CASE NO. 5389 CRB-7-08-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 14, 2009
CITY OF STAMFORD
PMA MANAGEMENT CORP. OF NEW ENGLAND
The claimant was represented by Daniel A. Benjamin, Esq., Benjamin & Gold, 350 Bedford Street, Suite 403, Stamford, CT 06901.
The respondent was represented by Scott Wilson Williams, Esq., and James Moran, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824.
These Petitions for Review from the October 13, 2008 Ruling on Claimant’s Motion to Preclude dated March 14, 2008 and on Respondent’s Opposition to Claimant’s Motion to Preclude dated June 25, 2008 as well as the October 16, 2008 Finding and Award of the Commissioner acting for the Seventh District were heard April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal focuses on whether the trial commissioner properly determined that a Motion to Preclude should be granted and what effect this Motion to Preclude would have on the case in light of the Supreme Court’s decision in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008). The respondent argues that due to irregularities in the manner in which the Form 30C was filed that the trial commissioner should not have determined this notice commenced the time frame to file a disclaimer. The respondent also argues that the trial commissioner did not accord it a proper chance to defend the claim and should not have found the claimant presented a prima facia case. In light of the Supreme Court’s decision in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009), we believe the trial commissioner reached the legally correct decision in this matter. We affirm the Finding and Award and dismiss this appeal.
The trial commissioner reached the following findings in her Finding and Award of October 16, 2008. She had previously ruled on July 25, 2007 that the claimant’s Form 30C had been properly filed. She also noted an October 13, 2008 ruling on the claimant’s motion to preclude which applied the Harpaz decision to this case, and granted preclusion due to an untimely Form 43. She found that on February 10, 2001, the claimant was employed by the respondent as a fire fighter and on that date, the claimant suffered chest pain while fighting a fire and was subsequently taken to Stamford Hospital for treatment.
The commissioner determined that the claimant did not suffer an infarction on February 10, 2001 based on the results of hospital tests and a catheterization. After his February 10, 2001 event, the claimant had more frequent episodes of chest pain. The claimant had been treating with Dr. Joseph Costanza for hypertension prior to his February 10, 2001 cardiac event. He last treated with Dr. Costanza on January 2, 2001.
Following the February 2001 cardiac event the claimant had a cardiac catheterization with Dr. Robert Labarre,1 his treating physician. The claimant was advised that he had coronary artery disease after the catheterization. In October of 2002, he was found to be physically unfit for active duty as a fireman. The claimant had stents inserted into his chest in May of 2003 and December of 2003. He retired in 2003 after he was found physically unfit for active duty.
Dr. Labarre opined on a number of occasions as to the claimant’s condition. On September 26, 2005 Dr. Labarre described the claimant’s February 10, 2001 work-related injury as an “acute coronary syndrome.” He describes the syndrome as “insufficient blood flow via the coronary arteries to the heart” and states that “[i]t is reasonably likely that Mr. Mehan’s heart exertion while fire fighting on 2/10/2001 precipitated his acute coronary syndrome.” Dr. Labarre opined in a January 23, 2008 deposition that, to a reasonable degree of medical probability that the claimant’s February 10, 2001 work-related event aggravated the claimant’s pre-existing coronary artery disease. Dr. Labarre renders a 30% permanent partial disability rating to the claimant’s heart, however, 25% of the 30% permanent partial disability rating is attributable to the claimant’s coronary artery disease.
Based on those subordinate facts, the trial commissioner concluded the claimant suffered a compensable injury to his person since the work-related event of February 10, 2001 aggravated the claimant’s pre-existing coronary artery disease. The claimant was found to have sustained to a 25% permanent partial disability rating to his heart on account of the coronary artery disease. The commissioner concluded that the Harpaz decision barred the respondent from introducing evidence contesting the claim. The respondent was ordered to pay the claimant permanent partial disability benefits and assume financial liability for the claimant’s coronary artery disease.
