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Mayer v. Town of East Haven

CASE NO. 4620 CRB-3-03-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 3, 2004

WILLIAM L. MAYER

CLAIMANT-APPELLEE

v.

TOWN OF EAST HAVEN

EMPLOYER

and

WEBSTER INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Thomas Farver, Esq., 2842 Old Dixwell Avenue, Hamden, CT 06518.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the January 28, 2003 Finding and Award of the Commissioner acting for the Third District was heard August 29, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Town of East Haven and Webster Insurance, have appealed from the January 28, 2003 Finding and Award of the Commissioner acting for the Third District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant was continually employed as a firefighter for the respondent Town of East Haven from January 1, 1965 through the date of the formal hearing on May 21, 2002. The claimant’s pre-employment physical examination revealed no evidence of hypertension or heart disease. The claimant was diagnosed with hypertension in 1987 and prescribed medication for such. May 21, 2002 Transcript, p. 17. The claimant was first diagnosed with coronary artery disease on January 2, 1995. On February 2, 1995 the claimant filed a Form 30C with a January 2, 1995 date of injury. As of June 17, 1999 the claimant’s treating physician, Dr. John Chandler, diagnosed the claimant as suffering from 25% permanent whole body impairment due to his heart disease. The trial commissioner found the claim for coronary artery disease compensable under § 7-433c.

The issue on appeal is whether the claimant is precluded from pursuing his § 7-433c claim because he failed to give the respondents notice of his prior hypertension diagnosis. In order to pursue a claim for § 7-433c benefits, a claimant must notify his employer of his of injury pursuant to § 31-294b, and file a notice of claim pursuant to § 31-294c. Pernacchio v. New Haven, 63 Conn. App. 570, 575 (2001). The respondents contend the claimant’s 1995 notice was untimely because the claimant was diagnosed with hypertension in 1987, which was a substantial cause of the later diagnosed heart disease. Section 7-433c(a) states in relevant part:

[I]n 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. (Emphasis added).

The only issue on appeal is whether the claimant filed a timely notice of claim. The claimant filed a claim for benefits for his heart disease under § 7-433c, a statute that provides “special compensation to those who qualify, in the sense that they have no burden of proof that the disease resulted from the employee’s occupation or that it occurred in the course of employment. The mere fact that the employee has hypertension or heart disease and dies or is disabled because of it is all that is necessary. The employee does not need to prove that his heart disease is causally connected to his employment.” Salmeri v. Dept. of Public Safety, 70 Conn. App. 321, 337, 798 A.2d 481, cert. denied, 261 Conn. 919 (2002). The requirements of this statute are different from those applicable to ordinary workers’ compensation benefits, as the same element of causation is not required. Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995). Liano v. Bridgeport, 3447 CRB-4-96-10 (1-6-98), aff’d, 51 Conn. App. 905 (1999) (per curiam), cert. denied, 248 Conn. 907 (1999). Therefore, § 7-433c has been regarded as “bonus legislation” which grants “special compensation.” Zaleta, supra.

The respondents claim the testimony of their independent medical examiner proves the claimant’s prior hypertension was a substantial cause of the claimant’s later heart disease, therefore requiring the heart disease claim be barred as untimely. However, § 7-433c states if a claimant suffers from an impairment of health caused by hypertension or heart disease, they are eligible for benefits. The statute does not in itself create a bar for collecting benefits for one of the two ailments when a claimant has previously suffered from the other. Although related, hypertension and heart disease are separate maladies. We have previously upheld a commissioner’s finding a claimant had suffered from heart disease and not hypertension as the resolution of a factual question appropriately addressed by the trial commissioner. Durso v. New Haven, 4393 CRB-3-01-5 (June 5, 2002).1

The claimant’s hypertension may be a separate injury from the later diagnosed heart disease. In McNerney v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996), the commissioner found the claimant had a period of hypertension from 1975 to 1981 which was cured through lifestyle changes such as giving up drinking, reducing his weight, and quitting smoking. In 1991 the claimant was prescribed medication for hypertension. We affirmed the trial commissioner’s finding the claimant’s 1991 hypertension constituted a new injury. We found the claimant did not need to notice the respondent of the prior period of hypertension from 1975 to 1981.

Dr. Jeffrey Walden did a medical records review of the claimant’s case. He testified there was no indication the claimant suffered from coronary heart disease in 1987. April 5, 2002 Deposition, pp. 7, 8, and 11. Dr. Walden testified the claimant was first diagnosed with coronary artery disease in 1995. Id., p. 11. He testified there was nothing in the records to indicate a prior treating physician diagnosed the claimant with coronary artery disease prior to that date. Id., p. 12.

In this case, the doctor’s testimony is sufficient to allow the commissioner to decide the way he did.2 Dr. Walden testified the claimant was first diagnosed with coronary artery disease in January of 1995. Within approximately one month of the initial diagnosis the claimant filed a notice of claim for this injury. Based on these facts, the claimant’s February 2, 1995 Notice of Claim for his heart disease was timely.

Therefore, we affirm the January 28, 2003 Finding and Award of the Commissioner acting for the Third District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 In Suprenant v. New Britain, 28 Conn. App. 754 (1992) the plaintiff firefighter went through a pre-employment physical examination that revealed evidence of hypertension. When the plaintiff later developed heart disease, the court held he was barred from collecting benefits. The court found the words of the statute unambiguously meant that the claimant could not have shown any evidence of either heart disease or hypertension at the pre-employment examination as a prerequisite requirement to obtaining § 7-433c benefits. This case is distinguishable from Suprenant. In this case we are granting the benefits. Section 7-433c, which reads in relevant part; “. . . suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease . . .” does not contain the same words “any evidence of” as in the preceding section of the statute. We read the statute to mean once the claimant passes the prerequisite initial test of showing a pre-employment physical examination without any evidence of either hypertension or heart disease, and is later diagnosed with either hypertension or heart disease, benefits for either shall be granted. span class="back">BACK TO TEXT

2 We read the trial commissioner’s January 28, 2003 Finding and Award, 4 together with his January 28, 2003 Memorandum of Law to practically equate to a finding the claimant’s 1987 hypertension was a separate malady from the later diagnosed coronary artery disease. span class="back">BACK TO TEXT

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