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Pearce v. City of New Haven

CASE NO. 4385 CRB-3-01-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 28, 2002

FRANCIS PEARCE

CLAIMANT-APPELLANT

v.

CITY OF NEW HAVEN

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Thomas Farver, Esq., 2842 Old Dixwell Avenue, Hamden, CT 06518.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the April 25, 2001 Finding and Dismissal of the Commissioner acting for the Third District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 25, 2001 Finding and Dismissal of the Commissioner acting for the Third District. He contends on appeal that the trier erred by dismissing his claim for benefits pursuant to § 7-433c C.G.S. on the ground that it was filed in an untimely manner. We find no error, and affirm the trial commissioner’s decision.

The claimant was employed as a firefighter for the City of New Haven on October 15, 1998, when he was diagnosed with hypertension. Twenty years earlier, he had successfully passed his pre-employment physical examination, and had continuously worked for the respondent ever since. The respondent contends that the claimant’s November 13, 1998 Form 30C was untimely because he had elevated blood pressure readings in 1988, 1989 and 1990, but filed no claim at that time for § 7-433c 1 benefits.

The trier found that the claimant began seeing his family physician, Dr. Kasper, in August 1988. His blood pressure readings for August 16, 1988 were elevated (180/94, 178/104, 156/94), and the doctor told him that his reading was high. On October 25, 1988, he again tested high (170/98, 158/94). Further elevated readings were taken on six separate occasions over the next two years, ranging from 140/98 on June 1, 1989 to 170/110 six weeks later. Dr. Kasper advised the claimant to change his diet and lose weight; he also prescribed a high blood pressure monitor, and asked the claimant to track his own progress and keep a diary of his blood pressure readings. The claimant did not see Dr. Kasper between 1990 and 1998. He knew that Dr. Kasper was concerned about his elevated blood pressure, as the doctor had discussed hypertension with him during every visit, and had written him a letter in 1995 asking him to return due to his blood pressure and cholesterol readings. The doctor testified that the claimant’s EKG readings from 1988 through 1999 showed little change. In 1988, he had felt that the claimant might have “white coat” hypertension (increased pressure readings solely due to the anxiety of being tested); however, he explained that his thoughts on that subject had changed since the late 1980’s, with his current view being that hypertensive symptoms during an in-office test normally indicate hypertension.

Dr. Dougherty, a cardiologist, reviewed the claimant’s records and Dr. Kasper’s notes on February 11, 2000. He concluded that there was extensive data in the record to demonstrate that the claimant suffered from modest, sustained hypertension while he was seeing Dr. Kasper from 1988-1990. “The majority of the recorded blood pressure readings are above the traditional 140/90 reference interval with many of them being significantly above this level. There are virtually no low readings and in my opinion, this is supportive of a fairly sustained longstanding diagnosis of mild-moderate essential hypertension.” Findings, ¶ 28, quoting Respondents’ Exhibit 1. The trial commissioner found that, based on the claimant’s numerous elevated blood pressure readings, there was clear evidence of hypertension from 1988-1990. As the claimant’s Form 30C was not filed within one year of the claimant’s first hypertension symptoms, notice was untimely pursuant to § 31-294c C.G.S. and the trier accordingly dismissed the claim. The claimant has appealed that ruling, as well as the denial of his Motion to Correct.

Section 7-433c allows a uniformed member of a paid municipal fire department who was hired before July 1, 1996 to receive compensation and medical care in the same amount and manner as that provided under the Workers’ Compensation Act whenever such member can show that his “preemployment physical examination revealed no evidence of hypertension or heart disease, [and that he] now suffers a condition or an impairment of health caused by hypertension or heart disease that has resulted in death or disability, and has suffered a resultant economic loss.” Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995). Because the procedural rules of Chapter 568 are applicable to § 7-433c claims as well, a prospective claimant must satisfy the requirements of § 31-294c(a), which demands that one provide “a written notice of claim for compensation . . . within one year from the date of the accident or within three years from the first manifestation of the occupational disease, as the case may be, which caused the personal injury . . . .” The claimant contends that the trier erred by reasoning that his 1988-1990 high blood pressure readings required her to dismiss his 1998 notice of claim as untimely. In his view, no hypertension claim could have been expected prior to 1998, as he was neither diagnosed as hypertensive nor prescribed any anti-hypertensive medication until October 15, 1998, and he had previously lost no time from work due to hypertension.

