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Interesting legal stuff on "Corporations Sole."
"A corporation sole is one consisting of one person only, and his successors in some particular station, who are incorporated by law in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the sovereign in England is a sole corporation, so is a bishop, so are some deans distinct from their several chapters, and so is every parson and vicar."
It is, however, objected on the part of the defendants that, the supervisor, if endued with corporate powers, is a corporation sole, which cannot take goods and chattels in succession; that they do not, on his death, go to the successor, but the personal representatives; and they cite Kyd on Corporations, Intro. P. 31, Co. Litt. 46, b. Where it is said, "If a lease for years be made to a bishop, and his successors, yet his executors and administrators shall have it, in auterdroit; for, regularly, no chattel shall go to succession, in case of a sole corporation, no more than if a lease be made to a man and his heirs, it can go to his heirs." The same doctrine is laid down to Fulwood's case, (4 Co. 65,) where, however, the Court held a recognizance good to the chamberlain of London and his successors, upon a custom; for that he was a corporation by custom; and the same custom which created him, made him a corporation in succession, to this special purpose; but that a bishop, parson, &c. Can only take on an obligation in their private, and not in their corporate capacity.
Corporation sole are of two kinds: the one when the person has a corporate capacity for his own benefit; the other when he acts only as trustee for the benefit of others. Of the former kind, Kyd instances the king, bishops, parsons, &c.; of the other, the most familiar instance, says the same author, is the chamberlain of the city of London, who may take a recognizance to himself and successors, in trust for the orphans.
The true reason, therefore, of the distinction between the case of the bishop, and the chamberlain, is not the custom alleged, but the fact that the former takes obligations in his private capacity, and the later in his corporate capacity.
What Were the Original Corporations Recognized by Secular Authorities?
The earliest corporations were civil or ecclesiastical, rather than business or profit. See generally Laski, The Early History of the Corporations in England, 30 Harvard Law Review 561 (1917); Williston, History of the Law of Business Corporations Before 1800 (pts. I and II, 2 Harvard Law Review 109, 149 (1888).
Please Describe Some of the Main Characteristics of a Corporation Sole, and Distinctions Between a Corporation Sole and a Corporation Aggregate.
"Legal nomenclature is for once its own interpreter. A member of a corporation sole is one of a series of persons succeeding one another in some official position." C. Carr, The Law of Corporations 14 (1905 & photo reprint 1984). For example Queen Elizabeth II, as a corporation sole, is identical to Victoria; the present Archbishop of Canterbury in his corporate form is one with his predecessors, Laud, Benson and Lang. The corporation sole, unlike its business counterpart, is only vertical in time.
"There are a few points of corporation law applicable to a corporation sole," according to Kent. [2J. KENT, COMMENTARIES 273.] There are however, four legal characteristics unique to it: All corporations sole are " either public officers or dignitaries of the established church." In sort the corporation sole is the incorporation of an office. At common law, the corporation sole can claim title to real property only. Property and powers of a corporation sole are transferred on the death of an incumbent to successors in office, not to heirs or through executors.
". . .In all these aspects, the distinction between an aggregate and sole corporation, growing out of the different modes of constitution and forms of action, is striking and obvious. A bishop or parsons acting in a corporate capacity and holding property to him and his successor in right of office, has no need of a corporate name, he requires no particular, he performs all legal acts under his own seal, In his own name and name of office; his own will alone regulates his acts and he has no occasion for a secretary, for he need not keep a record of his acts, need no treasurer, for he has no personal property except the rents and proceeds of the corporate estate, and these he takes to his own use when received. By-laws are unnecessary, for he regulates his own action, by his own will and judgment, like any other individual acting in his own right. But it is not necessary to pursue the comparison into all its details; the points suggested are sufficient to show the legal distinctions between the two classes of corporations."
". . .The issue as defined by the trial court, "is whether the assets of its corporation sole are the personal assets of its titular head, and thus subject to execution for his or her debts." The answer on the basis of legal authorities defining the corporation sole and its attributes must be, as the trial court concluded, an unequivocal "no". The corporation sole is a venerable creation of the common law of England, and is well established under common law in California. (Santillan v. Moses (1850) 1 Cal. 92; Archbishop v. Shipman (1889) 79 Cal. 283. California by statute has legitimized this tradition and regulates the formalities attendant upon the creation and continued existence of the corporation sole (Corp. Code Section 10000 et seq.) One principal purpose of the corporation sole is to insure the continuation of ownership (sic) [quiet possession given by GOD under Abrahamic Covenant] dedicated to the benefit of a religious organization which may be held in the name of the titular head (sic) [The Office]. Title [quiet possession by inheritance from GOD] will not then be divested or passed to that person's heirs upon the death but will be retained for the benefit of the religious group and passed to the successors to his office.
The topic was covered by Blackstone who described the corporation sole as follows: "Corporation sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a corporation sole; so is a bishop; some are deans, prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity of at least use, of this institution will be very apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the churchyard, the parsonage house, the globe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for the spiritual care of the inhabitants, and with the intent that the same emoluments should afterwards continue as a recompense for the care. But how was this to be effected ? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and encumbrances; or at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law therefore has wisely ordained, that the parson, quatenus (as) parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor; for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also." (1 Blackstone's Commentaries, ch. 18, pp. 469-470).
Can You Provide More Examples of the Modern Use of a Corporation Sole, and Recognition by Legislatures and Courts of the United States of America?
The office of bishop in most dioceses in the U.S. is a corporation sole. 4 New Catholic Encyclopedia, Corporation 337 (1967). A current review as of 1988 reveals approximately one-third of the diocesan bishops are corporations sole. The remainder of the dioceses have small boards, usually appointed by the bishop. See Maitland, The Corporation Sole, 16 Law Quarterly Review 335 (1900), reprinted in F. Maitland, Selected Essays 73 (1936). There is however a biography entitled Corporation Sole, a life of Cardinal Mundelein, See E. Kantowicz, The Corporation Sole (1983).
The Office of the President of the Church of Jesus Christ of Latter Day Saints is a corporation sole.
The Governor of Tennessee is regarded as a corporation sole. Polk v. Plummer, 21 Tenn. (2 Hum.) 500 (1841); Governor v. Allen, 27 Tenn. (8 Hum.) 176 (1847).
Probate judges have been accorded the status of a corporation sole [Overseers of the Poor v. Sears, 39 Mass. (22 Pick.) 122, 126 (1839)., and in some cases town supervisors [Jansen v. Ostrander 1 Cow. 670, 683 (N.Y. Sup. Ct. 1824)].
Under the Governor General & rsquos Act of Canada at Chapter G-9, Part 1, para. 2 it reads: "The Governor General of Canada or other chief executive officer or administrator carrying on the Government of Canada on behalf and in the name of the Sovereign, by whatever title designated, is a corporation sole."
The Office of the Pope of the Roman Catholic Church is a corporation sole.
Most English speaking countries with a form of government based on common or cannon law (including the United States, Canada, Latin America, and Caribbean Islands) recognize corporation sole in two significant ways. In the first instance, states acknowledge the office as prior existing, provided the articles of incorporation are drafted so as to provide the pre-article history of the office. In the second instance, states recognize a newly created corporation sole by the simple filing of articles of incorporation. In this latter instance, the articles do not reference any pre-incorporation history of the office, as indeed none exists.
At least nine other states or jurisdictions have at least one corporation sole created under special or private charter, sometimes dating to before the time of the passage of a general incorporation statute. They are the District of Columbia, Illinois, Kentucky, Maine, Maryland, Massachusetts, Nebraska, Rhode Island, and Texas. No authoritative listing has been found listing the states which have corporations sole under private law or special incorporation. The foregoing nine jurisdictions were drawn from cases citing a corporation sole in a judicial opinion, from the examination of sessions law, and from a listing of corporate names of dioceses in the 1987 Official Catholic Directory.
