Bond v. Town of Stratford

The claimant was represented by James Baldwin, Esq., Coles, Baldwin & Craft, L.L.C., 1261 Post Road, P. O. Box 577, Fairfield, CT 06430.

The respondent was represented by George W. Boath, Esq., Zanella, Gilardi & Boath, 1129 Essex Place, Stratford, CT 06615.

This Petition for Review from the December 13, 1999 Finding and Award of the Commissioner acting for the Fourth District was heard August 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The self-insured respondent has petitioned for review from the December 13, 1999 Finding and Award of the Commissioner acting for the Fourth District. On appeal, it argues that the trier erred by finding that the claimant had filed a timely notice of claim, and by finding that his heart and hypertension condition arose out of and in the course of his employment with the respondent town. We affirm the trial commissioner’s decision.

The trier found that the claimant began his employment with the respondent Town of Stratford in 1973 as a janitor at the local sewage treatment plant. After three months, he was promoted to the job of “roving operator,” which he performed for the next twenty-four years. This position required the claimant to engage in a continual “walking tour” of the sewage facility so that he could monitor its various functions. Findings, ¶ 6. He regularly delivered quart- and gallon-sized water samples to the laboratory for testing, and was frequently required to move fifty-pound bags of chemicals, clear debris from the floors, and/or wash down equipment and various portions of the building. Regardless of the conditions outdoors, his patrol ranged across six separate buildings, and he had to climb, squat, twist, stoop, and adopt other awkward postures to complete his assignments. He primarily worked third shift (and double shifts) until January 1997, when he was switched to daytime hours and ceased putting in regular overtime.

The claimant’s medical history is noteworthy. He has suffered from diabetes mellitus since 1978, and is insulin-dependent. On March 20, 1991, he was hospitalized with a cerebral vascular accident (CVA) after experiencing weakness in his arm at the close of his work shift. He returned to full duty three months later, and resumed working his accustomed hours. He was subsequently diagnosed with high blood pressure, and placed on anti-hypertension and cholesterol reduction medications. In March 1995, an echocardiogram revealed that the claimant had suffered a mild myocardial infarction at some unknown point in time after 1991.

At the respondent’s request, the claimant was examined by a cardiologist, Dr. Steremberg, to whom the claimant reported in 1997 that he had “fully recovered” from his 1991 stroke. Findings, ¶ 21. Dr. Steremberg did not believe that the claimant’s work activities with the town had contributed to the aggravation of his heart and hypertension condition. He noted that the claimant’s heart function had actually improved since 1991, according to a comparison of echocardiograms. The doctor also said that the records of the claimant’s treating physician, Dr. Urciuoli, showed that he had neglected to follow his doctor’s prescription for diabetes, hypertension, and high cholesterol medications.

However, the trier did not rely on this opinion. She instead relied on the opinion of Dr. Urciuoli, who opined that the claimant’s employment as a laborer for 20 years substantially contributed to the progression of his hypertension and cardiovascular disease. Though the claimant did not prove that his condition should be viewed as an occupational disease as described in § 31-275(15), he was able to persuade the trier that it was akin to a claim for repetitive trauma, to which he continued to be exposed until his disability retirement on August 7, 1998. As the claimant’s notice of claim for compensation was filed on February 6, 1997, the commissioner found that it was timely, and awarded him 260 weeks of specific indemnity benefits as per § 31-308(b).1 The respondent has appealed that decision to this board, challenging the timeliness and sufficiency of the claim notice, the characterization of this injury as repetitive trauma, and the finding that the claimant’s condition arose out of and in the course of his employment.

Because each of the respondent’s claims of error depends upon the notion that the trier of fact incorrectly identified the nature and cause of the claimant’s injury, we will begin our analysis by reviewing her finding of compensability. In accordance with Dr. Urciuoli’s March 12, 1998 letter to the claimant’s attorney (Claimant’s Exhibit H), the trier found that “[t]he claimant’s entire 25 year employment with the Town of Stratford as a roving operator was a substantial contributing factor in the progression of his heart and hypertension condition.” Findings, ¶ O. The respondent strives to undo this finding and its legal consequences by demonstrating that the claimant’s condition is either attributable to the stroke and hypertension symptoms he experienced in 1991, or the heart attack he suffered prior to March 1995. The appellant urges us to compare Dr. Urciuoli’s reports with Dr. Steremberg’s testimony, in which non-work-induced causes for the claimant’s heart and hypertension condition are identified. Brief, 15.

