State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gillette v. Town of Monroe

CASE NO. 3500 CRB-04-97-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 13, 1998

TERRY D. GILLETTE

CLAIMANT-APPELLANT

v.

TOWN OF MONROE

EMPLOYER

and

CIRMA

SELF-INSURED ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher B. Carveth, Esq., Stevens, Carroll & Carveth, 26 Cherry St., P. O. Box 432, Milford, CT 06460.

The respondents were represented by Mark J. Sommaruga, Esq., Sullivan, Schoen, Campane & Connon, 646 Prospect Avenue Hartford, CT 06105-4286.

This Petition for Review from the December 27, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 27, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trial commissioner erred as a matter of law by ruling that he did not meet the statutory criteria of § 7-433c C.G.S., and by failing to grant his Motion to Correct. We affirm the trial commissioner’s decision.

Pursuant to a joint stipulation of facts, it was established that the claimant was hired by the Town of Monroe as a uniformed police officer in 1965. At that time, and continuously throughout his childhood, his physician was Dr. Williams. In 1947, at the age of eight, he underwent surgery for a coarctation of his descending aorta, which was a congenital condition. This surgery was recommended by Dr. Williams, who also served as the police surgeon for the Town of Monroe. When the claimant applied for employment with the police department, Dr. Williams performed the required physical examination. He forwarded a letter to the police chief noting that the claimant met the requirements for the position of patrolman.

The claimant has been continuously employed as a Monroe police officer from the date he was first hired through at least the date of the first formal hearing. The trier found that, during that time, the claimant had no medical problems of any consequence until the spring of 1994, when he was diagnosed with congestive heart failure caused by an aortic valve problem. He underwent surgery on April 27, 1994, for an aortic valve replacement. The claimant was later diagnosed with hypertension as well, and was placed on medication with physical restrictions in February 1995. He claims § 7-433c benefits for both the aortic valve surgery and his hypertension illness. The respondent Town of Monroe has contested that claim.

The commissioner found that the claimant did not submit medical reports directly addressing the causation of the hypertension and its relationship to the congenital heart disease condition, and did not introduce evidence to contradict the notion that his congenital heart disease necessitated both the 1947 and 1994 surgeries. The trier focused on the fact that Dr. Williams was both the claimant’s personal physician and the police surgeon, and remarked that both the claimant and the doctor knew of the claimant’s pre-existing heart disease when he was hired. See Gimler v. Town of Orange, 4 Conn. Workers’ Comp. Rev. Op. 96, 97, 381 CRD-3-85 (June 12, 1987). He ruled that the respondents had presented a viable defense of non-claim to the claimant’s 1995 notice of claim based on the relevant parties’ foreknowledge of his congenital heart disease, and dismissed the § 7-433c claims. He also denied both parties’ subsequent Motions to Correct.

At the time the claimant exhibited the symptoms of his 1994 aortic valve problem, § 7-433c provided that “in the event a . . . regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his . . . disability, he . . . shall receive . . . compensation and medical care . . . . If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section . . . .” Thus, if a pre-employment physical examination reveals evidence of either hypertension or heart disease, a claimant is ineligible to subsequently receive benefits under § 7-433c for either condition. Suprenant v. New Britain, 28 Conn. App. 754, 759 (1992); see also Horkheimer v. Town of Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 143, 163 CRD-4-82 (Dec. 31, 1987).1

The August 2, 1965 letter from Dr. Williams to the Monroe chief of police simply states that the claimant was examined and “found to be in good physical condition and to meet the requirements for the position.” Joint Exhibit 4. It offers no mention of the claimant’s congenital heart condition. However, when the claimant’s aortic valve problem surfaced in 1994, the medical reports issued by Dr. Rose and Dr. Krauthamer definitively stated that the claimant’s problem was due to congenital heart disease caused by a bicuspid aortic valve that was formed during embryonic development. Respondent’s Exhibit 1; Joint Exhibit 2. The question we must answer is a novel one to this forum: was the trial commissioner entitled to look at all of the evidence in deciding whether evidence of heart disease or hypertension was in fact present at the 1965 pre-employment physical examination? Or was he bound to look at only the “simple summary letter” that Dr. Williams forwarded to Chief Tufano in 1965, without drawing conclusions as to the facts that the doctor was actually aware of when he wrote that note?

It is a fundamental tenet of statutory construction that statutes should be construed to give effect to the apparent intention of the lawmakers. Suprenant, supra, 758. The intent behind § 7-433c in this regard is expressed by the statute itself: in light of the heightened tendency of police officers and firefighters to develop heart disease and hypertension because of the risk inherent in their professions, the legislature decided to automatically2 compensate any individual who developed such a condition after entering employment with a police or fire department. However, people with symptoms of heart disease or hypertension present at the time they entered employment would not be eligible for such benefits. Consequently, several cases have been decided in which a police officer who passed the required physical examination upon entering employment did not qualify for benefits under § 7-433c because there was some evidence of hypertension or heart disease present at the examination. Suprenant, supra; Cooper v. Town of Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 1336 CRD-5-91-11 (Nov. 19, 1993); Horkheimer, supra.

