CASE NO. 5471 CRB-1-09-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 16, 2010
MATTHEW P. JAMIESON
STATE OF CONNECTICUT/MILITARY DEPARTMENT
GAB ROBINS OF NORTH AMERICA
The claimant was represented by James Quinn, Esq., Quinn & Quinn, LLC, Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.
The respondent was represented by Lawrence G. Widem, Esq,. Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 5, 2009 Finding and Award of the Commissioner acting for the First District was heard December 18, 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. The respondent in this matter appeals from a Finding and Award granted to the claimant, who was employed as a firefighter by the state Military Department and by the Air National Guard facility at Bradley Airport. The trial commissioner concluded that the claimant had sustained a compensable cardiac injury while in the respondent Military Department’s employment, and was entitled to benefits pursuant to § 5-142 C.G.S. and § 5-145a C.G.S. The respondent argues that the evidence presented at the formal hearing would only support an award for an injury sustained while the claimant was in the employ of the federal government during an Air National Guard drill on September 10, 2006. We find the record would support the commissioner’s conclusion that the claimant’s cardiac disease was a progressive ailment sustained during the course of his employment of the Military Department, and that he had received a diagnosis of this illness prior to the September 10, 2006 incident which is the focus of the respondent’s attention. We therefore do not find the date of September 10, 2006 material to this claim, and find the Commission has jurisdiction over this claim. Accordingly, we affirm the Finding and Award and dismiss this appeal.
The trial commissioner found the following facts. Both parties had stipulated the claimant was among the class of workers entitled under § 5-145a C.G.S., which closely tracks the municipal heart and hypertension law. The claimant commenced working for the respondent in 1994 at age 26 and continued working there until he received a service related disability in 2007. The parties stipulated the claimant’s pre-employment physical revealed no evidence of heart disease, as the respondent would not have hired the claimant had such an ailment been identified prior to hiring him.
As a condition of his employment with the state Military Department the claimant was also an employee of the Air National Guard. The claimant worked 40 hours per week for the Military Department, while working one weekend per month and two weeks per year for the Air National Guard.
Two different Forms 30C were filed on behalf of the claimant. The first was filed on January 18, 2007 and identified a September 10, 2006 date of injury, stating the claimant suffered chest pain on that date and was subsequently treated for an irregular heartbeat. The respondent filed a Form 43 dated February 28, 2007 which denied the claim asserting the injury did not arise out of the claimant’s employment with the military department, and that on the date of injury the claimant suffered heat exhaustion while employed by the federal government. On June 29, 2007 another Form 30C was filed on behalf of the claimant. This form identified the injury as being in the form of repetitive trauma or occupational disease. The claimant was identified as having been diagnosed with atrial fibrillation and atrial flutter in an examination held on September 4, 2006, and cited the statutory provision under § 5-142 C.G.S. deeming such injuries compensable.
The respondent has placed great emphasis on the September 10, 2006 date cited in the Form 30C. The trial commissioner found, however, that the claimant and his counsel clearly identified at all points in the proceedings that the proximate cause of this claim was due to “the examination of the Claimant by Doctor [George W.] Moore on September 5, 2006.” Finding, ¶11. Dr. George W. Moore performed a “routine firefighter’s examination” on that date, cited in Claimant’s Exhibit A. This examination determined that as of that date the claimant was in atrial fibrillation. Dr. Moore notified the claimant and his primary care physician, and directed the claimant to consult a cardiologist. The claimant testified that following this examination he returned to work and notified his supervisor, Chief Robert Cross, that he had an irregular heartbeat. The claimant further testified Chief Cross sent the claimant home. Claimant’s Exhibit B included a report from the claimant’s primary care physician, Dr. Marc Robbins, which confirmed that the claimant had treated at “Occ. Med.” on September 5, 2006. Claimant’s Exhibit C included a report by Dr. Steven E. Lane, a cardiologist, who also confirmed the claimant was examined by Dr. Moore on September 5, 2006 and also referenced an EKG of that date “showing atrial fibrillation.” Finding, ¶ 15. The claimant has also treated with Dr. Aneesh Tolat of Arrhythmia Consultants of Connecticut, LLC. Dr. Tolat prescribed medications and atrial fibrillation ablation. He diagnosed the claimant with atrial flutter and paroxysmal atrial fibrillation. The commissioner found the records of Dr. Moore, Lane and Tolat credible and persuasive.
