State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Peck v. Town of Somers

CASE NO. 4640 CRB-1-03-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 5, 2004

DONALD A. PECK

CLAIMANT-APPELLANT

v.

TOWN OF SOMERS EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

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

The respondent was represented by Joseph W. McQuade, Esq., Kainen, Escalera & McHale, PC, 21 Oak Street, Sixth Floor, Hartford, CT 06106.

This Petition for Review from the March 13, 2003 Memorandum of Decision of the Commissioner acting for the First District was heard September 26, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Donald A. Peck, has appealed from the March 13, 2003 Finding and Dismissal of the Commissioner acting for the First District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant, a part-time firefighter for the respondent Town of Somers from 1987 to 1998, brought this case for heart and hypertension benefits pursuant to § 7-433c C.G.S. On April 27, 1995 the claimant underwent a physical examination and assessment at Johnson Occupational Medical Center in Enfield, Connecticut. The medical report from that examination notes two blood pressure readings of 148/108 and 148/90. Respondent’s Exhibit 3. As a result of having his blood pressure taken at work, the claimant visited his personal physician, Dr. Misiak, on May 6, 1996. On that date Dr. Misiak diagnosed the claimant with hypertension and prescribed blood pressure medication to the claimant. The claimant did not file any type of notice of claim until a hearing was requested in February of 1997.1

The trial commissioner found the claim was statutorily time-barred. He dismissed the case based on the claimant’s awareness of several “borderline” high blood pressure readings well prior to February 1996 and his failure to file any notice of claim until a hearing was requested in February of 1997. The claimant questioned the factual accuracy of several of the trial commissioner’s findings and filed a Motion to Correct dated March 31, 2003. The Motion to Correct was denied by the trial commissioner on April 9, 2003.

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 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). A claimant with hypertensive symptoms is required to file a notice of claim when he is told he has high blood pressure readings, even if he has not been placed on medication, lost time from work or become disabled. Pearce, supra, 449. Therefore, the claimant’s knowledge of high blood pressure readings is crucial to the determination of whether the respondent was put on timely notice of the claim for benefits.

The claimant alleges the trial commissioner found facts inconsistent with evidence in the record which would lead to an incorrect application of the law. These were the issues the claimant raised in the Motion to Correct and the appeal of the trial commissioner’s decision. We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Firstly, the claimant disputes the correctness of the commissioner’s finding in paragraph four which states, “Between November, 1991 and April 27, 1995, Claimant continually had his blood pressure checked at the Hartford Hospital where he worked concurrently as an Emergency Medical Technician (EMT).” The claimant did testify he worked at Hartford Hospital from approximately 1987 to 1999; however, he testified he worked primarily as a Patient Care Assistant, not an EMT. August 14, 2002 Transcript, p. 15. The claimant did testify he had associates at Hartford Hospital take his blood pressure readings on occasion, and he specifically testified that blood pressure readings were taken two or three months prior to his May 6, 1996 visit to Dr. Misiak. Id., p. 32. Additionally, Dr. Misiak, the claimant’s treating physician, testified the claimant’s blood pressure was taken at work because the claimant had access to blood pressure readings at Hartford Hospital. April 16, 2002 Deposition, p. 14. Considering the claimant’s medical occupational background and the fact that he testified that he did have his blood pressure taken at work, the inaccuracies in the finding appear to be minor.

The trial commissioner need not grant corrections that are irrelevant to the outcome of the case. Caldwell v. Shaw’s Supermarkets, Inc., 4493 CRB-3-02-2 (February 13, 2003); Kish v. Nursing and Home Care, 16 Conn. Workers’ Comp. Rev. Op. 83, 3068 CRB-2-95-6 (November 12, 1996), aff’d, 248 Conn. 379 (1999). Although this finding contained minor inaccuracies, these inaccuracies alone are insufficient to change the outcome of the case. Therefore, we uphold the trial commissioner’s refusal to grant this correction.

The claimant next disputes the correctness of the commissioner’s finding in paragraph ten which states, “When Claimant first consulted with Dr. Misiak, his major concern was that of high blood pressure based on taking of his own blood pressure and those readings obtained by co-employees at the Hartford Hospital.” The claimant testified he had seen Dr. Misiak since he was a teenager or younger. August 14, 2002 Transcript, p. 16. Dr. Misiak testified and produced records showing that his first examination with the claimant was in 1979. April 16, 2002 Deposition, p. 9; Claimant’s Exhibit A. The claimant did not testify he took his own blood pressure readings, but rather associates at Hartford Hospital took the blood pressure readings. August 14, 2002 Transcript, p. 32. Again, because any inconsistencies are minor and do not change the outcome of the case, we will not overturn the findings on this basis.

