . . .”

“The purpose of § 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable, and that such person ‘is claiming or proposes to claim compensation under the Act.’” Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303 (1993) (internal citation omitted), quoting Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317 (1934). This board has held that “[w]hile compliance with the limitation period set forth in § 31-294 is jurisdictional in nature. . . substantial compliance with the notice content requirements set forth in § 31-294 sufficient to fulfill the purpose of the statute will toll the running of the statutory period.” Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD-2-92-1 (Jan. 5, 1994) (citations omitted).

In Hayden-Leblanc, supra, sufficient notice under § 31-294 was found based upon the “totality of the circumstances” including the claimant’s submission of a health insurance claim form and the group carrier’s denial of that claim, even though no Notice of Claim was filed in that case. Recently, our Appellate Court held that a First Report of Injury form and an attorney’s letter, taken together, met the statutory requirement of a written notice of claim. Funaioli, supra. The Court explained that this determination constituted a question of fact for the trial commissioner.

In the instant case, the findings of fact support the conclusion that under the totality of the circumstances, the notice provided by the claimant constituted “substantial compliance” with the notice content requirements of § 31-294c. First, on May 11, 1989, the claimant’s first day back at work following the May 4, 1989 incident, the claimant filed a First Report of Injury for high blood pressure with the employer’s Workers’ Compensation Division. Secondly, the employer completed an accident investigation form which indicated that on May 4, 1989, the claimant was transported to the hospital by the employer’s Emergency Unit and was treated there for high blood pressure. The employer’s investigation form amply supports the conclusion that the employer had notice of the claimant’s high blood pressure incident on May 4, 1989, and because the claimant was a uniformed firefighter who had passed his pre-employment physical, the employer was thus on notice that he could file a hypertension claim under § 7-433c. Accordingly, we find no error in the trial commissioner’s conclusion, based upon the totality of the circumstances, that the employer was provided with sufficient notice of the claimant’s hypertension claim, and thus that the claimant’s failure to file a timely Notice of Claim did not bar his claim for benefits pursuant to § 7-433c.

Moreover, § 31-294c(c), provides that 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.” In Horn v. State of Conn./ Dept. of Corrections, 3727 CRB-3-97-11 (Dec. 16, 1998), we explained that 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.” Id., citing Gesmundo v. Bush, 133 Conn. 607, 612 (1947); Infante v. Mansfield Construction Co., 47 Conn. App. 530, 535 (1998). In the instant case, the trial commissioner concluded that the employer was provided with sufficient notice because the claimant was transported to the hospital in the employer’s emergency vehicle which was staffed with the employer’s paramedic who monitored the claimant during the trip. This determination was a factual finding, Horn, supra, and as it is supported by the record we may not disturb it. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In further support of their appeal, the respondents argue that the claim should be dismissed because the claimant was not diagnosed with hypertension until 1992, and there was “no evidence presented to link the one instance of high blood pressure to the claimed hypertension which was diagnosed three years later.” (Respondents’ Brief at 6). The respondents’ argument overlooks the fact that unlike eligibility for benefits under the Workers’ Compensation Act, a claimant under § 7-433c need not prove that the injury was caused by his employment. Specifically, “a claimant under § 7-433c need not show that ‘the disease resulted from the employee’s occupation or. . . occurred in the line and scope of his employment.’” Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995). “In this way, § 7-433c acts as bonus legislation that provides ‘special compensation’ to firefighters and police officers by allowing those who suffer from heart disease or hypertension outside the line of duty to collect benefits in the same manner as those who are injured in the line of duty.” Id. (internal citation omitted). Thus, in the instant case, the information provided to the employer regarding the high blood pressure incident of May 4, 1989 was sufficient to apprise the employer of a hypertension claim under § 7-433c, as the claimant was a uniformed firefighter and had passed a medical examination prior to being hired.

The trial commissioner’s decision is affirmed.

Commissioner Stephen B. Delaney concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I respectfully dissent. In my opinion, the First Report of Injury did not constitute sufficient notice under 31-294c.

In Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995), this board held that a police officer who reported two back injuries to his employer and filled out accident reports did not do enough to toll the § 31-294 statute of nonclaim. In that decision, we explained that merely reporting an injury to one’s employer does not notify the employer that a workers’ compensation claim is being pursued or will be pursued. Otero, supra, Id., 249-50. Moreover, this board has entertained several cases recently where similar results were reached. See, e.g., Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996) (first report of injury is not a claim for compensation); Cislo v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 14, 2291 CRB-4-95-2 (Oct. 4, 1996) (letter to police chief stating that claimant was being treated for hypertension and that he should “take any steps necessary pursuant to this information” did not notify the department of a potential workers’ compensation claim).

In the instant case, the fact that the claimant was not diagnosed with hypertension until January of 1992, and was not treated with medication for this condition until October of 1994 (Finding ¶ 22) supports the respondents’ contention that the First Report of Injury did not apprise them that a claim would be filed. The claimant’s case is further weakened by the fact that he did not provide any medical evidence linking the May 4, 1989 incident to his condition of hypertension which was later diagnosed. Indeed, it was over five years before the claimant required medication, and after the 1989 incident it was conceivable that he might never have developed hypertension.

For the above reasons, I would reverse the trial commissioner’s decision.

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3911cra.htm

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