". . .The plaintiff being a corporation sole, has no stockholders. It is the legal representative of an ancient religious order the members of which have among other vows, that of poverty."
The existence of a corporation sole is also analyzed by the Supreme Court in deciding the exempt tax status in Northwestern University v. People 99 U.S. 387 (1878).
". . .Under a federal internal revenue statute, 4 Fed Stat. Ann (2d ed.) Pp. 245-252; 38 Stat. At Large, chap. 16, pp. 172-180, exempting the income of corporations sole organized and operated exclusively for religious, charitable, scientific, or educational purposes, no part of the net income of which inures to the benefit of any private stockholder or individual. It has just recently been held by the United States in the case of Trinidad v. Sagrada Orden de Predicadores, 44 Sup. Ct. 204, 68 L. Ed. 223, that a corporation sole, of an ancient religious order of similar character to the one here under consideration, does not forfeit its exemption by reason of incidental earnings and profits arising from its general charitable operations, where none of its members share in the profits." Santa Rosa Infirmary v. City of San Antonio (Tex. Com. App. 1925) 259 S.W. 926 at 934.
Is One Jurisdiction Favored Over Any Other As a State or Country where The Corporation Sole Might be Recorded?
After reviewing all of the corporation sole statutes and case law available on this subject, Washington and Nevada are favored simply because the statutes are simple, the fees are minimal, and the statute prohibits any annual fee or filings.
Do Other Jurisdictions Recognize Corporation Sole?
The doctrine of comity involves the recognition that one sovereignty allows within the territory to the legislative, executive, or judicial act of another sovereignty, having due regard for its own citizens. In general, the principle of comity is that the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect. Brown v. Babbit Ford, Inc. 117 Ariz. 192, 571. P.2d 689, 685. Although the term "comity" is defined in Black's Law Dictionary 6th ed. (1991) at page 267, the question is by no means clear whether each state, county or other political subdivision thereof will automatically recognize a corporation sole acknowledged by the Nevada Secretary of State.
"When a state departs from a generally accepted rule of private international law, it is not denounced as a law-breaker by judges or diplomats in other countries. English judges sometimes say that their actions are dictated by lsquo; comity & rsquo;. This is an unusual word, and gives the impression of being a technical term; however it is unclear what, if anything, English judges mean when they use it. Its literal meaning is & lsquo; courtesy & rsquo;, and in this sense comity is regarded as something different from law of any sort; rules of comity are customs which are normally followed but which are not legally obligatory. At other times is used as a synonym for private international law; as a synonym for public international law; or as a totally meaningless expression. It is a wonderful word to use when one wants to blur the distinction between public and private international law, or to avoid clarity of thought." AKEHURST, MODERN INTRODUCTION TO INTERNATIONAL LAW, 7th ed. (1996), p. 73.
If I hire a Lawyer or Accountant, Will He or She Understand the Corporation Sole?
In some instances yes, in most cases no. The corporation sole is not taught in modern law school classes. Unless the lawyer has had extensive experience with ecclesiastical or canon law, or other ecclesiastical bodies using the corporation sole, and well versed and learned in corporation sole, the chances are the lawyer, accountant, or advisor, will be entirely unfamiliar with the corporation sole.
At best, the lawyer, accountant, or advisors unfamiliarity, or limited knowledge, with the corporation sole will probably cause him or her to confuse it with a "non profit" or "not for profit" corporation with or without a 26 U.S.C.S. 501 (c)(3) status. IT MUST BE EMPHASIZED THE CORPORATION SOLE IS DIFFERENT FROM a "non-profit" or "not-for-profit" corporation with or without at 26 U.S.C.S. 501 (c)(3) status IN ALMOST EVERY CONCEIVABLE WAY. Under these circumstances with a lawyer, accountant, or advisor, unfamiliar with a corporation sole, it is recommended to seek out competent advice and assistance of a lawyer or knowledgeable advisor extremely familiar with corporation sole, who can assist, rather than fights with or re-characterizes your objectives. Although, asking a lawyer or accountant to educate himself or herself, can become extremely costly.

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Many, many, many moons ago, the hotel chain Fairfield Inn came up with a pretty funny commercial. In the commercial, an executive was running late to a meeting and was traveling on a two lane highway. Driving at a fast speed, the executive entered a No Passing Zone on the highway. Unfortunately for the executive, there was an old couple driving there Cadillac going about 2 mph. The commercial pans to the old man who began yelling at his wife, “SLOW DOWN you are going to get us killed!” That was followed up with “You are driving like a bat out of Hades!” To this day, I still get a laugh out of that commercial.
That little tidbit takes us to State v. Bacher, 2007-Ohio-727.
Based on the slow speed, Officer Norton initiated a traffic stop. During the traffic stop, Officer Norton noticed a strong order of alcohol on Bacher. Bacher agreed to take the field sobriety tests and failed all three tests. Bacher was then arrested for OVI.
Bacher moved to have the stop suppressed at the trial court level. The trial court agreed with Bacher and suppressed the traffic stop. The state appealed.
The appellate court opened up with, which I think is hilarious; “the Fourth Amendment applies even to fools.” As you can tell, the appellate court really liked Bacher! With that, let’s dive into some case law!
A reasonable suspicion represents something less than probable cause, but more than inchoate and unparticularized suspicion or hunch. State v. Ramey, 129 Ohio App.3d 409. When assessing whether reasonable suspicion existed, a reviewing court must consider the totality of the circumstances to determine whether the officer had a particularized and objective basis for suspecting wrongdoing. U.S. v. Cortez, 449 U.S. 411.
Even legal conduct, under some circumstances, may justify a reasonable suspicion that criminal activity is afoot. U.S. v. Sokolow, 490 U.S. 1. But reasonable suspicion generally requires that there be a series of innocent acts that when viewed together, give an officer justification for further investigation. Id.
Based on the above, the appellate court found that slow driving alone does not create a reasonable suspicion of OVI, and upheld the trial court’s original decision.
If you ever get a chance to read the original opinion in Bacher, I highly recommend it. Judge Painter does an excellent job of being very blunt and at the same time being very true to the law.
Holidays, family get-togethers, weddings, and family reunions are more often than not some of the most joyous times you may have with your family. Then again, no one likes to see their drunk Uncle Frank hit on a waitress then pick a fight with the bartender because he used Jack Daniels whiskey instead of the cheap Cutty Sark brand. After all, Uncle Frank is on a fixed income. But hey, it is family….right?!?!
Well in State v. Race, 2017-Ohio-612, the defendant made it very well known to his mother that she was not allowed back into the house they shared. This well thought out delivery of said news to his mother landed the defendant in some criminal legal troubles.
In Race, Race was indicted on domestic violence, receiving stolen property, aggravated drug possession, and possession of drugs. Ole Race, not wanting to give up the good fight, took his case to the box to defend against these absurd charges.
Unfortunately for Race, he was found to be guilty as charged. The trial court found Race was not amenable to community control and sentenced Race to an aggregate prison term of 17 months. On appeal, Race only assigned errors to his domestic violence conviction.
Race argued that there was an insufficiency of evidence to sustain his conviction of domestic violence and that the trial court erred by refusing to grant his motion for acquittal for the criminal charge of domestic violence. Both assignments of error were based on the element of “imminent physical harm” proscribed by R.C. 2919.25(C).
Race and his mother lived together when he made the threat to her via telephone. Race’s mother testified that she was at the hospital and that she informed Race about her plan to return home instead of moving into a nursing home. Mother’s plan was to have nurses assist her in making this return home.
In response, Race threatened to kill his mother and anyone who joined her if she were to return home. Mother further testified that although she felt “not good” resulting from the threat, her sense at that moment was that she was unsure whether Race was serious. Even so, Mother testified that she did not want to return home that night, and that she begged the hospital staff to stay admitted.
