State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Goulbourne v. State of Connecticut Department of Correction

CASE NO. 5192 CRB-1-07-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 17, 2008

CORDELL N. GOULBOURNE

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by James M. Quinn, Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

The respondent was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 12, 2007 Finding and Dismissal of the Commissioner acting for the First District was heard August 24, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Workers’ Compensation system is a system which has limited jurisdiction. In order to engage our jurisdiction a claimant must file timely notice or satisfy one of the exceptions to notice under our statute. The trial commissioner in the present case concluded that the claimant’s notice asserting compensable heart disease was untimely, and dismissed his claim. On appeal, we conclude that the claimant offered alternative theories of recovery to the trial commissioner; one was a claim under the “hazardous duty” statute (§ 5-145a C.G.S.) and the alternative theory of recovery was that the claimant suffered a repetitive trauma injury. The trial commissioner determined the § 5-145a remedy was time barred based on the theory this was a “single accident” claim, but did not consider or rule on the repetitive trauma theory. Therefore, we believe this matter must be remanded for factual findings on the jurisdictional issue not considered by the trial commissioner.

The trial commissioner reached the following findings at the conclusion of the formal hearing in this case. The claimant started working as a correctional officer in 1996 and had a clean pre-employment physical pertaining to heart or hypertension issues. Because of his relatively slight build (the claimant is 5’7” and 150 pounds) and his frequent intervention to break up fights, the claimant felt physically intimidated and feared for his safety and that of his family. This was also due to encountering former inmates outside of the prison. Findings, ¶¶ 1-4.

The claimant began feeling stress and began sweating frequently, suffering headaches, feeling fearful and experiencing tightness in his chest. He reported his condition to his primary care physician, Dr. David Grise, who referred him in August 1998 to a cardiologist, Dr. Kathleen Kennedy. Findings, ¶¶ 5-6. The claimant related that he had a history of chest discomfort associated with stress. Findings, ¶ 7. Dr. Kennedy suspected that the claimant had probable myocarditis/pericarditis, but by June of 1999 she began to question this diagnosis. Findings, ¶ 8. The claimant remained under Dr. Kennedy’s care until July 1999 when he complained of three weeks of almost constant chest pressure. At this point, Dr. Kennedy ordered a cardiac catheterization. Findings, ¶ 9. On July 6, 1999, the Claimant was admitted to St. Francis Hospital where he underwent a left heart catheterization coronary arteriography and, a left ventriculography. The results of the Study were unclear and the etiology of his chest discomfort remained unresolved. Findings, ¶ 10.

The claimant remained out of work for one week following his heart procedure, but continued to treat with Dr. Kennedy. Findings, ¶ 11. He did not file a Form 30C claiming he had suffered a compensable injury until August 31, 2001. The form filed by the claimant asserted a heart ailment with a date of injury of July 7, 1999. The check box on the claimant’s form was not marked for an occupational disease or repetitive trauma injury. The claimant had the assistance of a Commission staff member when he prepared the form, and was not represented by counsel. The respondent filed a timely Form 43 contesting this claim. Findings, ¶¶ 12-13.

The sole issue considered by the trial commissioner was whether the Form 30C had been filed in a timely fashion to preserve the Commission’s jurisdiction. The trial commissioner concluded that the notice requirements had not been met since the claimant “filed his Form 30C (Claimant’s Exhibit E) more than 25 months after the date of injury” and “[t]here is no evidence presented as to any exception to Section 31-294c of the Connecticut General Statutes.” Therefore “the Claimant has not filed a notice within the one-year statute of limitations pursuant to Section 31-294c of the Connecticut General Statutes” and the claim was dismissed for want of jurisdiction. Findings, ¶¶ A-F.

The trial commissioner denied the claimant’s motion to correct, which presented an alternative view of the case that the claimant lacked scienter as to the occupational link to his heart ailments until 2001, and in addition, an inaccuracy in the Form 30C should not bar him from advancing a theory of repetitive trauma for his heart ailments. The claimant also sought to add facts regarding his continued employment until February 2001 with the Department of Correction, facts pertaining to his 2001 coronary bypass operation, and his treating physician’s opinion that work-related stress contributed to the need for the surgery. He also asserted the respondent had not been prejudiced by the deficiencies in the Form 30C, and that the commission’s staffer had not assisted him in preparing the form. The trial commissioner denied these corrections, and the claimant pursued this appeal.

We have two conflicting philosophies before this commission on appeal. The claimant argues that long precedent establishes that procedural and technical defects in notice should not act to deprive the Commission of jurisdiction and deprive the claimant of his opportunity to obtain a decision on the merits. The respondent argues this is immaterial and argues two recent cases interpreting the municipal heart and hypertension law, § 7-433c C.G.S. Arborio v. Windham Police Department, 103 Conn. App. 172 (2007) and Chernak v. Stamford-Police Department, 5012 CRB-7-05-10 (December 13, 2006) are dispositive of the outcome of this case. We believe the claimant offers the better reasoned argument.

