Opinion
CASE NO. 972 CRD-3-90-1
JUNE 28, 1991
The claimant was represented by Robert Sweeney, Esq., Lindalea Ludwick Esq., both of Sklarz and Early.
The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the January 23, 1990 Finding and Award of the Commissioner at Large acting for the Third District was heard January 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Susan Creamer.
OPINION
In this appeal the employer and insurer respondents contend the trial commissioner erred (1) in concluding that the claimant's claim was not time barred under Sec. 31-294's statute of limitations, (2) in finding that claimant's employment was a substantial factor if, causing the claimant's September 9, 1983 myocardial infarction, (3) in finding that the claimant's cardiac bypass surgery and subsequent treatment was causally connected to the employment.
Section 31-294 provides:
"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 of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be. . . . [I]f within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such, notice of claim shall be a bar to the maintenance of proceedings. . . ."
The facts found here are that on September 9, 1983 claimant suffered severe chest pains while at work. He reported to the company nurse who performed an electrocardiogram. After viewing the EKG, the nurse advised she believed they demonstrated irregularities, and she with another employee drove claimant to the Meriden Wallingford Hospital for further medical attention. Respondents contend theft the company nurse's activities did not constitute the furnishing of medical care necessary for constructive notice under sec. 31-294. We considered significantly analogous facts in Pagliuco v. United Illuminating Co., 5 Conn. Workers' Comp. Rev. Op. 27, 427 CRD-4-85 (1988). There we held that treatment by an employer's nurse constituted furnishing medical care in satisfaction of Sec. 31-294. Pagliuco therefore requires us to affirm the trial commissioner.
Respondents contend that Kulis v. Moll, 172 Conn. 104 (1976) mandates a different result from Pagliuco. In Kulis the employer, as here, drove the employee to the hospital for treatment. The court there held that driving the employee to the hospital was not the furnishing of medical or surgical care required by the statute. That opinion relied on the six words "as hereafter provided in this section" immediately following "medical or surgical care" in the statute. It ruled those six words limited the medical care which would be necessary to satisfy the statutory requirement. The decision then cited the subsequent statutory language, "The employer . . . shall provide a competent physician or surgeon . . . and . . . shall furnish such medical and surgical aid or hospital or nursing service, . . ." as defining the medical care referred to earlier in the statute. In the instant case, the company nurse furnished nursing services and performed medical care, an EKG. Further, she furnished hospital service by driving the employee to the hospital. This differs from the Kulis fact situation.
As to the second issue, whether the trier erred in finding claimant's myocardial infarction was an injury arising out of the employment, McDonough v. Connecticut Bank Trust, 204 Conn. 104 (1987) held traditional proximate cause concepts apply in cases involving heart attacks alleged to be work related. To satisfy causation requirements, claimant need only prove that work related events and or conditions of employment were a substantial factor in producing the myocardial infarction. Id. See also, Sager v. Gab Business Services, Inc., 5 Conn. Workers' Comp. Rev. Op. 12, 420 CRD-3-85 (1988).
In his finding, paragraph #21, the commissioner concludes there were work related factors which causally related the claimant's myocardial infarction to his employment. We are limited on review to determine whether that conclusion contrary to law, based on unreasonable or impermissible factual inferences. Besade v. Interstate Security Services 212 Conn. 441 (1989); Fair v. People's Savings Bank, 207 Conn. 535 (1988). In the March 25, 1988 deposition in evidence Dr. Irving Shiffman testified it was reasonably medically probable there was a causal relationship between the claimant's work environment and the claimant's heart attack (Exh. A, p. 15). Respondents objected to the testimony arguing it lacked foundation and was in response to a leading question. The volume of medical reports admitted, claimant's Exhibit C, and Dr. Shiffman's involvement as claimant's treating physician provided sufficient foundation. As to the objection counsel's question as to causal relationship was leading in its form, at most the error was harmless. "The trial judge has wide discretion in allowing leading questions on direct examination and his ruling will stand unless prejudice has clearly resulted from his admitting to many questions of this type." Tait LaPlante's, Handbook of Connecticut Evidence Sec. 7.12.1 at 159, (2nd ed. 1988) (citation omitted).
On the third point, whether claimant's subsequent cardiac bypass surgery was sufficiently causally related to the claimant's work-related myocardial infarction, a question of fact is involved. We cannot disturb factual findings unless contrary to law, without evidence or based on unreasonably or impermissible factual inferences. See Besade, supra, Fair, supra. The record contains testimony by Dr. Shiffman which constitutes a sufficient basis for the trier's conclusion (Exhibit A, p. 42).
We therefore affirm the January 22, 1990 Finding and Award and dismiss the appeal.
Commissioners Andrew Denuzze and Susan Creamer concur.