State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Carlson v. United Technologies International

CASE NO. 4533 CRB-1-02-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 3, 2003

DAVID CARLSON

CLAIMANT-APPELLEE

v.

UNITED TECHNOLOGIES INTERNATIONAL

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Gerald Davino, Esq., McEleney & McGrail, 363 Main Street, Hartford, CT 06106.

The respondents were represented by Nicone J. Gordon, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the May 30, 2002 Amended Finding In Part, Dismissal of the Commissioner acting for the First District was heard November 22, 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 respondents have petitioned for review from the May 30, 2002 Amended Finding In Part, Dismissal of the Commissioner acting for the First District. They contend on appeal that the trier erred by finding the claimant’s hypertension claim compensable. We find no error, and affirm the trial commissioner’s decision.

The claimant was employed by the respondent United Technologies International from 1966 through his retirement at the end of 1994. He suffered a compensable cervical fracture on January 15, 1983, and a second compensable injury that consisted of contusions, a strained chest, back and groin injuries on August 19, 1986. Both were accepted by voluntary agreement. At trial below, the claimant alleged bilateral shoulder problems related to the 1986 and possibly 1983 injuries. He testified that he was taken out of work from 1988 through May 20, 1991 because of constant pain. The claimant also sought temporary partial disability benefits from May 20, 1991 through his retirement on December 31, 1994, and sought to have his hypertension claim accepted, despite admitting that he never filed a Form 30C or otherwise formally acknowledged this claim to the respondents.

The trial commissioner denied the compensability of the right shoulder injury and the claimant’s request for rotator cuff surgery, which was largely an assessment of evidentiary credibility. He also found the claimant to be entitled to temporary partial disability benefits as requested, due to his inability to work overtime following his return to employment. See Goodwin v. Stop & Shop Companies, 13 Conn. Workers’ Comp. Rev. Op. 301, 1830 CRB-3-93-9 (April 21, 1995). With respect to the hypertension claim, he initially determined that the claimant had neither obtained a hearing within one year of the hypertension diagnosis in 1988, nor had he proven that the “medical care” exception of § 31-294c(c) was satisfied by the respondents’ payment for prescription medication. Thus, the claim was dismissed. Following the claimant’s filing of a Motion to Correct on May 16, 2002, the trier issued an amended award containing findings that the claimant’s treating physician diagnosed hypertension in November 1988, and that the employer’s workers’ compensation carrier paid for the claimant’s hypertension medications for a period of time, thereby requiring that the condition be deemed accepted pursuant to § 31-294c(c). The respondents were thus ordered to pay for all medical bills and other benefits relating to the claimant’s hypertension. An appeal from that amended award soon ensued, accompanied by a Motion to Submit Additional Evidence.

The respondents argue on appeal that the claimant never gave them notice of his hypertension condition. Instead, after being diagnosed with hypertension by Dr. Barwick in November 1988, the claimant quietly commingled his bills for treatment of that condition with that doctor’s other medical bills. (Dr. Barwick, an internist, had begun treating the claimant in 1987 for pain related to his 1986 compensable injury.) The respondents cite the language of § 31-294c(c), which states, “No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.” Because the respondents believed that the prescription bills they continued to pay through 1991 (when the claimant stopped submitting them of his own volition) were for the claimant’s 1986 injury, they contend that they were denied an opportunity to contest the relationship between the 1988 diagnosis of hypertension and the earlier compensable injury.

In support of this appeal, the respondents have filed a Motion to Submit as Additional Evidence the affidavit of Georgia Herrera, a claims adjuster for the respondent insurer Liberty Mutual. The affidavit states that, after reviewing the medical bills related to the claimant’s hypertension, it appears that these bills were paid in error, and that Liberty Mutual never intended to accept the claimant’s hypertension condition, nor did they formally acknowledge such. Administrative Reg. § 31-301-9 allows this board to accept additional evidence if it is material and if there were good reasons for failure to present it in the proceedings below.

