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Salmeri v. State of Connecticut/Dept. of Public Safety

CASE NO. 4066 CRB-05-99-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 9, 2000

JOSEPH SALMERI

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPT. OF PUBLIC SAFETY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Jeffrey Ment, Esq., Rome, McGuigan & Sabanosh, One State Street, Hartford, CT 06103-3101.

The respondent was represented by Michelle D. Truglia, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 16, 1999 Finding and Award of the Commissioner acting for the Fifth District was heard March 10, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and Stephen B. Delaney.

OPINION

ROBIN L. WILSON, COMMISSIONER. The respondent State of Connecticut has petitioned for review from the June 16, 1999 Finding and Award of the Commissioner acting for the Fifth District. The state contends that it was legally erroneous for the trier to award the claimant compensation under § 5-145a C.G.S. We disagree with the appellant’s arguments, and affirm the trial commissioner’s decision.

The following relevant facts were found by the trier. The claimant began working for the state police department on May 27, 1994, after passing a physical examination that showed him to be free of hypertension and heart disease. On the morning of December 18, 1996, he was seated in the roll call room working on an accident report when he was called to the desk over the public address system. Before he could respond, he was called again, and told that a fellow state trooper needed back-up in the field. The claimant interpreted this call as an emergency. When he arose from his seat, he experienced a cold feeling, sweating, pain in his arm, tightness in his chest, and a racing heart. He thought he was having symptoms of a heart attack. The claimant was taken to St. Mary’s Hospital, where he stayed overnight, and missed approximately fifteen days of work.

The cardiologist who treated the claimant, Dr. Anthony, stated at the formal hearing that extensive testing of the claimant indicated that he had not suffered a heart attack. The only evident abnormality was high blood pressure. The claimant was diagnosed with atrial fibrillation with rapid ventricular response, which Dr. Anthony was unable to attribute to a specific organic cause. Though the claimant’s symptoms were dormant at the time he was discharged from the hospital, he was told to treat his condition by taking aspirin, as he was now more susceptible to future episodes of fibrillation.

Dr. Anthony opined that, though the claimant’s job as a state trooper did not contribute to the development of or cause atrial fibrillation, the episode that occurred on December 18, 1996 was caused by the circumstances of his employment. He explained that atrial fibrillation is a rhythmic disturbance that creates rapid electrical activities in the upper part of the heart, which in turn produces an irregular rhythm in the lower part. He characterized this as a cardiac condition, as it originates in and affects the heart. The claimant might have no organic heart damage, but his arrhythmic condition intermittently manifests itself and causes disability, so the doctor assigned him a 10% permanent partial impairment rating of the heart.

The claimant was also examined by his internist, Dr. Doctoroff, who has a subspecialty in cardiovascular diseases. He concurred with the diagnosis of paroxysmal atrial fibrillation, which he agreed is categorized as a heart disease, as it entails a significant abnormality of the heart rhythm. He explained that, though there is no organic heart disease or evidence of damage as a result of the December 18, 1996 episode, the abnormality of the claimant’s heart is the equivalent of a disease. An independent medical examination with Dr. Horowitz, a cardiologist, resulted in the opinion that the claimant’s atrial fibrillation did not arise out of his employment. The cardiologist could not say with a reasonable degree of medical probability that the claimant’s stress at work on the date in question produced his arrhythmic heartbeat.

From these medical opinions, the trier drew the conclusion that atrial fibrillation is indeed a cardiac condition that, being an abnormality of the heart, equates to heart disease. He found that the claimant is now more susceptible to future episodes as a result of the December 18, 1996 incident. “While the Claimant’s employment did not cause his atrial fibrillation, it did produce symptoms which lit up and permanently aggravated a pre-existing condition which produced a permanent impairment.” Findings, ¶ F. The commissioner resultantly awarded the claimant benefits for a ten percent permanent partial disability of the heart pursuant to § 5-145a. The state has appealed that decision to this board.1

Section 5-145a C.G.S. states, “Any condition or impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to . . . any state employee designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the accordance of his duty and shall be compensable in accordance with the provisions of chapter 568 . . . .” The respondent argues that the commissioner lacked jurisdiction to award benefits under § 5-145a because there is no evidence that the claimant’s predisposition to suffer further episodes of atrial fibrillation constitutes a heart disease within the meaning of the statute. As none of the doctors could testify that the claimant had an organic disease of the heart, or that his heart had changed physically following his arrhythmic episode, the state contends that the claimant’s symptoms were too transitory to be considered a disease.

The term “disease” is not specially defined by § 5-145a or by caselaw, which requires us to fall back upon the common meaning of the word in interpreting the statute. In doing so, we discover that a “disease” can be any variation from the physiological norm. In his decision, the trial commissioner referred to Webster’s Dictionary, which defines “disease” as “an abnormal condition of an organism or part that impairs normal physiological functions.” Findings, ¶ 33. Taber’s Cyclopedic Medical Dictionary, 12th Ed., likewise describes a disease as “a pathological condition of the body that presents a group of symptoms peculiar to it and which sets the condition apart as an abnormal entity differing from other normal or pathological body states.” Nothing in either of these definitions requires that the condition continuously manifest itself rather than be characterized by periodic episodes, such as occurs with epilepsy. Thus, a wide range of abnormal conditions would seem to satisfy these definitions of “disease.”