The claimant also disputes the factual accuracy of paragraph eleven of the trial commissioner’s findings which states, “Well prior to February, 1996, the Claimant was aware of “borderline” high blood pressure readings and this was, of course, a concern for him.” The claimant alleges the only prior knowledge he had of borderline high blood pressure readings was two to three months prior, when he had associates at Hartford Hospital take his blood pressure readings several times. Id. However, the respondent alleges there is disputed testimony regarding this issue for which the trial commissioner made a finding in its favor.

The claimant did not pass the respiratory portion of the physical examination at Johnson Occupational Medical Center. Respondent’s Exhibit 3. As a result he was restricted from performing work-related tasks that would require more than a certain amount of physical exertion. March 28, 2002 Deposition, p. 14. In the comment section of the medical report it says “Advised re: weight loss and conditioning.” Respondent’s Exhibit 3; March 28, 2002 Deposition, p. 14. The report also notes two blood pressure readings which were taken at the examination of 148/108 and 148/90. Respondent’s Exhibit 3.

Dr. Wilcox specifically testified he diagnosed the claimant as suffering from hypertension on that date, although it was not written in his report. March 28, 2002 Deposition, p. 18. The doctor also explicitly testified that when he advised the claimant about weight loss and conditioning he would naturally have advised him about the high blood pressure readings as well, even though this was not noted in his report. Id., p. 14. Dr. Wilcox testified the omission of the hypertension diagnosis in the written report was an oversight. March 28, 2002 Deposition, p. 32. Dr. Wilcox testified although he did not specifically remember advising the claimant of his high blood pressure readings, it was his practice to inform his patients to visit a primary care physician whenever hypertension was diagnosed. Id., pp. 20-21. The medical report Dr. Wilcox filled out for abnormalities noted the claimant’s heart as normal. Respondent’s Exhibit 3.

The claimant testified he was never advised of the blood pressure readings nor was he told to follow up with his personal physician. August 14, 2002 Transcript, pp. 36, 38. The claimant also testified a Physician’s Assistant named Joseph Chappel performed the examination. August 14, 2002 Transcript, p. 44. However, at a deposition Dr. Wilcox testified that based on his signature on the history and physical examination record of Johnson Occupational, he was the person who performed the examination. March 28, 2002 Deposition, p. 12.

There was disputed testimony as to whether the claimant had knowledge of his hypertension from the April 27, 1995 examination. The trial commissioner has the authority as the fact finder to weigh the evidence presented and make determinations regarding the credibility of lay and expert witnesses. Fiore v. LRT, Inc. d/b/a House & Garden Shop, 3747 CRB-7-97-12 (April 5, 1999); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). Here, the trial commissioner found credible Dr. Wilcox’s testimony that he told the claimant about the high blood pressure readings, and made the determination to charge the claimant with that knowledge. That is not a decision we can reverse on appeal.

The claimant also disagrees with the trial commissioner’s finding in paragraph twelve which states, “The blood pressure readings recorded by Dr. Wilcox on April 27, 1995 of 148/108 and 148/90 constituted sufficient legal knowledge to the Claimant of his hypertension condition.” The claimant again disputes the accuracy of the fact he had knowledge of those blood pressure readings. This is a conclusion based on the trial commissioner’s finding that the claimant did have knowledge of his hypertension in 1995. As we noted above, the trial commissioner has the authority to make such determinations. Therefore, we will uphold this finding as well.

The claimant also alleges error in the accuracy of paragraph thirteen of the findings which states, “The Claimant did not file any notice of this claim until a hearing was requested in February of 1997.” As there is no other notice of claim in the record, we will uphold this finding.2

Lastly, the claimant disputes the accuracy of the trial commissioner’s findings in paragraph fourteen which states, “The Claimant did not legally file for this claim within the one year statute of limitations as set forth in 31-294c, and therefore, this Commission lacks jurisdiction over this claim.” If the claimant had knowledge of hypertensive blood pressure readings and failed to file a notice of claim within a year from that knowledge, the case is subject to dismissal for lack of jurisdiction. Pearce, supra. Here, the trial commissioner found the claimant had knowledge of his hypertension and failed to file a notice of claim within a year from that knowledge. Thus, we will uphold the trial commissioner’s dismissal of the claim.

We therefore affirm the March 13, 2003 Finding and Dismissal of the Commissioner acting for the First District.

Commissioners James J. Metro and Stephen B. Delaney concur.

1 The claimant contends the trial commissioner took administrative notice of his notice of claim in a letter the claimant’s counsel wrote to the respondent dated January 6, 1997. At the formal hearing, the claimant’s counsel stated the January 6, 1997 letter outlined the notice of claim information. August 14, 2002 Transcript, p. 20. However, the trial commissioner only took administrative notice of the February 11, 1997 letter in which the claimant’s counsel requested a hearing on the matter. August 14, 2002 Transcript, p. 21. A review of the record reveals a January 6, 1997 letter does not appear to have been entered into evidence. span class="back">BACK TO TEXT

2 See supra note 1. BACK TO TEXT

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