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Elumba v. City of Stamford

CASE NO. 4084 CRB-07-99-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 2000

SEAN ELUMBA

CLAIMANT-APPELLEE

v.

CITY OF STAMFORD

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

CIRMA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Daniel Benjamin, Esq., Benjamin & Gold, 350 Bedford Street, Suite 403, Stamford, CT 06901.

The respondent was represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550. Notice also sent to City of Stamford, Risk Management, ATTN: Rick Quittell, Risk Manager, 888 Washington Boulevard, Stamford, CT 06904.

This Petition for Review from the June 24, 1999 Finding and Award of the Commissioner acting for the Seventh District was heard March 10, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, the City of Stamford, has petitioned for review from the June 24, 1999 Finding and Award of the Commissioner acting for the Seventh District. The city contends on appeal that the trier erroneously failed to find that the claimant was time-barred from collecting § 7-433c benefits. We disagree with this argument, and affirm the trial commissioner’s decision.

The claimant has worked for the City of Stamford as a full-time firefighter since 1970. Prior to commencing his employment, he underwent a physical examination that revealed no evidence of hypertension or heart disease. His first elevated blood pressure reading was at a 1975 examination with his family doctor, Dr. Harrison, where three measurements provided readings of 160/100, 150/100 and, a little later, 138/88. Dr. Steremberg, an independent medical examiner, stated that these readings were indicative of a transitory blood pressure elevation due to emotional stress or symptoms of pain, rather than true hypertension. Indeed, on eight separate occasions during the next five years, the claimant’s blood pressure was within normal limits. In March 1980, Dr. Harrison took a blood pressure reading of 120/90, which he described as a “borderline” increase. Findings, ¶ 21. The claimant was placed on a 1000-calorie diet for purposes of weight reduction. Again, the claimant’s blood pressure returned to normal by November 1982, after having been mildly elevated one month earlier when the claimant was complaining of arm numbness.

On October 2, 1984, however, the claimant visited Dr. Harrison complaining of jaw pain. His blood pressure reading was 152/96. This time, the doctor gave him a prescription for Xanax, an anxiety medication, along with a prescription for Dyazide. Dyazide is a blood pressure medication that eliminates the excess salt that accumulates in people who are overweight and hypertensive. Findings, ¶ 28. At a follow-up exam three days later, the claimant complained of nausea, abdominal cramps and TMJ pain. His blood work revealed that he had an infection. Dr. Steremberg opined that these high blood pressure readings were also associated with physical stresses rather than hypertensive vascular disease, as the claimant’s blood pressure reading had returned to normal by November 26, 1984, at which time he was taken off Dyazide. Subsequent readings taken in 1986, 1988 and 1990 were all within normal limits.

The claimant filed a Form 30C on May 12, 1998 seeking benefits pursuant to § 7-433c, and reciting a December 23, 1997 date of injury. The trial commissioner found no evidence that the claimant had suffered from hypertension prior to the diagnosis he received on December 23, 1997, as he evidently accepted Dr. Steremberg’s explanation that the previous high blood pressure readings had not been due to hypertensive vascular disease. Thus, the claimant had one year from December 23, 1997 within which to file his claim under § 31-294(c) C.G.S., making his May 1998 notice timely. The trier consequently ordered the city to accept liability for the § 7-433c claim, which decision the city has appealed to this board.

The city argues on appeal that the trial commissioner ignored the significance of the claimant’s 1984 high blood pressure readings, and the fact that the claimant was prescribed medication to treat those symptoms. In the respondent’s Motion to Correct, which the trier denied, the city sought to amend the findings to state that Dr. Steremberg diagnosed the claimant with mild arterial hypertension in 1984, for which condition he was treated with antihypertensive medication. The city contends that the claimant’s obligation to file a § 7-433c hypertension claim was triggered at that time, thus making his 1998 notice of claim tardy by over a decade. We conclude on review that the commissioner reasonably decided otherwise.

