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Henry v. City of Ansonia

CASE NO. 5674 CRB-4-11-8



AUGUST 8, 2012














The claimant was represented by David J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, PO Box 31, Naugatuck, CT 06770.

The respondents were represented by Kevin M. Blake, Esq., Welch, Teodosio, Stanek & Blake, LLC, 375 Bridgeport Avenue, PO Drawer 668, Shelton, CT 06484.

This Petition for Review from the July 29, 2011 Finding and Award/Finding and Dismissal of the Commissioner acting for the Fourth District was heard January 20, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.


JOHN A. MASTROPIETRO, CHAIRMAN. Both the claimant and the respondent have filed appeals from the Finding and Award/Finding and Dismissal issued in this case. The claimant argues that the trial commissioner in this matter noticed the formal hearing exclusively for consideration of a Motion to Preclude and then improperly decided to consider other issues, specifically the timeliness of the claimant’s claim for hypertension benefits,1 which were beyond the scope of the noticed hearing. The claimant seeks a remand to the trial commissioner for a new hearing. The respondent challenges the granting of the Motion to Preclude, and seeks a remand to the trial commissioner to present evidence contesting the claim.

After consideration of the issues herein, we agree with the claimant that this matter should be remanded for a new hearing on the question of eligibility for hypertension benefits. Due process requires that both parties be properly advised as to the relief under consideration at the formal hearing so that they may prepare their most persuasive arguments. The trial commissioner’s decision in this case prejudiced the claimant who had not prepared arguments on the heart and hypertension issue. As the Motion to Preclude was properly noticed and decided after the consideration of factual evidence at a contested hearing; we affirm the trial commissioner’s decision on that issue.

The following facts were found by the trial commissioner and are pertinent to our consideration. The claimant is an Ansonia police officer. He sustained a rapid heart beat on May 29, 2005, when working at a Memorial Day parade. Findings, ¶ 2. Two of the claimant’s co-workers testified as to the events that day. Jeffrey Dempsey, a former sergeant in the Ansonia police department, testified that he was the supervisor on May 29, 2005, and filled out the incident report after the claimant reported feeling ill. The claimant was transported to Griffin Hospital, but he does not remember how. Findings, ¶ 5. John Fitzgerald, an officer with the Ansonia police department, testified that on May 29, 2005, he was working and the claimant was sweating, looking pale, and complaining of chest pains and shortness of breath. He took the claimant by police car to the hospital. Findings, ¶ 6.

The claimant testified when he was at Griffin Hospital that his treating physician, Dr. Sudipta Dey, referred him to cardiologist Dr. Kenneth Spector. Dr. Spector scheduled stress tests and an angiogram and diagnosed him with heart disease, hypertension, and sinus tachycardia in 2005. The claimant said he was on medication for heart disease. Findings, ¶ 2.

The respondent filed a Form 43 received by this Commission on October 21, 2005, specifying the injury as hypertension, arrhythmia, and chest pain. The Form 43 specified no injury or occupational disease arising out of or in the course of employment on any date, and specified the notice of claim as untimely. No Form 30C was filed at that time. A first report of injury and an incident report were filed by the employer, based on the May 29, 2005 incident. Findings, ¶ 3. Two separate Form 30C’s were received by this Commission on August 6, 2008, one alleging an injury of hypertension and the second alleging heart disease and sinus tachycardia. Both alleged repetitive trauma. The respondent concedes no Form 43’s were filed specifically in response to them. Findings, ¶ 4.

The claimant’s treating physician, Dr. Sudipta Dey, and the respondent’s expert, Dr. Martin Kauthamer, both testified via deposition. Dr. Dey testified that he prescribed Diovan on September 19, 2005, and changed the prescription to Toprol XL in October 2005, because the claimant was getting headaches and throat swelling from the Diovan. Diovan is a beta blocker used to treat hypertension. He prescribed the Diovan initially because an echocardiogram showed left ventricle hypertrophy, a thickening of the heart muscle. He thought it was end organ effect and put the claimant on an anti-hypertensive medication. Dr. Kenneth Specter, a cardiologist, had a stress test performed on the claimant, as he thought there might be evidence of cardiac problems, and then had a cardiac catheterization performed on the claimant to rule out cardiac problems. The results showed no coronary artery disease. Dr. Dey said he usually explained why he prescribed medication, and that on September 19, 2005, the claimant had high blood pressure and hypertension. The claimant has hypertensive heart disease but not coronary artery disease. Sinus tachycardia means your heart rate is fast, which can happen from anything, including excessive coffee, tea, or anxiety. Sinus tachycardia is not treated, but rather the underlying condition causing the sinus tachycardia is treated. Findings, ¶ 7.

Dr. Krauthamer testified that the claimant has a history of hypertension that goes back to at least a 2003 visit with Dr. Dey, and his weight and body mass index are higher than they should be. The claimant over the years, both before the May 29, 2005 episode and since, has complained about multiple episodes of light-headedness, tingling in the hands and fingers, shortness of breath, dizziness, and has almost passed out several times. The tests performed did not detect arrhythmia. He believes the claimant suffers from anxiety disorder, panic attacks, and hyperventilation syndrome, none of which have anything to do with the cardiac system but only cause the heart to beat normally but slightly faster. He opined the claimant did not have heart disease. He further testified the only reason to prescribe Diovan was to treat hypertension. Findings, ¶ 8.

