Arborio v. Windham Police Dept.

• Decision Date: 14 August 2007
• Docket Number: No. 28147.,28147.
• Citation: 928 A.2d 616,103 Conn.App. 172
• Court: Connecticut Court of Appeals
• Parties: Rick E. ARBORIO, Sr. v. WINDHAM POLICE DEPARTMENT.

928 A.2d 616

103 Conn.App. 172

Rick E. ARBORIO, Sr. v. WINDHAM POLICE DEPARTMENT.

No. 28147.

Appellate Court of Connecticut.

Argued May 22, 2007.

Decided August 14, 2007.

Andrew J. Morrissey, with whom, on the brief, was David J. Morrissey, Naugatuck, for the appellant (plaintiff).

Henry J. Zaccardi, with whom, on the brief, was Sheila A. Huddleston, Hartford, for the appellee (defendant).

FLYNN, C.J., and GRUENDEL and PELLEGRINO, Js.

FLYNN, C.J.

The plaintiff, Rick E. Arborio, Sr., appeals from the decision of the workers' compensation review board (board) affirming the finding and dismissal of the workers' compensation commissioner (commissioner) in which the commissioner concluded that the plaintiff's claim for benefits under the Heart and Hypertension Act, General Statutes § 7-433c, was untimely.¹ We reverse the board's decision.

In this appeal, the plaintiff briefed three main issues: "[1] [w]hether a claim for hypertension benefits . . . must be filed within one year after the first manifestation of a symptom . . . [2] [w]hether a claim for hypertension benefits . . . should be considered an accidental injury [that] can be definitely located as to time and place or an accidental injury as the result of repetitive trauma or repetitive acts² [and] [3] [whether] the [plaintiff] need[s] to be disabled in order to file a claim for benefits under [§ ] 7-433c." The plaintiff poses these questions in light of our decision in Pearce v. New Haven, 76 Conn.App. 441, 819 A.2d 878, cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003), which he claims changed the law on heart and hypertension claims, and he asks that Pearce be overturned. Although we do not agree that Pearce changed the law, we take this opportunity to discuss Pearce before analyzing the timeliness issue of the present case.

In Pearce, the record revealed the following facts: "On August 16, 1988, the plaintiff's blood pressure was taken three times [by his physician, Mark Kasper], with readings of 180 over 94, 178 over 104 and 156 over 94, respectively. . . . During 1988, Kasper also asked the plaintiff to report to him on a monthly basis in order to have his blood pressure checked. On June 1, July 12 and November 21, 1989, and January 11, June 12 and August 9, 1990, the plaintiff's blood pressure continued to be elevated with readings ranging from 140 over 98 to 170 over 110. . . . The plaintiff saw Kasper on a regular basis between 1988 and 1990, and Kasper discussed with the plaintiff his high blood pressure on nearly every visit. . . . The plaintiff did not see Kasper between 1990 and 1998, but, while at the Hospital of Saint Raphael in 1993, the plaintiff's blood pressure was recorded at 172 over 100. Kasper wrote a letter to the plaintiff on October 17, 1995, requesting that he come to Kasper's office because Kasper was concerned about the plaintiff's blood pressure and cholesterol. Additionally, James Dougherty, a cardiologist, after reviewing the plaintiff's medical chart, concluded that there [was] extensive data in the record dating back to 1988, 1989 and 1990 where multiple blood pressure readings were obtained which clearly demonstrate modest, sustained essential hypertension. The plaintiff, however, was not diagnosed with hypertension until October 15, 1998 [and] [o]n November 13, 1998, the plaintiff filed a form 30C, claiming a date of injury of October 15, 1998." (Internal quotation marks omitted.) Id., at 442-43, 819 A.2d 878. On the basis of these facts, the commissioner determined that the plaintiff's claim for benefits was untimely, and the board affirmed that decision. Id., at 444, 819 A.2d 878. On appeal, we agreed with the board's affirmance of the commissioner's decision, concluding that because the plaintiff repeatedly had been informed by his physician that he consistently had elevated blood pressure readings during 1988, 1989 and 1990, he was required to inform his employer of his "injury." Id., at 450, 819 A.2d 878.

