State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Fuessenich v. State of Connecticut Department of Public Safety

CASE NO. 4416 CRB-1-01-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 21, 2002

DANIEL FUESSENICH

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DEPARTMENT OF PUBLIC SAFETY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Robert J. Krzys, Esq., 500 Main Street, East Hartford, CT 06118-1034.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 3, 2001 Finding and Award of the Commissioner acting for the First District was heard February 22, 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 respondent has petitioned for review from the July 3, 2001 Finding and Award of the Commissioner acting for the First District. It contends on appeal that the trier erred by finding the instant case compensable pursuant to § 29-4a C.G.S., and by awarding total disability and permanent partial disability benefits. We find no error, and affirm the trial commissioner’s decision.

The claimant began working for the respondent, the State of Connecticut, as a State Trooper in June, 1980 at the age of 33. He underwent a pre-employment physical on March 27, 1980, where a blood pressure reading of 135/90 was recorded. The report from that physical did not declare the claimant hypertensive, and further stated that he was qualified to serve as a State Trooper trainee. The claimant proceeded to complete his training at the State Police Academy, and subsequently served as a patrol trooper and an organized crime specialist. He was then transferred to Bradley Airport at Windsor Locks. During his years of service, the claimant had a history of smoking, was somewhat overweight, had some high cholesterol readings, and began taking medication for high blood pressure in November 1998.

On June 27, 1999, the claimant played golf during the morning, and then drove to Bradley Airport for his 3:00 p.m. work shift. En route to work, he felt physical discomfort, including indigestion and chest tightening, and he experienced varying degrees of discomfort throughout the day. After dinner, his left arm became numb, and he was treated by a paramedic, who advised him that he was having a heart attack. He was then transported to Hartford Hospital, where he submitted to an angioplasty procedure. He came under the care of Dr. Rubin, a cardiologist, who placed him in a cardiac rehabilitation program and kept him out of work until October 5, 1999, when he was authorized to return to his job. On January 24, 2000, the claimant was able to complete a normal stress test. Dr. Rubin opined that he had suffered approximately a 20% permanent partial impairment of the heart.

The claimant then filed a claim seeking benefits pursuant to § 29-4a C.G.S.1 As per that statute, a member of the Division of State Police who suffers total or partial disability or death due to hypertension or heart disease, and 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 suffered a compensable injury entitling him to benefits. The respondent contests the claimant’s entitlement to that presumption. Dr. Silverstein, a cardiologist, examined the claimant at the respondent’s request on September 20, 2000. He opined that the claimant evinced signs of hypertension at the time of his pre-employment physical, based on his blood pressure reading, cholesterol reading (260), and weight (229 lbs., at a height of 6’1”). Respondent’s Exhibit 1, pp. 28-29, 41-42 (October 31, 2000 Deposition). However, noting that the claimant’s pre-employment EKG reading was within normal limits, the trier found that the 135/90 blood pressure reading was transitory in nature, and was unpersuaded by Dr. Silverstein’s opinion that the claimant suffered from hypertension on the date of his pre-employment physical.

The trier instead ruled that the claimant’s pre-employment examination revealed no evidence of heart disease, thus entitling him to the presumption of § 29-4a. As he found the testimony and opinions of Dr. Rubin credible and persuasive on the issues of temporary total disability and permanent partial impairment, he found that the claimant’s compensable heart attack entitled him to total disability benefits from June 28, 1999 to October 5, 1999, and 104 weeks of specific indemnity benefits on account of a 20% permanent partial disability of the heart. The respondent has appealed that decision to this board, along with the denial of its Motion to Correct.

We first address the respondent’s argument that the trier erred by imparting to the claimant the presumption of compensability that § 29-4a offers to qualifying state police officers. The respondent takes the position that Dr. Silverstein’s testimony necessarily established that there was some evidence of hypertension in the results of the claimant’s pre-employment physical examination, thereby negating the effect of the presumption. The trier, of course, did not accept Dr. Silverstein’s opinion as to the presence of hypertension at the time of the exam. The respondent complains that Dr. Silverstein’s qualifications were superior to those of Dr. Rubin, which made it unacceptable for the trier to rely on Dr. Rubin’s contrary opinion, and that the claimant’s history and exam results constitute prima facie evidence of hypertension and/or heart disease.

