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CASE NO. 5124 CRB-7-06-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 23, 2008
DAVID R. GLADSTONE
CITY OF STAMFORD
WEBSTER RISK SERVICES
The claimant was represented by Gary J. Wilson, Esq. 4 Daniels Farm Road, Suite 168, Trumbull, CT 06611-3938.
The respondent employer was represented by Scott W. Williams, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06824. Notice also sent to City of Stamford, Risk Management, 888 Washington Boulevard, Stamford, CT 06904.
This Petition for Review from the August 17, 2006 Finding and Dismissal of the Commissioner acting for the Seventh District was heard June 15, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 17, 2006 Finding and Dismissal of the Commissioner acting for the Seventh District. He argues that the trier incorrectly dismissed his claim for lack of jurisdiction. As there is undisputed evidence showing that a hearing was held within one year of the claimant’s hypertension diagnosis, we reverse the trial commissioner’s decision, and remand for further proceedings.1
The claimant worked for the respondent city of Stamford as a regular member of the police department at the time of a March 6, 2003 diagnosis of hypertension by his cardiologist, Dr. Schuster. He had passed a pre-employment physical in 1980 with no evidence of hypertension or heart disease. The claimant’s family physician, Dr. Farens, also diagnosed hypertension on April 9, 2003. The trial commissioner found that the claimant filed a hearing request on April 29, 2004 with this agency, alleging a heart and hypertension claim with a March 6, 2003 injury date. The claimant did not file a Form 30C Notice of Claim. The commissioner concluded that he did not file a timely claim for benefits pursuant to § 7-433c C.G.S., and did not satisfy any of the exceptions to the one-year notice statute in § 31-294c(c) C.G.S. The claimant now appeals that dismissal.
The claimant has filed a Motion to Submit Additional Evidence in conjunction with this appeal, pursuant to Admin. Reg. § 31-301-9, which allows the admission of additional evidence if the movant can show that it would affect the outcome of the case and that there were good reasons for failing to offer it at trial. The proffered evidence consists of a Form 43 (Notice of Intention to Contest Employee’s Right to Compensation Benefits) and a personnel accident report that the employer signed on March 26, 2003, which are intended to show when the respondent knew about his hypertension claim. He explains that he found the evidence in his personnel file while he was deciding whether to appeal the trier’s dismissal. The respondent objects that this evidence was discoverable with due diligence, and should not be admitted into the record on appeal.
This Commission’s records show that a Form 43 was filed on April 1, 2003, alleging that the claimant’s condition did not arise out of or in the course of his employment with the city of Stamford. (Given this claimant’s date of hire, § 7-433c would not require heart disease or hypertension to have been caused by his employment in order to substantiate a claim.) There is no personnel accident report attached to this document. We agree that, if the claimant had wished to enter the accident report into evidence, it could have been done at trial. There is no proof that it was undiscoverable at that time. Therefore, we deny the Motion to Submit Additional Evidence.
The claimant argues that the notice exception in § 31-294c(c) applies to this claim on two grounds: that medical treatment was provided to the claimant within one year of the injury, and that a hearing was held within one year of the date of injury. We need address only the latter argument. Following the filing of the respondent’s Form 43, the claimant requested a hearing on April 7, 2003, listing “heart” as the body part, and “compensability/causal connection” as the issue to be discussed. This informal hearing was held on June 2, 2003. At trial, the commissioner took administrative notice of this hearing, stating that “the very issue we are discussing this afternoon was discussed at the informal hearing per my notes.” March 21, 2006 Transcript, pp. 3-4. In conjunction with the subsequent admission into evidence of the April 29, 2004 hearing request as Respondent’s Exhibit 2, the respondent’s attorney stated that the April 2004 hearing request no longer appeared relevant. “I think the marker . . . when the clock started to run would be the hearing in June of 2003.” Id., p. 5. The rest of the formal hearing focused on the claimant’s testimony, and the questions mainly concerned whether Dr. Farens told the claimant he had high blood pressure prior to 2003.
For unknown reasons, the commissioner’s dismissal order did not mention the June 2, 2003 hearing. The trier found only that a hearing was held on April 29, 2004. As this date did not fall within one year of the March 6, 2003 report of Dr. Schuster or the April 9, 2003 diagnosis of hypertension by Dr. Farens; Findings, ¶¶ 4-5; the trier ruled that the claimant had not sustained the burden of proving that he had satisfied one of the exceptions in § 31-294c(c) (i.e., the requirement that there be a hearing or a written request for a hearing within one year of the date of the accident). We hold that this omission was clearly erroneous. At the formal hearing, all parties concurred that the administratively noticed June 2, 2003 hearing constituted an initial hearing on the § 7-433c claim. We can conceive of no explanation for the trier’s failure to mention it in his factual findings, other than a mere oversight. Here on appeal, failing to correct this error would result in manifest injustice to the claimant, as his claim would be dismissed. See In re Cameron C., 103 Conn. App. 746, 758 n.15 (2007)(discussing extraordinary situations in which plain error doctrine is applicable); Practice Book § 60-5 (court may reverse or modify decision of trial court if factual findings are clearly erroneous in light of evidence and pleadings in whole record, or if decision is otherwise erroneous in law).
The respondent protests that the claimant did not file a Motion to Correct the findings to reflect that a hearing was held on June 2, 2003, and asserts that the trier’s unchallenged findings must stand even if this board believes that said findings were incorrect. Brief, p. 5. We disagree. The occurrence of the June 2, 2003 hearing is undisputed. Our recognition of this event and its jurisdictional consequences are in no way dependent on the trial commissioner’s exercise of factfinding discretion. Also, the claimant has properly briefed this issue on appeal. See Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 60 (2007)(appellant must raise claims of plain error in original brief); Luce v. UTC/Pratt & Whitney, 3080 CRB-1-95-6 (December 16, 1996), aff’d, 47 Conn. App. 909 (1997) (per curiam), aff’d, 247 Conn. 126, 129 n.6 (1998) (observing that CRB deemed claimant to have abandoned appellate arguments that were not briefed); Practice Book § 60-5 (“The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court”). Thus, the claimant has not waived the trier’s error by failing to file a Motion to Correct that factual omission pursuant to § Admin. Reg. 31-301-4.
The trial commissioner’s decision is hereby reversed, and the case is remanded for further proceedings. We acknowledge that the trial commissioner made no finding as to the date on which the claimant first knew or should have known that he suffered from symptoms of hypertension, finding only that Dr. Farens first diagnosed hypertension on April 9, 2003. On remand, the trial commissioner should consider the evidence in light of the applicable law, as discussed in our recent decision in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008). Absent a request by the commissioner for further information, neither party will be entitled to submit additional evidence on this issue.
Commissioners Amado J. Vargas and Scott A. Barton concur.
1 Both the claimant and respondent received continuances to file papers during the pendency of this appeal. BACK TO TEXT
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