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CASE NO. 4200 CRB-8-00-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 23, 2001
KAREN BERGIN (Dependent widow) of DONALD BERGIN, JR. (Deceased)
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION
The claimant was represented by Barry Guliano, Esq., Town Attorney for the Town of South Windsor, South Windsor Town Hall, 1540 Sullivan Avenue, South Windsor, CT 06074.
The respondent was represented by Matthew Levine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the February 24, 2000 Denial of the Claimant’s Motion to Reopen by the Commissioner acting for the Eighth District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant (dependent widow) has petitioned for review from the February 24, 2000 Denial of the Claimant’s Motion to Reopen of the Commissioner acting for the Eighth District. In that ruling, the trial commissioner denied the claimant’s request under § 31-315 to reopen the December 3, 1999 Finding and Dismissal which dismissed the claimant’s claim for § 31-306 widow’s benefits. In support of her appeal, the claimant argues that the trier failed to make any findings in his December 3, 1999 decision regarding the claimant’s claim for benefits under Chapter 568, and thus the trier should have granted her Motion to Reopen in order to rule upon this claim. We find no error.
We will first consider the respondent’s Motion to Dismiss, in which the respondent argues that the claimant failed to file an appeal within ten days following the issuance of the December 3, 1999 Finding and Dismissal. In the instant case, the claimant did not file an appeal from the December 3, 1999 decision, but instead filed a Motion to Reopen on February 7, 2000, which was denied on February 24, 2000 and appealed by the claimant on March 3, 2000. The respondent argues that the claimant has improperly attempted to circumvent the ten day appeal period by filing an appeal from the denial of the Motion to Reopen. The respondent relies on Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (Jan. 13, 2000), aff’d, 64 Conn. App. 301 (2001). In Prioli, supra, the claimant’s petition for review was filed within ten days of the denial of the claimant’s Motion to Open, but not within ten days of the memorandum of decision itself. Because the Motion to Open was filed within ten days of the memorandum of decision, however, the board held (in accord with Practice Book § 63-1(b)) that a new appeal period had commenced upon the issuance of the denial of the Motion to Open, and thus the appeal was timely.
In Prioli, supra, the board noted that in Matey v. Dember, 3153 CRB-5-95-8 (Jan. 10, 1997), aff’d in part and rev’d in part, 256 Conn. 456 (2001), “as no seasonable appeal from the initial award had been taken, the only matter properly before the CRB was whether the trier had abused his discretion in denying the motion to reopen.” Prioli, supra. Specifically, in Matey, supra, the Fund did not appeal from either of two Finding and Awards, but rather filed petitions for review from the denials of its Motions to Reopen which had been filed beyond the ten day appeal period. The board in Matey explained as follows:
Where, as here, an appeal from a final judgment has not been seasonably taken, ‘[c]laimed errors which might have been assigned on such an appeal are no longer open to review’ upon an appeal from a denial of a motion to open that judgment.” Id., quoting Crozier v. Zaboori, 14 Conn. App. 457, 462 (1988), citing Zingus v. Redevelopment Agency, 161 Conn. 276, 282 (1971). Thus, we must limit our focus on this appeal to the question of whether or not the commissioner abused his discretion in denying the Fund’s motions to reopen under § 31-315 C.G.S.
In the instant case, as in Matey, supra, we may only consider whether the trial commissioner abused his discretion in denying the claimant’s Motion to Reopen.
“Section 31-315 allows a trial commissioner to modify an award or an approved voluntary agreement where an injured employee’s incapacity has increased, decreased or ceased, or where the measure of dependence on account of which he is paid compensation has changed, or where changed conditions of fact have arisen which necessitate a change of the award.” Gary v. State/Dept. of Correction, 4208 CRB-8-00-3 (Jan. 4, 2001). The trial commissioner may also open and modify an award in the same manner as a judge of the superior court, i.e., in cases of accident, fraud, or mistake of fact. Marone v. Waterbury, 244 Conn. 1, 16-17 (1998). “Generally, the decision to open and modify an agreement or award under § 31-315 falls within the discretion of the trial commissioner, and this board will not disturb the decision unless the commissioner has arbitrarily reached an unreasonable result.” Chase v. Honeywell, Inc., 3717 CRB-1-97-11 (Jan. 28, 1999), citing Besade v. Interstate Security Services, 212 Conn. 441, 453 (1989); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541-42 (1992); Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997).
In the instant case, we cannot say it was unreasonable for the trial commissioner to decline the claimant’s Motion to Reopen. The claimant argued in support of her Motion to Reopen and now argues in her appeal to this board that the trial commissioner should have reopened his December 3, 1999 decision because he addressed only the claimant’s claim under § 5-145a but failed to address the claimant’s claim for benefits under Chapter 568. We disagree. In the December 3, 1999 Finding and Dismissal, the trier made the following findings:
4. The issues before the undersigned are whether the claimant is entitled to C.G.S. Section 31-306 dependency benefits under Section 5-142a 1 or under Chapter 568. (Emphasis added).
