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Hunt v. Borough of Naugatuck

CASE NO. 4607 CRB-5-02-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 2004

RONALD HUNT

CLAIMANT-APPELLEE

v.

BOROUGH OF NAUGATUCK

EMPLOYER

SELF INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Law Offices of Morrissey & Morrissey, 203 Church Street, Naugatuck, CT 06770.

The respondent was represented by William J. Ward, Esq., Ouellette, Deganis, Gallagher & Ward, LLC, 143 Main Street, Cheshire, CT 06410.

This Petition for Review from the December 19, 2002 Finding and Award of the Commissioner acting for the Fifth District was heard July 18, 2003 before a Compensation Review Board panel consisting of Commissioners James J. Metro, Howard H. Belkin and Ernie R. Walker.

OPINION

JAMES J. METRO, COMMISSIONER. The respondent, Borough of Naugatuck has appealed from the December 19, 2002 Finding and Award of the Commissioner acting for the Fifth District. We affirm the decision of the trial commissioner.

The relevant facts are as follows. Prior to the claimant’s employment as a police officer for the Borough of Naugatuck, he was required to undergo a pre-employment physical. This September 25, 1995 medical examination included a stress test. The claimant’s blood pressure during the test ranged from a resting reading of 125/90, peaking to a reading of 145/85 after exertion. As a result of the pre-employment physical, on September 29, 1995 Dr. John Pito made the decision the claimant could begin work duties as a police officer for the Borough.

On or about November 2000 the claimant had his blood pressure checked while he was out shopping. He believed the reading was high and decided to undergo a medical evaluation as a result. On November 21, 2000 the claimant was examined by Dr. Edmond Quinn, an internist. On that date, the claimant’s blood pressure was read twice with readings of 152/94 and 138/84. As a result of this examination, lab work was ordered. On March 26, 2001 the claimant saw Dr. Quinn for a follow up examination. On that date, Dr. Quinn prescribed blood pressure medication,1 talked about dietary control and took the claimant’s blood pressure reading of 150/108. On April 30, 2001 the claimant saw Dr. Quinn again, on that date the claimant’s blood pressure was 114/88.

On March 26, 2001 the claimant filed a Form 30C for § 7-433 C.G.S. benefits, with a date of injury of November 6, 2000. Previously, on March 8, 2001 the respondent had filed a Form 43, listing among the reasons for the denial that the notice of claim was untimely and barred by the statute of limitations. On September 26, 2001, November 30, 2001, and June 22, 2002 informal hearings were held to discuss the issue of compensability, which included discussions regarding the correct date of injury and timeliness of the claim. On April 10, 2002 the claimant filed a second Form 30C, with a date of injury of April 30, 2001.2 On April 12, 2002 the respondent filed a second Form 43, again alleging the notice of claim was untimely and barred by the statute of limitations.

The trial commissioner found the respondent was timely placed on notice of claimant’s heart and hypertension claim pursuant to § 7-433. Findings, ¶ E. He found the respondent offered no evidence they were ignorant of the facts concerning the claim or prejudiced by the inaccuracy of the specific injury date. Findings, ¶ G. The trial commissioner found the claimant’s pre-employment physical failed to reveal any evidence of hypertension or heart disease. Findings, ¶ M. Therefore, § 7-433c benefits were awarded.

The issues presented for review by the appellant-respondent, Borough of Naugatuck, are as follows: Whether the claim is untimely under § 31-294c C.G.S. and whether the claimant is barred from recovering § 7-433C benefits because there was evidence of hypertension at his pre-employment physical exam.

The respondent alleges both of the claimant’s notices of claim were untimely. The respondent asserts the first Form 30C, filed on March 26, 2001 with a date of injury of November 6, 2000 was untimely because it predated the claimant’s medical care and prescription of drugs for hypertension. The respondent alleges the claimant’s second Form 30C, filed on April 10, 2002 with a date of injury of April 30, 2001,3 was more than a year after the date the claimant began prescriptive medications and therefore should be barred.

The procedure for deciding claims under § 7-433c is the same as that under Chapter 568. Pearce v. New Haven, 76 Conn. App. 441, 448 (2003), cert. denied, 264 Conn. 913 (2003); Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). The claimant must provide a notice of claim and notice of the injury to the respondent. Pearce, supra. Section 31-294c C.G.S., the applicable notice of claim statute, “generally requires that a Notice of Claim be filed within one year of the date of an accidental injury or the last incidence of exposure to repetitive trauma.” Zalot v. Bristol, 4256 CRB-6-00-6 (March 16, 2001).

The claimant first suspected he suffered from hypertension when he experienced a high blood pressure reading while out shopping during November of 2000. Subsequently, he sought medical evaluation and treatment for such. Findings, ¶ 7. The claimant testified he told Dr. Quinn about the high blood pressure reading and his family history of coronary disease on November 21, 2000. August 21, 2002 Transcript, pp. 23, 32. The commissioner found “the medical evaluation of the Claimant, which resulted in the Claimant being placed on blood pressure medication, commenced on November 21, 2000 and concluded on March 26, 2001.” Findings, ¶ F.

The purpose of the notice statute is to let the employer know the claimant has suffered an injury that may be compensable and the claimant is claiming or proposes to claim benefits for such. Pearce, supra, 449; Surowiecki v. UTC/Pratt & Whitney, 4233 CRB-8-00-5 (May 24, 2001). In Pearce, the appellate court explained a claimant has a duty to report elevated readings to his employer under §§ 31-294b and 31-294c, “despite whether those symptoms cause immediate permanent or partial disability.” Pearce, supra, 449. Under this analysis, Mr. Hunt’s first Form 30C appears to be timely. He filed his first Form 30C after he experienced a high blood pressure reading which possibly could have led to a claim for benefits.