The various witnesses offered opinions as to work capacity. Dr. Moore and Dr. Lane opined that the claimant was totally disabled from his job as a firefighter; although Dr. Lane wrote on September 26, 2006 the claimant could return to his prior job. Dr. Lane however, advised in a July 27, 2008 report that the claimant was still totally disabled from firefighting duties, and that there were various periods in which the claimant was disabled from all work. The claimant did not offer written documentation of job searches, but testified that as of August 11, 2008 he had been actively trying to find work. The respondent did not have any light duty work for the claimant. The expert witnesses presented by the respondent, Dr. Arthur B. Landry, Jr. and Dr. Kevin J. Tally agreed that active fire fighting should, at a minimum, “be discouraged for this gentleman.” Finding, ¶ 29. Both physicians offered permanent partial disability ratings for the claimant. Dr. Landry found the claimant had a 30% permanent partial disability of the heart. Dr. Tally offered a 30% “whole person” disability rating. Dr. Landry specifically opined that the claimant’s activities on September 10, 2006 did not precipitate the claimant’s onset of atrial fibrillation. Finding, ¶ 23. Dr. Tally described the cause of the claimant’s ailment as “obscure and intrinsic to his own electrical dysrhythmia.” Finding, ¶ 28.
Based on these subordinate facts the trial commissioner concluded the claimant was diagnosed with heart disease, atrial fibrillation, on September 5, 2006. As the claimant’s pre-employment physical did not disclose any heart disease, the applicable statute, § 5-145a C.G.S. created a presumption that for hazardous duty workers such as the claimant’s heart disease was a compensable injury. The respondent did not present evidence that the claimant developed his condition prior to his employment with the state. The commissioner found the claimant a credible witness.
The commissioner found that the events of September 10, 2006 were not a “work injury” as defined in § 5-145a C.G.S. and were only a manifestation of the claimant’s previously diagnosed atrial fibrillation. The treatment for the events of that day were minimal compared with the significant treatment he underwent for atrial fibrillation. The commissioner finally found that the citation of the September 10, 2006 date in the Forms 30C was a “defect or inaccuracy” in the notice which pursuant to § 31-294c(c) C.G.S. bars recovery only if the respondent is prejudiced by the inaccurate date in the notice. Finding that the claimant and counsel provided “frequent and adequate notice to the State of Connecticut of the date under which the Claimant was proceeding” the trial commissioner found there was no prejudice to the respondent.
Since the medical evidence proffered by the respondent did not overcome the statutory presumption of compensability, the trial commissioner found the claimant should receive the 30% permanent partial disability rating offered by Dr. Landry. The trial commissioner also ordered the respondent to pay the claimant temporary total disability and temporary partial disability benefits in accordance with § 5-142a C.G.S.
The respondent filed a Motion for Articulation, a Motion to Set Aside Finding & Award, and a Motion for Reconsideration. All these motions were denied. They also filed a Motion to Correct. The trial commissioner granted only three of the respondent’s 29 requested corrections, and the granted corrections did not affect the result of the Finding and Award. The respondent has pursued this appeal.
The respondent has advanced numerous claims of error. They can be broken down into three forms of alleged error. The first group centers on whether the claimant’s claim for benefits was in error or prejudiced the respondent. This also centers on whether the actual date of injury was September 10, 2006 or the date of diagnosis, September 5, 2006.
The second group of alleged errors center on whether the claimant was a “lent federal employee” which in the respondent’s view, denies the claimant recovery. They also argue that awarding the claimant benefits when he may be entitled to federal benefits could constitute an impermissible double recovery. The third group of errors basically challenges the trial commissioner’s evaluation of the factual evidence presented. The respondent argues they successfully rebutted the presumption the claimant sustained a compensable injury. They also challenge the trial commissioner’s findings as to the claimant’s permanency rating and his work capacity.
