CASE NO. 4667 CRB-5-03-5 CLAIM NO. 500115207Compensation Review Board WORKERS’ COMPENSATION COMMISSION
MAY 3, 2004
The claimant was represented by Donald C. Cousins, Esq. and Albert Desrosiers, Esq., Cousins Desrosiers, P.C., 2563 Main Street, Stratford, CT 06615-5844.
The respondents were represented by Erica W. Todd, Esq., Trotta, Trotta Trotta, 195 Church Street, P.O. Box 802, New Haven, CT 06503.
This Petition for Review from the April 24, 2003 Finding and Award of the Commissioner acting for the Fifth District was heard December 19, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN.
The respondents, Marten Transport, Ltd. and Crawford Company, have appealed from the April 24, 2003 Finding and Award of the Commissioner acting for the Fifth District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claim was brought by Debra Hummel, dependent widow of Henry Hummel. Mr. Hummel was employed as a truck driver for the respondent Marten Transport. Ltd. On November 25, 1997 Mr. Hummel was found dead in the sleeper cab of his employer’s truck. Mrs. Hummel sought widow’s benefits and statutory burial allowance.
The trial commissioner found in early November 1997 Mr. Hummel left his home for a three week cross country trip in the 18 wheel tractor trailer he drove for the respondent. He was transporting hazardous material cargo and was required to keep his rig in sight or be in it. Mr. Hummel arrived back home on November 24, 1997 and appeared to his wife to be unkempt, tired, and agitated. He called his employer on that date regarding his wages and was told that no wages would be forthcoming because he had taken prior advances in pay and had not turned in the proper paperwork. Mrs. Hummel stated this was the most agitated she had ever seen her husband in the thirty years she had known him. She said she tried to calm him down because she feared he would have a heart attack. After taking a shower and resting, Mr. Hummel left home between 10:00 and 11:00 pm on November 24, 1997. He drove to the Hubbard Hall factory in Waterbury and parked nearby so that he could drop off his load early the next morning. He was found dead in his truck on November 25, 1997.
The trial commissioner found Mr. Hummel’s employer urged its drivers to drive as much as possible. Mr. Hummel falsified his log books in order to conceal the hours he drove from transportation authorities. During the three-week trip which began on November 1, 1997, he drove an average of 569 miles per day. It was not uncommon for him to drive five thousand miles per week. Mr. Hummel only slept two to three hours per day. He did not exercise. His diet was not well rounded, nor did he eat on a regular schedule. The decedent was a life long heavy smoker. The trial commissioner ultimately found the stresses of the decedent’s job and the job’s limitations on Mr. Hummel’s time for other activities were substantial factors in the chain of events which lead to Mr. Hummel’s fatal ischemic heart disease.
The respondents filed a Petition for Review on May 2, 2003. The respondents filed a Motion to Correct the Commissioner’s findings on May 9, 2003, which was denied by the trial commissioner on May 15, 2003. Respondents filed a document entitled “Respondent’s Brief” on May 12, 2003. The claimant-appellee filed a Motion to Dismiss the appeal on May 15, 2003 on the basis of respondents’ late filing of the Motion to Correct and failure to file a Reasons for Appeal document. The respondents objected to the Motion to Dismiss because the claimant was not prejudiced by the late filing of the Motion to Correct, and the document entitled “Respondent’s Brief” delineated its Reasons for Appeal. We find the claimant has not proved prejudice based on the respondents’ late filing of its Motion to Correct or failure to file a Reasons for Appeal. Therefore, we will not dismiss the appeal on that basis. Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987);Herwerth v. Groton, 3105 CRB-2-95-6 (December 24, 1996), aff’d, 45 Conn. App. 922 (1997) (per curiam). Furthermore, we find the document entitled “Respondents’ Brief” and the information provided therein to be substantially similar to the required Reasons for Appeal document.
The main issue on appeal is whether the claimant proved within a reasonable degree of medical probability the decedent’s employment was a substantial factor in the cause of his heart attack and subsequent death. Our role on review is not to retry the case, but to determine whether the trial commissioner’s findings were without evidentiary support, contrary to law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999);Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The trial commissioner has the sole authority to evaluate all the evidence presented and make findings based on that evidence. Schenkel v. RichardChevrolet, 4639 CRB-8-03-3 (March 12, 2004); Maitland v. Home andBuildings Control, 4623 CRB-3-03-2 (January 13, 2004). It is the trier’s prerogative to determine the weight to be given the medical opinions proffered. Ciarci v. Niro Brothers/Mason Enterprises, 4536 CRB-1-02-6
(June 17, 2003); Valletta v. State/DMR, 4543 CRB-5-02-6 (March 26, 2003).
The trial commissioner makes the factual determination of whether an injury arose out of and in the course of employment. Kolomiets v. SyncorInternational Corp., 252 Conn. 261, 269, 270 (2000); Bergin v.State/Dept. of Correction, 4200 CRB-8-00-3 (August 23, 2001), aff’d, 75 Conn. App. 591 (2003), cert. denied, 264 Conn. 903 (2003). In that capacity the trier utilizes the proximate cause analysis in cases seeking compensation due to a heart attack. _McDonough v. Connecticut BankTrust, 204 Conn. 104, 117 (1987). To prove causation, a claimant need only prove within a reasonable degree of medical probability that either the work-related stress or one or more other work conditions were substantial factors in causing the heart attack. Drivas v. Fair Auto Parks, 4383 CRB-7-01-4 (March 1, 2002); Benlock v. New Haven Terminal/CilcoTerminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250
(1998) (per curiam); Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op., 163, 972 CRD-3-90-1 (June 28, 1991). It is not enough to prove the injury merely happened to occur during the period of employment. Drivas, supra; Ciarci, supra.