We remind the respondent that the power and duty of finding the facts in a workers’ compensation case rests with the trial commissioner, which includes the power to evaluate and choose among conflicting medical evidence in order to determine the cause and origin of a claimant’s injury. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 192, 195 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may not disturb the trier’s findings on review unless they are without basis in the evidence, or unless undisputed material facts have been omitted from the findings. Pyrdol v. General Dynamics/Electric Boat, 3504 CRB-2-96-12 (Nov. 9, 1998). To that end, as long as the substance of a doctor’s opinion is based upon a reasonable probability rather than mere speculation or conjecture, the trier of fact may rely on that diagnosis as an evidentiary foundation for her decision. Struckman v. Burns, 205 Conn. 542, 554-55 (1987).

Evidently, the trial commissioner rejected the testimony of Dr. Steremberg in favor of Dr. Urciuoli’s opinion in determining causation. In his March 27, 1997 report, Dr. Urciuoli attributed the claimant’s permanent heart damage to hypertension, coronary artery disease, and diabetes, and observed signs of a previous heart attack. He stated that the etiology of the claimant’s heart disease involved “multiple factors,” and was “reasonably certain” that some of these factors included workplace stressors, noting that “physical stress such as heavy lifting or working in cold weather can precipitate heart attacks and raise blood pressure.” Claimant’s Exhibit B.

Contrary to the respondent’s exhortations, we do not believe that this diagnosis is stated with an insufficient degree of certainty, despite the doctor’s acknowledgment that other stressors probably contributed to the claimant’s condition as well. Dr. Urciuoli does not hesitate in making this diagnosis, and the respondent did not summon him to the witness stand for cross-examination. Keeping in mind that there are no “magic words” that elevate a medical opinion from conjecture to reasoned belief, a doctor’s unequivocal designation of a particular agent as a “substantial factor” in the development of a particular malady has been held to be sufficient to establish probable causation within the meaning of the Workers’ Compensation Act. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999). Here, we see no obvious inconsistencies in Dr. Urciuoli’s reports. It does not confound common sense to imagine that nightly and often strenuous physical activity could be a substantial cause of heart trouble, and that negative effects from such trauma could accrue for several years beyond the date of a claimant’s stroke or mild myocardial infarction. Of course, many jobs entail a considerable degree of physical exertion; it remains incumbent upon an employee seeking compensation to prove that his workplace activities have contributed to the development of a physical malady, such as heart disease. The claimant here was able to produce evidence that demonstrated this causal connection to the satisfaction of the trial commissioner.

Though Dr. Steremberg’s testimony undoubtedly contradicts the diagnosis of Dr. Urciuoli, the trier was not required to give any credence to it. There is no inherent reason why Dr. Steremberg’s interpretation of electrocardiograms and the claimant’s medical history should be more plausible than his colleague’s interpretation as a matter of law. This board does not have the authority on appeal to override the trial commissioner’s credibility assessments by declaring that Dr. Steremberg’s analysis is either uncontroverted or incontrovertible. Pallotto, supra. We thus have no cause to overturn the trier’s finding that the claimant’s medical condition was due to repetitive trauma over the course of his 25 years of employment with the respondent, rather than to specific incidents that occurred more than one year before February 6, 1997. See Pyrdol, supra.

The respondent also contends that the February 6, 1997 notice sent by the claimant to the respondent and to this commission was insufficient to satisfy the filing requirements of § 31-294c(a). Under this statute, a claimant who wishes to pursue a compensation claim must file a written notice of claim within one year of the date of his accident or within three years of the first manifestation of a symptom of his occupational disease. In the case of a claim for repetitive trauma, the trier of fact is required to decide whether a claimant’s injury more closely resembles an accident or an occupational disease in order to determine whether the one-year or the three-year statute of limitations applies to his claim for jurisdictional purposes. Discuillo v. Stone & Webster, 242 Conn. 570, 580 (1997). Here, the trier found no credible evidence that the claimant’s heart condition and hypertension were a “natural incident” of his occupation, and determined that the instant claim was not one for occupational disease. Findings, ¶ 34. The trier thus correctly applied the one-year statute of limitations to this claim.