Regardless of the legal context underlying an expert medical opinion, we must remain mindful of a fundamental principle in both the workers’ compensation forums of this state and the greater judicial system in which this agency exists. Like the judge in a trial court, the presiding trial commissioner in a workers’ compensation case is the one individual with the power to decide issues that concern the credibility of evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). As part of this fundamental factfinding responsibility, a trial commissioner is allowed to credit all, part or none of any witness’ testimony, depending on his own impressions. Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002). This board may not weigh the evidence anew on appeal, and we may not direct the trier of fact to find one expert witness more credible than another based upon the relative contents of their curricula vitae. Tartaglino, supra; Capra v. State, 3791 CRB-4-98-4 (April 27, 1999).

To date, no caselaw exists specifically concerning the interpretation of the “pre-employment examination” language in § 29-4a. However, the wording of the § 29-4a presumption is identical to the wording of the presumption in § 5-145a, which addresses health impairments caused by hypertension or heart disease in various state personnel, including certain police and security officers, firefighters, and correctional officers. Salmeri v. Dept. of Public Safety, 70 Conn. App. 321, 327 n.5 (2002). Both § 5-145a and § 29-4a grant to covered individuals “a rebuttable presumption of compensability,” as a conclusive presumption would likely be unconstitutional pursuant to Ducharme v. Putnam, 161 Conn. 135 (1971)(original version of § 7-433a ruled unconstitutional, as it attempted to legislate a factually unsupportable conclusive adjudication in violation of due process). Horn v. State/Dept. of Correction, 4177 CRB-3-00-1 (Feb. 22, 2001) [hereinafter Horn II], quoting Dibenedetto v. State/University of Connecticut Health Center, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRD-6-89-5 (Jan. 3, 1991). “The function of this [rebuttable] presumption is to shift the initial burden of persuasion. It ‘ceases to have any effect once the respondent employer presents evidence to contest compensability.’” Horn v. State/Dept. of Correction, 3727 CRB-3-97-11 (Dec. 16, 1998) [hereinafter Horn I], quoting Dibenedetto, supra. Of course, the trier of fact must find the evidence credible enough to meet that burden of persuasion before the statutory presumption can be deemed rebutted. Horn II, supra; see also, Salmeri, supra, 339-40. The trier’s prerogative to determine the credibility of evidence is not abrogated during this step of the factfinding process.

In this instance, Dr. Silverstein testified as to why he thought that the claimant’s 1980 physical examination results evinced signs of hypertension, though the claimant had been cleared for duty without any mention that high blood pressure or heart disease might be a problem. The commissioner was unpersuaded by Dr. Silverstein’s interpretation of those pre-employment exam results, and rejected his opinion. Whether or not an examination result contains evidence of hypertension is a factual question, as there is no legal “bright line” blood pressure reading for hypertension. Cefaratti v. Wethersfield, 4179 CRB-6-00-1 (Feb. 27, 2001). Evidently, the trial commissioner here did not accept Dr. Silverstein’s rationale in regard to the inferences to be drawn from the 135/90 blood pressure reading, the claimant’s height-weight-body type ratios, and his 260 cholesterol level measurement. See Respondent’s Exhibit 1, supra. We cannot say on appeal that this evidence was rejected in error, or that it somehow “automatically qualified” as adequate proof to satisfy the respondent’s burden of persuasion, in light of the § 29-4a presumption. Regardless of his expert credentials, Dr. Silverstein’s medical opinions carried no legal force in this case without ratification by the trier of fact. Salmeri, supra. Thus, the trier did not err by applying the presumption to the instant case or by failing to accept Dr. Silverstein’s opinion regarding hypertension over the opinion of Dr. Rubin.