We will deal first with the issues related to the date of injury, which we note occupied most of the oral argument before this panel. The respondent argues that since the claimant’s Form 30C cited a September 10, 2006 date of injury, that date must be the date of injury which was found by the trial commissioner. They note that on that date the claimant was working for the federal government and did sustain an injury at work. As the respondent views the case, these facts clearly establish that the State of Connecticut lacks jurisdiction over the injury, citing as authority Lopa v. Brinker International, Inc., 5166 CRB-6-06-11 (October 23, 2007), aff’d, 111 Conn. App. 821 (2008), aff’d, 296 Conn. 426 (2010).
We are not persuaded by this argument for a variety of reasons. First, the Lopa case was based on the issue of concurrent employment and the calculation of a wage rate pursuant to § 31-310 C.G.S. The claimant in Lopa was not deprived of her right to compensation by virtue of having concurrent federal employment. She was injured while working for an employer within our jurisdiction and received compensation for her injuries. She could not benefit, however, from utilizing the wages from her other employer, the federal government, as they are not within the jurisdiction of Chapter 568.
The respondent, therefore, must establish that the claimant’s injuries occurred while he was employed by the federal government and not by the state government to prevail on their jurisdictional defense. Therein lies their focus on the September 10, 2006 date of injury cited in the Form 30C. There is no dispute that claimant was working for the Air National Guard on that date and was forced to seek medical attention. That, however, does not end our analysis of this issue. The respondent’s argument ultimately fails for two reasons: a): we are satisfied that the defective date in the claim form could be remedied by testimony at the formal hearing and b): the nature of the cardiac disease claimed by the claimant was long developing and recognized prior to that date by the claimant and the respondent.
We had occasion to consider the claim statute, § 31-294c(c) C.G.S., at some length in Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007).1 We find Berry instructive in how the issues in the instant matter should be addressed. In Berry the claimant filed a Form 30C which did not properly identify the claim as being for survivors benefits under § 31-306 C.G.S. Upon examination of the record our panel concluded the respondent had sustained no prejudice from this defect, as they were defending the claim for survivor’s benefits. Since the statute specifically saved claims in the absence of prejudice to the respondent, we reversed the dismissal ordered by the trial commissioner, holding that the standard for this decision required “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.” Berry, supra.
The trial commissioner specifically found that the respondent was not prejudiced by the form of the notice. Finding, ¶ K. This is a finding of fact which we may not disturb unless it is unsupported by the evidence. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The commissioner had the opportunity to consider this evidence herself during the formal hearing. We particularly note that the claimant filed a second Form 30C during the course of the proceedings in an apparent effort to rectify any confusion as to the nature of the claim. The Form 30C filed by the claimant on June 29, 2007 clearly references a claim for “occupational disease or repetitive trauma” and references a date of injury of September 4, 2006.
As we point out in Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008), a claimant may put the respondent on notice as to the nature of the claim either before the commencement of the formal hearing or at the commencement of the formal hearing. In Goulbourne, the claimant had originally indicated in his claim form that he was seeking benefits under a single injury theory. At the commencement of the hearing, his counsel indicated that they were proceeding with evidence supportive of a repetitive trauma theory of recovery. We reversed the decision of the trial commissioner to dismiss the claim on jurisdictional grounds without considering whether the claim was timely under the alternative theory of recovery. We concluded in Goulbourne that the record demonstrated that the respondent was aware of the nature of the claimant’s theory, and therefore, was not prejudiced. In the present case, we believe the trial commissioner could reasonably have concluded that the second Form 30C placed the respondent on notice that the claimant was seeking benefits for repetitive trauma injuries or an occupational disease sustained prior to September 10, 2007. To that extent the two separate Forms 30C might have contained inconsistencies the claimant had the opportunity to redress this issue at the commencement of the formal hearing. We conclude that this did occur. Our conclusion is reinforced by the fact that the commissioner specifically noted that counsel for the claimant went on the record at the commencement of the hearing indicating he was seeking benefits as a result of the September 5, 2006 date of diagnosis, Finding, ¶ 11, which is in accord with Goulbourne, supra.
