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Leary v. City of Stamford

CASE NO. 3280 CRB-7-96-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 17, 1997

NEAL LEARY

CLAIMANT-APPELLEE

v.

CITY OF STAMFORD

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Daniel A. Benjamin, Esq., Benjamin & Gold, P.C., 350 Bedford St., Stamford, CT 06901.

The respondent was represented by Booth M. Kelly, Jr., Esq., Murphy & Beane, Two Union Plaza, P. O. Box 590, New London, CT 06320.

This Petition for Review from the February 26, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard November 22, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the February 26, 1996 Finding and Award of the Commissioner acting for the Seventh District. It argues on appeal that the commissioner erred by finding that the claimant provided timely notice of his § 7-433c C.G.S. hypertension claim. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant underwent a pre-employment physical in 1979 prior to entering service as a firefighter for the city of Stamford. The blood pressure reading on Dr. Levine’s report from that physical was systolic 140, diastolic 85. Dr. Levine testified that the hypertension standard he recognized was 150/90. Dr. Setaro, a Yale medical professor, testified that 140/90 would be considered mildly hypertensive, and that 140/85 would not justify a diagnosis of hypertension under either the 1977 or the 1980 report of the Joint National Committee on the Detection, Evaluation and Treatment of High Blood Pressure. In fact, some doctors would consider 140/85 normal. Finally, Dr. Brodsky, a cardiologist, gave his opinion that hypertension begins with readings of 141/91. Based on this testimony, the commissioner found that the claimant’s pre-employment physical did not show evidence of hypertension.

The commissioner also noted that the claimant had a physical examination on May 4, 1990 that showed blood pressure readings of 130/90 and 140/90. An examination on October 5, 1993 showed readings of 182/124 and 150/100. The claimant filed a Form 30c notifying the respondent of his § 7-433c hypertension claim on December 9, 1993. Although the respondent argued that this notice was late because hypertension was present at the 1990 examination, the commissioner found otherwise, and awarded the claimant benefits. The respondent has appealed that decision.

Section 7-433c allows uniformed members of municipal fire and police departments who suffer health impairments due to hypertension or heart disease to collect compensation identical to that provided by Chapter 568, provided that upon entry into service, they have passed a physical examination that “failed to reveal any evidence of hypertension or heart disease.” The meaning of this statute is clear and unambiguous. Suprenant v. New Britain, 28 Conn. App. 754, 759 (1992), affirming 9 Conn. Workers’ Comp. Rev. Op. 250, 1014 CRD-6-90-4 (Nov. 19, 1991). “[T]he physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of § 7-433c.” Id., 758-59, quoting Horkheimer v. Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 143, 163 CRD-4-82 (Dec. 31, 1987) (emphasis omitted). A claimant not only has to pass a pre-employment physical to invoke this “bonus” compensation statute; the exam also must reveal no evidence of hypertension or heart disease. Cooper v. Town of Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 276-77, 1336 CRD-5-91-11 (Nov. 19, 1993), citing Tremblay v. Connecticut State Employees’ Retirement Commissioner, 170 Conn. 410, 415 (1976).

The determination of whether a physical examination revealed any evidence of hypertension or heart disease is a factual issue committed to the trier’s sound discretion. Id.; Cooper, supra, 277. As long as a commissioner’s findings have roots in the evidence, this board may not invalidate them on review. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). In past cases on this issue, this board has reversed a commissioner’s decision to award § 7-433c benefits only in cases where the commissioner made a finding that a prior physical examination resulted in an uncontradicted diagnosis of hypertension, but granted compensation anyway. Suprenant, supra; Horkheimer, supra. That did not occur in the instant case.

Here, the doctor who performed the pre-employment physical did not think that the claimant’s blood pressure reading of 140/85 was indicative of hypertension, and the trial commissioner agreed with him. There is nothing illegal or improper about that conclusion. The fact that some doctors might consider a reading of 140/85 to be mildly hypertensive does not render the opinions of doctors who would disagree legally unreliable. This board is certainly not prepared to make a blood pressure reading of 140/90 the per se legal hypertension line in this state based on AMA standards or Joint National Committee reports. A claimant who is close to the borderline and who is not diagnosed with hypertension by his doctor is someone whom the commissioner must evaluate under all of the circumstances of his case. We will not change that guideline.

The respondent also raises as a claim of error the trial commissioner’s refusal to admit into evidence a 1986 hospital record showing a blood pressure reading of 140/90. The commissioner is not bound by the ordinary rules of evidence under § 31-298 C.G.S. Instead, he or she is instructed to “make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” The commissioner thus had broad discretion to determine the admissibility of the hospital record as evidence, and only an abuse of that discretion would give us cause to set his ruling aside. Nelson v. Deb’s Inc., 15, Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996).

The respondent sought to introduce a two-page history sheet and physical examination report from St. Joseph Hospital in Stamford, where the claimant was hospitalized on July 13, 1986. The purpose of this offer was to show the claimant’s blood pressure at that time. (December 18, 1995 Transcript, p. 8-9). The claimant objected because the record was incomplete, making it impossible to tell whether that blood pressure reading was related to some other condition or illness. The commissioner declined to admit it, and ordered it marked for identification. (Respondent’s Exhibit 2 for ID.) The respondent contends this was error because this document should have been admitted just as any other medical report from a treating physician.

First, we do not believe that it was an abuse of the commissioner’s discretion to refuse the admission of this report. The single instance of a 1986 blood pressure reading of 140/90 could indeed be explained by many reasons other than hypertension, and would be of little reliability without more information. In fact, the claimant testified that he was hospitalized for his gallbladder, as the reports suggest. (August 9, 1995 Transcript, p. 17). The trier was well within his discretion to leave this document aside. Second, assuming arguendo that the report should have been allowed into evidence, the evidentiary weight of one borderline hypertensive blood pressure reading unaccompanied by any suggestion that the claimant normally had high blood pressure or other symptoms of hypertension is really quite small. We do not believe that it could have played a significant part in the outcome of this case. Therefore, any error would be harmless.

The trial commissioner’s decision that the claimant filed a timely § 7-433c claim is affirmed. Insofar as the respondent has failed to pay due compensation, if at all, the claimant is entitled to interest pursuant to § 31-301c(b).

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

Page last revised: June 13, 2005

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