At trial, Race’s attorney moved the trial court for acquittal of the domestic violence charge allegedly committed against the victim “based upon lack of proof.” The trial court denied the motion.
In both assignments of error, the appellate court found that Race was essentially arguing that there was insufficient evidence to convict him of domestic violence under R.C. 2919.25(C). Based on that finding, the appellate court addressed both of Race’s assignments as one.
On review for sufficiency, the court examines the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond reasonable doubt. Id.
On review of the denial of a Crim.R. 29(A) motion, a court views the evidence in a light most favorable to the state. State v. Bridgeman, 55 Ohio St.2d 261. An entry of acquittal is improper “if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.” Id.
Unfortunately, the Revised Code does not define the word imminent. In re Jenkins, 2004-Ohio-2657. However, Ohio courts have defined imminent as “near at hand or impending.” State v. Fisher, 2011-Ohio-5965. It has also been defined as the belief of the victim that harm would occur immediately or, in the alternative, that the defendant will cause immediate physical harm. Id.
Generally, a conditional threat, standing alone, is insufficient to satisfy the element of imminent physical harm. State v. Schweitzer, 2015-Ohio-925. A threat is conditional where a prerequisite must occur before the actor intends or is empowered to carry out the threat.” State v. Collie, 1008 Ohio App.3d 580. A conditional threat can constitute a violation of the menacing laws, but not a violation of R.C. 2919.25(C). In re Jenks.
In Race’s case, his mother testified that Race called and threatened to kill her. The record revealed that this testimony was the only evidence offered to support the domestic violence conviction. Further, Mother’s testimony supports that Race’s threat was conditioned on the victim returning home. Mother did not indicate she felt unsafe at that moment, and she even asked to stay admitted at the hospital – which confirmed she felt safe at the specific time and place. Mother’s concern was what may happen if she were to return home.
Based on this, the appellate court held that no reasonable trier-of-fact could find that Race’s threat was imminent or that Race’s mother believed she stood in jeopardy of immediate physical harm. Thus, there is no basis on record for the domestic violence conviction.
Now you might be thinking, “big deal….Ole Race is still sitting in prison.” Domestic Violence charges are a big deal because they carry stiff collateral consequences and each subsequent charge is enhanceable. Meaning, if Race’s conviction stuck and he pulled the same B.S. with his mother again, he would now be facing a second degree misdemeanor instead of a fourth degree misdemeanor.
On January 18, 2017, I posted a blog article entitled Separating Actual Cocaine From The Filler: A Look At How The Ohio Supremes Are Requiring The State To Prove The Weight Of Cocaine Without Any Filler.
Based on that question, the Ohio Supremes held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.
Well unfortunately for Gonzales I, it only last for a few short months and has now been reversed by the Ohio Supreme Court.
Pursuant to Supreme Court Practice Rule 18.02, the state filed a Motion to Reconsider the court’s original ruling in Gonzales I. S.Ct.Prac.R. 18.02 gives the Ohio State Supreme Court the authority to “correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381. The Court, “will not, however, grant reconsideration when a movant seeks to merely to reargue the case at hand.” Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2014-Ohio-1940.
The state asserted in their Motion to Reconsider that the Court misapplied the rule of lenity and the canon of strict construction. Based on that belief the Court, in a 5-2 decision, granted the state’s Motion to Reconsider Gonzales I.
Chief Justice O’Connor, writing for the majority, held that the entire “compound, mixture, preparation, or substance,” including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4). Thus, the Court vacated its decision in Gonzales I and reinstated the 11 year prison sentence of Gonzales.
Justices Kennedy and O’Neill wrote dissenting opinions. Out of the two dissenting opinions, Justice O’Neill let his feelings known!
Justice O’Neill stated that each of the opinions in Gonzales I were fully and carefully considered by the seven justices of the court and the only thing that has changed since Gonzales I is the makeup of the court. Justice O’Neill followed that up with “[f]rom this day forward, newly seated justices on this court have a license to reconsider that which they never considered in the first place.” Original emphasis.
I believe a little history lesson might be in order with regards to the word “cocaine.” This whole wording debacle with regards to “cocaine” came about under a decade ago with lawmakers tried to equalize sentencing for powder cocaine and crack cocaine. This was done to address concerns that minorities, who were more likely to use crack than powder, were being punished disproportionately for using essentially the same drug being used by a white powerbroker who was using the powder form in a penthouse suite.
Amended House Bill 4 has been passed in the House, but the Senate has not acted on the bill yet.
Only time will tell with regards to the fate of the word cocaine!
“Hurry up and wait” is a common theme in criminal court rooms across the country. Attorneys arrive to their respective hearings earlier enough to talk with the judge and prosecutor in hopes of having their case called first to move on to the next courthouse and case. However, sometimes the court docket is 30 pages long and the attorney has no choice but to wait patiently.
But, that is the game and attorneys know how to play it and are very much use to it. Personally, I don’t mind it because I use that time to go over my case and to take a mental break.
Realistically, the reason the criminal court room process takes a good length of time is because the judge has to go over a lot of information with the defendant. This includes all of the guaranteed constitutional rights the defendant will be giving up if he proceeds to a guilty plea. In addition, the judge has to inform the defendant what the effect of his guilty or no-contest plea has in his/her case.
That, ladies and gentlemen, is my little segue to State v. Walsh, 2017-Ohio-549.
In Walsh, Walsh was involved in a motor vehicle accident and was cited for failure to drive with in marked lanes. Walsh set his case for trial, but his witness was a no show for trial. Walsh, with legal counsel, then entered a no-contest plea to the marked lanes violation.
Court: Are we proceeding to trial?
Counsel: Your Honor, there’s a plea. No contest to the allegations. Stipulate the facts.
Prosecutor: Insurance was marked yes, Judge.
Court: And you’ll stipulate to the guilt?
Apparently not too happy with entering a no-contest plea, Walsh appealed his case arguing that the trial court erred when it failed to advise him of the effect of his no-contest plea.
Traffic Rule 10(D) states that a trial court “shall not accept a guilty or no-contest plea without first informing the defendant of the effect of the plea of guilty, no contest, or not guilty.” A court complies with the mandate of Traffic Rule 10(D) by “informing the defendant of the information contained in Traf.R. 10(B).” State v. Watkins, 2003-Ohio-2419.
Traffic Rule 10(B) describes the effects of the possible pleas, nothing that “the plea of no contest is not an admission of defendant’s guilty, but is an admission of the truth of the facts alleged in the complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.” Traf.R. 10(B)(2).
While a slight deviation from the text of the rule is permissible, the trial court must convey sufficient information so that a defendant subjectively understands the implications of his plea and the rights he is waving. State v. Clark, 2008-Ohio-3748.
Based on the rules and case law, the appellate court found the above colloquy was insufficient to satisfy the notification requirements of Traf.R. 10(D). Therefore, the judgment of the trial court was reversed and remanded back down to the trial court.
Listen, I have no doubt that the trial court probably had a very lengthy docket and the court was just trying to move the cases along as efficiently as possible. But, as the Ohio State Supreme Court has stated in multiple cases, the rules are there for a reason!

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All foreign patents, published applications, and any other published derivative material containing portions or summaries of the contents of published or unpublished patents (e.g., abstracts) which have been disseminated to the public are available to U.S. examiners. See MPEP §§ 901.06(a), paragraphs I.C. and IV.C and 901.08. In general, a foreign patent, the contents of its application, or segments of its content should not be cited as a reference until its date of patenting or its public availability date (e.g., publication date) can be confirmed by an examiner’s review of a copy of the document. Examiners should remember that in some countries, there is a delay between the date of the patent grant and the date of publication.
Information pertaining to those countries from which the most patent publications are received is given in the following sections and in MPEP § 901.05(a). Additional information can be obtained from the Scientific and Technical Information Center (STIC).
