CASE NO. 4179 CRB-6-00-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 27, 2001
WAYNE G. CEFARATTI
TOWN OF WETHERSFIELD
AON RISK SERVICES OF CONN.
The claimant was represented by Kevin Coombes, Esq., McCarthy, Schuman & Coombes, 107 Oak Street, Hartford, CT 06106.
The respondents were represented by Brian Prindle, Esq., 72 Bissell Street, Manchester, CT 06040-5304.
This Petition for Review from the January 21, 2000 Finding and Award of the Commissioner acting for the Sixth District was heard October 27, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the January 21, 2000 Finding and Award of the Commissioner acting for the Sixth District. They take issue on appeal with the trier’s conclusion that the claimant successfully established a compensable hypertension claim under § 7-433c C.G.S. We detect no legal error in the trial commissioner’s findings or in his interpretation of the applicable law, and thus affirm his decision.
The claimant began working as a patrolman for the Town of Tolland in 1983, and was continuously employed in that capacity until he took a similar job with the Town of Wethersfield beginning on June 21, 1993. Prior to being hired by Wethersfield, he submitted to a series of exams, including a pre-employment physical and a stress test. The physician who performed the physical, Dr. Herrick, did not record a blood pressure, but the medical record that she acknowledged contained readings of 140/100 and 142/82. The claimant completed a Bruce Protocol Exercise Stress test on June 11, 1993, showing “good cardiac function and exercise capacity” according to Dr. Horowitz. Findings, ¶ 7. Dr. Petronio wrote on July 14, 1993, that both the physical exam and the EKG were normal, and stated that the claimant should be approved for service as a police officer “without restriction or accommodation.” Id., ¶ 8.
On April 23, 1996, the claimant was advised by Dr. Cohen that he had high blood pressure, and was prescribed medication. This was the first time that the claimant was ever informed that he was hypertensive by a medical treater. Dr. Dougherty, a cardiologist, then undertook the claimant’s care. He opined that the claimant had not been diagnosed with hypertension based on the evidence available in 1993, nor was there evidence that he had pre-existing hypertension when he began working in Wethersfield. In fact, the town requested that the claimant sign an Acknowledgment of Physical Defect pursuant to § 31-325 C.G.S. (now repealed) regarding his cholesterol, with no mention of hypertension. However, Dr. Lebowitz, an independent medical examiner, reviewed the blood pressure reading of 140/100 and a 150/100 reading from the resting phase of the cardiac stress test, and concluded that these constituted evidence of hypertension.
The trier specifically declared that he was not persuaded by Dr. Lebowitz’ testimony, and ruled that the respondents had failed to meet their burden of rebutting § 7-433c’s presumption of compensability. They had also presented no evidence to show that the claimant’s hypertension was not job related. Accordingly, the trier ruled that the instant § 7-433c claim was valid, and ordered the respondents to pay benefits to the claimant. That decision is now the subject of the present appeal.
At the time that the claimant was diagnosed with hypertension, the relevant portions of § 7-433c read as follows:
(a) . . Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or 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 death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment . . . .
(b) . . . [A]ny regular member of a paid municipal police department who begins such employment on or after July 1, 1992, . . . (2) shall not be eligible for benefits pursuant to this section after such member has completed two years of service if the municipal employer proves by a preponderance of evidence that the member’s condition or impairment of health caused by hypertension or heart disease is not job-related.
(Emphasis added.) The respondents contend in their appellate brief that, pursuant to this statute, the claimant had the burden of proving that there was no evidence of hypertension or heart disease present at the time of his pre-employment physical, which burden he failed to satisfy, as such evidence irrefutably exists. They also maintain that the trier erred by finding that they failed to successfully rebut the presumption of compensability in § 7-433c(b) by proving that the claimant’s employment did not cause his hypertension.
The claimant in a workers’ compensation case carries the burden of persuading the trier of fact that he has suffered an injury arising out of and in the course of his employment under § 31-284(a), and that this Commission has jurisdiction over his resulting claim for benefits. Mazzone v. Connecticut Transit Co., 240 Conn. 788, 793 (1997); Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 41-42 (1996). Under related statutes such as § 7-433c, a claimant likewise has the burden of proving that he meets the necessary criteria to qualify for benefits, though a statutory presumption may relieve him of a portion of that burden. With respect to the requirement that the claimant must have passed a pre-employment physical examination that revealed no evidence of hypertension or heart disease, the claimant certainly cannot prevail on his claim unless he is able to establish that he satisfies that prerequisite. Elumba v. Stamford, 4084 CRB-7-99-7 (Aug. 10, 2000). However, once the results of the claimant’s pre-employment physical have been offered into evidence, the trial commissioner is not bound to construe any “borderline” blood pressure readings as hypertensive, as if the respondents were statutorily granted the “benefit of the doubt.” See, e.g., King v. New Britain, 3703 CRB-6-97-10 (Jan. 12, 1999). Instead, the parties essentially stand on equal footing in trying to persuade the commissioner that evidence of hypertension was or was not present at the time of the physical examination, based on the data and medical opinions before him.
