Opinion
CASE NO. 676 CRD-1-87
NOVEMBER 8, 1989
The claimant was represented by Albert J. McGrail, Esq.
The respondent was represented by Lisa Silvestri, Esq., Office of the Corporation Counsel.
This Petition for Review from the December 2, 1987 Finding and Dismissal of the Commissioner for the First District was heard June 23, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Michael S. Sherman A. Thomas White, Jr.
OPINION
Claimant seeks Sec. 7-433c Heart and Hypertension benefits as a Hartford police officer. His service with that municipality was from May, 1952 until retirement in July, 1977. Three and one half years subsequent to retirement he suffered a disabling heart attack in December 1980. The First District commissioner dismissed the claim ruling that Sec. 31-294 jurisdictional requirements had not been met. No timely notice of claim had been filed within a year.
Sec. 31-294 provides in part: If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or within said three-year period from the first manifestation of a symptom of the occupational disease, as defined herein as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if 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 and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice.
On appeal, claimant's counsel argues that there has been compliance with Sec. 31-294 as claimant was furnished with medical treatment for a nose bleed incident March 14, 1973 when he lost three and one half days from work. Also, appellant contends, he received medical care at the Hartford Health Department Employees' Clinic involving an "infection of both eyes" and "a thrombosis of the retinal blood vessels" on January 23, 1974. Both these occurrences were claimed to be treatments for the hypertension condition to which the post-retirement myocardial infarction was related, and therefore they constituted medical care exceptions provided for in Sec. 31-294.
In his December 2, 1987 Finding and Award, the Commissioner ruled that the claimant was not furnished "for the injury with respect to which compensation is claimed, with medical or surgical care as provided in Sec. 31-294" (Para. 7, Finding 12/2/87). We cannot quarrel with that conclusion. This matter is unlike Barron v. Town of East Hartford, 6 Conn. Workers Comp. Rev. Op. 15, 534 CRD-1-86 (1988). There the condition for which the Town Director of Health was examining claimant was the same disabling condition creating the request for benefits, i.e. the 1984 heart attack. Here claimant sustained a 1980 heart attack three and one half years after retirement from the police force seven and a half years after the 1973 nose bleed and six years after the 1980 eye problems, conditions which are alleged to be related to the compensable hypertension. Gesmundo v. Bush, 133 Conn. 607, 612 (1947) held that exceptions to the requirement of written notice are "based upon the fact that if the employer furnishes medical he must know that an injury has been suffered which at least may be the basis of such a claim."
In Kulis v. Moll, 172 Conn. 104 (1976) the employer drove claimant to the hospital. But the employer did not know at that time that the hospital treatment was for a work injury. Therefore that furnishing of medical treatment did not constitute an exception to the one year written notice requirement. What the statutory exception requires is communication by the claimant of a sufficient quantum of information to the employer so that notice may be imputed. Therefore no written notice would be necessary. Thus the Appellate Session, Clapps v. Waterbury Iron Works, Inc., 38 Conn. Sup. 644 (1983) and Janco v. Fairfield, 39 Conn. Sup. 403 (1983) ruled that, Sec. 31-294 was not satisfied. The employers in each of those cases had provided medical care through an employer financed medical program. But the court held in both instances the agency to which the employer had delegated the responsibility for furnishing the care was so remote from the employer that the knowledge of the agent could not be imputed to the employer for Sec. 31-294 purposes.
We think the rationale underlying Kulis, Clapp and Janco are relevant here. Therefore we dismiss the appeal and affirm the First District denial of claim.
Commissioners Michael S. Sherman and A. Thomas White, Jr. concur.