See MPEP § 707.05(e) for data used in citing foreign references.
(G) an issue of an official journal, the Official Gazette, containing an announcement of the patent and a claim, is published.
In most foreign countries, various ones of these events occur on different days and some of them may never occur at all.
In most countries, the owner of the prospective rights, derived from the inventor, may also apply for a patent in the owner’s name as applicant; in a few, other persons may apply as well or be joined as coapplicants. Hence, applicant is not synonymous with inventor, and the applicant may be a company. Some countries require the inventors’ names to be given and regularly print them on the published copies. Other countries may sometimes print the inventors’ names only when available or when requested to do so.
The word "application" is commonly used in the U.S. to refer to the entire set of papers filed when seeking a patent. However, in many countries and in PCT cases, the word application refers only to the paper, usually a printed form, which is to be "accompanied by" or have "attached" to it certain other papers, namely a specification, drawings when necessary, claims, and perhaps other papers. Unless it is otherwise noted in the following portions of this section, the term "application" refers to the entire set of papers filed.
In general, pending applications are confidential until a certain stage in the proceedings (e.g., upon patent grant), or until a certain date (e.g., 18 months after filing), as may be specified in a particular law.
Many countries have adopted the practice of publishing the specification, drawing, or claims of pending applications. In these countries, the publication of the contents of the application occurs at a certain time, usually 18 months after filing. The applicant is given certain provisional rights upon publication even though examination has not been completed or in some cases has not even begun at the time of publication.
This publication may take either of two forms. In the first form, some countries publish a notice giving certain particulars in their official journal, and thereafter, any one may see the papers at the patent office or order copies. This procedure is referred to as "laying open for public inspection." There is no printed publication of the specification, although an abstract may be published in printed form. If anyone can inspect or obtain copies of the laid open application, then it is sufficiently accessible to the public to constitute a "publication" within the meaning of pre-AIA 35 U.S.C. 102(a) and 102(b) and 35 U.S.C. 102(a)(1). The full application is thus available as prior art as of either the date of publication of its notice or its laying open to public inspection if this is a later date. See In re Wyer, 655 F.2d 221, 210 USPQ 790 (CCPA 1981). See MPEP § 2127, paragraph III.
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The publication for opposition may take the form of a laying open of the application by the publication of a notice in the official journal with the application being then open to public inspection and the obtaining of copies. Otherwise, publication occurs by the issue of the applications in printed form. Either way, these published documents constitute printed publications which are available as references under pre-AIA 35 U.S.C. 102(a) and 102(b) and 35 U.S.C. 102(a)(1).
Practices and terminology vary worldwide regarding patents. In some countries, there is no "letters patent" document which creates and grants the rights. In other countries, the examiner grants the patent by signing the required paper. In a few countries, the patent is granted by operation of law after certain events have occurred. The term "granting the patent" is used here for convenience, but it should be noted that 35 U.S.C. 102(a) and 102(b) or 35 U.S.C. 102(a)(1) do not use this terminology.
A list of granted patents is ordinarily published in each country’s official journal and some of these countries also print an abstract or claims at or after the granting date. Not all countries publish the granted patent. Where the specifications of granted patents are issued in printed form, publication seldom occurs simultaneously with the day of grant; instead, publication occurs a short time thereafter. There also are a few countries in which publication does not take place until several years after the grant.
The length of time for which the patent is enforceable (the patent term) varies from country to country. The term of the patent may start as of the grant of the patent, or as of the filing date of the application.
Most countries require the payment of periodic fees to maintain a patent in force. These fees often start a few years after filing and increase progressively during the term of the patent. If these fees are not paid within the time allowed, the patent lapses and is no longer in force. This lapsing does not affect the use of the patent as a reference.
Some countries issue patents of addition, which should be identified as such, and when separately numbered as in France, the number of the addition patent should be cited. "Patents of addition" generally cover improvements of a patented parent invention and can be obtained by the owner of the parent invention. Inventiveness in relation to the parent invention need not be demonstrated and the term is governed by the term of the parent patent.
Since a separate patent must be obtained in each country in which patent rights are desired (except for EP, the European Patent Convention, AP, the African Regional Industrial Property Organization, OA, African Intellectual Property Organization, GC, Patent Office of the Cooperation Council for the Arab States of the Gulf, and EA, Eurasian Patent Office, whose members issue a common patent), there may be a large number of patents issued in different countries for the same invention. This group of patents is referred to as a family of patents.
All of the countries listed in paragraph V. below are parties to the Paris Convention for the Protection of Industrial Property and provide for the right of priority. If an application is filed in one of these countries, an application for the same invention thereafter filed in another country, within 1 year of the filing of the first application, will be entitled to the benefit of the filing date of the first application on fulfilling various conditions. See MPEP § 213. The patents or published specifications of the countries of later filing are required to specify that priority has been claimed and to give the country, date, and number of the priority application. This data serves the purpose, among others, of enabling any patent based on the priority application to be easily located.
In general, the specification of the second application is identical in substance to the specification of the first. In many instances, the second, if in another language, is simply a translation of the first with perhaps some variation in purely formal parts. But in a minority of cases, the two may not be identical. For instance, sometimes two applications filed in one country are combined into one second application which is filed in another country. Alternatively, a second application could be filed for only part of the disclosure of the priority application. The second application may have the relationship to the first which we refer to as a continuation-in-part (e.g., the second application includes additional subject matter discovered after the first was filed). In some instances, the second application could have its disclosure diminished or increased, to meet the requirements or practices of the second country.
Duplicate or substantially duplicate versions of a foreign language specification, in English or some other language known to the examiner, can sometimes be found. It is possible to cite a foreign language specification as a reference, while at the same time citing an English language version of the specification with a later date as a convenient translation if the latter is in fact a translation. Questions as to content in such cases must be settled based on the specification which was used as the reference.
If a U.S. patent or U.S. published application being considered as a reference in an application subject to pre-AIA 35 U.S.C. 102 claims the priority of a previously filed foreign application, it may be desirable to determine if the foreign application has issued or has been published, to see if there is an earlier date. For example, it has occurred that an examiner rejected claims on the basis of a U.S. patent and the applicant filed affidavits to overcome the filing date of the reference; the affidavits were controversial and the case went to appeal, with an extensive brief and an examiner’s answer having been filed. After all this work, somebody noticed that the U.S. patent reference claimed the priority of a foreign application filed in a country in which patents were issued fairly soon, checked the foreign application, and discovered that the foreign patent had not only been issued, but also published in printed form, more than 1 year prior to the filing date of the application on appeal. If a U.S. patent or U.S. published application is being considered as a reference in an application subject to 35 U.S.C. 102, whether the filing date of the foreign priority application claimed in the reference can be used as the "effectively filed date" under 35 U.S.C. 102(a)(2) is determined by 35 U.S.C. 102(d). See MPEP § 2154.01(b).
If a foreign patent or specification claims the priority of a U.S. application, it can be determined whether the latter is abandoned, still pending, or patented. Even if the U.S. case is or becomes patented, however, the foreign documents may still be useful as supplying an earlier printed publication date.
If a foreign patent or specification claims the priority of an application in another foreign country, it may sometimes be desirable to check the latter to determine if the subject matter was patented or published at an earlier date. As an example, if a British specification being considered as a reference claims the priority of an application filed in Belgium, it is known at once that a considerably earlier effective date can be established, if needed, because Belgian patents issue soon after filing. In addition, if the application referred to was filed in one of the countries which publish applications in printed form 18 months after filing, the subject matter of the application will be available as a printed publication as of the 18 month publishing date.
