State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Malchik v. State of Connecticut/Division of Criminal Justice et al.

CASE NO. 4455 CRB-2-01-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 23, 2002

MICHAEL MALCHIK

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DIVISION OF CRIMINAL JUSTICE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

STATE OF CONNECTICUT/DEPARTMENT OF PUBLIC SAFETY/STATE POLICE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

O’HANLON REPORTS, INC.

EMPLOYER

and

RELIANCE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

LITIGATION SUPPORT SERVICES

EMPLOYER

RESPONDENT-APPELLEE

and

TOWN OF WATERFORD

WATERFORD POLICE DEPARTMENT

EMPLOYER

and

UNITED STATES FIDELITY & GUARANTY CO.

INSURER

RESPONDENTS-APPELLEES

and

ACE FINANCIAL SOLUTIONS

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ralph J. Monaco, Esq., Conway & Londregan, P.C., 38 Huntington Street, P.O. Box 1351, New London, CT 06320-1351.

The respondents State of Connecticut/Division of Criminal Justice and Department of Public Safety/State Police and ACE Financial Solutions were represented by Kristen Frazier, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent Town of Waterford was represented by James P. Berryman, Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C., 2 Union Plaza—Suite 200, P.O. Box 1591, New London, CT 06320.

The respondents O’Hanlon Reports, Inc., and Reliance Insurance Co. were represented by Andrew Dewey, Esq., Law Offices of Baio & Associates, P.C., 15 Elm Street, Rocky Hill, CT 06067.

The respondent United States Fidelity & Guaranty Co. was not represented at oral argument. Notice sent to Kathleen Ready Smith, Esq., Smith, Ketaineck, Robertson & Musco, 9 Washington Avenue, Suite 3-A, Hamden, CT 06518.

This Petition for Review from the October 15, 2001 Finding and Dismissal of the Commissioner acting for the Second District was heard May 31, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 15, 2001 Finding and Dismissal of the Commissioner acting for the Second District. He contends on appeal that the trial commissioner erred by dismissing his workers’ compensation claim as having been untimely filed under § 31-294c C.G.S. after calculating the last date of his employment as September 30, 1998, and by finding that his condition did not constitute an occupational disease under § 31-275(15) C.G.S. We find no error on review, and affirm the trial commissioner’s decision.

The claimant is a former state police officer who was born in December 1945, and who suffered a cardiac injury that was diagnosed and treated in October 1999. He filed a Notice of Claim for compensation with the respondent State of Connecticut on November 5, 1999, and with this Commission on November 17, 1999, alleging that work-related stress had caused his heart condition. The issue before us today is whether the trier correctly ruled that this notice of claim was not filed in a timely manner, given the period of his exposure to the incidents of trauma and the nature of his condition.

The claimant’s history is as follows: he graduated from high school in 1965, and worked for three years as an installer for Southern New England Telephone. In 1967, he also worked part-time at the respondent Waterford Police Department. He then attended the police academy, and took a physical examination that revealed no heart problems. He began working as a supernumerary police officer, and was later promoted to patrolman, followed by a jump to detective. He testified that this work was stressful because (1) he had very little training, (2) he was on duty at the scene of a motor vehicle accident in which an acquaintance of his died in his arms, (3) he had been assaulted while on duty, and (4) he had been required to draw his gun on two occasions. None of his personnel or medical records indicate complaints of job-related stress.

The claimant left the Waterford Police Department in March of 1970, and joined the respondent State Police Department. His first assignment was as a highway patrolman investigating accidents and making motor vehicle arrests. He testified that this was stressful because, as a new officer, he always felt tired, sick and washed-out, much like any officer who has been recently hired. The claimant introduced no state police, personnel or medical records indicating complaints of stressful activity, or medical treatment for it. He then left the State Police in February 1971 for a private company, where he worked for two and one-half years investigating insurance applicants. In May of 1974, he returned to work for the State Police, and was this time assigned to a troop in Colchester where he was placed on the highway patrol investigating criminal and motor vehicle matters.