The import of this prerequisite is clear and unambiguous: a physical examination upon entry into service must reveal no evidence of either heart disease or hypertension in order for the claimant to be eligible for statutory benefits. Suprenant v. New Britain, 28 Conn. App. 754, 758-59 (1992) (firefighter whose tests revealed evidence of hypertension, but not heart disease, could not later receive benefits for disability caused by subsequently discovered heart disease). However, whether such evidence is present or not is still a factual issue committed to the sound discretion of the trial commissioner. Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999); Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997); see also, Tremblay v. Connecticut State Employees’ Retirement Commission, 170 Conn. 410, 415 (1976) (Court similarly interpreted § 5-145a, which also awards benefits to certain state employees whose pre-employment physicals fail to reveal any evidence of hypertension or heart disease; Court stated, “Although it is possible to disagree with the [commission’s] determination . . . the court could not substitute its discretion for that of the [commission].”) If the trier’s findings have roots in the evidence, this board may not invalidate them on review. Leary, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). As we noted in Leary, in past cases on this issue, this board has reversed a trier’s decision to award § 7-433c benefits only where the trier made a finding that a prior physical examination resulted in an uncontradicted diagnosis of hypertension.
The respondents assert that the evidence—three abnormal blood pressure readings, and testimony by Drs. Lebowitz and Herrick—compels one to conclude that evidence of hypertension indubitably existed here. We repeat that there is no per se legal hypertension line in this state, either at a blood pressure reading of 140/90 or at any other level. King, supra; Anzidei, supra; Leary, supra. For example, we have held, “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.” Id. We have also stated that “a single high blood pressure reading may constitute evidence of hypertension,” and that two “mildly elevated” blood pressure readings can reasonably be construed as hypertension. Anzidei, supra, citing Cooper v. Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 1336 CRB-5-91-11 (Nov. 19, 1993). Finally, we have affirmed a trier’s ruling that blood pressure readings of 160/100 and 146/96 were not manifestations of hypertension, in accordance with the treating doctor’s opinion. King, supra. Again, we state this basic rule: “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.” Leary, supra.
On the June 11, 1993 date of his treadmill exercise test, the claimant’s blood pressure reading was 150/100. Dr. Horowitz explained that he “was anxious about today’s test results and I’m sure that this influenced his blood pressure.” Claimant’s Exhibit B. The doctor made no mention of any likelihood that hypertension or heart disease were present. In interpreting these test results, Dr. Petronio noted only elevated cholesterol, and gave the claimant her approval “without restriction or accommodation.” Id. Dr. Dougherty’s reports and testimony echo the notion that the claimant’s blood pressure was not a problem in 1993, even though his diastolic and systolic readings were mildly elevated on one or two occasions. Claimant’s Exhibits D, E pp. 6-8. Dr. Dougherty observed that the claimant had a blood pressure reading of 142/82 on March 4, 1992, which he considered to be within the normal range. Id., 18. He specifically concurred with Dr. Horowitz’ impressions; Id., p. 22; which made it reasonable for the trier to infer that Dr. Dougherty did not believe the claimant’s blood pressure readings from 1993 provided evidence of hypertension under all of the given circumstances.
We also observe that Dr. Herrick did not unequivocally testify that the claimant was probably hypertensive at the time of his examination. Instead, she described the claimant as being “extraordinarily anxious about the exam, about his blood pressure, and about the abnormal reading,” but declined to comment as to whether he had “white coat” hypertension1, having only had one encounter with the claimant. December 4, 1998 Deposition, p. 8. Though she considered his second blood pressure reading of 142/82 abnormal, she never stated that she considered the claimant hypertensive based on his readings. Id., pp. 12-14. Her testimony was ambivalent regarding the presence of evidence of hypertension, and the trier understandably declined to cite her remarks in his decision. Dr. Lebowitz did offer testimony that, if believed, would have supported the respondents’ position, but the trier chose to credit the conflicting testimony of Dr. Horowitz. It was certainly within his discretion to do so as the trier of fact; Pallotto, supra; and Dr. Lebowitz even acknowledged that “Doctor Dougherty is entitled to his opinion and I am certainly entitled to mine.” February 3, 1999 Transcript, p. 28. The trier made his decision regarding evidentiary credibility, and it is incumbent upon us to leave that ruling intact on appeal. Pallotto, supra. Thus, we must uphold his finding that the claimant’s pre-employment physical displayed no evidence of heart disease or hypertension.
Our decision on the respondents’ first assertion of error effectively resolves their allegation that they successfully rebutted the presumption of compensability by providing medical evidence to show that hypertension was not caused by the claimant’s employment. We have already stated that the trier was entitled to disregard the testimony of Dr. Lebowitz if he did not find it persuasive. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999). Dr. Lebowitz was the only physician who offered an opinion that purported to state with any degree of certainty that the claimant’s hypertension predated his employment with Wethersfield. See Costa v. Torrington Company, 4097 CRB-5-99-8 (July 28, 2000) (substance of expert opinion must be based on reasonable degree of medical probability). Indeed, he eventually conceded that the claimant’s work environment “could be or is one of the substantial factors involved in aggravating [his] underlying blood pressure condition.” Transcript, p. 34; Findings, ¶ 17. No other evidence strongly favored the respondents’ case. The trial commissioner clearly took heed of § 7-433c(b)’s presumption, ruled that the respondents had not met their burden in rebutting that presumption, and ruled that the claimant was entitled to benefits. Id.; see also Horn v. State/Department of Correction, 4177 CRB-3-00-1 (February 22, 2001) (where presumption of compensability shifts burden of persuasion, employer must present evidence that the trier finds sufficiently credible to meet that burden). We detect no legal error in that ruling.
The trial commissioner’s decision is hereby affirmed. Insofar as the claimant may not have received benefits due him pending the outcome of this appeal, interest is awarded as required by § 31-301c(b).
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 The term “white coat hypertension” refers to the common phenomenon of individuals temporarily displaying elevated blood pressure readings due to their anxiety over having their blood pressure tested. BACK TO TEXT