The determination of whether a foreign patent has been issued or the application published is a comparatively simple matter for some countries, but for some it is quite laborious and time-consuming. Sources for this data which are not maintained by the Office do exist and can be utilized for locating corresponding patents. Two possible sources are the Derwent World Patents Index (DWPI) produced by Thomson Reuters, and the International Patent Documentation Center (INPADOC), which is produced by the European Patent Office. Additionally, Chemical Abstracts Service (CAS) publishes abstracts of patents in the chemical arts from a large number of countries. Only one patent or published specification from a family is abstracted in full and any related family members issued or published are cross-referenced. Chemical Abstracts are available online via commercial databases or via Microfilm/CD-ROM in the Main Scientific and Technical Information Center (STIC). To get access to Chemical Abstracts online, examiners should contact their SPE for approval and email the STIC-ERC mailbox. The microfilm collection is available from 1907-1987; and the CD-ROM collection is available from 1987-2011. The coverage is for approximately 83 journals, with the oldest content dating from 1859. Examiners may also utilize the Global Dossier Public Access which provides online access to the file histories of related applications from participating IP Offices. This includes all international applications filed under the Patent Corporation Treaty (PCT) as well as patent applications from World Intellectual Property Organization-Centralized Access to Search and Examination (WIPO-CASE) participating offices. See MPEP § 901.08 for additional information. See also www.wipo.int/case/en/ for additional information regarding WIPO-CASE.
When an application is filed outside the Paris Convention year from an earlier application, the later application may not refer to the first application. It is hence possible that there will be duplicate specifications published without any indication revealing the fact. These may be detected when the two copies come together in the same subclass. Because the later application is filed outside the convention year, the earlier application may be prior art to the latter if it has been published or issued.
The examiner is not required to prove either the date or the occurrence of events specified on specifications of patents or applications, or in official journals, of foreign patent offices which the Office has in its possession. In a court action, certified copies of the Office copies of these documents constitute prima facie evidence in view of 28 U.S.C. 1745. An applicant is entitled to show the contrary by competent evidence, but this question seldom arises.
The date of receipt of copies by the Office, as shown by Office records or stamped on the copies, need only to be stated by the examiner, when necessary.
The following table gives some data concerning the published patent material of a number of countries to assist in their use and citation as references. This table reflects only the most current patent office practice for each foreign country specified and is not applicable for many older foreign patent documents. The STIC staff can help examiners obtain data related to any documents not covered by this table. The citation dates listed in the following table are not necessarily the oldest possible dates. Sometimes an earlier effective date, which is not readily apparent from the face of the document, is available. If an earlier date is important to a rejection, the examiner should consult STIC staff, who will attempt to obtain further information regarding the earliest possible effective date.
Each horizontal row of boxes contains information on one or more distinct patent documents from a specified country available as a reference under pre-AIA 35 U.S.C. 102(a) and 102(b) or 35 U.S.C. 102(a)(1). If several distinct patent documents are included within a common box of a row, these documents are related to each other and are merely separate documents published at different stages of the same invention’s patenting process. Usually, this related group of documents includes a published application which ripens into an issued patent. Within each box of the second column of each row, the top listed document of a related group is the one that is "published" first (e.g., made available for public inspection by laying open application, or application printed and disseminated to the public). Once an examiner determines the country or organization publishing the documents, the name of the document can be located in the second column of the table and the examiner can determine if a document from the related group containing the same or similar disclosure having an earlier date is available as a reference. Usually, the documents within a related group have identical disclosures; sometimes, however, there are differences in the claims or minor differences in the specification. Therefore, examiners should always verify that the earlier related document also includes the subject matter necessary for the rejection. Some countries issue more than one type of patent and for clarity, in these situations, separate rows are provided for each type.
European Patent Office European patent application Date application made available to public Printing of application occurs 18 months after priority date.
European patent specification Date published EP dates are in day/month/year order.
France Demande de brevet d’invention (patent application) Disposition du public de la demande (date of laying open application)/date published Date of laying open the application is the earliest possible date. This usually occurs 18 months after the filing or priority date but can occur earlier at applicant’s request. The application is printed a short time after being laid open.
DE Germany Offenlegungschrift (unexamined patent application) Offenlegungstag (date application printed) Patentschrift are printed (up to four different times) after examination and at various stages of opposition.
Germany Patentschrift (Ausschließungspatent) (exclusive type patent based on former East German application and published in accordance with E. German laws) First printing coded "DD" (date of first publication before examination as to novelty) Several more printings (up to four) occur as examination proceeds and patent is granted. Separate DD numbering series is used.
Germany Patentschrift (Wirtschaft-patent) (economic type patent published in accordance with East German laws) First printing coded "DD" (date of first printing before examination as to novelty) Another printing occurs after examination. Separate DD numbering series is used.
Germany Gebrauchsmuster (utility model or petty patent) Eintragungstag (date laid open after registration as a patent) Copy is supplied only on request.
Bekanntmachung im patentblatt (date published for public) Published from No. DE-GM 1 186 500J.
JP Japan Kôkai Tokkyo kôhô (unexamined patent application) Kôhyo Tokkyo kôhô (unexamined patent application based on international application) Upper right corner beneath number (date laid open and printed) INID codes (41)-(47) include first date listed in terms of the year of the Emperor. To convert yrs. prior 1989, add 1925. To convert yrs. after 1988, add 1988.
Tokkyo kôhô (examined patent application) Upper right corner beneath number (date laid open and printed; 1st publication when Kôkai Tokkyo kôhô or Kôhyo Tokkyo kôhô not published) Newer documents also include second date following the first given in OUR Gregorian Calendar in year/month/day sequence in Arabic numerals intermixed with their equivalent JP characters.


This Petition for Review from the January 4, 2010 Finding & Award/Dismissal of the Commissioner acting for the Sixth District was heard on June 25, 2010 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
The following factual background is pertinent to our review. On July 1, 1999, the claimant was hired by the County Sheriffs and became a Judicial Marshal for the New Britain courthouse on December 1, 2000. As a Judicial Marshal, the claimant was responsible for maintaining the security of the courthouse and had frequent contact with the public, including high-security litigants and/or inmates. Pursuant to § 5-145a C.G.S., the position of Judicial Marshal is considered “hazardous duty” and Judicial Marshals are therefore eligible for enhanced workers’ compensation benefits as provided by the statute.3 On December 7, 2005, the claimant was brought by paramedics to the emergency department of New Britain General Hospital complaining of severe chest pain. He was admitted and underwent cardiac catheterization which revealed significant coronary disease. The claimant was subsequently transferred to St. Francis Hospital where he underwent a multi-vessel angioplasty.
The respondent filed a Motion to Correct which was denied in its entirety, and this appeal followed. The respondent argues that because the claimant’s notice of injury was untimely and therefore non-compliant with the provisions of § 31-294c(a) C.G.S., the trial commissioner should have dismissed the claim for lack of subject matter jurisdiction.5 The respondent also asserts that the trier’s Finding and Award/Dismissal was legally deficient as it included no findings relative to subject matter jurisdiction or “the point from which the statute of limitations was measured.” Appellant’s Brief, p. 7. In addition, the respondent contends that the trier erred in concluding that the respondent’s evidence failed to rebut the presumption of compensability. The respondent also argues that the trier erroneously concluded the claimant suffered a heart attack on December 7, 2005 and failed to find that the claimant actually began his employment with the State of Connecticut Judicial Department on December 1, 2000. Finally, the respondent alleges that the trier’s denial of its Motion to Correct constituted error.
;’ and the court must ‘fully resolve it before proceeding further with the case.’” (Internal citations omitted.) Castro v. Viera, 207 Conn. 420, 429 (1988).
