Mattson v. City of New London

The claimant was represented by Nathan J. Shafner, Esq., Embry & Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the August 13, 2003 Finding and Award of the Commissioner acting for the Second District was heard March 19, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, City of New London and Connecticut Interlocal Risk Management Agency, have appealed from the August 13, 2003 Finding and Award of the Commissioner acting for the Second District.1 We affirm the decision of the trial commissioner.

The pertinent facts as found by the trial commissioner are as follows. In 1968 the claimant successfully passed a pre-employment physical examination which failed to reveal any evidence of hypertension or heart disease. He was subsequently hired as a regular member of the City of New London’s municipal police department. In September 1976 the claimant experienced symptoms relating to high blood pressure and was diagnosed with hypertension. The claimant took prescribed blood pressure medication since his hypertension notice through the date of the formal hearing. On March 16, 1978, the claimant filed a Notice of Claim for benefits as a result of hypertension or heart disease noting an August 1976 injury.

The claimant treated with his family physician, Dr. Jay A. Graves who referred the claimant to Dr. Donald Rocklin, a cardiologist. Dr. Rocklin initially evaluated the claimant on or about January 29, 2001. Dr. Rocklin did not believe the claimant had obvious manifestations of heart disease at that time, however, he recommended that the claimant undergo thallium stress testing which the claimant underwent on February 1, 2001. On April 20, 2001 Dr. Rocklin issued a report which provided the claimant with separate permanent partial disability ratings for his heart disease and his hypertension.

On November 5, 2001 the claimant filed a request for an informal hearing to discuss the issues of permanent partial disability, entitlement to medical care and treatment, and settlement issues. Attached to this hearing request was Dr. Rocklin’s April 20, 2001 medical report. This hearing request did not reference a specific date of injury. Pursuant to the request, an informal hearing was scheduled on January 17, 2002. The hearing notice referenced an August 1, 1976 heart injury and cited issues of medical treatment, settlement discussion and permanent partial disability/MMI. Subsequently, a hearing was scheduled on February 26, 2002 for the same date of injury, body part and issues.

On June 12, 2002 the claimant filed a Notice of Claim alleging an April 20, 2001 heart injury due to coronary artery disease. The claimant continued to work for the respondent-employer as a police officer until his retirement on June 22, 2002. Dr. Rocklin testified via deposition that the claimant was diagnosed with coronary artery disease on February 1, 2001 and in the doctor’s July 24, 2002 report he indicated that in 1976 or 1977 the claimant did not exhibit any signs of coronary artery disease.

The trial commissioner dismissed the claimant’s hypertension claim as untimely, however, he found the claim for heart disease was timely and compensable under § 7-433c C.G.S.2 The trial commissioner determined that the claimant’s date of injury in respect to his coronary artery disease was February 1, 2001. The trier determined, “[p]ursuant to Section 31-294c(c) C.G.S. the November 5, 2001 written request for a hearing coupled with the April 20, 2001 report from Dr. Rocklin is sufficient to put the respondents on notice of a claim for compensation as a result of coronary artery disease and such written request for a hearing was made within one year from the February 1, 2001 date of diagnosis of the coronary artery disease and within one year from April 20, 2001 rendering the claimant’s claim for compensation as a result of coronary artery disease timely.” Finding, ¶ J.

The respondents have appealed the Finding and Award. It is the respondents’ contention that the claimant’s hypertension was a substantial factor which caused his coronary artery disease. In the respondents’ view the fact that the claimant’s hypertension claim was untimely necessarily means that the coronary artery claim that stemmed from the hypertension was untimely as well.

This board recently addressed this issue in Mayer v. East Haven, 4620 CRB-3-03-2 (March 3, 2004). In Mayer, the issue on appeal was whether a claimant was precluded from pursuing a § 7-433c claim because he failed to give the respondents timely notice of his prior hypertension diagnosis. The respondents in that case contended that the hypertension was the substantial cause of the later diagnosed heart disease and for this reason the heart disease claim was time-barred. The board in Mayer looked specifically at the language of § 7-433c which states that a claim under the statute may be made if the claimant “suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease.” (emphasis added). We ultimately held that “[t]he statute does not in itself create a bar for collecting benefits for one of the two ailments when a claimant has previously suffered from the other. Although related, hypertension and heart disease are separate maladies.” Mayer, supra. The board in Mayer, explained that a trier could make a factual finding that hypertension was a separate injury from a later diagnosed heart disease if the record in the case supported such a finding.

In this case the record supports the trial commissioner’s factual finding that the claimant did not have coronary artery disease when he was diagnosed with hypertension in 1976. Dr. Rocklin testified at deposition that the claimant was not diagnosed with coronary artery disease until February 1, 2001. Here, we are not persuaded that there is any reason to change our reasoning in Mayer, supra. The trier’s finding is reasonably supported by the evidence in the record.

