266 Conn. 728 | Conn. | 2003
Opinion
The plaintiff, Michael W. Malchik, appeals
The following facts and procedural history are relevant to our resolution of this appeal. After graduating from high school and working for Southern New England Telephone Company for two years, the plaintiff joined the Waterford police department as a supernumerary officer. The plaintiff eventually was promoted to patrolman, and then detective. He joined the state police department in March, 1970, yet left in February, 1971, for private employment. In May, 1974, the plaintiff returned to employment with the state police, where he was placed on highway patrol and investigated accidents and motor vehicle violations. After two years as a state police trooper, the plaintiff was accepted into the criminal investigation unit, where he worked for seven years investigating crimes up to and including
In 1989, the plaintiff retired from the state police, entered law school, and operated a business known as Litigation Support Services. After graduating from law school in 1993, the plaintiff returned to employment with the state division of criminal justice as an inspector in the New London state’s attorney’s office. After being laid off for eight weeks in 1998, the plaintiff once again returned to employment with the state’s attorney’s office, working as an inspector for both the New London office and the chief state’s attorney’s office. The plaintiff retired from employment with the state in 1998, and his application for retirement benefits listed his last date of employment as September 30, 1998.
In 1999, the plaintiff began to experience chest pain, and ultimately he went to a cardiologist. The cardiologist, who diagnosed the plaintiff as having multiple risk factors for coronary disease, prescribed medication, and recommended cardiac catheterization. After additional testing, the plaintiff was admitted to Yale-New Haven Hospital on October 8,1999, where he underwent an angioplasty and had a stent
The plaintiff appealed from the commissioner’s decision to the board, which affirmed the commissioner’s decision. The board subsequently denied the plaintiffs motion for remand or for the taking of additional evidence. This appeal followed.
I
The plaintiff first claims that the commissioner improperly determined that the plaintiffs coronary artery disease was not an “ ‘[occupational disease’ ” under § 31-275 (15). The defendants contend, to the contrary, that the commissioner properly determined that the plaintiff had presented insufficient evidence to show that his coronary artery disease was an occupational disease. We agree with the defendants.
As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. Filing “a notice of claim or . . . satisfaction of one of the . . . exceptions [contained in § 31-294c (c)] is a prerequisite that conditions whether the commissioner] has subject matter jurisdiction under the [Workers’ Compensation] [A]ct.” (Internal quotation marks omitted.) Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 534, 829 A.2d 818 (2003); Figueroa v. C & S Ball Bearing, 237 Conn. 1, 5-6, 675 A.2d 845
Section 31-275 (15) defines “ ‘[occupational disease’ ” as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
“hi inteipreting the phrase occupational disease, we have stated that the requirement that the disease be peculiar to the occupation and in excess of the ordinary hazards of employment, refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, [the disease] need not be unique to the occupation of the employee or to the work place; it need merely be so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted. Hansen v. Gordon, 221 Conn. 29, 35, 602 A.2d 560 (1992). Thus, an occupational disease does not include a disease which results from the peculiar conditions surrounding the employment of the claimant in a kind of work which would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions. Madeo v. I. Dibner & Bro., Inc., 121 Conn. 664, 667, 186 A. 616 (1936).” (Internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 352-53, 630 A.2d 1027 (1993). In the present case, the facts fail to demonstrate that the plaintiffs coronary
The commissioner found that the plaintiff offered “no credible evidence” tying coronary artery disease to his occupation. The board agreed with the commissioner’s review of the evidence, and determined that “[t]he trial commissioner therefore had no basis upon which to make a finding that stress should be considered an occupational disease for either police officers or criminal investigation specialists working within the law enforcement system, and we find no error in that regard on appeal. ” Although the record reveals that the plaintiff offered evidence to prove that he personally suffered coronary artery disease as a result of stress from his job,