In order to bring a heart or hypertension action pursuant to § 5-145a C.G.S., a claimant is required “to comport with the jurisdictional and procedural requirements of the Workers’ Compensation Act before their presumptions become applicable to an analysis of causation.” Malchik v. Division of Criminal Justice, 266 Conn. 728, 738739 (2003). Compliance with the notice provisions of the Act enunciated in § 31-294c(a) C.G.S., places upon a claimant the obligation to file a written notice of claim within one year of the date of injury or within three years of the first manifestation of a symptom of occupational injury. However, for heart and hypertension claims, the appropriate identification of the point at which the statute of limitations begins to run has been the subject of considerable litigation. In the instant matter, the respondent relies on Pearce v. New Haven, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003), as authority for its assertion that the claimant’s heart claim was untimely.
General Statutes § 7-433c gives a special compensation to those who qualify, in the sense that they have no burden of proof that the disease resulted from the employee’s occupation or that it occurred in the course of employment. The mere fact that the employee has hypertension or heart disease and dies or is disabled because of it is all that is necessary. The employee does not need to prove that his heart disease is causally connected to his employment.
Middletown v. Local 1073, 1 Conn. App. 58, 62 (1983), cert. dismissed, 192 Conn. 803 (1984).
to firefighters and police officers by allowing those who suffer from heart disease or hypertension outside the line of duty to collect benefits in the same manner as those who are injured in the line of duty.” (Internal citations omitted.) Id., at 5-6. See also, Grover v. Manchester, 168 Conn. 84, 87-88 (1975). As such, § 7-433c C.G.S., in its current rendition differs from § 5-145a C.G.S., which has retained the burden-shifting mechanism of the rebuttable presumption.
In Pearce, supra, which involved a hypertension claim rather than a claim of heart disease, the court found untimely a claim filed in 1998 by a claimant who had received repeated warnings from his family physician regarding his elevated blood pressure readings in 1988, 1989 and 1990. The court held that the claimant, in failing to notify his employer of the elevated readings, had fallen afoul of the provisions of § 31-294b and § 31-294c which require such notification “to inform the employer of a possibility of a claim for benefits being filed at a later time.” Id., at 449. The Pearce court stated that “[t]he employee need not be disabled at the time he or she files a notice that symptoms are being experienced related to hypertension or heart disease; the notice is required to alert the employer to a potential claim.” Id.
[t]wo office visits showing high blood pressure readings, a stress test and an employee’s awareness of those elevated readings and awareness that ‘he had a potential hypertension problem that may require medication’ simply are not sufficient to support the conclusion that the plaintiff had an accidental injury that required him to notify his employer and to file a claim for benefits.
Id., at 187, citing the October 5, 2005 Finding & Dismissal of the Commissioner acting for the Second District, ¶ 19.
Turning to the matter at bar, the respondent asserts that “[t]he claimant’s treatment reports by Dr. Albala, Dr. Malkin, and Dr. Chorzepa, note repeated indicators and warning signs of heart disease, including chest pain, shortness of breath, obesity, referral to two separate cardiologists, submissions for EKG’s, and prescriptions for heart and cholesterol medications.” Appellant’s Brief, p. 2. As such, the respondent contend that “the factual record shows a great deal of evidence that Claimant was knowingly experiencing symptoms of heart disease well before May 2005.” Appellant’s Brief, p. 9. We disagree. Rather, our review of the record in its entirety leads us to conclude that a sufficiently definitive diagnosis of heart disease, such that the standard articulated by our Supreme Court in Ciarlelli, supra, could be invoked, did not occur until the claimant underwent a cardiac catheterization at New Britain General Hospital on December 8, 2005.
There is no question that the claimant had a longstanding history of hypertension which evidently preceded his employment as a Judicial Marshal for the State of Connecticut in 2000. However, at trial, the claimant testified that although he had been told by his doctors in the late 1990’s that he had both high blood pressure and elevated cholesterol readings, he was never told he had a heart problem. April 14, 2009 Transcript, p. 17. The claimant indicated that he was given medication for high blood pressure and elevated cholesterol, and a review of Dr. Albala’s records from this time period indicates that both conditions were well-controlled. Joint Exhibit 4. Moreover, while Dr. Albala’s report of December 17, 1999 does indicate that the claimant was suffering from chest pain upon exertion,8 id., Dr. Tally’s Respondent’s Medical Evaluation report of February 1, 2007 states that a stress test conducted in 2000 “was apparently negative for the diagnosis of ischemic coronary artery disease.”9 Joint Exhibit 1.
On December 7, 2005, the claimant placed a 911 call after “he experienced about 10-15 minutes of fairly severely [sic] 10/10 chest pain that awoke him from sleep.” Joint Exhibit 9 (New Britain General Hospital Discharge Summary of 12/12/05), p. 1. The paramedics administered nitroglycerin and transported him to the New Britain General Hospital emergency department where he was subsequently admitted. On December 8, 2005, the claimant underwent a cardiac catheterization which revealed “severe three-vessel disease. Therefore a decision was made to transfer the patient to St. Francis Hospital for an elective multivessel angioplasty.” Id., at 2. Ultimately, the claimant underwent both an angioplasty and a quadruple coronary artery bypass. Id. (Saint Francis Hospital and Medical Center Discharge Summary), p. 1.
[t]he date for onset of Mr. Rizzo’s coronary artery disease in my opinion is December 7, 2005 when the patient was clearly diagnosed with an acute coronary syndrome during his admission to New Britain General Hospital. This time can be pushed back by a few weeks to the initial presentation to his primary care doctor with symptoms of chest pain, which were later discovered to be in fact due to severe coronary artery disease.
At his deposition held on April 13, 2007, Dr. Tally was given the opportunity to expand upon this opinion, at which time he elaborated, a “patient is not considered to have coronary heart disease until atherosclerosis progresses to the point of producing symptoms and having other diagnostic features established over many decades in the practice of medicine.” Respondent’s Exhibit 1, p. 20. Dr. Tally further differentiated between gradual narrowing of the arteries and coronary heart disease by elaborating that “atherosclerosis is a condition. And coronary artery disease, or symptomatic atherosclerosis is a disease state.” Id. When queried regarding Dr. Albala’s report of December 17, 1999, Dr. Tally agreed that the claimant’s symptoms at that time could have been “signs of symptomatic coronary atherosclerosis.” Id., at 17. However, he concurred with Dr. Albala’s recommendation for a stress test, stating that such follow-up testing would have been required because “[t]here was still some doubt as to whether the patient had symptomatic coronary atherosclerosis at this time, according to Dr. Albala’s note of that date.” Id.
Having carefully reviewed the medical reports contained in the instant record within the context of currently applicable case law, we find support for the trial commissioner’s determination that the claimant’s notice of claim was timely. We recognize that the claimant had a longstanding history of high blood pressure and elevated cholesterol readings. Likewise, there is no dispute that the claimant possessed a number of risk factors for coronary artery disease, including a positive family history and a former smoking habit. Moreover, although at trial the claimant disputed Dr. Malkin’s notation in his report of November 11, 2005 that the claimant had suffered “continued palpitations almost all the time over the last year,” October 7, 2009 Transcript, p. 55, see also, Joint Exhibits 7, 8, the claimant did concede that he had experienced episodes of chest burning while walking in the park over the preceding six months.11 Id.
Nevertheless, prior to the New Britain General Hospital report of December 8, 2005 following the claimant’s cardiac catheterization, the record is devoid of a definitive diagnosis of coronary artery disease. The record is similarly devoid of any indication that prior to December 2005 the claimant had developed a disability associated with his coronary artery disease given that the claimant testified he was still employed as a Judicial Marshal at that time. October 7, 2009 Transcript, p. 55. Indeed, even when the claimant consulted Dr. Malkin on November 11, 2005, Dr. Malkin referred him for a Sestamibi stress test in order “to better rule out the possibility of coronary disease.” (Emphasis added.) Joint Exhibits 7, 8. Thus, although the record indicates that the claimant had experienced episodes of chest pain in late 1999, we believe these prior episodes are easily distinguished from the sequence of events which unfolded on December 7, 2005 and ultimately resulted in the claimant undergoing a quadruple coronary bypass.