The decedent’s widow provided substantial testimony regarding her husband’s lifestyle as a trucker. She said he was often away from home for weeks at a time. Mrs. Hummel explained her husband sometimes drove in excess of 5,000 miles per week. He subsisted on fast food and warmed-up food from the truck’s microwave. His diet consisted largely of sardines, crackers and macaroni and cheese. She said he was always worried about money and whether he could support his family. He had constant disagreements with his employer and was always stressed.
Mrs. Hummel also testified the decedent rarely exercised, as he spent most of his time inside the truck. She testified as to the decedent’s poor sleeping habits, sleeping only two to three hours per night. She also stated the decedent was a heavy smoker and sometimes drove with a lit cigar in order to wake him up when it burned down to his finger. She testified the respondent-employer urged the decedent to drive as much as possible, and she described how the decedent had falsified his log books in order to hide the number of hours he drove from the transportation authorities. Mr. Hummel was paid by the mile, and thus worked without compensation when confronted with deviations from his outside of the employer’s approved routings due to storms, road construction, etc.
Dr. Steven Horowitz, a Board Certified Cardiologist, rendered a medical opinion regarding the cause of Mr. Hummel’s death as requested by a commissioner. Dr. Horowitz testified the decedent’s job as a truck driver played some role in the plaque build up which ultimately caused the claimant’s cardiovascular disease and resulting death. He opined that Mr. Hummel did not die because he was a truck driver, however, being a truck driver may have added to the risk factors that ultimately caused him to die of heart disease. April 25, 2002 Transcript, p. 48. Dr. Horowitz also testified Mr. Hummel had extensive vascular disease and multiple other risk factors such as his lifestyle. Id., Findings, ¶ 42. According to Dr. Horowitz, the food Mr. Horowitz ate, the smoking he did, his lack of adequate rest, and the stresses he was under all contributed to his demise. Id., Findings, ¶ 43. He said Mr. Hummel’s fatal cardiac arrhythmia was probably due to underlying myocardial ischemia and/or myocardial infarction which were brought on by his lifestyle and the multiple risks his lifestyle offered. Id., p. 49, Findings, ¶ 44.
Dr. Horowitz also testified as to Scandinavian studies demonstrating truck drivers and bus drivers have a significantly increased incidence of cardiac risk and of fatal heart attacks. Id., p. 47. He said that there are a number of reasons why this takes place such as stress, loneliness, the sedentary types of lives they live on the road, inadequate sleep, poor food, and lack of activity. Id., pp. 47, 63.
Dr. James Flint performed a records review regarding Mr. Hummel’s death. Dr. Flint found the claimant had an extensive history of severe and atheroscoloric disease that involved vascular beds including his heart, his cerebral vascular circulation, and peripheral circulation. Additionally, the decedent had an abdominal aortic aneurysm. November 7, 2002, Transcript, p. 7. Dr. Flint opined work-related stress contributed to the decedent’s death, but was not a primary or major role. Id., p. 11. He opined Mr. Hummel died due to a natural progression of his extensive vascular disease. Id., p. 13. Dr. Flint testified various factors contributed to the decedent’s heart condition. He said Mr. Hummel’s heavy smoking, improper diet, and lack of medical follow up regarding his past vascular disease were all factors which contributed to the progression of Mr. Hummel’s vascular disease and ultimate demise. Id., p. 44.
In this case, the trial commissioner found the decedent’s job related stress and the job’s limitations on his time for other activities were substantial factors in the chain of events which led to Mr. Hummel’s death. Findings, ¶ X. There was medical testimony from Dr. Horowitz and Dr. Flint that the decedent’s work-related stress was a factor which caused his death. Additionally, both doctors testified that Mr. Hummel’s lifestyle choices such as lack of sleep, lack of exercise, poor eating habits and smoking, all contributed to his death as well. The trial commissioner could reasonably infer from Mrs. Hummel’s testimony that the decedent made these lifestyle choices in order to maximize the number of miles he could drive for his employer and that the respondent was aware of the number of miles he was driving as it paid him per mile. It was therefore reasonable for the trial commissioner to attribute the work stress, along with the lifestyle choices Mr. Hummel made to do that work as being a substantial factor in his resulting death. Therefore, it was not unreasonable for the trial commissioner to find the injury compensable. See, Wilder v. Russell Library Co., 107 Conn. 56 (1927).
The respondents contend the trial commissioner erred in finding the injury was an occupational disease. However, the trial commissioner did not specifically make a finding as to whether the decedent’s injury was an occupational disease, accidental injury or repetitive trauma. The purpose of distinguishing whether a claim fits into one of the aforementioned categories is to determine the applicable time limitation period by which a claim for compensation must be filed pursuant to § 31-294c
C.G.S. If a claimant can prove an injury results from an occupational disease, then the three-year statute of limitations applies, as opposed to a one-year statute of limitations claims due to accidental injury or repetitive trauma. In this matter, the claimant filed the notice of claim within one year of the accident which resulted in his death. Therefore, it does not matter which category of injury occurred, as long as the claim was brought within one year of the date of injury.
Therefore, we affirm the April 24, 2003 Finding and Award of the Commissioner acting for the Fifth District.
Commissioners James J. Metro and Howard H. Belkin concur.