The record shows that compensability of the claimant’s alleged hypertension was one of the issues listed for determination by the commissioner, and the parties discussed the claimant’s submission of prescription bills for Isoptin (a hypertension medication) to Liberty Mutual during the first of two formal hearings. November 19, 2001 Transcript, pp. 64-67. The respondents offer no explanation as to why an affidavit from a claims adjuster could not have been obtained during trial. Further, the materiality of this affidavit is questionable, as the statements within do not attest to firsthand knowledge of the situation as it existed in 1988-1991, when the claimant was submitting prescriptions to Liberty Mutual for payment. As it does not appear that the standards of Admin. Reg. § 31-301-9 have been satisfied, we deny the respondents’ Motion to Submit Additional Evidence. See, e.g., Tomaszek v. Girard Motors, 4166 CRB-2-99-12 (Feb. 23, 2001)(motion to submit evidence denied where claimant failed to explain why evidence was not offered at formal hearings), aff’d, 70 Conn. App. 122 (2002)(per curiam).

We now turn to the merits of this appeal. In the respondents view, § 31-294c required the claimant to file notice separate from that provided for the 1986 compensable injury in order to successfully raise a hypertension claim. Though timely notice of a claimed injury is normally required, where a subsequent condition is determined to be causally related to an accepted work injury, we have held that it is unnecessary for a claimant to file an additional notice of claim. Roman v. Eyelets for Industry, 3040 CRB-5-95-4 (Feb. 14, 1997), aff’d, 48 Conn. App. 357 (1998); Landrette v. City of Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (Aug. 19, 1993).

After concluding that the respondents had paid for hypertension prescription medications, the trier held that the claimant’s hypertension was compensable and should be deemed accepted. Findings, ¶¶ 25-27. Though the trier did not make specific findings concerning the existence of a causal relationship between the claimant’s hypertension and his 1986 injury, he did make note of Dr. Barwick’s November 1988 diagnosis of hypertension in response to the claimant’s May 16, 2002 Motion to Correct. Findings, ¶ 24. Dr. Barwick stated in his deposition that the claimant’s stress and anxiety were related to his underlying physical injuries, and contributed significantly to hypertension, as discussed in said motion. Claimant’s Exhibit L, p. 20. In order for the trier to have reached the ultimate conclusion that the claimant’s hypertension was compensable under § 31-294c(c), he had to have been persuaded that the claimant’s injury was causally related to his employment. As Dr. Barwick’s opinion constituted the only evidence of such causation, and there is no direct evidence to the contrary, we must infer that the trier accepted this diagnosis en route to making his decision. See Admin. Reg. § 31-301-3 (finding need not contain reasons for trial commissioner’s conclusions). Thus, the claimant was not required to file a separate notice of claim for his hypertension condition.

Even if separate notice of the hypertension claim had been required, however, we would still affirm the trier’s decision. As the finder of fact, the trial commissioner was entitled to assess the credibility of the evidence offered by both parties, and to draw reasonable inferences from that evidence. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Claimant’s Exhibits I and J contain evidence that the workers’ compensation arm of Liberty Mutual paid for the claimant’s Isoptin prescriptions. If the insurer had thought to check the prescriptions that were being submitted to it for payment, it might have seen fit to question some of the charges. The cover letters that the claimant sent along with his prescription bills listed “Isoptin” as one of the medications included. Exhibit I, supra. A July 12, 1989 letter from the claimant’s attorney to Liberty Mutual has attached to it Dr. Barwick’s $45 fee statement for a July 6, 1989 office visit, on which chart the doctor checked diagnostic boxes for both hypertension and chest pain. Exhibit J, supra. Had it been careful in processing these bills, Liberty Mutual would have discovered that it was paying for hypertension-related medical treatment, and investigated accordingly. The respondents’ ignorance of the hypertension claim and any prejudice allegedly suffered therefrom need not be attributed solely to the claimant. Thus, we find no error in the trier’s application of the § 31-294c(c) “medical care” exception to the facts of this case.

The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits may have remained unpaid pending the outcome of this appeal, interest is awarded pursuant to § 31-301c(b).

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

Workers’ Compensation Commission

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