5. The claimant contends she is entitled to C.G.S. Section 31-306 benefits under the presumptions set forth in C.G.S. Section 5-142a or alternatively under Chapter 568 as the death arose out of and in the course of the decedent’s employment. The claimant seeks an award regarding same. (Emphasis added).
The trial commissioner further found that the decedent voluntarily retired on June 30, 1997, and began his second career working for another employer. On September 16, 1997, the decedent, who maintained an active lifestyle and regularly exercised, was jogging when he had a heart attack and died shortly thereafter at a local hospital. The claimant contended that because the decedent had accrued 77 days of vacation time when he retired on June 30, 1997, that therefore he continued to be employed for 77 days which includes September 16, 1997. The trier did not accept this argument, but rather found that the decedent was “not eligible for workers’ compensation benefits given his June 30, 1997 retirement, notwithstanding the 77 days of accrued vacation time.” Finding ¶ 16, citing Gorman v. Waterbury, 2 Conn. Workers’ Comp. Rev. Op. 17, 39 CRD-5-80 (May 20, 1983), no error, 4 Conn. App. 226 (1985). The trier thus dismissed the claimant’s widow’s claim as it is derivative in nature, and held that “the other issues litigated before the undersigned are therefore moot.” Finding ¶ 18.
A fair reading of the decision indicates that the commissioner dismissed both the claimant’s claim under § 5-145a and under Chapter 568. See Findings ¶ 4, 5 and 18. We have explained as follows:
In order to maintain a workers’ compensation claim under Chapter 568, a claimant must demonstrate that he has suffered a personal injury that arose out of and in the course of his employment. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505-506 (1998); § 31-284 C.G.S. The burden upon a claimant who meets the prerequisites of § 5-145a is somewhat less, as that statute grants to qualifying individuals “a rebuttable presumption of compensability if they suffer disability or death due to hypertension or heart disease.”
Capra v. State/Dept. of Correction, 3791 CRB-4-98-4 (April 27, 1999), quoting Dibenedetto v. State of Connecticut/University of Connecticut Health Center, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRD-6-89-5 (Jan. 3, 1991); see also Horn v. State/Dept. of Correction, 4177 CRB-3-00-1 (Feb. 22, 2001).
“‘The determination of whether an injury arose out of and in the course of employment is a question of fact for the trial commissioner.’” Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526 (1999), quoting Spatafore v. Yale University, 239 Conn. 408, 418 (1996).2 The “conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Kolomiets, supra, 526-27, quoting Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 623 (1998).
In the instant case, regarding the § 5-145a claim, the claimant does not dispute the trial commissioner’s application of Gorman v. Waterbury, 4 Conn. App. 226 (1985), in which the court held that § 7-433c does not apply where the claimant police officer did not “die or suffer any disability from the hypertensive condition while so employed .” Id. at 233. Regarding the Chapter 568 claim, it is undisputed that the decedent had voluntarily retired on June 30, 1997 and was not fulfilling any duties of his employment when he was jogging on September 16, 1997. The fact that the decedent had been paid for accrued vacation time does not serve to extend his period of employment in this regard.
We now turn to the claimant’s contention that decedent’s heart attack was caused by repetitive trauma, in that repeated work stress caused the decedent to sustain hypertension which in turn caused the decedent’s heart attack. The claimant contends that the medical evidence is uncontradicted that the decedent’s hypertension caused his heart attack. Significantly, however, the claimant overlooks that there is no medical evidence in the record which indicates with a reasonable degree of medical certainty that the decedent’s hypertension was caused by his employment activities. Thus, without any medical evidence to support this crucial link in causation, the Chapter 568 claim must fail. Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998)(per curiam) (in order to prove that myocardial infarction arose out of and in the course of employment, claimant must prove within reasonable degree of medical probability that work-related stress was a substantial factor), citing Thompson v. State of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 178, 180, 2206 CRB-6-94-11 (March 22, 1996); Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op. 163, 165, 972 CRD-3-90-1 (June 28, 1991); see also McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987).3
Accordingly, we find no error in the trial commissioner’s denial of the claimant’s Motion to Reopen.
Commissioners George A. Waldron and Stephen B. Delaney concur.
1 The reference to § 5-142a appears to be a harmless error, as the correct section is § 5-145a. BACK TO TEXT
2 The court in Kolomiets, supra, explained as follows: “It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. . . . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and circumstance of the accident.” Kolomiets, supra, 527-28, quoting Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93 (1997). “To establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place ‘(a) within the period of employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.’” Kolomiets, supra, 528, quoting Mazzone, supra, 793. BACK TO TEXT
3 The court in McDonough, supra, explained: “Heart stress cases differ only in degree from other compensation cases involving causation in myriad differing fact patterns. Only the factual nuances and difficulties of expert medical testimony distinguish such cases. In order to recover, the claimant must prove causation by a reasonable medical probability.” Id. at 118. BACK TO TEXT
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