Under § 7-433c, uniformed members of municipal fire and police departments who suffer health impairments due to hypertension or heart disease are entitled to collect compensation identical to that provided by Chapter 568, as long as a pre-employment physical examination “failed to reveal any evidence of hypertension or heart disease.” Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997). Assuming that condition is met, a claimant who subsequently develops symptoms of hypertension must notify his employer of a claim for compensation within one year of the date those symptoms become manifest (absent proof that the condition is an occupational disease, which would require the application of a three-year notice period). Zaleta v. Fairfield, 38 Conn. App. 1, 6-7 (1995); see also, Leary, supra. The trier of fact retains considerable discretion to decide whether a doctor’s examination reveals evidence of hypertension. King v. New Britain, 3703 CRB-6-97-10 (Jan. 12, 1999). His authority to make factual findings entitles him to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses, including any and all medical reports, whether or not they are expressly contradicted by other evidence. Id., citing Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

There is no dispute that the claimant’s pre-employment physical in this case showed no signs of hypertension. The key issue here is when the claimant first developed symptoms of that malady. We have indeed stated that “the disease of hypertension, when it requires medical care and prescription drugs, constitutes a disability pursuant to § 7-433c C.G.S.” Tarzia v. Stamford, 3409 CRB-7-96-8 (March 18, 1998), quoting Fortin v. Naugatuck, 14 Conn. Workers’ Comp. Rev. Op. 48, 49, 1898 CRB-5-93-11 (May 4, 1995). This does not mean that each instance of high blood pressure that is treated with medication automatically constitutes hypertension within the meaning of § 7-433c. Though hypertension is defined as “abnormally high arterial blood pressure;” Cooper v. Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 1336 CRD-5-91-11 (Nov. 19, 1993); we do not believe that § 7-433c was intended to cover every temporary instance of raised blood pressure that is brought on by a transitory illness or injury.

As we have stated in several cases, there is no particular systolic or diastolic pressure reading that constitutes a legal hypertension line in this state. Leary, supra; King, supra; Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999). A high blood pressure reading may be attributable to other factors, such as pain, illness or momentary apprehension, and it is up to the trial commissioner to assess the significance of such a reading within the complete factual framework of the case before him. Leary, supra. Similarly, medical treatment of high blood pressure may or may not be indicative of hypertension, depending on the circumstances. See King, supra (placement of claimant on low-salt diet did not amount to medical treatment for hypertension under § 31-294c(c)). Whether or not a claimant’s use of blood-pressure medication is attributable to compensable hypertension is a factual question to be addressed by the trial commissioner in his findings, and not by this board on review.

The portions of Dr. Steremberg’s testimony cited by the city in its brief do not provide unequivocal support for a finding that the claimant suffered from, and was treated for, hypertension in 1984. See Joint Exhibit 1, pp. 56-59. The doctor may have described the claimant as having “very mild arterial hypertension, probably related to his excessive weight and aggravated physical stresses” in his report, but the potential significance of that description was tempered by the rest of that report, as referenced in the doctor’s testimony. He opined that the claimant had no permanent impairment of his cardiovascular system, describing him instead as evincing a “pattern of elevated blood pressure readings when associated with physical stresses.” Id., 57. As noted above, the claimant had been quite ill at the time. From the doctor’s testimony, one could conclude that he strove to emphasize the distinction between his use of the term “hypertension” in a broad sense to describe the claimant’s temporary symptoms of high blood pressure and his use of the phrase “hypertensive heart disease” to signify the type of hypertension that is not merely attendant to increased anxiety. Id., 58-62. The trier thus adopted a justifiable interpretation of Dr. Steremberg’s testimony, and he was not bound to grant the respondent’s proposed corrections to the findings, along with their corollary legal conclusions. Here on appeal, we may not encroach upon that factfinding authority. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Stephen B. Delaney concur.

Workers’ Compensation Commission

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