The respondent raises a number of issues on appeal. They argue that the trial commissioner impaired their right to due process by not seeking briefs following the issuance of the Harpaz decision. They argue that the granting of preclusion in this case was erroneous as the Form 30C was not served in a proper fashion. Finally, they argue that the medical evidence presented did not sufficiently link the claimant’s medical condition to a compensable injury. We are not persuaded by any of these arguments.
The gravamen of the respondent’s argument is that the trial commissioner impaired their due process rights by a) not seeking briefs on the issues in Harpaz and b) denying the respondent’s Motion for Reconsideration. The respondent believes the trial commissioner should have considered the evidence they submitted in opposition to the claim. They present this argument on page 9 of the Respondent’s Brief, as follows:
No case, including Harpaz, has stated that the Respondents are precluded from making and presenting arguments that the Claimant has not met his burden through the evidence submitted by the Claimant himself. To state that the Respondents must, in effect, sit on their hands and not say anything, would be a travesty of the workers’ compensation system and violate the Respondents’ due process rights to be heard.
We believe that the Supreme Court’s decision in Donahue, supra, has eviscerated this line of reasoning. The opinion in Donahue specifically states that once preclusion is ordered, the respondents are barred from challenging the testimony and evidence submitted by the claimant.
To read preclusion to allow the employer to cross-examine witnesses and to submit written argument in opposition to the plaintiff’s claim would translate, essentially and simply, to a sanction barring the employer from introducing its own expert witness. . . . Such a result hardly would comport with the board’s own description of preclusion as a “harsh remedy.”
Id., at 550.
In the Donahue decision, the Supreme Court further explained that a respondent has no further role to play contesting a claim after a Motion to Preclude is granted. The Court concluded “[t]wo possible reasons come to mind as to why the employer should be able to participate in the proceeding to challenge the plaintiff’s proof, both of which we ultimately reject.” Id., at 552.
We believe that the Donahue case clearly demonstrates that the trial commissioner properly applied the precedent in Harpaz in rendering her decisions in this case as to the effect of preclusion. To the extent there was any ambiguity as to the issues in this case following the Harpaz decision the Donahue decision has resolved them decisively in a manner adverse to the respondent. Binding appellate precedent establishes that there was no due process issue herein and that the trial commissioner appropriately applied what is now binding law on this commission.
We now turn to the issue presented that the trial commissioner improperly determined that the claimant should be granted preclusion. The respondent argues that the means of service of the Form 30C were too irregular to justify this remedy. The respondents acknowledge that shortly after the February 10, 2001 injury the claimant filled out a Form 30C and gave it to Assistant Fire Chief Peter Brown. On April 9, 2001 Assistant Chief Brown filled in the injury date and signed the form as claimant’s representative. The respondent concedes that they did not file a Form 43 contesting this claim within 28 days of that date.
The respondent argues that at the time the claimant presented the Form 30C to Assistant Chief Brown it was legally inadequate. They also argue that Assistant Chief Brown could not both act as “claimant’s representative” and as an agent for the City2 or that the presentation of the Form 30C by the claimant to a superior at the Fire Department did not constitute service on the City. We do not find these allegations of a technical notice deficiency persuasive.
The trial commissioner held an evidentiary hearing on whether the Form 30C as filed in this manner constituted appropriate notice on the City. She determined that it did constitute such notice. To the extent this dispute is a factual dispute as to whether the City had notice of claim, we must defer to the findings of the trial commissioner. We may only intercede if there was an incorrect application of law to the facts. Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007).
We find the Berry case instructive. In Berry the respondent convinced the trial commissioner to dismiss a claim as the Form 30C did not correctly identify the name of the claimant. We reversed on the issue of notice, finding that the precedent in Tardy v. Abington Constructors, Inc., 4105 CRB-2-99-8 (October 30, 2000), aff’d, 71 Conn. App. 140 (2002) governed such a circumstance.
