Opinion
CASE NO. 77-CRD-1-81
OCTOBER 21, 1982
The Claimant-Appellee was represented by Norman Zolot, Esq.
The Respondents-Appellants were represented by Thomas H. Cotter, Esq.
This Petition for Review from the June 23, 1981 Decision of the Commissioner for the First District, was argued September 17, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Edward Bradley and Andrew Denuzze.
FINDING AND AWARD
The Findings and Award of the Commissioner are affirmed and adopted as the Finding and Award of the Compensation Review Division
OPINION
This Appeal attacks both the Commissioner's findings and his conclusions of law. The operative facts are complex enough to bear detailed reiteration here. Claimant's decedent, Stanley Gecewicz, suffered cardiac insufficiency on August 26, 1976 in the course of his employment with SEALTEST FOODS DIVISION, the Respondent Employer, appellant herein. On the day in question the decedent started work at 5:00 a.m. in Hartford. Between 5:00 a.m. and 5:30 a.m., he departed in a truck loaded with cases of milk to be delivered along the route. His first stop was at North Hampton County Jail at about 6:00 a.m. where he loaded 5 cases of milk each weighing about 65 to 70 pounds on a hand truck. He then hauled the hand truck up a set of steps to a landing. At the landing he felt tired and sweaty and developed shortness of breath, but he completed the delivery hauling his hand truck up another set of steps.
He then drove to his next stop, the Franklin County Hospital also in Massachusetts. When he arrived at the hospital about 7:30 a.m., a hospital employee who met him remarked that decedent did not look well. Decedent nonetheless continued to make the delivery. He then experienced a sharp pain across his chest, shortness of breath and an abnormal pulse. Hospital personnel on viewing this took decedent to the Emergency Room where he was admitted and remained in the Intensive Care Unit for a week until September 2, 1976.
From September 2, until September 7, 1976, claimant was treated by his own Connecticut physician, Dr. Herbert Levine, Chief Cardiologist, Middlesex Memorial Hospital. That doctor had him admitted to Middlesex Memorial September 7. He was there treated in the Coronary Care Unit for myocardial infarction and diabetes mellitus until discharged September 19, 1976. The infarction preceding his September 7, 1976 hospital admission arose out of and in the course of his employment; it was causally related to the August 26, 1976 cardiac insufficiency which was an injury arising out of and in the course of his employment.
On October 22, 1976, the decedent developed acute congestive heart failure. This was directly related to the September 7 and August 26 incidents. The decedent was totally incapacitated from work during the period August 26 to October 22, 1976 and remained totally incapacitated as a result of his heart condition until October 21, 1977. He then again suffered a myocardial infarction and congestive heart failure necessitating readmission to Middlesex Memorial Hospital. Because of the seriousness of his condition, he was transferred to Hartford Hospital October 25, where he remained under the care of Dr. Michael Rossi until November 4, 1977. Between November 4 and November 13, 1977 he was treated by Dr. Rossi as an office patient, but his condition deteriorated further, and he was readmitted to Hartford Hospital on the latter date due to a cerebral vascular accident and congestive heart failure. He expired at the hospital November 30, 1977. Claimant's total incapacity from August 26, 1976 to November 30, 1977, the condition from which he suffered in October and November, 1977 and his subsequent death, were all causally related to the August 26, 1976 work event.
The Respondent Appellants have listed six reasons of appeal They may be briefly summarized. The first two assignments of error assert that the claimant's work on August 26 was not so heavy as the Commissioner found it to be and that such work did not constitute undue exertion. The next two assignments contend that the Commissioner erred in accepting Dr. Michael Rossi's testimony concerning the causal relationship between the August 26, 1976 work happenings and all subsequent events including ultimately the decedent's death. It is the respondent's further contention in this regard that Dr. Charles McLean's theory of non-causality should have been accepted by the Commissioner. The last two reasons of appeal simply assign error to the entire Finding and Award and need no discussion here as they do not relate to any specific error alleged.
