Opinion
CASE NO. 1172 CRD-6-91-2
APRIL 20, 1992
The claimant was represented by Kevin Coombes, Esq. and Kenneth Miller, Union Representative, Local 1283.
The respondents were represented by Joseph Skelly, Esq. and Joseph Musco, Esq.
This Petition for Review from the January 24, 1991 Finding and Award of the Commissioner At Large acting for the Sixth District was heard November 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Donald H. Doyle.
OPINION
Claimant, a New Britain police officer, suffered an abdominal aortic aneurysm and was awarded benefits under Sec. 7-433c, the heart and hypertension statute. The respondent municipality has appealed. It argues that the claim was time barred under Sec. 31-294 and that it is not compensable as the previously diagnosed hypertension was not a substantial factor in causing the aortic aneurysm.
When claimant entered the New Britain police force in 1957, he had successfully passed a physical examination which failed to indicate any evidence of heart disease or hypertension. Between July 8, 1978 and September 9, 1986 he suffered hypertension which was treated by medication. In the late spring of 1988 while he was being treated for an unrelated urological problem, the aortic aneurysm was discovered. Surgery was performed in July 1988 to repair the condition. Total disability benefits were claimed from June 26, 1988 through November 15, 1988 as he returned to his regular police duties after that date.
The commissioner found that claimant's hypertension had been controlled by medication and did not "cause any condition or impairment of the Claimant's health from 1978 through his first manifestation of a symptom, i.e. the aortic aneurysm of 1988". See paragraph 13A. Because he found the hypertension not to be disabling, he ruled that the August 23, 1988 notice of claim alleging an injury date of June 23, 1988 for the aneurysm was timely filed. He also ruled that the aneurysm was proximately caused by the hypertension and that therefore the 1988 condition was compensable under the heart and hypertension statute.
Sec. 7-433c provides in pertinent part: 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 this scope of his employment. . . . . (emphasis ours)
To receive Sec. 7-433c benefits a claimant must suffer "any condition or impairment of health caused by hypertension" which results "in his death or his temporary or permanent, total or partial disability". Although Sec 7-433c does not provide any limitations period for filing claims, we have held that the provisions of Title 31, Sec. 31-294 governs. See e.g. Janco v. Fairfield, 39 Conn. Sup. 403 (1983); Deck v. Groton, 8 Conn. Workers' Comp Rev Op. 1, 745 CRD-2-88-6 (1989). We have also held that hypertension is an occupational disease and thus governed by the three year statute for filing that type of claim. Thus, if the hypertension which in this case first manifested itself in 1978 was disabling, then the 1988 notice of claim was too late to satisfy the statute. We so conclude.
Sec. 31-294 provided in pertinent part: No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date if the accident or from the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupation disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later.
In fact, Sec. 31-294 in 1978 as indicated in the footnote required the filing of occupational disease claims within one year of manifestation of symptoms. Not only do we hold that first manifestation was in 1978, but we also rule that the condition was then disabling because it required medication in order to permit claimant to continue to work.
As an appellate tribunal, we may only disturb the conclusion of a trial commissioner when the conclusion is contrary to law, without evidence, or based on unreasonable or impermissible factual inferences. Fair v. People's Saving's Bank, 207 Conn. 535 (1988). Here we think the conclusion was an improper interpretation of the law. Bellagamba v. Ridgefield 7 Conn. Workers' Comp. Rev. Op. 113, 708 CRD-7-88-3 (1989) is distinguishable from the present case. There a police officer was able to deal with his condition and continue to work through a program of exercise and nutritional supplements. We upheld the commissioner's conclusion that there was no disability as he "found claimant required no medical care or prescription drugs and lost no time from work due to hypertension". Id. Admittedly there was no work loss from 1978 to 1986 in the present case, but the medical care and use of prescription drugs sets it apart from Bellagamba, id. See November 6, 1989 TR at 5.
Claimant sought to present additional evidence through a motion filed November 20, 1991, two days prior to oral argument. Administrative Regulation Sec. 31-301-9 permits presentation of additional evidence where the evidence was material and there were good reasons for failing to present the evidence to the trier. The evidence in question is a letter from the claimant's family physician regarding claimant's treatments between 1978 and 1980. He asserts that his failure to present the evidence sooner at the trial stage was that the issue of the claim being time-barred "was only given scant attention in respondent's December 20, 1989 brief, and the full scope of the respondent's position was not made known to the claimant until the respondent filed its brief September 5, 1991". Claimant's Motion To Present Additional Evidence dated November 19, 1991 at 1-2.
Administrative Regulation Sec. 31-301-9 provides in pertinent part: Sec. 31-301-9. Additional Evidence. If any party to an appeal shall allege that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.
Respondent's Notice of Contest — Form 43 (Joint Exhibit B) gives as one of the ground of contests "no evidence that claimant filed a notice of claim within one year of date when condition of hypertension and/or heart disease arose". That statement, received at the beginning of September in 1988 put claimant on notice of the timeliness issue from the outset. Consequently, we cannot agree that there were good reasons for failing to offer this evidence until two days prior to the oral argument before this tribunal.
The respondent's appeal is sustained. The commissioner's decision is reversed and claimant's claim for Sec. 7-433c benefits is denied.
Commissioners Gerald Kolinsky and Donald H. Doyle concur.