The respondent believes that this is a case of factual determination and the trial commissioner did not reach a “clearly erroneous” decision consistent with the standards of Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). They believe it is clear that the claimant was pursuing this matter as a “single injury claim.” Respondent’s Brief, p. 3. Our review of the record before the trial commissioner indicates that the claimant had made clear at the onset of the hearing that he was pursuing the case on the theory of repetitive trauma. Claimant’s counsel made these statements upon opening of the formal hearing on March 15, 2006.

“The alternative theory in this case, Commission, is that Mr. Goulbourne’s heart disease is actually a classic workers’ compensation claim caused by the repetitive trauma associated with his stress as a Guard working for the Department of Corrections.” March 15, 2006 Transcript, pp. 7-8.

We believe this situation is akin to Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) where we pointed out the presumption in favor of a decision afforded a trial commissioner “can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Id. The evidence before the trial commissioner demonstrated that the claimant was pursuing a repetitive trauma claim. Indeed, the respondent’s trial counsel acknowledged this at the hearing.

“I think there is a serious notice issue as to whether proper notice was given for a claim under Chapter 568, or repetitive trauma, or occupational disease.” March 15, 2006 Transcript, p. 11. (emphasis added).1

We must now ascertain if the trial commissioner properly applied the appropriate legal standards for notice under the statute. This involves two separate inquiries: i) a review into the form of the notice itself and ii) a review into the overall time limitations for commencing a repetitive trauma claim.

In Berry v. State/Department of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) we considered whether another type of technical defect (inaccuracy as to name of the claimant) in a claim form should deprive this Commission of jurisdiction. We concluded that there “must be either a complete absence of notice to warrant dismissal of a claim or granting preclusion; or notice which was so fundamentally deficient as to prejudice the other party.” We cited Tardy v. Abington Constructors, Inc., 4105 CRB-2-99-8 (October 30, 2000), aff’d, 71 Conn. App. 140 (2002) for this proposition, as “consistent with the plain language of § 31-294c(c) C.G.S. ‘[n]o 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.’” We do not find evidence of prejudice to the respondent in the record before this Commission.2 3

In our recent decision in Chappell v. Pfizer, Inc., 5139 CRB-2-06-10 (November 19, 2007), we noted that there is a lacuna in the law as to the time limitations for filing repetitive trauma claims. “[W]e note that there is not a separate statutory timeline for ‘repetitive trauma.’ The case of Discuillo v. Stone & Webster, 242 Conn. 570 (1997) noted that § 31-294c C.G.S. provided limitation periods only for accidental injuries and occupational diseases, id., 574-75, and the Supreme Court determined that the plaintiff’s claim had to fall within one of the two categories under § 31-294c C.G.S.” Id. The Supreme Court considered this situation in depth in its opinion in Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596 (2000). In Russell the Supreme Court pointed out that § 31-275(16)(A) C.G.S. clearly provides for compensating workers who suffer “repetitive trauma or repetitive acts incident to such employment . . . .” id., 606, but “[t]he act is silent as to the notice requirements for the third type of personal injury defined by § 31-275(16)(A), namely, repetitive trauma injuries.” Id., 608. Citing Discuillo, supra, the Court in Russell restated the principle “the process of injury from a repetitive trauma is ongoing until [the last date of exposure].” Id., 613.

The Discuillo case also dealt with the issue of “last day of exposure,” concluding “the last date of exposure to the relevant trauma is a logical choice” for determining when the time limitations to file a claim commence Id., 581, n.11. The Supreme Court also made clear that last date of employment did not necessarily equate to the last day of exposure.4 In that specific case it did not matter, as “the plaintiff never returned to work after his heart attack . . . the date of his heart attack is also the date of his last exposure to the relevant stresses.” Id., 583. Mr. Discuillo’s position that he did not have scienter until years later did not save an untimely claim for repetitive trauma.5

The critical error in the respondent’s argument in this matter is that they appear to conflate the jurisdictional standards applied in cases involving § 7-433c C.G.S. with the jurisdictional standards for commencing a repetitive trauma claim.6 We have rejected such an interpretation of law. In Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 1470 CRB 8-92-7 (July 8, 1994), dismissed for lack of final judgment, 40 Conn. App. 446 (1996) we held as follows:

. . . the suggestion in O’Leary v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 108, 110, 236 CRD-6-83 (1988), also relied on by the claimant, that the date of injury in repetitive trauma cases is the date of first incapacity appears there in dicta and is contrary to our Supreme Court’s recent holding in this regard in Crochiere v. Board of Education, 227 Conn. 333 (1993).

The respondent argues that treatment received by the claimant prior to his last date of employment is significant with respect to the identification of the proper date of injury for purposes of determining the timeliness of the notice of claim in this repetitive trauma case. That is not our law, however. Borent v. State, 33 Conn. App. 495 (1994) Id., n1.