In light of the lack of a definitive diagnosis prior to December 2005, then, we find this matter can be distinguished from Pearce, supra, in which the claimant disregarded repeated warnings from his physician regarding his high blood pressure readings, and is factually more akin to Arborio, supra, and Ciarlelli v. Hamden, 299 Conn. 265 (2010), , 299 Conn. 265 (2010), in which the claimant appeared to have a “potential” problem. While the luxury of hindsight unquestionably allows for the reasonable inference that the instant claimant’s earlier symptoms may have been caused by the gradual development of his coronary artery disease, our Supreme Court’s holding in Ciarlelli clearly militates against saddling claimants with the requirement that they file a claim for benefits on the basis of their suspicion that they might have a certain disease or condition. Moreover, “[b]ecause a diagnosis of hypertension involves the sound exercise of medical judgment, it is particularly inappropriate to expect a patient to discern that he or she suffers from that condition in the absence of a diagnosis by a professional with the requisite training and expertise.” Id., at 300. Given that the same observation may be reasonably made about heart disease, we affirm the trial commissioner’s conclusion that the claimant’s notice of claim was timely and the claimant is therefore entitled to benefits pursuant to § 5-145a C.G.S.
The respondent also contends that the trial commissioner erroneously concluded that the respondent failed to rebut the presumption of compensability contained in § 5-142a C.G.S. The respondent points out that it “has provided ample evidence” in support of its assertion that the claimant’s heart disease pre-existed his employment and his position was not particularly stressful. Appellant’s Brief, p. 10. We are not so persuaded and find, on the contrary, that the instant record provides more than adequate support for the trial commissioner’s determination in this regard.
a rebuttable presumption of compensability if they suffer disability or death due to hypertension or heart disease.” Dibenedetto v. State/University of Connecticut Health Center, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRD-6-89-5 (January 3, 1991). “The function of this presumption is to shift the initial burden of persuasion. It ‘cease[s] to have any effect once the respondent employer presents evidence to contest compensability.’” Horn v. State/Department of Correction, 4177 CRB-3-00-1 (February 22, 2001), quoting Dibenedetto, supra. However, the trier “must, of course, find this evidence sufficiently credible to meet that burden of persuasion before the statutory presumption can be said to have been successfully rebutted.” Horn, supra. Such a finding is necessary given that “it is not our goal to render § 5-145a ‘virtually worthless’ by vitiating the force of its presumption.” Id.
In the instant matter, there is no question that the record contains a number of medical reports from an assortment of providers indicating that the claimant suffered from high blood pressure and elevated cholesterol readings prior to his employment as a County Sheriff and a Judicial Marshal. In addition, the record also indicates that the claimant reported experiencing episodic chest pain in late 1999, although a subsequent stress test in 2000 revealed no evidence of heart disease. Finally, although the claimant reported experiencing palpitations in 2004, Dr. Tally testified that palpitations are not generally a symptom of coronary artery disease and the claimant testified that he believed his palpitations were medication-induced. In light of this evidence, it may be reasonably inferred that the trial commissioner simply did not find persuasive the respondent’s contention that the medical record vindicates its claim that the claimant’s heart disease pre-existed his employment with the State. We decline to overturn this finding on appeal. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Moreover, the claimant provided extensive testimony in support of his position that his employment with the Judicial Department was a significant source of stress for him. For instance, the claimant testified that he was frequently worried about his personal safety when bringing prisoners from the lock-up to their court appearance because the number of prisoners would occasionally be larger than the number of marshals. April 14, 2009 Transcript, p. 28. He also testified as to his concerns that a prisoner in his charge would become violent and physically attack him or try to escape. Id., at 28-29. James Hinckley, a former co-worker of the claimant, was also called as a witness and testified that he too had been particularly apprehensive when taking prisoners from the holding area to arraignment as they tended to be more volatile and unpredictable. Id., at 47-48. Under cross-examination, Hinckley conceded that the courthouse does have certain security protections in place such as X-ray screening and wand-searching of the general public in addition to searching and leg-shackling the prisoners, but he also recited the various safety measures utilized by the marshals such as wearing radios on their shoulders, carrying batons and OCAT spray, and receiving training in the management of aggressive behavior. Id., at 52-56.
On a more personal note, the claimant testified regarding the difficulties he encountered in trying to balance the demands of his position as a marshal with his role as caretaker for his mother. He indicated that while he generally had no problems attending to his mother at lunchtime, a late-running trial could present complications if he was required to transport the prisoners afterwards. Id., at 37. The claimant stated that although he had requested in writing that he not be assigned to drive late in the afternoon, his request was not acknowledged and, in fact, he was written up in 2004 for refusing to drive one afternoon and visiting his mother in the emergency room instead. Id., at 37-38. See also, Claimant’s Exhibit D. The claimant testified that at the suggestion of his union steward, he provided the employer with a note from Dr. Chorzepa stating that overtime requirements were preventing him from caring adequately for his mother, but nothing changed.13 Id., at 42. See also Claimant’s Exhibit C.
The claimant also described a confrontation concerning this note he had with James Brown, a fellow marshal who was also a union steward, and stated that he felt he was subsequently retaliated against for filing an incident report against Brown.14 October 7, 2009 Transcript, p. 10. See also, Claimant’s Exhibit G. The claimant testified that he sent a letter to the chief marshal following his confrontation with Brown in which the claimant requested that “in the best interests for everyone involved” he not be assigned to work directly with Brown. Respondent’s Exhibit 5; Claimant’s Exhibit F. However, at trial the claimant testified that “[n]othing was done.” October 7, 2009 Transcript, p. 37.
Finally, our review of the record indicates that although Dr. Tally discounted the role stress may have played in contributing to the development of the claimant’s coronary artery disease, Dr. Wolfson opined differently, indicating in his report of October 31, 2006 that “[a]t the very least, the stresses attendant upon his employment as a sheriff and then marshall [sic] would appear to be the precipitating factors contributing to the onset of symptoms.”15 Joint Exhibit 2. In addition, in his follow-up note of November 2, 2006, Dr. Wolfson stated that the claimant’s “employment as a Sheriff and/or Judicial Marshal was a substantial factor in the development of coronary artery disease which resulted in bypass surgery in December, 2005.” Id.
At his deposition of June 1, 2007, Dr. Wolfson reiterated this opinion several times, Respondent’s Exhibit 2, pp. 27, 31, 34, and also acknowledged the discrepancy between his opinion regarding the role stress had played and Dr. Tally’s. Id., at 24. The doctor accounted for this discrepancy by describing his understanding of the mechanics of the progression of coronary artery disease, explaining that as the arteries become more narrow, “they may begin limiting the amount of blood flow that the heart muscle receives during exercise, even when the blood flow is adequate at rest, and that is when patients actually might develop symptoms: During exercise or during periods of emotional stress.” Id., at 25. Dr. Wolfson testified that he had also found persuasive several studies examining the association between heart attack and stress, noting in particular a study that was performed on Israeli shoulders during the first Gulf war. Id., at 26.
Having reviewed the record in its entirety, we find sufficient support for the trial commissioner’s determination that the respondent failed to successfully rebut the presumption of compensability pursuant to § 5-145a C.G.S. As previously stated herein, it can be reasonably inferred that the trial commissioner simply found the medical record inadequate in terms of substantiating the respondent’s position that the claimant’s heart disease predated his employment. Further, while there can be no question that Dr. Tally and Dr. Wolfson advanced contradictory opinions on the role of stress in the development of heart disease, it is axiomatic that “[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted, emphasis added.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). We also note that even Dr. Tally conceded that the role of stress in the development of coronary artery disease “is a fair area of dispute among competent practitioners.” Respondent’s Exhibit 1, p. 34. Moreover, the claimant testified at length regarding the various workplace stressors he felt he had been subjected to during his employment as a Judicial Marshal, and the trier was entitled to award this testimony the evidentiary weight he deemed appropriate.
