FOLEY v. CITY OF NEW BRITAIN, 404 CRD-7-85 (4-28-88)

CASE NO. 404 CRD-7-85Workers’ Compensation Commission
APRIL 28, 1988

The claimant was represented by Harold Geragosian, Esq.

The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick and by Joseph Skelly, Esq.

This Petition for Review from the April 12, 1985 Finding and Dismissal of the Commissioner of the Seventh District acting for the Sixth District was heard February 27, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.

FINDING AND DISMISSAL

The April 12, 1985 Finding and Dismissal of the Commissioner of the Seventh District acting for the Sixth District is affirmed and adopted as the Finding and Dismissal of this Division.

CONSOLIDATED OPINION

JOHN ARCUDI, Chairman.

Both the Foley and the Gavin matters were originally heard by then Sixth District Commissioner, the late Edward O’Brien Sr., who dismissed the claim January 8, 1981. As the Sixth District proceedings had not been completed before Commissioner O’Brien’s death[1] this Division remanded the matters, Foley v. New Britain, 47 CRD-6-81, 1 Conn. Workers Comp. Rev. Op. 147 (1982), Gavin v. New Britain, 46 CRD-6-81, 1 Conn. Workers’ Comp. Rev. Op. 151
(1982), to the Sixth District. They were then heard de novo by Commissioner Gerald Kolinsky acting for that District. He too dismissed both claims.

Gavin was a regular paid policeman who suffered a myocardial infarction while actually on duty December 12, 1967. Foley was a regular paid firefighter who suffered a heart attack in August, 1969. Both had undergone physical examinations on entry into their respective municipal employments which had not revealed any evidence of heart disease or hypertension. Their claims in the present matters are premised on chapter 568 and on the Heart and Hypertension statutes in existence in 1967 for Gavin[2] and 1969 for Foley.[3]

The 1967 statute gave a policeman in Gavin’s position the benefit of a rebuttable presumption that his heart condition arose out of the employment. The 1969 statute purported to give a conclusive presumption to the same effect. However, the 1969 law was declared unconstitutional, Ducharme v. Putnam, 161 Conn. 135 (1971). Absent that conclusive presumption, each claimant to prevail had to prove a causal relationship between the heart attacks and the employment, Gavin because the rebuttable presumption disappeared when evidence was offered to controvert it and Foley because of the Ducharme ruling. Essentially, the claimants had to prove proximate cause by rules that prevail in all chapter 568 cases.

We will not disturb the Commissioner’s Findings and Dismissals “unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them, Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). As there was competent medical evidence to support the Commissioner’s conclusions that the respective heart attacks were not caused by the work, we cannot overrule the trier.

Claimants seek to rely on another argument, i.e. the municipality is estopped from contesting these cases since it furnished medical care and since it failed to file contestment notices within twenty days after the claims were filed. This claim is apparently based on a somewhat tortured reading of the medical care exceptions to the written notice of claim provisions in Sec. 31-294, C.G.S. and its interaction with Sec. 31-297 (b), C.G.S. De Leon v. Jacob Bros., 38 Conn. Sup. 331
(1981), aff’g, 23 CRD-4-80, 1 Conn. Workers’ Comp. Rev. Op. 18
(1981) pointed out that the two statutes serve different purposes. The Sec. 31-294 written notice of claim provisions are for the employer’s protection so that the employer may know within a reasonable time that a claim is being made. If such employer furnishes medical care to the employee, then he knows, and there is no need for the written notice. But not every furnishing of medical care serves to substitute for such notice, Janco v. Fairfield, 39 Conn. Sup. 403 (1983), Kulis v. Moll, 172 Conn. 104 (1976). In any case, the furnishing of medical care has never been ruled to make the case uncontestable.

The second point of the estoppel argument that no contest was filed within the twenty days mandated by Sec. 31-297 (b) must fail as there is no evidence in the record of either case that a written notice of claim was properly served, Timothy v. Upjohn, 150 CRD-3-82, 2 Conn. Workers’ Comp. Rev. Op. 1 (1983), appeal dismissed, 3 Conn. App. 162 (1984). Such proper notice is a sine qua non of the conclusive presumption provisions of Sec. 31-297 (b).

We therefore affirm the Findings and Dismissals in both matters and dismiss the appeals.

Commissioners Frank Verrilli and A. Thomas White, Jr. concur.