Two years later, the claimant was promoted to the criminal investigations unit, where he worked for seven years as a plainclothes detective investigating crimes. During that time, he investigated 90 to 100 homicides, and visited 150 death scenes that did not involve homicide. He testified that this job was stressful because he was often involved in searching for corpses, which could be dirty, bloody and smelly. During the 1980’s, the claimant became involved in a high-profile investigation of several serial killings, and was instrumental in solving those crimes by obtaining a confession from Michael Ross, who was eventually convicted of multiple murders. He testified that this casework was stressful because he often had to view the extensively decomposed bodies of the victims, though there were again no personnel or medical records indicating that he complained of work stress during his employment with the major crimes unit.

In 1989, the claimant retired from the state police and entered law school, while operating an investigation business known as Litigation Support Systems (a named respondent in this matter) along with another retired police officer. Their work was mainly taking photographs and obtaining statements. The claimant graduated from law school in December 1993 and returned to work in 1995 as an inspector for the state at the New London State’s Attorney’s office. He passed the bar exam in May 1995. The trier noted that the claimant had stated on his employment application that he was interested in the inspector position because he enjoyed and appreciated working in the criminal justice system. On August 15, 1995, prior to resuming employment with the state, the claimant took a physical exam that showed no trace of heart problems.

The claimant’s duties as an inspector were similar to those he had performed as a state police officer. After working for a year and a half, he endured an eight-week layoff period, and was then transferred to the Chief State’s Attorney’s office, where he worked in the fugitive department for one year. In 1998, the claimant worked in both the Chief State’s Attorney’s office and the New London County State’s Attorney’s office. He then retired from state employment in October 1998, and began practicing law out of his home, working on personal injury, real estate, and trusts and estates cases. His application for retirement benefits with the state lists his last date of service as September 30, 1998. In his letter of resignation to the state, he remarked that he had enjoyed his work, and was reluctant to retire.

The claimant testified that, following his official retirement, he was asked to perform services related to the Ross case for the State’s Attorney’s office. Due to his prior involvement in that matter, he would be instrumental as a witness in the upcoming retrial of the penalty phase. He alleges that he went to the office once or twice a week between January and June 1999 to brief state personnel on the case. The claimant also testified that he attended ten meetings at the State’s Attorney’s office, and an investigator for the state gave him a thick loose-leaf notebook to review which contained information about the Ross trial. The state did not pay the claimant for his services, and he did not submit time sheets, mileage reports or reimbursement requests. Though he believed that he should have been paid for his efforts, the claimant said that he would have assisted the state in prosecuting its case either way.

In January 1999, the claimant began experiencing tightening sensations in his neck, throat and chest. His family physician, Dr. Yoselevsky, noted in September 1999 that the claimant had a five-month history of chest pain, and made a note about cardiac and lab work. The claimant’s wife, a cardiac nurse, advised him to see a cardiologist, which led the claimant to consult with Dr. Milstein. On October 5, 1999, that doctor noted that claimant had a history of years of symptoms of throat tightness with some shortness of breath, and had recently undergone a stress test that was abnormal. He diagnosed chest/arm pain, and identified multiple risk factors for coronary disease. He prescribed medication and recommended cardiac catheterization. The claimant was then admitted to a hospital with a diagnosis of coronary arteriosclerosis on October 8, 1999. An angioplasty was performed, and a stint was implanted in his left anterior descending coronary artery. The claimant recovered well from the procedure, and was discharged home on October 12, 1999, with a confinement period of a week to ten days.

