Cislo v. City of Shelton

The claimant was represented by David J. Morrissey, Esq., 203 Church Street, Naugatuck, CT 06770.

The respondent was represented by James T. Baldwin, Esq., Cotter, Cotter and Sohon, P.C., 500 Boston Post Road, Milford, CT 06460; James T. Baldwin, Esq., Coles, Baldwin & Craft, LLC, 1200 Post Road East, Westport, CT 06880

This Petition For Review from the January 30, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent City of Shelton has petitioned for review from the January 30, 1995 Finding and Award of the Commissioner acting for the Fourth District. They are appealing from the commissioner’s decision that a letter the claimant sent to the Chief of Police satisfied the § 31-294c C.G.S. notice requirement. After careful review, we reverse the trial commissioner’s decision.

The trial commissioner found that the claimant discovered on December 5, 1989, that he suffered from hypertension, and began immediate treatment. The respondent did not pay for that treatment. The claimant sent a letter to the Shelton police chief on January 8, 1990, informing him of the ongoing treatment and asking him to take “any necessary steps” pursuant to the letter. The commissioner found that the claimant’s hypertension was an occupational disease for which a claim needed to be filed within three years of the injury under § 31-294 [now § 31-294c].1 Section 31-307 [now § 31-275(5)] provides that the date of injury for occupational disease is the date of total or partial incapacity to work. The commissioner reasoned that, though the claimant has not suffered any incapacity from work and thus there has been no technical date of injury, there was an injury because a manifestation of symptoms occurred on December 5, 1989. He thus ruled that the claimant’s letter to the chief of police provided timely notice of injury, and the respondent was ordered to pay benefits.

The respondent contends that the claimant did not file a timely written notice of claim as required by § 31-294 and that his hypertension is thus not compensable. See Janco v. Fairfield, 39 Conn. Sup. 403, 406 (1983) (Section 31-294 procedure is followed for § 7-433c hypertension claims). The notice statute provides that “[n]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within . . . three years from the first manifestation of a symptom of the occupational disease . . . . Such notice may be given to the employer or any commissioner and shall state, in simple language, the date . . . of the first manifestation of a symptom of the occupational disease and the nature of such disease, . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” Failure to file timely notice is excused “if (1) a hearing procedure is seasonably set in motion, (2) a voluntary agreement is reached and submitted by the parties or (3) medical or surgical care for the injury is supplied by the employer within the applicable time.” DeLeon v. Jacob Bros., Inc., 38 Conn. Supp. 331, 336 (1981). The claimant does not allege that any of those exceptions applies, and it is manifest that he did not strictly comply with § 31-294’s notice requirements.

Absent strict compliance with § 31-294, substantial compliance may still exist if the claimant’s submitted documents succeed in accomplishing the statute’s purpose. See Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 4, 1373 CRD-2-92-1 (Jan. 5, 1994). The purpose of § 31-294 is to ensure that an employer is aware that an employee has sustained a potentially compensable injury, and that such a person is claiming or proposes to claim workers’ compensation benefits. Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303, cert. denied, 225 Conn. 916 (1993). Consistent with the remedial purpose of the Workers’ Compensation Act as a whole, the CRB has held that notice need not be drafted with absolute precision, so long as the notice content requirements of § 31-294 have substantially been met under the totality of the circumstances. Hayden-Leblanc, supra, 4-5.

In this case, the claimant’s January 1990 letter to the police chief stated: “Attached is a report from Dr. Mathias, my doctor, addressing to the fact I am being [treated] for hypertension and am on medication. Make this information part of my medical record and take any steps necessary pursuant to this information.” (Claimant’s Exhibit C). No other documents were filed with the employer. Although the letter acknowledges his hypertension, neither it nor the attached medical report gives any indication that the claimant was seeking to exercise his rights under the Workers’ Compensation Act or § 7-433c. The claimant could just as easily have been seeking disability retirement benefits, or no benefits at all.

We recently held in a similar case that reporting an injury to one’s employer is not the same as filing a workers’ compensation claim. Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 250, 1713 CRB-4-93-4 (April 17, 1995). Unless it is clear that a claim is being pursued, an employer cannot be expected to have reasonable notice that an investigation of the claim should be commenced. The instant claim is similar to Otero insofar as such information was not provided to the employer. Accordingly, we hold that the claimant’s letter to the police chief was insufficient to constitute adequate legal notice of his hypertension claim under § 31-294.

The trial commissioner’s decision is reversed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 Section 7-433c does not presume hypertension to be an occupational disease; instead, such a conclusion must be supported by evidence. Zaleta v. Fairfield, 38 Conn. App. 1, 6-7 (1995). The commissioner’s finding that the claimant’s hypertension was an occupational disease was not challenged in this case by the respondents, and need not be questioned here. BACK TO TEXT