As for the text of the claim notice, it states in relevant part, “Please be advised that Randolph Bond . . . hereby gives the Town of Stratford notice of his claim for benefits under Connecticut General Statute Section 7-433c (heart and hypertension) . . . . Said benefits are claimed to have resulted from repetitive trauma and as Mr. Bond continues his employment, it is claimed the repetitive trauma also continues.” According to the respondent, these words are inadequate because, while the trier found that repetitive trauma was a “substantial factor in the progression of his heart and hypertension condition” (emphasis added), the notice simply purports to make a “heart and hypertension” claim on the claimant’s behalf. This omission was prejudicial in the eyes of the respondent, as it asserts that it would have investigated this matter differently had the notice been more precise regarding “progression.”

Section 31-294c(c) states, “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.” However, every alleged inaccuracy is not a fatal defect. Cases interpreting § 31-294(a) explain that a claimant’s Form 30C notice of claim need only be stated in “simple language,” consistent with the legislature’s intent to keep the process of initiating a claim “simple and accessible to lay persons.” Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 610 (2000); see also, Collins v. West Haven, 210 Conn. 423, 431 (1989) (failure to specifically cite § 7-433c in heart and hypertension claim notice did not preclude claimant from seeking benefits pursuant to that provision); DeMello v. Cheshire, 3633 CRB-8-97-6 (Aug. 26, 1998) (CRB held that a claim notice citing § 7-433c was not automatically insufficient to establish a Chapter 568 claim, as ignorance/prejudice under § 31-294c(c) would also have to be shown by employer on remand). The combination of a First Report of Injury (Form 15) and a cover letter have been held to constitute a sufficient written notice of claim. Funaioli v. New London, 52 Conn. App. 194 (1999). In fact, where an employer fails to contest liability in a timely manner, a commissioner may go so far as to grant a motion to preclude that employer from contesting liability as long as the notice was sufficient to allow the employer to make a timely investigation. Russell, supra, 612.

Nevertheless, the respondent here alleges that the omission of the “progression” concept in the claimant’s notice was a defect so severe that it should prevent him from maintaining his action. Given the remedial purpose of the Workers’ Compensation Act, this is difficult claim on which to prevail. Funaioli, supra, 197-98; White v. General Electric Co., 3132 CRB-6-95-7 (Oct. 16, 1996). Not only would the application of such a strict standard run contrary to the “simple language” doctrine of cases like Russell, supra, and Menzies v. Fisher, 165 Conn. 338 (1973), but as a matter of common sense, it is hard to envision that the claimant should have been expected to anticipate that a distinction would be made in the trier’s findings between the onset of a heart and hypertension claim and the progression of that same claim. Both, after all, are compensable. Plus, it would seem logical that, in any heart and hypertension case that was being pursued under Chapter 568, a respondent would investigate both the origin and the possible aggravation of a claimant’s symptoms. We decline to speculate that this small discrepancy in terminology between the claimant’s notice and the trier’s ultimate description of his compensable injury was prejudicial to the appellant’s defense of this claim. The trier did not find that notice was inadequate, and there is evidence to suggest that this was the correct result. We therefore must affirm. Funaioli, supra.

Briefly, we note that the respondent cites Riccitelli v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 138, 2090 CRB-3-94-7 (Jan. 18, 1996) in support of its contention that the claimant should have filed notice of his hypertension claim when he began taking prescription medication for it shortly after his stroke in March 1991. Riccitelli, however, is distinguishable. The claimant in that case waited until his appeal before he first raised the argument that the statute of limitations for his filing of a § 7-433c claim should be extended on the ground that his hypertension constituted repetitive trauma. This board thus declined to consider that argument in detail. Further, there was no evidence in Riccitelli that his hypertension was causally related to his employment, nor was there evidence that he was exposed to repetitive trauma during employment. The instant case is markedly different, as the claimant’s condition was found to be a compensable repetitive trauma injury. Riccitelli is therefore inapposite.

The trial commissioner’s decision is hereby affirmed. Pursuant to § 31-301c(b), the respondent is required to pay interest on the portion of the claimant’s benefits, if any, that was due under the award but remained unpaid pending the resolution of this appeal.

Commissioners Leonard S. Paoletta and Amado J. Vargas concur.

1 This ruling obviated the trier�s need to decide whether the respondent was estopped from contesting liability by virtue of its previous decision to grant the claimant a disability pension. BACK TO TEXT