The plaintiff in the present case claims that our holding in Pearce "confused occupational disease and repetitive trauma-accidental injury" by requiring a repetitive trauma-accidental injury claimant to file a claim for benefits at the first manifestation of a symptom of high blood pressure. This simply is not the case. First, it is important to note that in Pearce, the issue of repetitive trauma was not raised or addressed; rather, the commissioner addressed the hypertension as an accidental injury, not the result of repetitive trauma. We issued a decision in which we agreed with the commissioner that the plaintiff had a duty to notify his employer of his elevated blood pressure long before he actually notified it. We did not hold, nor did the commissioner or board hold, that the plaintiff had a duty to notify his employer at the first "manifestation of a symptom." The claimant in Pearce repeatedly had been told, over a three year period, that his blood pressure was elevated, and, rather than address the issue, he chose to stop seeing his physician for the next eight years. Although the plaintiff had not been placed on medication for hypertension, we agreed with the commissioner's finding that the plaintiff knew of his hypertensive status during that three year period when he repeatedly had been counseled by his physician. Because so much time had passed between his elevated readings from 1988 through 1990 and the time at which he filed a claim in 1998, the commissioner did not make a factual finding as to the exact date on which the plaintiff was on notice of his injury, but we certainly did not read the commissioner's decision as indicating that the date of injury was the first day that the plaintiff had a high reading, nor did we so hold on appeal.

The plaintiff in the present case also claims that we changed the law in Pearce by stating that a claimant need not be disabled in order to file a claim for benefits under § 7-433c and that a claimant, if he is aware of his hypertensive status, must file a claim for benefits in order to put his employer on notice of his injury even before he is disabled.³ Specifically, the plaintiff argues that Pearce "seems to state that [General Statutes] § 31-294b (first report of injury)⁴ and [General Statutes] § 31-294c (notice of claim for compensation)⁵ are somehow to be read together. . . . Pearce requires that a claim be filed before a claimant has met the prerequisites for filing such a claim. Why the disability portion of the statute is summarily eliminated is not explained at all. . . . Proof of a disability is a jurisdictional requirement. Without it, a claim fails." (Citations omitted; emphasis in original.). We affirm our holding in Pearce and do not agree with the plaintiff's statement that "[p]roof of a disability is a jurisdictional requirement [to filing a claim]." (Emphasis in original.) See generally Hunt v. Naugatuck, 273 Conn. 97, 105, 868 A.2d 54 (2005) ("[P]laintiff was not seeking an award of specific monetary benefits when he filed his notices [of claims] on March 26, 2001, and April 10, 2002, because his hypertension had not ripened into a partial or total disability. Rather, the plaintiff's motivation for filing the notices when he did was to bring his claim within the statute of limitations period and to alert his employer that he had developed a condition, namely, hypertension, that could spawn a claim for monetary benefits in the future. [Emphasis added.]"). Certainly, proof of a disability is a prerequisite to the actual collection of benefits, but one need not be disabled before being required to notify one's employer of an accidental injury and to file a claim within one year of that injury.⁶

See Black v. London & Egazarian Associates, Inc., 30 Conn.App. 295, 303, 620 A.2d 176 ("[t]he purpose of [General Statute] § 31-294 [notice of injury and of claim for compensation], in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable . . . and that such person is claiming or proposes to claim compensation under the [Workers' Compensation Act (act), General Statutes § 31-275 et seq.]" [citation omitted; emphasis added; internal quotation marks omitted] ), cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993); Otero v. Bridgeport, 13 Conn. Workers' Comp. Rev. Op. 248 (April 17, 1995) (employee injured back twice in 1986, notified employer of each injury, but did not file claim for benefits because not disabled; four years later, employee underwent back surgery due to 1986 injuries, filed claim; board held employee required to file form 30C within one year of injury; claim for benefits four years later ruled untimely).

When an employee sustains an accidental injury, defined in § 31-275(16) as one "that may be definitely located as to the time when and the place where the accident occurred," he immediately must notify his employer of the accident pursuant to § 31-294b. If an employee fails to provide immediate notification, his award of benefits may be reduced if the employer can prove that it has been prejudiced by the failure to provide immediate notification. General Statutes § 31-294b. However, pursuant to § 31-294c(a), the employee not only must notify his employer of the accident, but he also must file a claim for benefits within one year of the date of the accident. Failure to file such a claim results in a jurisdictional bar, unless the failure to file a claim within one year of the date of the accident is saved pursuant to one of the provisions found in § 31-294c(c).⁷ See Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525, 534, 829 A.2d 818 (2003) ("[i]t is well established, moreover, that `a notice of claim or the satisfaction of one of the . . . exceptions [contained in § 31-294c(c) ] is a prerequisite that conditions whether the commission[er] has subject matter jurisdiction under the [act]").

The plaintiff claims that Pearce improperly "merged the nonjurisdictional...