The Appellate Court upheld our decision in Tardy citing in part that the Form 30 C in use at the time of the Tardy claim (and in use at the time of the Berry claim) “was created for injured employees rather than for dependents pursuing death benefits. . . .” The court rejected the defendants argument that due to the limitations of the Commission’s form “even strict compliance with § 31-294c (a) would be insufficient” stating “strict compliance with a notice of claim is not required as long as it puts the employer on notice to make a timely investigation.” Id., 149-151. . . .
Therefore, our reading of the Kuehl [v. Z-Loda Systems Engineering, 265 Conn. 525 (2003)] and Tardy cases is 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. This is 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 it plausible that the City of Stamford was prejudiced by the form of this notice considering their own employee was able to fill in the requisite information as to the date of the injury. Indeed, the record suggests that Assistant Chief Brown filled in the claimant’s form during a meeting with the claimant at his place of employment.3 Nor do we find any deficiency in the service of the notice. The claimant presented the Form 30C to someone in a command position at the Stamford Fire Department. We believe that constitutes personal service of the notice to the “employer” at the claimant’s “place of business.” The “plain language” of § 31-321 C.G.S. does not require a claimant to ascertain what bureaucrat in a municipality is responsible for insurance or risk management when filing his claim.4
The respondent argues that based on the decision in Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995) the service of the Form 30C was legally inadequate. Otero is easily distinguishable. In Otero a timely Form 30C was not filed with the employer; merely accident reports. Since there was no filing evidencing a claim for compensation the trial commissioner dismissed the claim as untimely and this board affirmed the dismissal.5 As previously noted, this case is far more akin to Berry and Tardy where the respondent was put on notice of a pending claim, and then disputed the adequacy of the notice. We find that based on the “totality of the circumstances” test promulgated in Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD 2-92-1 (January 5, 1994), the claim was sufficient. The case of Pernaccchio v. New Haven, 63 Conn. App. 570 (2001) is also on point. “The board concluded, and we agree, that ‘under the totality of the circumstances the notice provided by the [plaintiff] constituted ‘substantial compliance’ with the notice requirement of § 31-294c.’” Id., at 576. In this case the claimant submitted the proper legal form to commence a claim for benefits within the legal time frame to obtain benefits. The respondent under these circumstances is left to argue that they were prejudiced by the deficiencies with the Form 30C and unable to properly investigate and defend the claim. Nalband v. Davidson Company, Inc., 4944 CRB-8-05-5 (May 19, 2006). The trial commissioner reached an adverse decision to the respondent on this issue and we cannot find this decision constituted legal error.
Even if the claim was properly served on the respondent and the trial commissioner properly granted preclusion, the claimant would still have the burden of establishing a prima facia case that links the claimant’s medical condition to the compensable injury. Donahue, supra, 545-546. We must therefore ascertain if the evidence presented by the claimant was sufficient to enable the trial commissioner to reach an affirmative conclusion on this question. White v. Wal-Mart Stores, Inc., 5363 CRB-2-08-7 (June 30, 2009).
The trial commissioner relied on the opinions of the claimant’s treating physician in reaching her decision as to whether the claimant’s coronary condition was compensable. Findings, ¶ 16-18. On September 26, 2005 Dr. Labarre stated “[i]n my opinion, Mr. Mehan suffered an acute coronary syndrome while at work the afternoon of 2/10/2001. . . . It is reasonably likely that Mr. Mehan’s exertion while fire fighting on 2/10/2001 precipitated his acute coronary syndrome. It is reasonably likely that Mr. Mehan has a permanent impairment of the heart.” Claimant’s Exhibit D.
The respondent argues that this language is inadequate to meet the standards delineated in Struckman v. Burns, 205 Conn. 542 (1987) to establish the “reasonable medical certainty” of an event. However, O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) applies the standard that whether an expert offers a definitive opinion on causation, it “is determined by looking at the entire substance of testimony.” Id., at 817-818.
Therefore, we look to Exhibit E, Dr. Labarre’s January 23, 2008 deposition, to determine if the entire substance of testimony supports the trial commissioner’s conclusion. The first question was as follows.