For those reasons, we reject the respondent’s reliance on Arborio, supra, and Chernak, supra, for the purposes of determining the jurisdictional requirements for filing a repetitive trauma claim.7 We have previously considered a case in which a claimant has advanced a claim seeking compensation for a cardiac ailment based on the alternative grounds of repetitive trauma and the statutory provisions of § 5-145a C.G.S. Bergin v. State/Department of Correction, 4200 CRB-8-00-3 (August 23, 2001), aff’d, 75 Conn. App. 591 (2003), cert. denied, 264 Conn. 903 (2003). We permitted the claimant to advance such alternative theories of recovery in that case and we have been presented with no precedent that causes this Board to reconsider this issue.

Therefore, we conclude that the trial commissioner was presented with a claim for recovery under a theory of repetitive trauma as well as a single injury claim and decided to dismiss this case solely on the jurisdictional grounds the claim was untimely under a claim for an accidental injury. The claimant’s Form 30C was filed within one year of having worked for the respondent and was within the time period under which a repetitive trauma claim could be entertained. Therefore, we believe the trial commissioner’s decision to dismiss the claim on jurisdictional grounds was “clearly erroneous.” See Berry, supra, as such a claim would be timely were the trial commissioner to determine the claimant’s last date of exposure to work related stress was within one year of the date of the claim. Therefore, we remand this matter for new factual findings on the following issues: a) what date the claimant continued to be exposed to workplace stress thus establishing jurisdiction; and, b) whether the claimant’s hypertension constituted a compensable repetitive trauma injury.

Therefore we remand this matter for factual findings on whether the claimant is entitled to Chapter 568 benefits under a repetitive trauma theory of recovery.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 As a result, we distinguish this case on the facts from Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), where the claimant failed to raise the issue of repetitive trauma until after the formal hearing had concluded. BACK TO TEXT

2 Claimant points out that in such cases where there was a failure to check the appropriate box in a disclaimer form to contest a repetitive trauma claim, this board has not penalized the respondents for such an error, citing DiStasi v. Watertown-Board of Education, 5010 CRB-5-05-10 (September 25, 2006). BACK TO TEXT

3 In considering a claimant’s adherence to jurisdictional requirements, we have allowed claimants great latitude to assert indefinite times for their exposure to an injurious trauma, even when they do not claim the trauma was repetitive. See Austin v. State/Dept. of Correction, 5014 CRB-8-05-11 (November 8, 2006)(claimant asserted possible exposure dates were between 1/02/01/ to 12/20/01; CRB found claim sufficient as respondent not substantially prejudiced since claim form filed in May 2002 covered single injuries incurred from May 2001 onward) BACK TO TEXT

4 Further support for the “last day of exposure” standard in repetitive trauma cases may be found in Sanford v. Clinton Public Schools, 3446 CRB-3-96-10 (March 5, 1998), aff’d, 54 Conn. App. 266 (1999), cert. denied, 251 Conn. 917 (1999) and Borent v. State, 33 Conn. App. 495 (1994). The “last day of employment” standard was specifically rejected in Knapp v. New London, 44 Conn. App. 465 (1997), which notwithstanding the inference in Respondent’s Supplemental Brief, p. 7, was not decided on a “technicality.” Obviously, whether a claimant continued to be exposed to a specific trauma up to his last day of employment is a matter which must be determined by the trial commissioner in his findings of fact. BACK TO TEXT

5 The concept of scienter as triggering the obligation to file a claim has been retained for occupational diseases, but as we pointed out in Chappell, supra, a claimant asserting an occupational disease claim bears the burden of proving a coronary disease was peculiar to his profession, citing Discuillo, supra. BACK TO TEXT

6 Respondent also appears to argue that we should overturn decades of precedent applying the standard of “last date of exposure” because the General Assembly has not adopted a specific legislative standard for repetitive trauma claims. Respondent’s Supplemental Brief, p. 7. This argument ignores the doctrine of legislative acquiescence. Hansen v. Transportation General, 245 Conn. 613 (1998). We can infer the General Assembly has ratified the “last date of exposure” standard in such cases as Borent and Discuillo, by virtue of over a decade of inaction, therefore deciding to leave the present status of the law alone. BACK TO TEXT

7 Respondent’s position may be based on misinterpreting Chernak, supra. In their brief they point out the claimant unsuccessfully argued that hypertension was a repetitive trauma injury. Respondent’s Brief, p. 10. The respondent does not address the rationale for our conclusion, as there was an important factual difference between that case and the present case. We point out in Chernak, “the claimant’s Form 30C, the claimant’s statement of facts, his hearing brief and his Motion to Correct are all bereft of any argument that the present hypertension is a repetitive stress injury. This prevents us from considering this argument on appeal.” Id. BACK TO TEXT

Workers’ Compensation Commission

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