For the foregoing reasons, we believe the trial commissioner could have reasonably determined that the claimant’s date of injury was actually September 5, 2006 and not September 10, 2006.2 3
Reviewing the “totality of the evidence” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) we believe the trial commissioner could have reasonably concluded that prior to September 5, 2006 the claimant developed atrial fibrillation, it was diagnosed by a physician on that date, and that on September 10, 2006 the claimant exhibited a manifestation of this illness while working for the Air National Guard. This illness was not a cardiac event wherein a “single date of injury” was applicable such as the myocardial infarction in Discuillo v. Stone & Webster, 242 Conn. 570 (1997). Indeed, as we have pointed out, even for myocardial infarctions the situs and time of the injury is not dispositive of whether causation can be attributed to the employer. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). The question herein is whether the medical evidence was sufficient to satisfy the statutory requirements of § 5-145a C.G.S. The “plain meaning” of this statute requires only that “any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death. . . . ” is compensable. The evidence clearly established that prior to September 10, 2006 a “condition of impairment of health caused by hypertension or heart disease” existed. The plain meaning of the statute causes this condition to be presumed compensable, subject to rebuttal by the respondent. The respondent can point to no competent evidence attributing the cardiac injury to the events of September 10, 2006. We therefore, find that the claimant’s position that he properly filed this claim and the evidence supported his theory of recovery, persuasive.4
We now turn to the respondent’s jurisdictional defenses that the claimant was actually a federal employee, or in the alternative, he is precluded from seeking compensation until he exhausts federal remedies. We note that the trial commissioner made specific findings that the claimant spent the vast majority of his working time employed by the state Military Department. See Finding, ¶¶ 5 and 6. We also question whether the respondent can stipulate the claimant is within the scope of those employees covered by § 5-145a C.G.S. and then subsequently argue that he was not even employed by the state. Finding, ¶ 1. This stipulation appears to be in the form of a binding judicial admission of jurisdiction Nationwide Mutual Insurance Co. v. Allen, 83 Conn. App. 526 (2004), which cannot be withdrawn at a later date in the proceedings. The claimant also points out that on the issue of whether the claimant is a “lent federal employee” that the respondent failed to introduce evidence of the terms of the alleged agreement between the State and Federal governments for the trial commissioner’s consideration. Raising these issues in an appellate forum constitutes impermissible piecemeal litigation. Gibson v. State/Department of Developmental Services - North Region, 5422 CRB-2-09-2 (January 13, 2010).
The respondent offers a more substantial argument that since the claimant may be entitled to compensation from his federal employer that the possibility exists for an impermissible double recovery. McGowan v. General Dynamics Corp., 15 Conn. App. 615 (1988), aff’d, 210 Conn. 580 (1989). We note that due to the Lopa decision, we are unable to include the claimant’s earnings in the Air National Guard in calculating the claimant’s benefits. This would minimize the practical likelihood of a double recovery, and therefore leads us to find the respondent’s citation of Brown v. Bon Dental Lab, 6 Conn. Workers’ Comp. Rev. Op. 132, 594 CRD-7-87 (March 28, 1989) unpersuasive. Unlike McFarland v. Department of Developmental Services, 115 Conn. App. 306 (2009), there is no evidence on the record the claimant has already received full wages. The record does not reflect that the claimant has received a prior recovery, and the respondents offer no precedent wherein a determination as to compensability and medical treatment must be held in abeyance while issues of possible apportionment or set-off from federal benefits are resolved. We do not find McGowan or the other cases cited by the respondent preclude an award at this time. The respondent is entitled to seek additional proceedings in the event a subsequent federal award triggers a set-off obligation.
We now deal with the respondent’s attack on the substantive findings of the trial commissioner. 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), Berube, supra. Any dispute as to the weight and credibility of medical testimony must be resolved by the trial commissioner, who is the arbiter of such issues. O’Reilly, supra. The respondent argues that they presented sufficient evidence to rebut the presumption of compensability, and therefore, the burden of proof rested on the claimant. The mere presentation of evidence does not require the trial commissioner to find it probative and persuasive. The denial of the respondent’s Motion to Correct constitutes a determination on the evidence presented that the trial commissioner did not find it sufficiently weighty to rebut the statutory presumption of compensability.5 As we held in Horn v. State/Department of Correction, 4177 CRB 3-00-1 (February 22, 2001) “the trial commissioner must, of course, find this evidence sufficiently credible to meet the burden of persuasion before the statutory presumption can be . . . successfully rebutted.” Id.