This conclusion is bolstered by an examination of prior cases in which this court has concluded that a claimant’s disease was not an occupational disease under the Workers’ Compensation Act. See, e.g., Discuillo v. Stone & Webster, 242 Conn. 570, 579, 698 A.2d 873 (1997) (painter could not claim heart attack as occupational disease because both mental and physical stresses of painting were no more likely to cause heart attack than other kinds of employment under same circumstances); Crochiere v. Board of Education, supra, 227 Conn. 353 (teacher could not claim mental injury as occupational disease where injury was based on false charges of sexual misconduct because such allegations “could arise in numerous occupational settings”); Madeo v. I. Dibner & Bro., Inc., supra, 121 Conn. 668 (although plaintiffs tuberculosis resulted from unsanitary conditions of her particular employment in factory, it was not occupational disease because any occupation conducted under specific conditions at that factory, “which never should have been permitted
The plaintiff, however, cites to General Statutes §§ 5-145a
Section 5-145c explicitly states that “[n]othing herein shall be construed to affect the application of chapter 568 to such person,” while § 5-145a states that a claim “shall be compensable in accordance with the provisions of chapter 568 . . . .” Accordingly, both §§ 5-145a and 5-145c require a claimant to comport with
The case of Zaleta v. Fairfield, 38 Conn. App. 1, 658 A.2d 166, cert. denied, 234 Conn. 917, 661 A.2d 98 (1995), provides additional instruction to the resolution of this claim. In that case, “[t]he plaintiff . . . relied only on the language of § 7-433c, claiming that it evinces legislative recognition of heart disease and hypertension as occupational diseases vis-a-vis police officers and firefighters.” (Emphasis added.) Id., 7. After a thorough analysis of the legislative history of § 7-433c,
II
The plaintiff next claims, as an alternate ground for reversing the board’s decision, that his notice of claim was timely under the one year limitation period applicable to accidental and repetitive trauma injuries. Specifically, the plaintiff claims that his notice of claim was timely because: (1) he was an employee of the state beyond September 30, 1998, due to his assistance on the retrial of the penalty phase of the Ross case; (2) his assistance to the state constituted additional exposure to incidents of repetitive trauma beyond September 30, 1998; and (3) he was incapacitated for several weeks after his retirement, thereby tolling the one year limitation period for an equivalent amount of time. We disagree.
“The principles that govern our standard of review [of these claims] are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the review board nor this court has the power to retry the facts.” (Citation omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 797-98, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).
A
The plaintiff. first claims that the commissioner improperly found that the plaintiffs last date of employment was September 30,1998. Specifically, the plaintiff contends that he “acted as an employee of the State
“[T]here is no dispute about the ultimate test [for deciding whether a worker is an employee under the Workers’ Compensation Act]. It is the right of general control of the means and methods used by the person whose status is involved.” (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 245 Conn. 613, 617, 716 A.2d 857 (1998); Ross v. Post Publishing Co., 129 Conn. 564, 567, 29 A.2d 768 (1943).
The following additional facts are relevant to our resolution of this claim. Specifically, the commissioner found that the plaintiffs application for retirement benefits listed his last date of employment with the state as September 30, 1998. After October 1, 1998, the state hired John Edwards, an investigator, to help prepare for the retrial of the penalty phase of the Ross case. Subsequently, Edwards asked the plaintiff for help in preparing the case. The plaintiffs help consisted of: (1) going to the New London state’s attorney’s office for meetings that were primarily arranged at the plaintiffs convenience; and (2) reviewing a notebook of his original trial testimony. In addition, the commissioner found that: (1) the plaintiff, although he requested pay, was never paid for his services; (2) no one from the state exercised direction or control over the plaintiffs activities; (3) no performance reviews were ever filed on the plaintiffs activities; (4) no one from the state tracked the plaintiffs mileage records or reports, or sent him directives on office policies and procedures; and (5) there was no personal services agreement between the state and the plaintiff.
B
The plaintiffs next claim is that, even if he was not an employee of the state beyond September 30, 1998, his assistance on the retrial of the penalty phase of the Ross case constituted additional work-related incidents of repetitive trauma, thereby extending the one year limitation period. We disagree.
Claims of injuries resulting from cases of repetitive trauma are subject to the same one year limitation period as claims for accidental injuries. Discuillo v. Stone & Webster, supra, 242 Conn. 581. In the present case, the commissioner found that “[t]he last time that [the plaintiff] could have been exposed to work related stress was on his last date of employment with [the state] on September 30, 1998.” The plaintiff, however, maintains that our decisions in Crochiere and Discuillo stand for the proposition that exposure to repetitive trauma can occur after the termination of an employment relationship. We disagree.
