Casertano v. City of Shelton

The claimant was represented by David J. Morrissey, Esq., 203 Church St., P. O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Kevin M. Blake, Esq., Cotter, Cotter & Sohon, P. O. Box 5560, Bayview Station, Bridgeport, CT 06610.

This Petition for Review from the April 12, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard January 24, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 12, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trier erred by dismissing his case on the issue of timely notice, and by denying his Motion to Correct.

The trial commissioner found that the claimant, a police officer for the city of Shelton, began treating for a thyroid condition in October 1988. He was admitted to the hospital on or about the 31st of that month, at which time his blood pressure read 152/92. Dr. Deduk, the treating physician at that time, testified that there should be no direct correlation between a change in blood pressure and a papillary carcinoma of the thyroid. Because his deposition was taken without records being made available, the doctor could not recall whether he placed the claimant on medication for hypertension at that time. He did state that a blood pressure reading of 152/92 would generally have triggered him to take action.

Dr. Ward, who began treating the claimant after Dr. Deduk retired, testified that the claimant reported three years of high blood pressure on a medical history questionnaire he filled out on May 6, 1992. However, he was not on high blood pressure medication when he first started treating with Dr. Ward. His initial blood pressure reading was 148/88; later, it went up to 150/100. Dr. Ward noted that an excess of thyroid medication could cause hypertension.

The claimant filed a notice of claim on January 23, 1994, listing a March 4, 1991 date of injury. Thus, it was implicitly tantamount to an occupational disease claim under § 7-433c C.G.S. He stated that he was not advised that he had hypertension, or that he should treat for it, until 1991, when an oncologist told him he was hypertensive.

The trier found that medical records did not indicate the prescribing of hypertension medication until 1991. However, the intake questionnaire that the claimant filled out in May 1992 acknowledged that the claimant knew or should have known of his hypertension for the past three years. The commissioner also found that the medical records did not establish that hypertension qualified as an “occupational disease” under § 31-275(11) C.G.S. Thus, notice of the claim was filed too late. She dismissed the claim on those grounds, and the claimant has appealed her decision.

The claimant argues on appeal that the commissioner erred by finding that the claimant filed an untimely notice of claim because no evidence was presented on that issue. The respondent counters that the trier necessarily had to decide whether there was a valid claim prior to determining the date the claimant began treating for hypertension. Moreover, it contends that the claimant’s failure to prove he had an occupational disease and the articulated finding that the claim became ripe between October 1988 and March 1989, or May 1989 at the latest, demanded the dismissal of his claim.

A look at the hearing notices shows that the issue scheduled for discussion at the 1995 formal hearings was “compensability/causal connection.” At the outset of the August 14, 1995 formal hearing, the commissioner stated that “[t]he primary issue before us today is notice, whether or not notice was timely filed and the question is when the claimant discovered that he had high blood pressure.” Transcript, 2. After the respondent’s attorney waived his opening statement, the claimant’s attorney responded that “the issue as you stated is very limited in this matter. The only issue before the Commissioner at this time is when did Mr. Casertano discover that he had high blood pressure, and the question is -- has been raised because of a notation on an intake sheet with Dr. Kenneth Ward. Because of that the parties have agreed that we’re going to limit testimony to that issue only and that would be the basis of the decision.” Id., 3. Accordingly, the proceedings that followed consisted of the introduction of doctor’s reports and depositions, and the direct testimony of the claimant.

Recently, we have made it a point to stress that parties should not present their cases in a piecemeal fashion, so that they can get multiple opportunities to meet their burden of proof if the initial attempt fails. Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (Dec. 7, 1995). We also agree that the trial commissioner is entitled to determine whether he or she has proper subject matter jurisdiction to address the facts of a claim, including the timeliness of notice. Keegan v. Aetna Life & Casualty Co., 42 Conn. App. 803, 806 (1996). Nevertheless, a party must be aware that a certain element of a case is at issue before it can be said that he has been accorded due process under our law. This includes the existence of timely notice.

It is apparent from the transcript that the claimant’s attorney believed he had successfully restricted the issue to the date the claimant found out he had hypertension. The date notice of the injury was provided, and the form and method of that notice, were never directly discussed. Despite the lack of discussion on those issues, they are still necessary elements of a claim, and the claimant should not have been misled into thinking that they were not at issue in the case. See Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 334-35, 1977 CRB-1-94-2 (Sept. 20, 1995); Southard v. Southard Development, 13 Conn. Workers’ Comp. Rev. Op. 348, 351 n.2, 1891 CRB-4-93-11 (April 27, 1995).

No evidence was offered regarding these elements at trial. We are not confident that the claimant was aware that proof of those necessary elements was an integral part of this case, given the statements made at the initial formal hearing. Consequently, we remand this matter to the trial commissioner for further evidentiary proceedings on the issue of timeliness of notice. Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 3, 936 CRD-6-89-11 (March 19, 1991).