Gary v. State of Connecticut/Department of Corrections

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Lisa Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, Hartford, CT 06106.

This Petition for Review from the March 8, 2000 Finding of the Commissioner acting for the Fifth District was heard August 25, 2000 before a Compensation Review Board panel consisting of Commissioners Leonard S. Paoletta, George A. Waldron, and Amado J. Vargas.

OPINION

LEONARD S. PAOLETTA, COMMISSIONER. The respondent has petitioned for review from the March 8, 2000 Finding of the Commissioner acting for the Fifth District. In that decision, the commissioner found that the respondent accepted liability for the claimant’s § 5-145a hypertension claim with an August 10, 1993 date of injury, and had paid indemnity and medical costs for several years without conducting an investigation regarding the injury. The trial commissioner thus denied the respondent’s Motion to Reopen pursuant to § 31-315, which motion was based upon the contention that the claimant’s date of injury was actually 1989. In support of its appeal, the respondent argues that the claimant’s notice of claim was untimely, and thus the trial commissioner did not have subject matter jurisdiction over the claim. We find no error.

The trial commissioner found the following relevant facts. On September 2, 1987, the claimant was employed by the respondent employer as a corrections officer. On October 21, 1987, pursuant to a physical examination, the claimant was found to meet the medical requirements for his position pending examination of chest x-rays. The claimant testified that prior to 1987 he was never diagnosed with high blood pressure, and that between 1987 and August of 1993 he did not have any heart or hypertension problems, and it was not until August 10, 1993 that he became aware of a condition requiring medication. The claimant further testified that for a three month period, possibly in 1989, he was treated for headaches and given Vasotec.

On August 10, 1993, while in charge of a cleaning crew of inmates, the claimant was exposed to chemical fumes which resulted in the claimant feeling dizzy, disoriented, and vomiting. The claimant was examined by Dr. Vega, who referred the claimant to Dr. Sherman, a cardiologist. The claimant treated with Dr. Sherman, who prescribed blood pressure medications. On August 20, 1993, the claimant was diagnosed with malignant hypertension and was admitted to the hospital. On August 20, 1993, the claimant provided a past history of hypertension. On November 8, 1993, the claimant filed a Notice of Claim (Form 30c) indicating hypertension with an August 10, 1993 date of injury. On October 25, 1993, the respondent filed a notice contesting liability. The claimant testified that he received workers’ compensation benefits up to the middle of 1997, with two or three interruptions when Form 36’s were filed, but that benefits were reinstated after hearings were held. Between December 7, 1993 and February 24, 1998, the claimant was paid $89,090.96 in indemnity benefits and $21,182.04 in medical payments.

From 1993 through October of 1997, Alexsis was the third party administrator handling the respondent’s claims, whereupon Berkley assumed this role. Records of the respondent indicate that pursuant to an informal hearing held on November 30, 1993, the claimant (who was not represented by counsel) indicated that he was pursuing his hypertension injury pursuant to § 5-145a, and that the respondent agreed to accept and reimburse his sick time, to pay indemnity benefits, and to issue voluntary agreements. (Finding ¶ 25). The person who represented Alexsis at this hearing testified that the claimant’s hypertension claim was accepted under § 5-145a and that a voluntary agreement was to have been issued. Voluntary agreements signed by both parties were submitted to the Workers’ Compensation Commission on April 15, 1996, but were rejected due to errors in the compensation rate. Pursuant to these voluntary agreements, the respondent paid the claimant a 25% permanent partial disability of the heart.

On May 26, 1994, Dr. Dougherty, a cardiologist, conducted an independent medical examination of the claimant at the request of the respondent. Dr. Dougherty opined that there is no straightforward association between the inhalation of chemicals and either chest pains or blood pressure. Furthermore, he opined that it is highly probable that the claimant’s blood pressure elevation was a pre-existing and long standing problem which was untreated, and suggested that old medical records be obtained. Pursuant to Dr. Dougherty’s opinion, the respondent filed a Form 36 which was not acted upon, and a subsequent Form 36 was filed on May 23, 1995 which was denied. In June of 1995, the respondent authorized surgery as arising from the claimant’s hypertension.

