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CASE NO. 1265 CRD-5-91-8
COMPENSATION REVIEW BOARD/DIVISION
WORKERS’ COMPENSATION COMMISSION
MAY 14 , 1993
STATE OF CONNECTICUT DEPARTMENT OF CORRECTIONS
The claimant was represented by Karen Souza, Esq., Alan E. Silver, Esq., both of the Law Offices of Alan E . Silver, P.C., 275 Orange Street, New Haven, CT. 0651.
The respondent was represented by Kathleen Smith, Es q., and Ernie F. Walker Walker, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, C T 06101-0120.
This Petition for Review from the July 26, 1991 Finding and Dismissal of the Commissioner for the Fifth District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman, Jesse Frankl and Commissioners Gerald Kolinsky and James J. Metro.
JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 26, 1991 Finding and Dismissal of the Commissioner for the Fifth District. In that Finding and Dismissal the trial commissioner denied the claimant’s claim for benefits due to hypertension and a cerebrovascular accident (stroke).
The pertinent facts are as follows. The claimant was employed by the State of Connecticut, Department of Corrections commencing in April, 1972. On or about August 18, 1989 the claimant suffered a stroke. The trial commissioner found that the claimant’s medical history reflected claimant’s elevated cholesterol levels, poor control of his hypertension, cigarette smoking and evidence of peripheral vascular disease. There was also evidence before the trial commissioner in which Dr. David Stair, M.D. provided his opinion that the claimant’s stroke was caused by the aforementioned factors and not stress as alleged by the claimant. See May 14, 1991 Deposition of Dr. David Stair. (Respondent’s Exhibit A).
The claimant contends that the rebuttable presumption provided in Sec. 5-145a should be applied to this claim and in the alternative, that he was entitled to benefits under Chapter 568. Sec. 5-145a provides:
Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a member of... state personnel engaged in guard or instructional duties in the Connecticut Correctional Institution, who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. Any such employee who began such service prior to June 28, 1985, and was not covered by the provisions of this section prior to said date shall not be required, for purposes of this section, to show proof that he successfully passed a physical examination on entry into such service.
The trial commissioner found that the claimant was required to show proof that he successfully passed a physical examination on entry into his State service before the rebuttable presumption afforded in Sec. 5-145a could be applied. The trial commissioner then found that the claimant failed to provide such proof and proceeded to consider the merits of claimant’s claim under Chapter 568. The trial commissioner concluded that the claimant failed to sustain his burden of proof as to a claim under Chapter 568.
The following issue for review was whether the trial commissioner erred in failing to find the claimant was entitled to the presumption of Sec. 5-145a and thus, entitled to benefits. As part of his appeal, the claimant filed a Motion to Submit Additional Evidence in which he sought to introduce the results of the claimant’s 1972 physical examination conducted in relation to his employment. Claimant’s counsel contends in his brief that the results of claimant’s 1972 physical examination were in the sole care and custody of the respondent, although at oral argument it was conceded that the examination’s results could not be located by the respondent.
Assuming arguendo, that the claimant did indeed prove his eligibility to come within the class of persons entitled to invoke the rebuttable presumption set out in Sec. 5-145a, the evidence and the findings of the trial commissioner clearly indicate that the respondent overcame the statute’s rebuttable presumption. As this tribunal noted in Dibenedetto v. State of Connecticut, 9 Conn. Workers’ Comp. Rev. Op. 1, 862 CRD-6-89-5 (1991), Sec. 5-145a does not provide a conclusive presumption as is provided to the class of persons who come within the ambit of persons entitled to benefits pursuant to Sec. 7-433c. The rebuttable presumption provided in Sec. 5-145a “simply shift[s] the initial burden of persuasion . . . [The presumption] cease[s] to have any effect once the respondent employer presents evidence to contest compensability.” Dibenedetto, supra at 3.
In the instant case, the respondent presented evidence which contested the compensability of the claimant’s claim. Thus, even if the claimant had the opportunity to present the evidence as to claimant’s physical examination upon hiring, the issue is moot. The respondent’s evidence contesting compensability clearly rebutted the presumption provided in Sec. 5-145a.
Finally, whether the claimant was entitled to benefits notwithstanding any issue as to Sec. 5-145a’s presumption of compensability is a factual determination to be made by the trial commissioner. We will not disturb the conclusions of the trial commissioner where, as here, they are supported by evidence, are not contrary to law or based on unreasonable or impermissable factual inferences. Fair v. People’s Savings, 207 Conn. 535 (1988).
We therefore affirm the July 26, 1991 Finding and Dismissal of the Commissioner for the Fifth District.
Commissioners Gerald Kolinsky and James J. Metro concur.
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