In Crochiere, this court stated that “in repetitive trauma cases, it is settled law that the date of injury is the last day of exposure to the work related incidents of repetitive trauma, or the last day worked, whichever is later.” Crochiere v. Board of Education, supra, 227 Conn. 354. Subsequently, in Discuillo, we clarified that “our dicta in Crochiere ... to the effect that the final date of a claimant’s employment has independent significance, was an incorrect application of board precedent.” Discuillo v. Stone & Webster, supra, 242 Conn. 581 n.11. This court also emphasized that “although the
The plaintiff interprets Discuillo as stating that the last day of exposure can come either before or after the termination of employment. That interpretation is incorrect. Implicit in Discuillo was the recognition that, although exposure to work-related incidents of repetitive trauma can cease before a claimant’s employment does,
Lastly, the plaintiff claims that the commissioner improperly found that the plaintiff was not incapacitated for a period of time following September 30,1998, thereby tolling the one year limitation period. Specifically, the plaintiff claims that, from September 28,1999, until November 17,1999, he was tending to his immediate and urgent medical needs, and was thus incapacitated from filing a notice of claim. We disagree.
The commissioner properly found that the plaintiff “failed to introduce any credible evidence that would support his contention that he was incompetent during the one year following his retirement from [s]tate service on September 30, 1998.” Furthermore, this court consistently has held that “[i]t is clear that an administrative body must act strictly within its statutory authority, within its constitutional limitations and in a lawful manner. Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 77 (1971).” (Interna! quotation marks omitted.) Marone v. Waterbury, 244 Conn. 1, 16, 707 A.2d 725 (1998). “Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.” Discuillo v. Stone & Webster, supra, 242 Conn. 577.
As the board noted, the plaintiff has failed to identify any authority that would allow the commissioner to extend the limitation periods past the periods set forth in § 31-294c (a) in situations where the plaintiff is incapacitated.
The decision of the board is affirmed.
In this opinion the other justices concurred.
The plaintiff appealed from the decision of the workers’ compensation review board to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
General Statutes § 31-275 (15) provides: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be . . . .”
The defendants involved in the commissioner’s decision included the state division of criminal justice, the state department of public safety and state police, Berkley Administrators, O’Hanlon Reports, Inc., Reliance Insurance Company, Litigation Support Services, the Waterford police department, and United States Fidelity and Guaranty Company. On appeal to this court, the defendants are the state division of criminal justice, the state department of public safety and state police, and Ace Financial Solutions. They will be referred to collectively as the defendants, and, where appropriate, individually by name.
See State v. Ross, 230 Conn. 183, 191, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (affirming conviction of all counts of capital felony, but “revers[ing] the judgments with imposing the death penalty and remandpng] for new sentencing hearings on all counts”).
The American Heritage Stedman’s Medical Dictionary (1995) defines the term stent as a “slender thread, rod, or catheter placed within the lumen of tubular structures to provide support during or after anastomosis.”
For example, the plaintiff claims that “[t]here is ample evidence—direct, circumstantial and anecdotal—demonstrating that [the plaintiffs] heart disease was causally related to workplace stress.” This may be true as it regards the causation of the plaintiffs coronary artery disease. It does not, however, necessarily prove that the plaintiffs coronary artery disease qualifies as an occupational disease for purposes of extending the limitation period for bringing a workers’ compensation claim. See Hansen v. Gordon, supra, 221 Conn. 38 (affirming award “because the claimant has proven that [hepatitis type B virus (HBV)] arose out of and in the course of her employment, and that IIBV is an occupational disease for a dental hygienist” [emphasis added]). Furthermore, a letter from the plaintiffs cardiologist stated that “[the plaintiff] has always taken his job very, very seriously, and it has always been quite stressful to him. It is clear that stress is directly associated with coronary artery disease and angina. I feel that the majority of [the plaintiffs] stress was job-related from his long years as apolice officer.” This letter, although suggesting that his disease was the result of his individual approach to his job, does not mandate a finding that coronary artery disease is so distinctly associated with the plaintiffs occupation as to qualify as an occupational disease.
The plaintiff interprets this language from Hansen, as requiring only a showing of proximate cause between the disease and the plaintiffs job. This interpretation is mistaken, however, because the Hansen language requires a showing of proximate cause between the duties of the occupation and the plaintiffs disease. The term “occupational disease” alone demonstrates that the analysis is focused on more than just the plaintiffs situation, as would be the case in the analysis of an accidental or repetitive trauma case. In both of those situations, the commissioner examines the individual job and activities of the plaintiff in order to determine if the injury is compensable. With occupational diseases, however, the inquiry is much broader, and encompasses an analysis of conditions “peculiar to” the plaintiffs occupation.