The claimant then filed a Form 30C in November 1999, claiming that his occluded artery was caused by 21 years of hazardous duty in state employment, with a cumulative injury date of September 29, 1999. A report by Dr. Milstein dated December 21, 1999 opines that the claimant was subjected to considerable amounts of stress because of his employment in law enforcement, which is directly associated with coronary artery disease and angina. He expressed the belief that the majority of the claimant’s stress was job-related. Meanwhile, the respondents had promptly filed a Form 43 to contest this claim. They submitted the treatment records of Dr. Yoselevsky as an exhibit. Only two of the 20 entries between September 8, 1978 and September 24, 1999 concerned stress: one from 1993 mentioning marital stress, and one from 1995 containing the words “stress” and “tension” with question marks before them. Respondents’ Exhibit 12. In support of their defense, the respondents contended that the claimant’s repetitive stress action was barred by the statute of limitations in § 31-294c(a), as he filed his written notice more than one year after the last date of his workplace exposure to stress. Moreover, they contended that his injury did not qualify as an occupational disease, which would have entitled him to a three-year filing period for that claim.

The trial commissioner ultimately found that the claimant had not introduced credible evidence to support his contention that his cardiac condition was a disease peculiar to his occupation and due to causes in excess of the ordinary hazards of employment within the meaning of § 31-275(15). Thus, it did not qualify as an occupational disease. With respect to the claimant’s employment with the state, the trier found that the claimant was employed as an inspector until September 30, 1998. Though activity on the Ross case increased after October 1, 1998, the assistance offered by the claimant did not qualify him as an employee beyond that date, as there was no personal service agreement between the parties, nor did the state have the right to direct and control the claimant’s activities. Thus, any exposure to traumatic stressors arising out of the claimant’s employment had to have ended by September 30, 1998. As notice was not filed until more than one year had passed after that date, the trial commissioner ruled that it was untimely under § 31-294c. The trier also rejected the claimant’s argument that he was incompetent to file notice before November 1999 due to his medical condition, as no credible evidence had been offered to support that claim. As a result, the instant claim was dismissed, which led the claimant to file an appeal with this board.

The claimant raises three arguments on appeal: that his coronary artery disease should have been found to constitute an occupational disease; that he remained an employee of the state beyond September 30, 1998 in light of his participation in preparation for the Ross trial, during which time he was exposed to additional work-related stress; and that he was incapacitated as of September 28, 1999, which prevented him from filing a claim between that date and November 17, 1999. We shall address each of these claims in turn, after we have clarified the role of this board as an instrument of appellate review.

In a workers’ compensation case, the trial commissioner is charged with the duty of making factual findings based upon his or her assessments of evidentiary credibility, which encompasses an analysis of both documentary exhibits and the testimony of lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). On appeal, this board may not retry the facts of a case by weighing the evidence anew, and assigning our own measurements of relative merit. Phaiah, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). All we may do is review the findings to determine whether there is evidence in the record to support them, and whether the trier has omitted material and undisputed facts from those findings. Warren, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Similarly, we may disturb the trier’s legal conclusions only if they are the product of an incorrect application of the law to the subordinate facts, or of an inference illegally or unreasonably drawn from them. Phaiah, supra; Warren, supra.

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, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.” In order to fall within this definition, a disease does not have to be one that only arises out of a particular profession or a unique employment setting. Hansen v. Gordon, 221 Conn. 29, 35 (1992); Glodenis v. American Brass Co., 118 Conn. 29, 40 (1934); Doe v. State/Dept. of Correction, 4401 CRB-4-01-6 (May 16, 2002). Rather, the disease must be a natural incident of the employment in the sense that there is a causal connection between the duties of the claimant’s job and the disease contracted, and that the disease is distinctively associated with the employee’s occupation. Hansen, supra, citing Russell v. Camden Community Hospital, 359 A.2d 607, 611-12 (Me. 1976); see also, Biasetti v. Stamford, 250 Conn. 65, 73 (1999). The claimant, therefore, has the burden of proving that the claimed occupational disease is one peculiar to his occupation, and that, within a reasonable degree of medical probability, he suffers from that disease as a result of his employment.