The trial commissioner concluded based on this record that the claimant was credible and persuasive, in all matters other than his belief that he was on heart medication in 2005. The commissioner also found Dr. Dey credible and persuasive, especially as to not having prescribed heart or sinus tachycardia medication to the claimant. The trial commissioner concluded the claimant was prescribed medicine for hypertension in 2005 and pursuant to Ciarlelli v Town of Hamden, 299 Conn. 265 (2010), the hypertension claim was time barred. No medication was prescribed for heart disease or sinus tachycardia in 2005 nor was the claimant informed that he was suffering from these ailments. Therefore, at the time, the claimant was under no obligation to notify his employer. The Form 30C alleging a repetitive trauma claim for heart disease and sinus tachycardia was received by this Commission on August 6, 2008, and was filed in a timely manner, and the respondent did not file a Form 43 responding to the claimant’s Form 30C within 28 days as required by Sec. 31-294c C.G.S. The trial commissioner found the 2005 Form 43 could not act to respond to a Form 30C filed in 2008. Therefore, he granted the claimant’s Motion to Preclude in regards to heart disease and sinus tachycardia.

Both the claimant and the respondent filed Motions to Correct. The claimant’s Motion to Correct sought to add findings that the trial commissioner added subject matter jurisdiction sua sponte to the hearing, and therefore the finding as to the timeliness of the 2005 hypertension claim should be deleted and the claimant left to his proof. The trial commissioner denied this motion. The respondent also filed a Motion to Correct. This Motion sought to find that the claimant’s medical evidence was inadequate to prove his condition worsened subsequent to 2005 and as no claim was brought at that time, it sought to find the Motion to Preclude denied. The trial commissioner denied this motion as well. Both parties filed appeals to this tribunal; asserting that their Motions to Correct should have been granted.

We are persuaded by the claimant’s argument. The hearing notices issued for the pre-formal hearing and the formal hearing in this matter referred exclusively to only one issue being under consideration, that being § 31-294c(b) Motion to Preclude.2 We have reviewed the transcripts herein. Counsel for the claimant stated at the July 27, 2010 formal hearing that the sole issue under consideration at that hearing was the Motion to Preclude. See July 27, 2010 Transcript, p. 2 and pp. 5-6. Counsel for the respondent stated that claimant’s counsel “said it very concise and succinctly.” Id., p. 6. The trial commissioner from the bench did not notify the parties he would be ruling on any other issues at that hearing. Id. The November 2, 2010 hearing and the January 5, 2011 hearing focused on the presentation of evidence on the record. Neither advocate moved to introduce an additional issue for the commissioner’s consideration. At the conclusion of the January 5, 2011 hearing, the trial commissioner directed the parties to submit briefs and proposed findings, and adjourned the hearing. January 5, 2011 Transcript, p. 20. The record is bereft of any representation that the trial commissioner would rule on issues beyond that of the Motion to Preclude.3

We have frequently had to opine on cases where a party believes the trial commissioner considered issues beyond the scope of the hearing notice. See Palm v. Yale University, 3923 CRB-3-98-10 (January 7, 2000), where this tribunal held “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Id. We have allowed trial commissioners to rule on issues beyond the scope of the original hearing notices when the commissioner placed the parties on notice at the commencement of the formal hearing, Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009), or when a modality of treatment became self-evident as a result of the evidence adduced at the hearing. DiDonato v. Greenwich/Board of Education, 5431 CRB-7-09-2 (May 18, 2010). In the present case, while the respondent received fair notice that the Motion to Preclude would be ruled on, the claimant received no notice that the trial commissioner intended to rule on subject matter jurisdiction.

We acknowledge that subject matter jurisdiction may not be waived by the parties and may be considered by the tribunal at any time. See Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) and DelToro v. Stamford, 270 Conn. 532 (2004). In this matter neither the respondent nor the trial commissioner put the claimant on notice that the Commission’s jurisdiction was at issue. Therefore, we agree with the claimant that Mason v. Dale Construction, Inc., 4354 CRB-3-01-1 (November 7, 2001) is on point. In Mason, the respondents raised an affirmative defense late in the proceedings and the claimant sought to preclude any determination of this issue. Similar to our holding in Palm, supra, we held that both parties should have an opportunity to contest an issue raised after the hearing commenced.

The Finding and Award/Finding and Dismissal is remanded for a hearing on the issue of subject matter jurisdiction. Both parties shall be able to present their argument and whatever additional evidence they deem necessary.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 We are left uncertain from the pleadings whether the claimant is asserting a claim for such benefits under § 7-433c C.G.S., or pursuant to Chapter 568. We anticipate this ambiguity will be clarified on remand. BACK TO TEXT

2 See hearing notices dated January 13, 2010, February 1, 2010, April 5, 2010 and May 24, 2010. BACK TO TEXT

3 The respondent argues that the claimant’s medical evidence was insufficient to establish the claimant suffered heart disease. Respondent’s Brief, p. 4. The respondent cites Donahue v. Veridiem, Inc., 291 Conn. 537 (2009), in their brief. Donahue stands for the proposition it is the role of a trial commissioner to determine, once a case is deemed an accepted injury by reason of having a Motion to Preclude granted, to ascertain if the claimant has presented sufficient medical evidence supportive of his or her claim. Id., 552-555. The trial commissioner may not rely on evidence submitted by the respondent in reaching this conclusion. Id. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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