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Cooper v. Town of Seymour

CASE NO. 1336 CRD-5-91-11

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 19, 1993

ELAINE COOPER, Dependent Widow of GERALD J. COOPER (Deceased)

CLAIMANT-APPELLANT

v.

TOWN OF SEYMOUR

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Scott Wilson Williams, Esq. and Carolyn A. Signorelli, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601.

The respondent was represented by Richard S. Bruchal, Esq., 330 East Main Street, Ansonia, CT 06401.

This Petition for Review from the November 4, 1991 Memorandum (Finding and Dismissal) of the Commissioner for the Fifth District was heard December 18, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant dependent widow of Gerald Cooper filed a claim under General Statutes Sec. 7-433c, known as the “heart and hypertension law.” The trial commissioner dismissed the claim upon finding disqualifying evidence of hypertension based on a single elevated blood pressure measurement (146/88) obtained during a pre-employment physical notwithstanding the fact that the examining physician concluded that there was “no evidence of hypertension” after conducting other medical tests and examinations during that visit. On appeal, the claimant challenges the trial commissioner’s conclusion that there was disqualifying evidence of hypertension in light of the doctor’s opinion. We affirm the decision of the trial commissioner.

The relevant facts are not in dispute. Gerald Cooper, the deceased spouse of the claimant, was appointed as a member of the Seymour police department on December 8, 1988. On December 19, 1988, he underwent and passed a medical examination. On June 9, 1989, Gerald Cooper died; the immediate cause of death was cardiomegaly.

The respondent, Town of Seymour contested the claim for benefits under Sec. 7-433c on the ground that the December 19, 1988 medical examination was not free of evidence of hypertension. The only blood pressure reading contained in the report of the December examination was 146/88. A letter from Dr. Robert Hyde, the examining physician, stated: “I attended Officer Gerald J. Cooper on two occasions in the seven months prior to his death in June of 1989. There was no evidence of existing hypertension during this time period. At his initial visit on December 19, 1988 there was a 6 mm elevation of his systolic pressure (146/88) but fundascopic and cardiovascular examinations were normal. An electrocardiogram taken at this visit revealed no evidence of hypertension or atherosclerotic coronary vascular disease. At his second visit on March 18, 1989 for an acute bronchitis his blood pressure was within the acceptable ranges (132/88) for both systolic and diastolic values.”

Based on the blood pressure reading of 146/88 obtained during a pre-employment physical and the examining physician’s reference to that measurement as a six millimeter elevation in systolic pressure, the trial commissioner found “some evidence of hypertension” and dismissed the claim. This appeal followed.1

Section 7-433c provides in pertinent part that a regular member of a paid municipal police department may receive benefits for disability or death caused by hypertension or heart disease if he or she “successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease....” (Emphasis added.) “[Section] 7-433c is a bonus or special compensation statute. . . . [T]he outright bonus provided by the statute is that the claimant is not required to prove that the heart disease is causally connected to his employment, which he would ordinarily have to establish in order to receive benefits pursuant to the Workers’ Compensation Act.” (Citations omitted). Revoir v. New Britain, 2 Conn. App. 255, 260 (1984). Our statutes contain several nearly identical “hypertension or heart disease” provisions applicable to other persons engaged in similar public safety functions. See, e.g., General Statutes Secs. 5-145a, 5-145b, 5-145c, 7-314a, 19a-191 and 29-4a. We may consult the interpretation of such related statutes to assist in our determination of the proper application of Sec. 7-433c to the facts of this case. State v. Hill, 201 Conn. 505, 515 (1986); Doe v. Institute of Living, Inc., 175 Conn. 49, 58 (1978).

In Tremblay v. Connecticut State Employee’s Retirement Commission, 170 Conn. 410 (1976), the plaintiff sought state disability retirement benefits due to his heart attack based on the presumption of work-connectedness set forth in General Statutes Sec. 5-145a. A pre-employment physical examination “revealed a soft systolic murmur at the apex of the plaintiff’s heart and a blood pressure of 130 over 88. The murmur had been discovered and blood pressure of 140 over 80 had been recorded at a previous examination. Other tests and x-rays taken during [pre-employment] examination showed no abnormalities. The examining physician concluded that hypertension was not indicated and that the soft systolic murmur was ‘functional’ or ‘innocent.’ The physician reported that the plaintiff had passed the examination . . . .” Id., 411. In considering the plaintiff’s challenge to the denial of benefits, our Supreme Court observed: “The fact that the plaintiff passed the pre-employment physical examination did not automatically entitle him to retirement benefits. Under Sec. 5-145a, the examination must not only be passed, but it must also fail ‘to reveal any evidence’ of hypertension or heart disease.” Id., 415. The Tremblay court then concluded that the determination of whether any such evidence had been revealed was a factual determination committed to the sound discretion of the defendant state retirement commission. Id.