Applying these principles to the facts before us, we see that in order to prevail on his occupational disease claim, the instant claimant would have had to prove that he suffers from heart problems that result from a type of stress distinctively associated with his previous profession. This is so notwithstanding the existence of statutes such as § 7-433c, § 29-4a, § 5-145a and § 5-145c, which create an entitlement to a presumption of compensability for heart disease or hypertension in certain municipal and state law enforcement and firefighting personnel. Our courts have held, “Without evidence establishing that [a] claimant’s injury is a result of an occupational disease, the one year statute of limitations applies.” Zaleta v. Fairfield, 38 Conn. App. 1, 6 (1995), cert. denied, 234 Conn. 917 (1995). Even though § 7-433c contains a legislative recognition of heightened susceptibility to heart disease and hypertension due to the risks thrust upon police officers and firefighters, “[W]e do not construe [the] language [of § 7-433c] as the equivalent of a legislative finding that all heart ailments suffered by firemen and policemen are causally related to their employment . . . .” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 673 (1979). The same reasoning would rationally apply to the other statutes cited above, which create rebuttable presumptions of compensability for hypertension and heart disease suffered by state law enforcement and firefighting personnel. See Horn v. State/Dept. of Correction, 4177 CRB-3-00-1 (Feb. 22, 2001) (presumption in § 5-145a is rebuttable by respondent).

The claimant contends in his appellate brief that he provided “cold proof” to the trial commissioner that he suffered from coronary heart disease that was causally connected to his employment. Brief, p. 9. What the claimant did not do, however, is provide any sort of evidence to show that stress, or the type of stress that caused his coronary artery disease, was a peculiar risk of any of his prior law enforcement occupations, thereby qualifying it as an occupational disease. See Findings, ¶ BB. One cannot establish the existence of an occupational disease merely by offering evidence that one has contracted an ailment as a result of one’s employment. Instead, it is necessary to undertake a broader scope of inquiry that incorporates the risks and conditions faced by other members of one’s profession.

For example, in Hansen, supra, a dental hygienist succeeded in classifying the Hepatitis B virus (HBV) as an occupational disease by offering expert testimony that described dental professionals in general as being at an increased risk of contracting HBV due to their exposure to bodily secretions on a daily basis and their use of sharp instruments that may puncture the skin. “The body of medical evidence in Hansen made it clear that dental professionals necessarily engage in conduct that places them at an inordinate risk of being exposed to the blood of others, which creates a means of contracting HBV . . . that would not be found in most people’s jobs.” Doe, supra. On the other hand, a music teacher was precluded from claiming an emotional stress injury resulting from false sexual harassment charges as an occupational disease in Crochiere v. Board of Education, 227 Conn. 333 (1993). Though the claimant’s injury indeed resulted from mental stress as claimed, it did not reach the level of an occupational disease under § 31-275(15) because the occupation of music teacher is not distinctively associated with an abnormally high incidence of sexual misconduct allegations.

At oral argument, the claimant acknowledged that he did not offer any evidence designed to substantiate an unusual prevalence of stress in his occupation class. He relied on evidence directed at his personal experience, such as a report of Dr. Milstein dated December 21, 1999, that states, “Throughout [the claimant’s] career, he has been subjected to considerable amounts of stress. He has always taken his job very, very seriously, and it has always been quite stressful to him. It is clear that stress is directly associated with coronary artery disease and angina. I feel that the majority of Mr. Malchik’s stress was job-related from his long years as a police officer.” Claimant’s Exhibit A. Nowhere do any of the doctors say that law enforcement officers in general, or criminal investigation specialists in particular, commonly suffer from enhanced degrees of stress due to their profession. The trial commissioner therefore had no basis upon which to make a finding that stress should be considered an occupational disease for either police officers or criminal investigation specialists working within the law enforcement system, and we find no error in that regard on appeal.

