Discuillo v. Stone and Webster

• Decision Date: 07 November 1996
• Docket Number: No. 14863,14863
• Citation: 682 A.2d 145,43 Conn.App. 224
• Court: Connecticut Court of Appeals
• Parties: Peter DISCUILLO v. STONE AND WEBSTER et al.

Page 145

682 A.2d 145

43 Conn.App. 224

Peter DISCUILLO v. STONE AND WEBSTER et al.

No. 14863.

Appellate Court of Connecticut.

Argued May 2, 1996.

Decided Sept. 24, 1996.

Certification Denied Nov. 7, 1996.

Amy M. Stone, with whom were Carolyn P. Kelly, Groton, and, on the brief, Nathan Julian Shafner, Norwich, for appellant (plaintiff).

Lucas D. Strunk, Glastonbury, for appellee (named defendant et al.).

Before DUPONT, C.J., and LAVERY and SCHALLER, JJ.

LAVERY, Judge.

The plaintiff appeals from the judgment of the compensation review board (board) dismissing the plaintiff's claim for compensation benefits. On appeal, the plaintiff claims that the board improperly determined that the plaintiff failed to file a notice of claim in a timely manner as required by General Statutes (Rev. to 1981) § 31-294. ¹ We affirm the judgment of the board.

commissioner found the following facts. Prior to November 12, 1982, the plaintiff was employed by the defendant, Stone & Webster, ² as a painter. The plaintiff's responsibilities required him to climb ladders and to work on scaffolding while carrying five gallon buckets of paint and heavy pneumatic grinding equipment. While working, the plaintiff was constantly watched by job supervisors who pressured the plaintiff and his coworkers to get work done within certain time constraints. The plaintiff testified that he was in constant fear of losing his job because of his inability to keep up with the speed at which younger coworkers accomplished the same work.

On November 12, 1982, the plaintiff sustained a heart attack after working the entire day on scaffolding using a heavy grinding machine. The plaintiff has not worked since that date. The plaintiff did not relate the heart attack to job stress until September, 1984, when he read in a newspaper about a similar case. On September 27, 1984, the plaintiff filed a notice of claim that identified his injury as the November 12, 1982 heart attack while in the defendant's employ. On October 22, 1984, the defendant filed a notice contesting the claim on the grounds that (1) the heart attack did not arise out of the employment and (2) the claim was barred by the § 31-294 time limitations.

On December 13, 1993, the commissioner issued his findings and award. The commissioner found that the heart attack suffered by the plaintiff arose out of the course of his employment with the defendant and was caused by physical and mental stress while on the job, as well as arteriosclerotic heart disease. The commissioner also found that the plaintiff filed the notice of within one year of the date on which the plaintiff understood the causal relationship between the heart attack and the job stress. The commissioner concluded that the plaintiff's claim was not time barred under § 31-294.

The board reversed the commissioner's decision and concluded that the plaintiff's claim is barred by § 31-294. The board held that a heart attack is an accidental injury and not an injury that is the direct result of repetitive trauma and that notice of claim for a heart attack must be filed within one year of the attack to be timely. We agree with the board that the plaintiff has failed to file a notice of claim in a timely manner.

"Our standard of review of the board's determination is clear. '[T]he [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts.... [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.... The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.' (Citations omitted; internal quotation marks omitted.) Six v. Thomas O'Connor...