The respondents further contend that the trial commissioner erred when he determined that the claimant’s date of injury on the coronary artery claim was February 1, 2001 because in the respondents’ view this necessarily meant that the trier concluded that the coronary artery disease was an occupational disease for which there was no evidence in the record to support. We find this argument unpersuasive as well.

The procedure for giving notice of a § 7-433c claim is the same as under Chapter 568. Pearce v. New Haven, 76 Conn. App. 441, 448 (2003), cert. denied, 264 Conn. 913 (2003); Peck v. Somers, 4640 CRB-1-03-2 (March 5, 2004). The claimant must provide notice of the claim and injury to the respondent pursuant to § 31-294c C.G.S. Zaleta v. Fairfield, 38 Conn. App. 1, 6 (1995). Section 31-294c provides that a notice of a claim should be filed within one year of the date of an accidental injury or within one year from the last incidence of exposure to repetitive trauma.

We agree with the respondents that the claimant has not offered evidence to establish that the claimed heart disease is an occupational disease which would have made notice due within three years of the first manifestation of that disease; therefore, we must presume that the one-year statute of limitations for accidental injuries and repetitive trauma is applicable. See Zaleta, supra, 7.

Section 7-433c is bonus legislation. Zaleta, supra, 5; Bergeson v. New London/Police Department, 4489 CRB-2-02-2 (February 21, 2003), aff’d, 269 Conn. 763 (2004). It provides compensation to those who qualify without requiring the claimant to prove that the disease arose out of the course of his or her employment. Salmeri v. Department of Public Safety, 70 Conn. App. 321, 337 (2002). We have previously held that the disease of hypertension becomes a disability pursuant to § 7-433c when it requires medical care and prescription drugs. See, Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000); Tarzia v. Stamford, 3409 CRB-7-96-8 (March 18, 1998). Here, there was no specific injury that could be definitely located by time or place because the claimant’s physician diagnosed the claimant’s heart disease before it elevated to the level of a heart attack. There is no evidence the claimant was made aware that he was exhibiting symptoms of heart disease before the heart disease was actually diagnosed through the thallium stress testing done on February 1, 2001. The claimant’s physician, Dr. Rocklin, did not believe that the claimant had obvious manifestations of coronary heart disease until that test was performed. Therefore, it seems reasonable to use the claimant’s date of diagnosis, which was the first time the claimant could have been aware of his condition, as the date of injury for the claim.

Section 31-294c provides several exceptions to the notice of claim requirement, one of which applies when “there has been a hearing or a written request for a hearing” within one year of the date of the injury or within three years of the date of the first manifestation of symptoms of the occupational disease. Here, the commissioner found that on November 5, 2001 the claimant requested an informal hearing. Dr. Rocklin’s April 20, 2001 report was attached to this request. This report specifically delineates two separate injuries. Clearly, the respondents were then put on notice that the claimant was making a claim for both of these injuries at that time. The respondents are not contesting that there was evidentiary support for the trial commissioner’s finding that the claimant’s coronary artery disease was diagnosed on or about February 1, 2001. Respondents’ Brief. The November 5, 2001 hearing request was therefore made within one year of the coronary artery disease diagnosis. The respondents assert, however, that the claimant’s hearing request was not adequate to meet the hearing request exception under § 31-294c because it failed to specify the date of the accident. The respondents point out that the notices issued for the informal conferences that were held as a result of this request list a 1976 date of injury. The respondents further contend that the claimant cannot argue that he requested a hearing in November 2001 based on a claim that was not filed until June 12, 2002.

The language of the applicable exception provision of § 31-294c(c) states in relevant part, “Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident. . . .” There is no language in the statute that specifies what written language the written hearing request must contain. Section 31-294c functions in part to “advise the employer of the fact that his employee has suffered a job-related injury and to limit his liability to those injuries that are reported in a timely fashion.” De Leon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 336 (1981). The statutory exceptions to the notice requirement “bear the common denominator of articulating circumstances under which the employer would have to be aware of the injury within the prescribed period.” Id. In this case the trial commissioner found that the November 5, 2001 written hearing request coupled with Dr. Rocklin’s April 20, 2001 report was sufficient to put the respondents on notice of the claimant’s claim for coronary artery disease pursuant to § 31-294c(c). The factual finding that the claimant’s hearing request was adequate to meet the exception under § 31-294c(c) is reasonably supported by the evidence and therefore cannot be disturbed on appeal. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003).

Therefore, we affirm the August 13, 2003 Finding and Award of the Commissioner acting for the Second District.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 We note that an extension of time was granted during the course of the appellate process. We further note the Commission’s records indicate the issuance of this opinion was delayed due to the parties’ July 27, 2004 request that we stay any decision regarding this appeal. However, on August 31, 2005 the respondents requested the board issue its opinion. BACK TO TEXT

(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. BACK TO TEXT