The claimant next argues that he remained an employee of the state beyond September 30, 1998, due to his involvement in the preparations for the penalty phase of the Ross murder trial. Thus, even if his heart condition does not qualify as an occupational disease, his remaining repetitive trauma claim would still have been filed within the one-year notice period set by § 31-294c(a) if he were deemed to be an employee while he was helping out with the Ross case (assuming exposure to stress continued beyond the date of his formal retirement as well). Both parties recognize that the question of whether an individual qualifies as an employee is a factual matter to be determined by the trial commissioner. Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (Dec. 22, 1999), aff’d, 62 Conn. App. 906 (2001)(per curiam), cert. denied, 256 Conn. 922 (2001). The determination of an individual’s status in that sense can be difficult, as different factors may prove crucial in different cases. However, an employment relationship may only exist where the employer retains the right to control the means and methods of the putative employee’s work, including the mode and manner by which the service is performed for the employer. Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446 (1997), aff’d, 245 Conn. 613 (1998); Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 288, 1720 CRB-4-93-5 (April 21, 1995), citing Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). If a trial commissioner finds that the facts do not establish an employment relationship, this board may only intervene where there is clear error as a matter of law. See Hanson, supra; Merlin, supra.

The claimant explains in his brief that he worked on the preparation and presentation of the Ross case both before and after his official retirement dates. According to the claimant, the State’s Attorney assigned to New London County, Kevin Kane, requested that he return to work on the case. Kane was in charge of criminal prosecutions and the supervision of investigators and assistant state’s attorneys. The claimant then served under the direction of Kane, and he expected to be paid for his services. “It is untenable,” he asserts, “for the State to require that Claimant undertake specific tasks that they directed, and attend meetings that they scheduled, and then claim that Claimant is not continuing his employment.” Brief, p. 14.

The claimant did testify to being told that he would be paid for his work by John Edwards, a former investigator in the State’s Attorney’s office who had been hired back on a part-time basis, and he detailed the duties that he performed on the Ross case following his official retirement. However, Mr. Edwards stated that the claimant neither asked for assistance in getting rehired, nor did he show a desire to return to work on a 120-day personal services contract. Further, as a special inspector, Edwards had no authority to either hire the claimant or compensate him for any time he devoted to the Ross case. When the claimant told him that he would like to be paid for his efforts, Edwards mentioned this to Kane.

Kane explained to both Edwards and the claimant that witnesses had been paid for their time in the past when they were forced to miss work and lose wages, and that the claimant would be reimbursed for any lost time. Kane also testified that the claimant had asked him if he could come back to work part-time on a 120-day personal services agreement, whereupon Kane replied that he did not need him for such a position because Edwards had already been retained to work on the case. Because he was asking the claimant to come in voluntarily, he said that he tried to arrange meetings at the claimant’s convenience, and never told the claimant that he expected him to devote a certain number of hours to the Ross case. The claimant submitted no attendance records, was not subjected to performance reviews, was not given memoranda on office policies, and was not told when to take breaks during meetings. Susan Claus, a personnel officer, testified that the Division of Criminal Justice could not rehire a retired individual without the execution of a personal services agreement. No such agreement was issued for the claimant, though John Edwards had been rehired in that capacity.

Based upon these factual findings, we perceive no error in the trier’s conclusion that the claimant was not under the direction and control of the respondent state after September 30, 1998, and that his activities on behalf of the Criminal Justice Department did not constitute employment by that entity. There is no evidence that the parties ever agreed that the claimant would be paid for his services, and even if they had, the trier found that there was credible testimony that the claimant was not under the direction and control of the state. Therefore, we will not disturb the trial commissioner’s conclusion.

Finally, the claimant argues that he was incapacitated as of September 28, 1999, thereby rendering him incompetent to file a claim. As the trier found, there is simply no substantial evidence to demonstrate that such an incapacity existed. Further, the claimant cites no authority to show that our jurisdiction may be expanded beyond the specific time frames set forth in § 31-294c(a) in the event of legal incapacity to act on one’s own behalf during the last few days of a notice period. See Discuillo v. Stone & Webster, 242 Conn. 570, 576 (1997)(workers’ compensation commission cannot modify, abridge or expand statutory provisions that grant it authority to exercise jurisdiction over a claim). A claimant’s lack of awareness of a repetitive trauma injury until the last few days of the notice period would not generally excuse failure to comply with the one-year filing deadline. Id. Thus, this final claim of error must be dismissed as well.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

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