We have taken a similar view of the requirements of Sec. 7-433c. “Section 7-433c is clear and unambiguous that the physical examination on entry into service must fail ‘to reveal any evidence of hypertension or heart disease . . .’ (Underlining ours). That means the physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of Sec. 7-433c (Underlining ours).” Gatewood v. Hartford, 9 Conn. Workers’ Comp. Rev. Op. 220, 221, 1006 CRD-1-90-4 (1991); Horkheimer v. Town at Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 143, 163 CRD-4-82 (1987). Thus, the statute requires a “clean” physical examination at the time of employment and an employee cannot invoke the statute when the pre-employment physical exam gave some indication of hypertension or heart disease. See Phipps v. Niejadlik, 175 Conn. 424, 430 (1978); Horkheimer v. Town of Stratford, supra.

“Hypertension” is defined as “abnormally high arterial blood pressure.” The American Heritage Dictionary (2nd Coll. Ed.), p. 633; Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 314 n.7 (1991). In Gatewood v. Hartford, supra, the disqualifying evidence of hypertension consisted of blood pressure readings of 150/90, 144/90 and 144/90 taken at the employee’s first pre-employment physical examination and a reading of 150/96 obtained at a later such exam. In Suprenant v. New Britain, 28 Conn. App. 754, 756 n.2 (1992), the disqualifying evidence of hypertension came from blood pressure readings of 160/110 at the time of the first examination and 158/94 at the time of the second exam. Finally, in Horkheimer v. Town of Stratford, supra, the disqualifying evidence of hypertension was a single blood pressure reading of 165/90 which the examining physician characterized as labile hypertension (intermittent high blood pressure) probably due to patient nervousness. In Horkheimer, we did not accept the argument that more than one transient reading of elevated blood pressure was necessary in order to provide evidence of hypertension under Sec. 7-433c. See id., 145-157 (Waller, dissenting), citing The Sloan-Dorland Annotated Medical-Legal Dictionary (1987) (defining hypertension as persistently high blood pressure) and the American Medical Association (Second Edition) “Guides to the Evaluation of Permanent Impairments” (defining hypertension as sustained elevation of blood pressure).

The claimant attempts to distinguish Horkheimer, Gatewood and Suprenant by pointing out that in each case there was expert medical testimony that the high blood pressure readings involved in those cases constituted evidence of hypertension. The claimant argues that because the only expert medical opinion presented to the trial commissioner in this case was Dr. Hyde’s view that notwithstanding the high blood pressure reading “[t]here was no evidence of existing hypertension . . .,” the commissioner improperly found otherwise. See Callahan v. Schollhorn Co., 106 Conn. 211 (1927). We disagree.

The report of the pre-employment physical examination showed a blood pressure reading of 146/88. Dr. Hyde’s letter refers to this reading as “a 6mm elevation of the systolic pressure” and refers to a later, lower blood pressure reading as being “within the acceptable ranges . . . for both systolic and diastolic values.” (Emphasis added.) While Dr. Hyde discounted the significance of the elevated blood pressure reading in light of other medical tests and examinations performed by him during that visit, the blood pressure reading of 146/88 along with Dr. Hyde’s characterization of the same as outside the normal or acceptable range was certainly an indication of abnormally high blood pressure. It, therefore, provided a sufficient basis for the trial commissioner to conclude that there was “some evidence of hypertension” for purposes of Sec. 7-433c.

Because the conclusion drawn by the trial commissioner from the facts found did not result from an incorrect application of the law to the subordinate facts or from an inference illegally of impermissibly drawn from them, we cannot alter that determination. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.

1 On August 19, 1992, a Compensation Review Board panel denied the claimant’s Motion In Support of Request To Submit Additional Evidence filed pursuant to Sec. 31-301-9 of our administrative regulations. In that motion, the claimant requested the opportunity to present the testimony of Dr. Hyde. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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