In the alternative, even if the claimant’s date of injury was incorrect, the claim can still proceed. Section 31-294c(c) provides “No defect or inaccuracy of such 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.” In Surowiecki, supra, the claimant filed his notice of claim with an inaccurate date of injury. We stated, “it is apparent that the one-year statute of limitations was satisfied if the incorrect date on the Notice of Claim is construed as a ‘defect or inaccuracy’ under § 31-294c C.G.S. rather than an invalidation of said notice.” Id.

The trial commissioner took administrative notice of an April 8, 2002 informal hearing note which stated: “Parties will change date of injury to 4-30-01 by filing another Form 30C together with this file.” August 21, 2002 Transcript, p. 13. At that informal hearing, the parties must have decided that the first Form 30C might have been filed with an incorrect date of injury; therefore, after these discussions, the claimant filed the second Form 30C in an attempt to correct a possible flaw. If the date of injury was in fact incorrect, this was merely a defect and not a bar to the claim. The trial commissioner found the respondent offered no evidence of their ignorance of the facts concerning the claim or any prejudice by the inaccuracy of the specific date of injury. Findings, ¶ G.

The legislature designed the Workers’ Compensation Act to further a remedial, humanitarian purpose. Funaioli v. New London, 52 Conn. App. 194, 199, 200 (1999). To allow the respondent to attend informal hearings fully aware of the facts surrounding the date of injury, and then when the date of injury is corrected be able to avoid the claim as untimely, without a showing of prejudice, would frustrate the humanitarian purpose of the act.

Furthermore, even if the notices of claim were untimely, § 31-294c(c) provides a saving clause when there has been a hearing within one year of the date of injury. A hearing has been defined to “include any investigation by the commissioner relating to the time, fact and cause of the injury.” Tolli v. Connecticut Quarries Co., 101 Conn. 109, 115 (1924). The September 26, 2001, November 30, 2001, and June 22, 2002 informal hearings provided the respondent with constructive notice of the claim in compliance with § 31-294c(c) and the claim could proceed on that basis.

The respondent also contends there was evidence of hypertension in the claimant’s pre-employment physical exam and therefore the claim should be barred on that basis. The relevant statute is § 7-433c (a) which states in part:

Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. (Emphasis added).

Whether or not a pre-employment examination revealed any evidence of hypertension or heart disease is a factual issue for the trial commissioner to determine. Hyatt v. Milford, 4127 CRB-3-99-9 (November 7, 2000); Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999). There is no per se legal hypertension line in Connecticut. Cefaratti v. Wethersfield, 4179 CRB-6-00-1 (February 27, 2001); Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997). The respondent contends the claimant’s elevated diastolic blood pressure reading of 90 or above which Dr. Quinn indicated could be evidence of hypertension invalidates the claim for § 7-433c benefits. Findings, ¶ 23. Although Dr. Quinn testified that this numeric reading “may be some evidence of hypertension,” May 16, 2002 Deposition, p. 27, he testified he suspected the reading was inaccurate because it was not in line with the other readings performed on that date. He also testified he could not give an answer to whether the pre-employment reading was evidence of hypertension. Findings, ¶ 24.4

Dr. Philip Fazzone, the respondent’s own independent medical examiner, reviewed the pre-employment physical and opined hypertension was not present at that time. Findings, ¶ 27. The fact that Dr. Quinn was uncertain whether there was evidence of hypertension at the pre-employment physical examination, combined with the fact that Dr. Fazzone opined there was not evidence of hypertension present at that exam forms a reasonable basis for which the trial commissioner could make a finding that there was no hypertension present at the pre-employment physical examination. Therefore, we find the trier’s conclusion there was no evidence of hypertension at the claimant’s pre-employment physical examination to be reasonable based on the evidence in the record and we will not disturb these findings. Findings, ¶¶ J-M.

We thus affirm the December 19, 2002 Finding and Award of the Commissioner acting for the Fifth District.

Commissioners Howard H. Belkin and Ernie R. Walker concur.

1 Dr. Quinn testified that although there was not a notation that blood pressure medication was prescribed on March 26, 2001, this date was in fact when it was prescribed. Findings, ¶ 20. span class="back">BACK TO TEXT

2 The claimant used April 30, 2001 as the date of injury on his second notice of claim because that was the first indication in Dr. Quinn’s medical records of the prescription blood pressure medication, without the insight of Dr. Quinn’s later testimony that revealed prescriptive drugs were initially prescribed on March 26, 2001. Findings, ¶¶ 15, 20. span class="back">BACK TO TEXT

3 See supra, note 2. BACK TO TEXT

4 We note Dr. Quinn testified as follows: “The problem of putting this whole picture together, each individual number cannot really be looked at here. His resting stage is 125/90 and then his diastolic, the bottom number, is dropping from 90 down to 85. So, that kind of does say that the 125/90 probably wasn’t as accurate as it should have been.” May 16, 2002 Deposition, p. 30. When asked to give his opinion of whether there was evidence of hypertension at the pre-employment physical, based on all the readings presented, he answered, “That number, in itself, 125/90 gives me some concerns. On the other hand putting the whole context together, it doesn’t give me a problem. So I cannot answer “Yes” or “No” with this.” May 16, 2002 Deposition, p. 31. span class="back">BACK TO TEXT

Workers’ Compensation Commission

Page last revised: February 24, 2004

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