CASE NO. 479 CRD-3-86Workers’ Compensation Commission
APRIL 7, 1988
The claimant, was represented by W. Paul Flynn, Esq., and Charles Flynn, Esq.
The respondent-appellee-insurer was represented by Douglas B. Johnson, Esq., at the trial level and on appeal by Robert J. Gillooly, Esq., Gillooly, McGrail, Carroll Sheedy, P.C. However, Atty. Gillooly did not appear at oral argument nor did he file a brief.
The respondent-appellant-employer was represented at the trial level by Robert Reilly, Esq., and on appeal by Edward Gallant, Esq.
This Petition for Review from the April 23, 1986 Ruling on a Motion to Modify Finding and Award of the Commissioner for the Third District was heard June 26, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
OPINION
JOHN ARCUDI, Chairman.
One hopes that sooner or later all issues involving the interpretation of the 1971 Heart and Hypertension law, Sec. 7-433c, C.G.S. and its interaction with chapter 568 may be put to rest. But that day is not yet. The instant matter involves a 1973 myocardial infarction suffered by Collins, a West Haven firefighter, May 3, 1973. His Form 30-C, Notice of Claim, filed July 16, 1973 described the injury as “Acute myocardial infarction, hypertension, heart disease”. The Third District Commissioner who heard the claim ruled March 1, 1976 that Claimant was entitled to Sec. 7-433c benefits. The city appealed to the Common Pleas Court. For some reason, the claimant-appellee before that court moved to remand “for further proceedings” in the Third District. This motion was granted December 22, 1977.
There the matter lay for four years until November 1981 when the city, acting through new counsel, filed a “Motion to Modify Finding and Award” and “Reasons for Motion to Reopen and Modify Finding and Award”. The reasons given for the 1981 pleading were similar to those in the 1976 appeal to the Common Pleas Court. Essentially, West Haven sought in both cases to make Claimant’s myocardial infarction compensable under chapter 568 as it had insurance coverage for chapter 568 liability but not for Sec. 7-433c payments.
Apparently, neither party understood that the Common Pleas 1977 decision had ordered a hearing de novo in the Third District. Although the record is silent on precisely what the “further proceedings” in the district were to encompass, this seems a logical inference as it was the victorious Claimant who had sought the further proceedings and as the respondent’s motion before the Commissioner was to modify and reopen proceedings.
Another lengthy delay ensued. Finally, on April 30, 1986 the successor to the author of the 1976 Finding and Award denied the Motion to Modify Finding and Award. This appeal is from that denial. Respondent does not argue any the specific reasons contained in Sec. 31-315[1] for its appeal. Instead, it seems to rely on the sentence of that statute granting to a commissioner the same power as any court in the state has to open and modify a judgment. The appeal alleged that Claimant’s July 16, 1973 Notice of Claim recited an injury under chapter 568, and the matter needed to be reopened as the Commissioner in 1976 did not address that claim but instead ruled on a Sec. 7-433c issue which was not even contained in the Notice of Claim.
Respondent bases that argument on the fact that the Notice of Claim was made on a printed form used in chapter 568 cases. The form includes the printed words “sustained injuries arising out of and in the course of his employment follows: (State nature of injury in ordinary language)” After these printed words appear the typewritten description mentioned earlier, “Acute myocardial infarction, hypertension, heart disease”. Nowhere in the Notice is there any mention of any statute, but Respondent contends since the official form used comprises the classic “arising out of and in the course of”, then under the authority of Bakelaar v. West Haven, 193 Conn. 59 (1984), the employee had made a choice of remedies. The remedy he was seeking lay in the traditional workers’ compensation law and not one under the 1971 Heart and Hypertension legislation.
This argument is reminiscent of the nineteenth century period of American Law before pleading reform liberated our legal procedure from the stultifying confines of common law pleading forms. It truly seeks to elevate form over substance. The actual language employed by the claimant in the typewritten description used the talismanic words “heart” and “hypertension” even if the printed form contained “arising out of and in the course of”. If Bakelaar dictates that the claimant make a choice of remedy, then the use by Claimant of the words “heart” and “hypertension” in his own description of his injury certainly justified the Commissioner’s interpretation of that choice to be one under Sec. 7-433c.
Given that proper view of the proceedings by the Commissioner in 1976, we cannot find any abuse of discretion in the 1986 ruling by the new Commissioner when she refused to modify and open the award.
The appeal is dismissed and the April 23, 1986 decision denying Respondent’s motion is affirmed.
Commissioners Robin Waller and Andrew Denuzze concur.