Dr. Doctoroff attested at his deposition that atrial fibrillation, being a significant abnormality of the heart rhythm, should be characterized as a heart disease. Deposition, 9-10. Though there is no apparent organic disease or structural irregularity, the claimant does suffer from an abnormality of the electrical conduction of his heart. Id. The doctor also testified that, if more sophisticated testing was performed, such as an electrical analysis of the claimant’s heart, a specific structural abnormality would probably be detected. The attempts of respondent’s counsel to distinguish abnormality from disease were thus not legally significant in light of the definitions cited above. The trier was well within his authority to conclude from Dr. Doctoroff’s testimony that the claimant’s predisposition to atrial fibrillation amounted to a disease. See Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998) (trier has authority to decide credibility of medical expert testimony). We will not disturb that conclusion on appeal.

The respondent also argues that the trier’s decision should be reversed because there is no evidence that the claimant’s condition arose out of and in the course of his employment as a state trooper. The state relies heavily on Scrivano v. UTC/Pratt & Whitney, 12 Conn. Workers’ Comp. Rev. Op. 87, 1501 CRB-1-92-9 (Feb. 14, 1994), which it depicts as being squarely on point with the instant case. In Scrivano, this board vacated a commissioner’s decision that a claimant who had suffered an angina attack at work in 1984 was entitled to a permanent partial impairment award following heart surgery six years later. Although it was undisputed that the angina attack was caused by physical exertion during the claimant’s employment, the trial commissioner had not found that the underlying condition of coronary artery disease arose out of and in the course of the claimant’s employment. Importantly, there was also no finding that the claimant’s permanent partial impairment was made materially and substantially greater by the angina attack, nor did the trier find that the ongoing anginal condition was causally linked to the 1984 attack. “[I]t was incumbent on the claimant to produce evidence and for the commissioner to find that the claimant’s coronary artery disease, which caused both his ongoing anginal condition . . . and his 30% permanent partial impairment of the heart, was causally related to the employment, that the disabling disease arose out of and in the course of the claimant’s employment or, at least, that the 1984 attack of angina played a causal role in necessitating the subsequent surgery and producing the permanent impairment.” Id., 89 (emphasis in original).

There are certainly some similarities between this case and Scrivano. For instance, the claimant’s initial tendency to suffer atrial fibrillation was not caused by his employment as a state trooper, and the arrhythmic episode he suffered on December 18, 1996 was the product of a latent, underlying condition. Also, in both Scrivano and the instant case, momentary stress at the workplace was also the immediate instigator of the episodic attack in question, thus making the event itself a compensable injury.

The key distinction, however, is that in Scrivano, the single 1984 angina attack was not shown to have made any lasting impact on the claimant’s overall condition (or at least the trial commissioner did not find that it did). Here, the trier found that the claimant became more susceptible to future episodes of atrial fibrillation as a result of the December 18, 1996 attack. Dr. Anthony’s 10% permanent partial impairment rating was based upon the symptoms of that attack, which he said made the claimant more likely to suffer further occurrences of atrial fibrillation in the future. February 16, 1999 Transcript, p. 27-28. The trial commissioner found that this permanent aggravation of the claimant’s condition caused a permanent impairment, entitling him to compensation. Findings, ¶ F. These factual findings have adequate support in the evidence, and we may not disturb them on appeal. Pallotto, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Accordingly, we hold that the claimant sufficiently satisfied his burden of proof under § 5-145a. See Capra v. State, 3791 CRB-4-98-4 (April 27, 1999) (discussing conditional shifting of burden of persuasion under statute).

The trial commissioner’s decision is hereby affirmed. Insofar as the claimant may be awaiting past due compensation, interest is awarded pursuant to § 31-301c(b).

Commissioners Leonard S. Paoletta and Stephen B. Delaney concur.

1 The state also filed a Motion to Correct the trier’s decision, which the commissioner denied “in its entirety on its merits and for the reason of untimely filing.” The claimant then filed a Motion to Dismiss based on the respondent’s failure to timely prosecute this appeal; this motion was withdrawn at oral argument before this board. In its objection to the motion to dismiss, the state asserted that the trial commissioner impliedly waived the untimeliness of the Motion to Correct by ruling on its merits, as was done in Hurley v. Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 366, 2037 CRB-4-94-5 (Sept. 26, 1995). We disagree. Contrary to the state’s position, the commissioner explicitly refused to overlook the fact that the motion was filed on July 6, 1999, one week after the date it was due as per Admin. Reg. § 31-301-4. Reliance on dual grounds to deny such a motion is not the equivalent of ruling upon the motion without mention of its lateness. As the state’s Motion to Correct was untimely, our review is thus limited to the facts found by the trial commissioner, irrespective of the proposed corrections. Bell v. U.S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 295, 1792 CRB-1-93-8 (Apr. 21, 1995). BACK TO TEXT

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