General Statutes § 5-145a provides in relevant part: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to . . . any detective, chief inspector or inspector in the Division of Criminal Justice . . . who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568 [Workers’ Compensation Act], except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. . . .”
General Statutes § 5-145c provides: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to any chief inspector or inspector in the Division of Criminal Justice who had successfully passed a physical examination on entry into prior service in any state or municipal police department, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty as a chief inspector or inspector in the Division of Criminal Justice. Nothing herein shall be construed to affect the application of chapter 568 to such person.”
The plaintiff cites two additional statutes in support, of his claim, yet these statutes apply to different professions. See General Statutes § 7-433c (providing rebuttable presumption of causation to “a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department”); General Statutes § 29-4a (providing rebuttable presumption of causation for “a member of the Division of State Police within the Department of Public Safety”).
In addressing a similar statute, the Appellate Court stated that “[§] 7-433c was not intended to provide its beneficiaries with dual dollar benefits, but to eliminate two of the basic requirements for coverage under the Workers’ Compensation Act, namely the causal connection between hypertension and heart disease and the employment, and the requirement that the illness was suffered during the course of employment.” Salmeri v. Dept. of Public Safety, supra, 70 Conn. App. 331.
General Statutes § 7-433c (a) provides in relevant part: “Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. . . . The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. . . .”
Specifically, the Appellate Court noted: “The statute concerning heart disease and hypertension was originally drafted as part of the Workers’ Compensation Act and provided police officers and firefighters with a rebut-table presumption that heart disease and hypertension were causally connected to their occupations. Morgan v. East Haven, 208 Conn. 576, 580, 546 A.2d 243 (1988). In 1969, this rebuttable presumption was made conclusive and the statute was soon declared unconstitutional in Ducharme v. Putnam, 161 Conn. 135, 143, 285 A.2d 318 (1971). In response to that problem, § 7-433c was enacted in its present form in 1977 as legislation separate and distinct from the Workers’ Compensation Act. Morgan v. East Haven, supra, 581.
After the board issued its decision in the present case, the plaintiff filed a motion to remand or for the taking of additional evidence. The board denied this motion. In a footnote to his brief, the plaintiff claims that the board erred in denying that motion, and that denial forms the basis for reversal on appeal. Because the plaintiff did not appropriately raise this issue, we will not address the propriety of the board’s actions.
In addition, the plaintiff attempts to characterize the commissioner’s decision as “establishjing] a new requirement” that claimants present “opinion evidence from a qualified vocal ional or other appropriate expert concerning the risks and hazards particular to the specific occupation.” We do not agree. The commissioner’s decision merely found that, in the present case, the plaintiff failed to meet his burden of showing that his coronary artery disease was an occupational disease of police officers and investigators. The determination of whether the evidence presented, in whatever form, demonstrates the existence of an occupational disease rests with the commissioner, subject to applicable forms of appellate review. We do note, however, that despite the plaintiffs claim, many prior cases involving occupational diseases have featured expert testimony. See, e.g., Hansen v. Gordon, supra, 221 Conn. 37 n.3 (“claimant’s treating physician ... [as well as] a professor at the University of Connecticut dental school, and . . . the employer’s expert, a physician specializing in internal medicine and gastroenterology, all testified that dental professionals are at an increased risk to contract [hepatitis type B virus]”).
As the board noted in its decision, there was testimony that the division of criminal justice cannot rehire a retired individual without the execution
For example, a police officer could be removed from Ms or her normal patrols and duties, and be permanently assigned to a desk job. In that situation, the officer would be removed from potential sources of repetitive trauma, such as homicide scenes and ongoing criminal activities, yet still be employed. In that case, as we discussed in Discuillo, the last date of exposure to the sources of repetitive trauma would be the germane date for calculating the limitation period on a claim.
For example, § 31-294c provides exceptions to the limitation period, none of which the plaintiff has claimed is applicable here. None of these exceptions mention a tolling of the limitation period due to a claimant’s incapacity. Further, this court has rejected similar arguments in the past. See Kuehl v. Z-Loda Systems Engineering, Inc., supra, 265 Conn. 537 (rejecting claim that savings provision of § 31-294c [c] applied to plaintiffs