Q: In your prior deposition,6 do you recall testifying that it was your opinion that to a reasonable medical probability that Mr. Mehan’s exertion while fire-fighting on February 10, 2001 precipitated his acute coronary event and subsequent hospitalization?
A: I do.
The witness further testified that the claimant’s coronary disease was stable prior to the February 10, 2001 injury and that the February 10, 2001 aggravated the claimant’s coronary disease. Dr. Labarre also gave the claimant a 30% permanent partial impairment of the heart, and attributed 5% of that rating to an unrelated hypertension condition.
Counsel for the claimant also points to other evidence on the record consistent with Dr. Labarre’s opinion indicating that subsequent to the February 10, 2001 incident the claimant’s cardiac condition was materially worse. See Claimant’s Exhibit D. These reports document that the claimant had an abnormal nuclear stress test following the incident and was unable to complete one test due to fatigue. The claimant also reported increased shortness of breath and chest discomfort when examined on May 22, 2003, more than two years after the incident. The claimant also submitted documentation that on December 16, 2002 he was medically directed to not engage in fire-fighting duties. Claimant’s Exhibit G. It is acknowledged the claimant subsequently retired from the Fire Department due to his medical condition. Finding, ¶ 15.
On appeal, this panel must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). Given the totality of the evidence provided, we believe the trial commissioner could reasonably have determined that the February 10, 2001 cardiac incident did not create merely a transient impairment in the claimant’s medical condition, but, instead led to a permanent increase in the claimant’s level of disability. The Finding and Award herein reflects that conclusion, and since it is grounded in evidence the trial commissioner found probative, we cannot overturn this decision on appeal.
We affirm the Finding and Award and dismiss this appeal.
Commissioners Peter C. Mlynarzyck and Randy L. Cohen concur in this opinion.
1 The Finding and Award spells this name as “LaBarre” and “LeBarre.” This constitutes a harmless scrivener’s error. BACK TO TEXT
2 At oral argument, counsel for the respondent was asked whether Verrinder v. Matthew’s Tru Colors Painting & Restoration, 4936 CRB-4-05-4 (December 6, 2006), appeal dismissed, A.C. 28367 (July 25, 2007), controlled this issue. Upon review, we find that this case is applicable. In Verrinder we upheld a trial commissioner who determined that a sole proprietor could act both as a claimant and a respondent, and could serve the Form 30C personally upon themselves at their place of business. Counsel for the respondent points to no statutory language wherein Assistant Chief Brown could not act both as agent for the respondent and as a representative of the claimant. Moreover, the “plain language” of § 31-321 C.G.S. makes personal service at an employer’s place of business acceptable service. BACK TO TEXT
3 The claimant testified that he presented the form at a meeting held at the fire station where the claimant “thought” Assistant Chief Brown signed the form. “As far as I know I was sitting at the desk, and Deputy Chief Conte was on the other side, and then Chief Brown came in.” November 20, 2006 Transcript, p. 12. We believe the trial commissioner could reasonably infer from this testimony that the claimant left the form with his superior officers at this meeting and believed it had been properly served. BACK TO TEXT
4 Assistant Chief Brown described his job title as “Assistant Chief, Chief Administrative and Financial Officer, for the City, for the Stamford Fire Department. I handle all budget, administrative, personnel issues.” November 20, 2006 Transcript, p. 17. Assistant Chief Brown testified that in that capacity he would forward this document via inter-office mail to the city’s Human Resources Department. November 20, 2006 Transcript, pp. 23-24. BACK TO TEXT
5 The respondent also cites Gaffney v. Stamford, 15 Conn. Workers’ Comp. Rev. Op. 257, 2219 CRB-7-94-11 (May 24, 1996). Gaffney also involved an untimely notice to the respondent of the claimant’s intent to seek benefits and is equally as inapposite to the facts in this case as Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995). BACK TO TEXT
6 Dr. Labarre was also deposed on August 9, 2006. BACK TO TEXT