The respondent also challenges the trial commissioner’s finding that the claimant is totally disabled. This constitutes a factual determination by the trial commissioner. Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007). Our review of the medical evidence presented clearly established the claimant was now unable to work as a firefighter. He testified that he had been unable to secure another form of employment. He also testified that he had not been offered light duty work. We conclude the trial commissioner had a sufficient basis to grant such an award.6
The respondent finally challenges the permanency rating issued to the claimant. We note that constitutes an attack on the trial commissioner for her reliance on evidence presented by the respondent’s expert witness, Dr. Landry. See Finding, ¶ M. The respondent challenges the methodology Dr. Landry employed to determine his impairment rating for the heart. We do not believe the means Dr. Landry employed to reach his rating were improper, and therefore, pursuant to Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003), we must defer to the trial commissioner’s evaluation of this evidence.
In reviewing the totality of this case, we note that in many respects this case closely tracks the issues in Salmeri v. State/Dept. of Public Safety, 4066 CRB-5-99-6 (August 9, 2000), aff’d, 70 Conn. App. 321 (2002), cert. denied, 261 Conn, 919 (2002). The Salmeri case dealt with many of the issues before this tribunal in the present case. In particular we note that in Salmeri this board extensively discussed the nature of atrial fibrillation as a compensable injury for hazardous duty personnel. We conclude that the gravamen of the respondent’s argument—that the September 10, 2006 incident should be deemed the “date of injury” for the claimant’s cardiac injury—is inconsistent with our analysis of this ailment in Salmeri. The disease for which the claimant sought compensation was clearly identified prior to the date of injury relied upon by the respondent. Stare decisis argues against the respondent’s position.7
We find no error, and affirm the Finding and Award. The appeal is dismissed.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 The relevant terms of ¶ 31-294c(c) C.G.S. are as follows: “No 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. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.” BACK TO TEXT
2 We note that the trial commissioner did not cite any evidence introduced by the respondent challenging the medical opinion of Dr. Moore that the claimant suffered atrial fibrillation as of September 5, 2006; nor does the respondent point to the evidence on appeal challenging this diagnosis. In light of the respondent’s lack of probative evidence that the claimant was not suffering a cardiac injury prior to September 10, 2006, we question whether finding the claimant was injured on this date and not a prior date would be violative of the precedent in Marandino v. Prometheus Pharmacy, 294 Conn. 564, 587-597 (2010) wherein an award must be based on probative evidence. BACK TO TEXT
3 The claimant testified that he had been sent to see Dr. Moore on September 5, 2006 by Chief Robert Cross. He further testified that he was informed that day of an irregular heartbeat and upon returning to work he informed Chief Cross of this condition. See August 11, 2008 Transcript, pp. 37-38. Finding, ¶ 13. The trial commissioner found the claimant credible and persuasive as to the issues regarding his diagnosis and injury. Finding, ¶ F. We may reasonably infer that the record reflects that the respondent’s physician and the claimant’s supervisor had knowledge of the cardiac condition prior to September 10, 2006. BACK TO TEXT
4 By the respondent’s logic, unless a cardiac event manifests itself in the form of physical distress during working hours it must be deemed either noncompensable, or in the alternative, the entity employing the claimant at that precise time it does manifest itself is solely responsible for the claim. The uncontroverted evidence before the commissioner was that the claimant spent a vast majority of his working hours in the employ of the state Military Department, and relatively minimal amount of time in the employ of the Air National Guard. Nonetheless, the respondent argues the Air National Guard must be solely responsible as the claimant did not miss work until September 10, 2006, when he was employed by the Air National Guard. We rejected such a locus related approach to cardiac injuries in Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) and will not apply such a standard in the present case. BACK TO TEXT
5 See Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), appeal pending, A.C. 31955. BACK TO TEXT
6 We note specifically that the trial commissioner determined that additional hearings would be required on the issue of the appropriate duration of temporary total and temporary partial benefits. Findings, ¶ I. If the respondent believes the claimant does have a work capacity at this time, or at some time in the past, they may present whatever vocational evidence they believe support their position. We are not persuaded the trial commissioner’s conclusion based on the record before her was in error. BACK TO TEXT
7 We uphold the trial commissioner’s denial of those corrections in the Respondent’s Motion to Correct which she denied. This motion sought to interpose the respondent’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT