State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Napolitano v. City of Bridgeport

CASE NO. 4388 CRB-4-01-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 6, 2002

PHILIP M. NAPOLITANO, JR.

CLAIMANT-APPELLANT

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondent was represented by Jean D. Molloy, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the May 4, 2001 Finding and Award of the Commissioner acting for the Fourth District was heard May 31, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant and the respondent each petitioned for review from the May 4, 2001 Finding and Award of the Commissioner acting for the Fourth District. The respondent’s request to withdraw its appeal was accepted by this Commission on November 6, 2001, the pro se1 claimant’s appeal still remains before us. In it, he raises several claims of error, addressing both procedural matters and the substantive issue of his permanency rating. He has also filed a Motion to Submit Additional Evidence. On review of these claims, we find no legal error, and therefore affirm the trial commissioner’s decision.

The claimant is a retired Bridgeport police officer who began to suffer from hypertension during the course of his employment with the respondent. His condition has been accepted as compensable under § 7-433c C.G.S. with a January 20, 1989 date of injury. Since then, he has treated for various symptoms, including rapid heartbeat, heart palpitations, diaphoresis, moderate enlargement of the left atrium, elevated high blood pressure, and hypertrophy of the heart. He has also been treating for anxiety and depression, which he believes result from his long-standing hypertensive condition.

The trial commissioner found that the claimant was treated for hypertension in 1990, and prescribed medication. At that time, a heart exam indicated that his heart was normal. An echocardiogram in 1993 showed moderate enlargement of the left atrium, and a 1994 echocardiogram showed a reversed E-A ratio2, which perpetuated in a 1996 test. Dr. Rose, the claimant’s treating physician, diagnosed him with left ventricular hypertrophy (which causes thickening of the heart wall). The claimant’s measurements deviated only slightly from the norm, and Dr. Rose testified that the irregularity could conceivably be the result of the particular echocardiogram test that had been performed, whereas another test might produce a different outcome. He nonetheless rated the claimant with a 35% permanent partial disability of the heart based on his diagnosis of ventricular hypertrophy, which is one of the elements of a Class III impairment under the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

However, the trier noted that the claimant was not evincing consistent diastolic blood pressure readings greater than 90mm Hg, which are also classified as a prerequisite for a 30-49% permanency rating. Out of 32 blood pressure readings between 1989 and 1998, only three diastolic readings were at 90, and only one was greater. The claimant was also taking Zoloft and Clonopin for his depression, as prescribed by Drs. Waynik and Filiberto, though no evidence was submitted to demonstrate a causal connection between the claimant’s psychiatric issues and his hypertension.

The respondent’s independent medical examiner, Dr. Silverstein, assessed the claimant with a 5% permanent partial disability of the heart after seeing him on February 18, 1997. A commissioner’s examiner, Dr. Lebowitz, echoed that 5% permanency rating after examining the claimant on June 27, 1997. The trier found that their testimony was more convincing than that of Dr. Rose, given the claimant’s diastolic pressure readings and the “minuscule variance” between a normal and a diseased heart wall that might just as easily reflect an inaccuracy in the testing procedures. Findings, ¶ 3. He also ruled that the claimant’s anxiety and depression had not been shown to be related to hypertension, meaning that the prescription drugs that the claimant was taking for those symptoms were not compensable. The claimant has petitioned for a review of that decision by this board.

Before addressing the claimant’s appellate arguments3, we shall take this opportunity to clarify the role and purpose of the Compensation Review Board. When a workers’ compensation claim reaches the formal hearing stage, it becomes the job of the commissioner to try the facts, the same way that a judge tries the facts in a Superior Court action. Both parties are allowed to present testimony and medical reports as evidence, and the trial commissioner has the power and the responsibility to evaluate that evidence and decide which portions of it are the most believable. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). A trial commissioner is never required to credit any particular item of evidence, however, whether it be the testimony of a lay witness or the medical report of a physician. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). On appeal, this board is not allowed to retry the facts of a case by making its own determination as to the relative credibility of the evidence. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). All we may do is review the trier’s findings to verify that there is evidence in the record to support them, and determine whether the trier has overlooked admitted and undisputed facts that might affect the outcome of the case. Id.; Warren, supra. As for the trier’s legal conclusions, we may disturb them only if the law has been incorrectly applied to the facts found by the trier. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001).

Turning to the allegations of error that are raised in the claimant’s brief, we first address his assertion that the trial commissioner failed to issue his award in a timely manner. Section 31-300 states, “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award.” The final hearing in this matter, a pro forma hearing at which briefs and proposed findings were submitted, was held on January 4, 2001. The certified mail receipts in the record show that the commissioner’s decision was issued on May 4, 2001, which was the 120th day after January 4, 2001. In order for the decision to be late under the plain language of § 31-300, it would have had to be sent out later than 120 days after the last hearing. Compare Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994) (§ 31-301(a) appeal period begins running on date meaningful notice of commissioner’s decision is sent, rather than date it is received). The 120th day itself is still within the statutory deadline. Thus, the trial commissioner adequately complied with § 31-300, as the decision in this case was not issued in a tardy manner. See Kay v. Hubbard-Hall, Inc., 4092 CRB-5-99-7 (October 20, 2000)(120-day time period expires on 120th day after last brief is filed).

The claimant also contends that the trial commissioner should have recused himself from presiding over the formal hearing because he had served as the mayor of Bridgeport while the claimant was a supervisor for the police department, during a period of time when there was disharmony between the mayor’s office and the superintendent of police. This claim is being raised for the first time on appeal. This board will not normally consider a request for the recusal or disqualification of a judge that was not brought up during the trial proceedings; Romeo v. H&L Chevrolet, Inc., 10 Conn. Workers’ Comp. Rev. Op. 72, 73, 1149 CRD-7-90-12 (March 31, 1992), citing Bieluch v. Bieluch, 199 Conn. 550, 552-53 (1986); and the instant situation is not one in which it appears that someone failed to disclose important information that, if known, would have alerted the claimant to a potential concern of bias on the part of the trier. Rather, the claimant knew the identity of the trial commissioner going into the formal hearings. It seems that he only became concerned that the trier might be partial to the defense after he received the trier’s decision, and found himself displeased with the result. We see no reason to vary our standard practice under these circumstances. Thus, we decline to further consider the claimant’s recusal argument.

The claimant’s primary objection on appeal is directed at the trier’s disregard of Dr. Rose’s 35% permanency rating in favor of the opinions of Drs. Silverstein and Lebowitz. He contends that the trier exceeded his authority by finding that the variance between “normal” and “diseased” in the claimant’s test results for ventricular hypertrophy was due to an inaccuracy in the testing procedures, rather than to a reliable indication of abnormality4. He further objects to the trier’s characterization of the findings of Drs. Silverstein and Lebowitz, alleging that both of them diagnosed mild left ventricular hypertrophy, which should have entitled the claimant to a “class 3” disability rating under the AMA permanent impairment guides, instead of a “class 1.” We remind the claimant that the trial commissioner has the discretion to pick one medical opinion over another. Pallotto, supra. Also, a doctor is not required to follow the AMA Guides to the Evaluation of Permanent Impairment, even though they are commonly used in the medical field. Barton v. Ducci Electrical Contractors, Inc., 4374 CRB-6-01-4 (March 25, 2002); Safford v. Owens Brockaway, 4335 CRB-4-00-12 (Jan. 9, 2002). As long as a doctor bases his permanency rating on an assessment of the degree to which the claimant has permanently lost the use and function of a body organ, his medical opinion may be accepted as valid. Barton, supra.

Looking at the depositions and testimony of Drs. Rose, Silverstein and Lebowitz, we see that there was considerable debate regarding the diagnosis of left ventricular hypertrophy and the claimant’s entitlement to a “Class 3” disability rating under the AMA guidelines. See Respondent’s Exhibits 1, 2. Dr. Rose chose to follow the AMA guidelines fairly closely in diagnosing the claimant with a 35% permanent partial impairment of his heart. The April 19, 1996 echocardiogram had shown the thickness of the claimant’s left ventricular wall muscle to be 1.2 units of measurement (they are unspecified in the record), where the range considered “normal” runs from 0.6 to 1.1 units. Dr. Rose agreed that this reading was only mildly abnormal, and that there was always a possibility of a variation based upon the cardiographer or the machine used. Transcript, pp. 58-60. Still, he was unwilling to “sweep away” this reading based upon the absence of other, corroborating symptoms for a Class 3 impairment under the AMA formula, as the 1.2 measurement was not within normal limits and therefore indicated some degree of ventricular hypertrophy, which placed the claimant “in a whole different prognostic category in terms of cardiac morbidity and mortality as time marches onward.” Id., pp. 62, 66. With regard to the claimant’s lack of consistent diastolic blood pressure readings over 90, he stated that the claimant was on three separate medications for high blood pressure, and that it was his job as a physician to control that blood pressure. Id., pp. 64, 66.

The other two doctors did not agree with Dr. Rose’s analysis. Dr. Silverstein did not believe that the claimant had any permanent disability whatsoever, insofar as he could reverse the excess thickening of his heart muscle by changing his lifestyle and behavior. Respondent’s Exhibit 2, p. 12. He allowed the claimant a 5% rating based on the traditions of the medical profession with respect to high blood pressure readings, the need for medication and borderline findings on echocardiograms that fluctuated between 1.1 and 1.2 (“the beginning of abnormal,”) but he suspected that the claimant’s fibrous heart tissue was reversible, and was due to overwork of the heart caused by excess weight (the claimant weighed 285 lbs. at the time) and high blood pressure. Id., 15-16, 21-22. As for Dr. Lebowitz, the § 31-294f commissioner’s examiner, he was of the opinion that the claimant did not have hypertensive ventricular hypertrophy because the thickening of his myocardium was not uniform. Respondent’s Exhibit 1, p. 21. Instead, the claimant had borderline thickening of the posterior wall only, which was typical of the hypertrophy that is caused by obesity-related heart disease. Id.

The trial commissioner did not commit legal error by relying on the opinions of Drs. Lebowitz and Silverstein instead of Dr. Rose’s opinion, and by finding that the claimant only had a 5% permanent partial impairment of his heart. The theories advanced by each doctor appeared to be medically sound, and were explained well enough to have been stated within a reasonable degree of medical probability. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The trial commissioner had to choose among these opinions, and he made his decision in a reasonable manner. Therefore, we cannot reverse his ruling on appeal.

Accordingly, we affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 The claimant was represented by counsel during the trial-level proceedings, and at the time of the filing of his petition for review. This board subsequently granted that attorney’s motion to withdraw as claimant’s counsel via written decision. Napolitano v. Bridgeport, 4388 CRB-4-01-5 (Oct. 22, 2001). The claimant has not retained substitute counsel, and has since moved forth on this appeal pro se. BACK TO TEXT

2 Dr. Rose explained the significance of the E to A ratio as follows: “The E to A ratio is reversed meaning A wave becomes larger than the E wave . . . . What it represents is that the heart muscle is becoming what is called non-compliant. It doesn’t relax as well. It is becoming stiff. The blood flow as it flows into the heart during rest is altered because of the stiffness and there is a reversal of the normal pattern and this reversal is commonly termed in echocardiography terms reversal of the E to A ratio.” January 13, 1999 Transcript, p. 18. Dr. Rose confirmed that this phenomenon occurs during the diastole, when the heart is relaxed and dilated. BACK TO TEXT

3 The claimant’s appeal includes a Motion to Submit Additional Evidence, in which the claimant sought to introduce a 35% disability rating disposition that was granted by the Bridgeport Board of Police Commissioners on April 15, 1997. Though we granted that motion at oral argument, we note that a disability rating by a board of police commissioners is in no way binding with respect to a determination of permanent partial impairment under § 31-308(b). Much like a Social Security Administration ruling, a decision by a police board is not made according to the same standards and laws that a workers’ compensation commissioner must follow. Therefore, a police board’s finding regarding a disability rating is not generally material to the outcome of a workers’ compensation claim. Lyons v. Wasley Products, Inc., 3788 CRB-6-98-3 (June 18, 1999). BACK TO TEXT

4 The claimant makes the objection in his brief that the commissioner’s findings were not consistent with Admin. Reg. § 31-301-3 because he paraphrased certain language found in the Respondent’s proposed findings. We find no error whatsoever in this regard, as a commissioner may draw the language in his findings from numerous sources. Also, it is not reversible error for a trier to explain why he finds a particular test result to be unreliable, even if he is not required to give reasons for his conclusions. Further, the claimant objects in his brief that his treating physician, Dr. Rose, did not receive reports from Dr. Lebowitz, the § 31-294f commissioner’s examiner. Under § 31-294f(b), the reports must be furnished “in the same time and in the same manner, to the employer and the employee or his attorney.” Stating that one’s treating physician did not get certain reports does not itself establish that the claimant and his attorney were not provided with a copy of Dr. Lebowitz’ examination results. Even if true, we are also unaware of any prejudice that this might have caused the claimant, seeing that Dr. Lebowitz’ deposition was taken and entered into evidence. BACK TO TEXT

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