In July of 1997, the respondent became aware of medical records showing that the claimant was treated for a hand laceration at an emergency room, and that the admission records for this visit indicate that the claimant had a history of hypertension and was taking Vasotec. On July 18, 1997, the respondent filed a Form 36 stating that the hypertension claim had never been accepted and that recently discovered medical reports indicate treatment for hypertension in 1989. To the contrary, the trial commissioner in the instant case concluded that the respondent had accepted the claimant’s hypertension claim.

The trial commissioner found no evidence that either the respondent or its administrator had ever conducted an investigation, ordered an independent medical investigation, reviewed the August 20, 1993 medical records, or asked the claimant if he had been diagnosed or treated for hypertension prior to August 10, 1993. Furthermore, the trial commissioner found no evidence that the claimant suppressed, withheld, or mislead the respondent, and that the information found by the respondent was easily discoverable and did not constitute a “newly discovered or changed conditions of fact.” (Finding ¶ K). The trial commissioner concluded that as a result of the respondent’s lack of diligence and inattention to the investigation of this claim, the claimant relied to his detriment on the respondent’s actions and was not unjustly enriched. Thus, the trial commissioner concluded that the respondent was estopped from revoking its acceptance of the hypertension claim or seeking reimbursement.

In support of its appeal, the respondent contends that the claimant’s notice of claim was untimely based upon the trial commissioner’s finding that the claimant’s hypertension injury occurred in 1989, and that pursuant to § 5-145a the claimant had one year to file a timely notice of claim. The respondent thus argues that the trial commissioner lacked subject matter jurisdiction and should have dismissed the claim, citing Castro v. Viera, 207 Conn. 420, 428 (1988).

We agree that a late notice of claim implicates subject matter jurisdiction. See Keegan v. Aetna Life & Casualty Ins. Co., 42 Conn. App. 803, 806 (1996). In Cunningham v. Stamford, 3112 CRB-7-95-7 (Dec. 16, 1996), the board explained as follows:

Significantly, in Castro, supra, the court explained an earlier Supreme Court case, Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180 (1923), as follows:

Similar to the holding in Hayden, supra, in the case at hand the trial commissioner specifically found that the respondent failed to conduct even a rudimentary investigation, that the claimant did not withhold information, and that the claimant relied to his detriment on the respondent’s acceptance of the claim and was not unjustly enriched. We thus find no error in the trial commissioner’s conclusion that the respondent is estopped from revoking its acceptance of the hypertension claim or seeking reimbursement.

In further support of its appeal, the respondent contends that the trial commissioner erred in denying its Motion to Reopen pursuant to § 31-315 based upon misrepresentation, accident, fraud, or mistake, because the claimant did not disclose pre-existing hypertension. 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. 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). “The decision to open and modify a voluntary agreement falls within the discretion of the trial commissioner, and will not be disturbed by this board unless the trier has arbitrarily reached an unreasonable result.” Riedel v. F & F Concrete Corp., 3529 CRB-8-97-2 (July 24, 1998), citing 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 respondent’s motion to reopen.

Lastly, we will address the respondent’s contention that the trial commissioner erred in denying its Motion to Correct. In its Motion to Correct, the respondent sought numerous corrections to the findings, including adding findings that the claimant denied that he had been treated for hypertension in 1989, that the respondent attempted to conduct a timely independent medical examination, and that the respondent did not accept the claim. All of these requested findings involve an assessment of credibility on the part of the trial commissioner.

It is axiomatic that the trial commissioner is the fact finder, and his duty is to consider the testimony and exhibits in the record, assess their credibility, and draw inferences and legal conclusions that are based on his impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This standard applies even where evidence appears to be uncontradicted. Pallotto, supra. When the trier reviews a Motion to Correct, he must evaluate the proposed changes in that same capacity, and he is not required to grant corrections that would not affect the outcome of the case. Id. This board may not retry the matter or independently appraise the evidence underlying the proposed corrections on review. Id. On appeal from a commissioner’s decision, the factual findings may be disturbed only if they have no basis in the evidence, or if they omit undisputed, material facts. Webb, supra, 71. The legal conclusions drawn by the trier also 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. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra. In the instant case, we find no error in the denial of the respondent’s Motion to Correct.