The records of Dr. Williams’ examination consist solely of a two-sentence letter from the doctor to Chief Tufano saying, in a conclusory fashion, that the claimant was found to be in good physical condition and to meet the job’s criteria. Apparently, no specific information regarding the claimant’s health was given to the police chief or recorded in a medical report. This is understandable, considering that Dr. Williams was both the claimant’s personal physician and the police surgeon. He doubtless felt it unnecessary to elaborate on the claimant’s medical history in a situation where a “yes or no” recommendation regarding the claimant’s fitness for duty would be adequate and wholly determinative. At the time that he gave medical clearance for the claimant to join the police force, Dr. Williams had no real reason to provide information concerning the claimant’s congenital heart condition in his letter to Chief Tufano. Section 7-433c was not yet in effect, and neither the doctor nor the town had any way of knowing that information concerning the claimant’s heart would later become important.

Although proof of the examination itself is not needed to maintain a § 7-433c claim where passing such an examination is a prerequisite of employment, it is nonetheless reasonable to assume that, by “examination,” the legislature was referring to a procedure that would reveal specific details of the claimant’s physical condition. In this case, there was reason for the trial commissioner to believe that Dr. Williams would have noted a congenital heart defect in his examination had he known it was necessary to provide a thorough rundown of the claimant’s physical condition. The trier was thus entitled to look beyond the terse letter that Dr. Williams sent to the police chief in analyzing whether evidence of heart disease was present at the 1965 physical examination, as Dr. Williams was only reporting on the claimant’s overall fitness for duty instead of signs of heart trouble or hypertension. With § 7-433c not yet having been enacted in 1965, it was logical for the trier to treat this issue as he would in any other workers’ compensation case, where questions of preexisting disability are determined by the totality of the evidence. The fact that the claimant’s heart condition was not reported at the time of the medical examination does not mean that it legally did not exist. Under the circumstances of this case, it was reasonable for the trial commissioner to take note of the claimant’s background in deciding whether evidence of heart disease existed in 1965.

Having reached that conclusion, we cannot say that the trial commissioner’s evaluation of the evidence was suspect in some way. There were medical reports in evidence to support the notion that the claimant’s coarcted aorta qualified as congenital heart disease, including the testimony of Dr. Garrity. Deposition, April 24, 1996, p. 26; see also Respondent’s Exhibit 1 (Feb. 13 1996 report of Dr. Krauthamer). The fact that this valve is not part of the “pumping” function of the heart itself does not take it outside the definition of “heart disease” as a matter of law. The commissioner reasonably inferred from the medical evidence in this case that the claimant suffered from congenital heart disease. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We may not disturb that inference on appeal. Consequently, we must affirm his decision to dismiss the claimant’s § 7-433c claim for both heart disease and hypertension benefits. See Suprenant, supra, 758-59.

Commissioner John A. Mastropietro concurs.

JAMES J. METRO, COMMISSIONER, DISSENTING. I am not persuaded that the trial commissioner can look beyond the pre-employment examination itself in deciding whether or not the claimant suffered from heart disease or hypertension at the time of his hire. First, the statute itself explicitly states that compensation shall be provided to any police officer “who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease.” The commissioner made no determination that Dr. Williams’ examination revealed such evidence, and I do not believe the opposite should be inferred from external sources. The Town of Monroe chose Dr. Williams to undertake the pre-employment physical examination of the claimant and, as it revealed no evidence of hypertension or heart disease on its face, the Town must live with the opinion expressed therein.

Second, § 7-433c also states that no proof of an examination shall be required where successful passage of that examination was required as a condition for employment. This language of the statute gives additional protection to an employee where the records of the pre-employment physical are lost or unavailable at the time of the making of a claim under Section 7-433c of the statutes. The majority opinion would in fact nullify this protection if a trier could look to any and all other evidence beyond the report of the pre-employment physical examination in deciding the very question which the statute conclusively presumes.

Therefore, I dissent.

1 At the time the claimant was hired in 1965, the Heart and Hypertension Act was not yet in effect. This would not prevent the claimant from receiving benefits under that act as long as his disability postdated the 1971 effective date of the act. See Gallucci v. Waterbury, 2 Conn. Workers’ Comp. Rev. Op. 76, 81, 313 CRD-5-84 (July 24, 1984). BACK TO TEXT

2 In 1992, the legislature amended § 7-433c by adding subsection (b), which affects firefighters and police officers who began their employment after July 1, 1992. This subsection, which was in effect at the time of the claimant’s injury in 1994, provides that no one employed after July 1, 1992 shall be eligible for benefits until such member has completed two years of service from the date of employment. Section 7-433c(b) also allows the municipal employer to rebut the presumption of eligibility for benefits by proving that the member’s condition or impairment of health caused by hypertension or heart disease is not job-related. In 1996, the language of subsection (b) was removed, and in its place was substituted the following phrase: “[n[otwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996 shall not be eligible for any benefits pursuant to this section.” These changes are noteworthy, as they suggest that the unambiguous legislative intent to compensate police officers and firefighters for hypertension or heart disease that was present when § 7-433c was first enacted in 1971 had become quite restrained by the time the 1992 and 1996 amendments to this statute were enacted. A reasonably restrictive reading of this statute would thus appear to be appropriate in the instant case, insofar as there is ambiguity regarding the scope and meaning of its language. BACK TO TEXT

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