We therefore affirm the trier’s conclusions in this regard and decline to overturn them on appeal. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it dId. ” Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton, supra, at 54.
The respondent also contends that the trial commissioner erroneously concluded that the claimant suffered a heart attack on or about December 7, 2005, contending that the medical record does not support such a finding but, rather, shows “that his experience was only actually chest pain, a symptom which he had experienced prior to December 2005.” Appellant’s Brief, p. 11. The respondent points to the various medical reports contained in the file, particularly the discharge summaries from New Britain General Hospital of December 12, 2005 and St. Francis Hospital of December 22, 2005, and assert that in none of these reports is it stated the claimant suffered a heart attack. The respondent also relies upon the deposition testimony of Dr. Tally, in which the doctor opined that the claimant did not in fact suffer a heart attack.
Respondent’s Exhibit 1, pp. 12-13.
[a]cute coronary syndrome is a fairly new diagnostic term that covers a spectrum of blockages of heart arteries expanding. Those folks who present with chest pain are presumed to have that on the basis of blocked arteries all the way up to patients who actually suffer heart attacks. Which includes evidence of heart muscle, necrosis or death of heart muscle tissue. Otherwise known as a heart attack. So, it covers quite a broad spectrum of conditions.
Respondent’s Exhibit 1, p. 11.
In light of the foregoing testimony, then, the respondent’s claim of error is technically correct; the claimant did not suffer a heart attack in the medically accepted sense of the word. However, we take exception to the respondent’s characterization of the events of December 2005 as being merely another episode of the same symptoms the claimant had been experiencing “for years prior to December 7, 2005.” Appellant’s Brief, p. 11. Rather, we believe the prior episodes of chest pain in 1999 and palpitations in 2004 are easily distinguished from the sequence of events which unfolded on December 7, 2005 and ultimately resulted in the claimant undergoing a quadruple coronary bypass. This is particularly so in light of the claimant’s diagnosis at that time of acute coronary syndrome, as compared with the prior instances in which the etiology of the claimant’s chest pain and palpitations appeared to be non-specific in nature. As such, while the trial commissioner perhaps used the term “heart attack” imprecisely in his findings, we find harmless error at worst, given that the record clearly indicates that on December 7, 2005, the claimant experienced a definitive cardiac event which ultimately revealed both the nature and extent of his coronary artery disease. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003).
The respondent also contends that the trial commissioner’s failure to find that the claimant commenced his employment with the state on December 1, 2000 constituted error. Our review of the file indicates that the claimant was hired as a County Sheriff on July 1, 1999 and became a Judicial Marshal on December 1, 2000. Claimant’s Exhibit A, Respondent’s Exhibit 4. At trial, the claimant agreed that he became a state employee on December 1, 2000, when the County Sheriffs were “subsumed” into the Judicial Department. October 7, 2009 Transcript, p. 8. Accordingly, the trial commissioner’s finding wherein he determined the respondent hired the claimant as a Judicial Marshal in 1999 is, again, technically incorrect. However, we fail to appreciate the significance of this claim of error, given that the parties, evidently without possessing an actual copy of the report, stipulated that the claimant had passed his pre-employment physical at the time of his hire in accordance with § 5-145a C.G.S.17 Appellant’s Brief, fn. 1. Moreover, while we recognize that the medical record contains a report of Dr. Albala dated December 17, 1999 which attests to the claimant’s complaints of exertional chest pain at that time, the record also contains Dr. Tally’s Respondent’s Medical Evaluation report of February 1, 2007 indicating that a stress test conducted in 2000 was negative for the diagnosis of coronary artery disease. Joint Exhibit 1. Perhaps had the trial commissioner found Dr. Wolfson’s opinion regarding date of onset more probative than Dr. Tally’s, the claimant’s actual date of hire as a Judicial Marshal would carry more evidentiary significance. In light of the trier’s factual findings and our analysis herein, however, it appears to possess very little probative value.
Finally, the respondent contends that the trial commissioner erroneously denied their Motion to Correct. Obviously, in light of the preceding discussion, the trier’s failure to correct the findings as to his use of the term “heart attack” and the recitation of the claimant’s incorrect date of hire as a Judicial Marshal did constitute harmless error. Relative to the balance of the corrections sought by the respondent, however, this board has previously observed that when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Having found no reversible error, the January 4, 2010 Finding & Award/Dismissal of the Commissioner acting for the Sixth District is affirmed.
4 Section 31-308a C.G.S. (Rev. to 2005) provides as follows: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury… and the weekly amount which such employee will probably be able to earn thereafter …, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.


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Green Tree Servicing v. Charles–Appellate Jurisdiction – Tex.Arb.
In Green Tree Servicing, L.L.C. v. Charles, 872 F.3d 637 (5th Cir. 2017), the Fifth Circuit Court of Appeals addressed an unusual procedural circumstance in determining whether it had jurisdiction to consider an appeal of an order compelling arbitration. The appeal involved two separate civil actions involving the same parties and essentially the same dispute.
Charles contracted with Jim Walters Homes to build and finance a home in Mississippi. He later filed suit in Mississippi state court against the builder, his mortgage servicer, its parent company and others (“Charles I”). Charles I was subsequently removed to federal court on diversity jurisdiction and administratively due to the decision of Jim Walters Homes and Walter Energy to file for bankruptcy. Green Tree and Walter Investment initiated a separate action against Charles as plaintiffs to compel him to arbitrate the claims asserted against them in Charles I (“Charles II”) to stay the proceedings as to Green Tree and Walter Investment in Charles I. After the filing of Charles II, the district court reopened Charles I. The district court in Charles II later granted the motion to compel arbitration, ordered that the proceedings in Charles I be stayed as to the claims against Green Tree and Walter Investment, and entered judgment dismissing Charles II with prejudice. Charles appealed the district court’s dismissal of Charles II. Green Tree and Walter Investment argued that the district court’s order compelling arbitration was not a “final decision with respect to arbitration” and the Fifth Circuit lacked jurisdiction over the appeal.
Section 16 of the Federal Arbitration Act (“FAA”) authorizes courts to consider an appeal only from “a final decision with respect to an arbitration.” A final decision has been defined as one that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment. An arbitration order entering a stay, as opposed to a dismissal, is not an appealable final order. The Fifth Circuit noted that it would have jurisdiction if it were only examining the district court’s order in Charles II because the district court granted the motion to compel arbitration, entered a judgment compelling the arbitration, and dismissed the case with prejudice, thus constituting a final order. However, because the claims in Charles I against Green Tree and Walter Investment are still pending in the district court and had only been stayed, it was not an appealable final order.
The Fifth Circuit also addressed a slew of identical cases brought by the same movants and counsel for both sides, with the same result. See Green Tree Servicing, L.L.C. v. Mathis, 17-60104, 2017 WL 5479587 (5th Cir. Nov. 14, 2017); Green Tree Servicing, L.L.C. v. Campbell, 17-60106, 2017 WL 5479588 (5th Cir. Nov. 14, 2017); Green Tree Servicing, L.L.C. v. Dove, 17-60116, 2017 WL 5479591 (5th Cir. Nov. 14, 2017); Green Tree Servicing, L.L.C. v. Ducksworth, 17-60109, 2017 WL 5479590 (5th Cir. Nov. 14, 2017); Green Tree Servicing, L.L.C. v. Horne, 17-60112, 2017 WL 5564663 (5th Cir. Nov. 17, 2017); Matter of Haynes Green Tree Servicing, L.L.C. v. Haynes, 17-60113, 2017 WL 5712666 (5th Cir. Nov. 27, 2017); Green Tree Servicing, L.L.C. v. Miller, 17-60108, 2017 WL 5891689 (5th Cir. Nov. 28, 2017).
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