The third and forth reasons of appeal do not need much discussion either as Doctor Rossi was a qualified expert, and his testimony provided a sufficient evidentiary basis for the Commissioner's conclusions. As originally stated in Powers v. Hotel Bond, 89 Conn. 143 (1915), and a long line of cases thereafter, more recently reiterated in Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), the appellate review body cannot review the conclusions of the Commissioner when these depend on the weight of the evidence and the credibility of the witnesses. The Connecticut Supreme Court stated this principle succinctly sixty years ago:
"It is within the province of the Commissioner alone to determine, on conflicting and confusing evidence, what the facts are, and neither appellate court will change his finding unless it appears that he has found facts without evidence, or that he could not reasonably reach the conclusions he has stated."
Battey v. Osborne, 96 Conn. 633, 634 (1921)
Appellants' first and second reasons constitute the main thrust of their appeal. In advancing the claims of law therein contained, Respondents rely on Stier v. Derby, 119 Conn. 44 (1934). More precisely, they rely on the following language:
"That the decedent died from a coronary occlusion or thrombosis is . . . not disputed . . . Death from this source if caused by unusual excitement and over-exertion is an accidental injury within the compensation law."
Stier v. Derby, supra, 51-52
They also cite Donato v. Pantry Pride, 37 Conn. Sup. 836 (1981) and Phipps v. Niejadlik, 175 Conn. 424 (1978), a non-worker's compensation case, as supporting the above-quoted language from the 1934 decision. Appellants then argue that the decedent on August 26, 1976 was only engaging in normal work activities and that therefore there could be no "unusual excitement and over-exertion" on which the Commissioner could base a finding of accidental injury arising out of and in the course of employment.
Their reasoning is the so-called "special hazard argument" adopted by some states and considered by the Connecticut courts in the first three decades of our law, i.e. Stier, supra. The rationale of the argument was that in order for an injury to be accidental, it has to be an occurrence which is special, outside the ordinary course of work events. That reasoning survives in the Connecticut definition of occupational disease. But even if the notion had some previous currency in Connecticut it has not been the law with respect to the "accidental injury" part of the statute for the past four decades.
Sec. 31-275(11) "Occupational disease" includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.
In Jones v. Hamden, 129 Conn. 532 (1942), the claimant widow had been denied compensation for the death of her janitor husband. On appeal, the Supreme Court reversed and found that the Commissioner's requirement that there had to be "unusual activity incidental to his said employment on January 27, 1941, causing extraordinary excitement and physical exertion" to make the injury compensable was not the correct standard to be applied under Connecticut's law. The decedent had died as the result of clearing snow from a sidewalk in the course of the employment. This ordinary employment activity had caused an aneurysm in the sub-arachnoid area of the brain to rupture resulting in death.
The Jones court cited language from an earlier 1942 decision by Chief Justice Maltbie:
"Even under the acts of other states it is generally held that an internal injury that is itself sudden, unusual and unexpected is none the less accidental, because it is incurred in the course of the employee's ordinary work; and that an injury incurred by a workman while performing his work in the normal, ordinary way may be an `accidental injury' and compensable."
St. John v. U. Piccolo Co., Inc., 128 Conn. 608, 611 (1942)
These two 1942 decisions of our Supreme Court totally discarded the special hazard requirement for "personal injury" in Connecticut and clearly established that the Connecticut definition of "personal injury" is "broader than those of many states." Jones v. Hamden, supra, 534.
Similarly in 1945 in a low back sprain case, the Supreme Court while overruling the Superior Court's denial of compensation stated:
The rationale of the court's decision, as we see it, is that a compensable injury cannot arise from doing usual work in a usual manner. This is based upon an unwarranted assumption of the infallibility of the human body. It may be said to be a matter of common knowledge that heavy manual labor that ordinarily results in no ill effect may on occasion result in a strain or sprain of the muscles or ligaments. In the case before us, the commissioner could have concluded that it was much more likely that the sprain occurred from the work in which the plaintiff was engaged, arising, as it did, during performance of the work, than that it occurred from some unknown cause."
Garofola v. Yale Towne Mfg. Co., 131 Conn. 572, 574 (1945)
That language was cited by the Superior Court, Shannon, J., in Battista Acquaotta v. Niles Bement Pond Co., 18 Conn. Sup. 510 (1954), a heart case.
Because we construe the law not to require unusual exertion or activity as held in the above-cited cases, we do not need to discuss whether the Commissioner's decision amounted to a finding that there had been unusual exertion in dragging the load of milk up two sets of steps on August 26. Such considerations become irrelevant in the light of our holding above.
The decision of the Commissioner is affirmed.