Much of the recent caselaw surrounding the proper filing of § 7-433c claims is directed at the rebuttable presumption of compensability that a police officer or firefighter obtains following the passage of the pre-employment physical, and concerns whether or not various blood-pressure readings during that physical constitute “evidence of hypertension” within the meaning of the statute. See, e.g., Gillette v. Monroe, 56 Conn. App. 235 (1999), cert. denied, 252 Conn. 932 (2000); Cefaratti v. Wethersfield, 4179 CRB-6-00-1 (Feb. 27, 2001); Hyatt v. Milford, 4127 CRB-3-99-9 (Nov. 7, 2000); Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999); Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997). At the outset of our analysis, we believe it is important to distinguish this issue from the one technically before us here. The trier cited Anzidei and Leary in ¶ E of her conclusions, and quoted language in Anzidei explaining that the phrase “any evidence of hypertension” is not the equivalent of a diagnosis of hypertension, as one or two elevated blood pressure readings might, in a commissioner’s opinion, constitute evidence of hypertension. She then found in ¶ F that the claimant’s elevated blood pressure readings from 1988-1990 were “clear evidence of hypertension,” and went on to dismiss the 1998 Form 30C as untimely.

There is no suggestion that the claimant’s pre-employment physical turned up evidence of hypertension in this case. Therefore, he would be entitled to the presumption of compensability in § 7-433c(a) assuming that he suffered a health impairment due to hypertension or heart disease that resulted in disability, either through lost time from work or by virtue of requiring medical treatment for hypertension or heart disease. Fortin v. Naugatuck, 14 Conn. Workers’ Comp. Rev. Op. 48, 1898 CRB-5-93-11 (May 4, 1995). The question before us here is a bit different, and concerns the filing of the hypertension claim itself: did high blood pressure readings in 1988, 1989 and 1990 constitute an injury under § 31-294c(a) that obligated the claimant to file a Form 30C at that time, rather than a decade later? The claimant here offered no evidence to establish that hypertension is an occupational disease, which would have made notice due within three years of the first manifestation of that disease; therefore, we must presume that the one-year statute of limitations for accidental injuries and repetitive traumas is applicable in this case. See Zaleta, supra, 7.

Thus, upon developing symptoms of hypertension, the claimant was required to notify his employer of a compensation claim within one year of the date those symptoms become manifest. Zalot v. Bristol, 4256 CRB-6-00-6 (March 16, 2001); Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). The trier had considerable discretion to decide whether the his blood pressure readings from 1988-1990 constituted evidence of hypertension, rather than temporary symptoms of elevated pressure due to other stressors. Id. As we stated in Elumba, “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.” We have also stated that there is no particular systolic or diastolic pressure reading that constitutes a legal hypertension line in this state. Id.; Anzidei, supra; Leary, supra. “It is up to the trial commissioner to assess the significance of such a reading within the complete factual framework of the case before [her]. Leary, supra. Similarly, medical treatment of high blood pressure may or may not be indicative of hypertension, depending on the circumstances.” Elumba, supra.

In both Elumba and Zalot, supra, the presiding trial commissioner found that isolated past instances of high-blood-pressure readings intermixed with numerous normal readings did not indicate pathological hypertension. Here, in contrast, the claimant had elevated blood pressure readings on each occasion he was tested over a span of two years. His doctor advised him to lose weight and to go on a diet, prescribed a blood pressure monitor, and asked him to return monthly for check-ups of his cholesterol and blood pressure. Further, the claimant and his doctor frequently discussed the subject of his blood pressure. November 15, 2000 Transcript, p. 20.

Even if the claimant’s doctor did not formally diagnose him as hypertensive, it would be reasonable to find that the claimant’s consistent high-blood-pressure readings and his interactions with his doctor indicated that he was manifesting symptoms of sustained hypertension under all the circumstances of this case (which should have put the claimant on notice that he was suffering from hypertension). The trier was so persuaded, and was thus within her authority to find that the claimant suffered from hypertension during the 1988-90 time period. Based on this factual finding, the trier’s corollary conclusion that the claimant’s 1998 notice of claim was not filed in a timely manner is also reasonable, and consistent with the requirements of § 31-294c. This board does not have the authority to retry the facts of this case on appeal, nor may we substitute our own factual findings for those of the commissioner. Gillette, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Thus, we must affirm the trial commissioner’s decision.

The trial commissioner’s decision is accordingly affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 Section 7-433c provides 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 and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. 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 or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of 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. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467.

(b) Notwithstanding 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. BACK TO TEXT

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