Further, we note that Dr. Silverstein was applying his interpretation of medical standards that were not in place in 1980 to analyze whether the claimant’s pre-employment physical contained evidence of hypertension. The doctor who performed the claimant’s physical using the standards in place at that time did not find evidence of hypertension, as he did not mention it in his ultimate findings. We do not believe that it is proper for a respondent to apply modern ideals for blood pressure readings and cholesterol levels in analyzing a doctor’s decision to clear a claimant for police duty 22 years ago.

The respondent also protests the claimant’s total disability award through October 5, 1999, and his award of a 20% permanent partial disability of the heart. Both of these awards are derived from the medical opinion of Dr. Rubin, which, according to the respondent, does not offer adequate support for either finding. Following the claimant’s June 27, 1999 heart attack, he remained out of work for slightly more than three months before returning to his position as a state trooper. On September 29, 1999, his treating physician reported that the claimant was doing “extremely well” and could return to unrestricted full-duty work on October 5, 1999. Respondent’s Exhibit 3. However, the respondent expostulates that Dr. Rubin actually testified to the contrary, having acknowledged that the claimant probably had a sedentary work capacity once two months had passed following his heart attack. Claimant’s Exhibit A, pp. 48-50 (Deposition of Dr. Rubin). The appellant urges us to conclude that the claimant was no longer totally disabled as of August 27, 1999, based upon the evidence in the record.

We are unpersuaded that the trier erred by awarding total disability for an additional five or six weeks after the date urged by the respondent. Dr. Rubin merely offered an approximation as to when the claimant might have been able to return to a hypothetical light duty job, and the trier was not required to accept this opinion and base his findings upon it. Dr. Rubin also stated that, in assessing readiness to work, “We have to make a judgment call and draw the line somewhere,” and admitted that he never considered a temporary light duty option. Id., 49-50. Further, in this situation the claimant suffered a heart attack, underwent a period of recovery and rehabilitation, and was back to work in a little over three months. He reasonably followed Dr. Rubin’s recommendations regarding work, and focused himself on getting ready to resume his former job, which he did within a reasonable amount of time by most objective standards. The respondent would prefer the trial commissioner to have inferred that, because the claimant was cleared to resume the taxing duties of being a state trooper as of October 5, 1999, he logically must have been capable of light duty work for at least several weeks before that. They seek to hold the claimant responsible for not having secured a few weeks of light duty work before returning to full duty, and to reduce his benefits accordingly. However, not all circumstances warrant the adoption of the meticulous brand of hindsight advocated here by the respondent, and the trier did not err by rejecting the respondent’s argument.

The respondent also maintains that Dr. Rubin’s diagnosis of a 20% permanent partial impairment of the heart rested upon an insufficient medical foundation, because the claimant has not demonstrated a 20% loss of functionality of that organ. As we have often stated, in order for a trier of fact to rely on the medical opinion of a doctor, that opinion must be stated upon the basis of reasonable probability rather than mere speculation or conjecture, given the substance of the doctor’s testimony and reports. Barton v. Ducci Electrical Contractors, Inc., 4374 CRB-6-01-4 (March 25, 2002), citing Struckman v. Burns, 205 Conn. 542, 554-55 (1987). Compensation under § 31-308(b) is intended to redress the permanent loss of, or loss of use of, a member or organ. “Though no doctor is required to adhere to the AMA Guides to the Evaluation of Permanent Impairment that are commonly used in the medical field, his diagnosis of permanency must reflect some analysis of the function of the entire body part in question.” Barton, supra, citing Safford v. Owens Brockway, 4335 CRB-4-00-12 (Jan. 9, 2002).

Because the heart is a scheduled organ under § 31-308(b), a claimant is entitled to be compensated for the permanent loss of, or loss of use of, the heart. Dr. Rubin stated that, in his opinion (having consulted the AMA Guides), the claimant had suffered a 20% impairment due to permanent damage that was done to his heart muscle. Deposition, p. 17. The respondent’s counsel attempted to impeach this impairment rating by calling Dr. Rubin’s attention to language in the guidelines explaining that impairments are defined as conditions that interfere with the activities of daily living, which language Dr. Rubin had not read before preparing his January 24, 2000 report. Id., pp. 24-25, 28; see Claimant’s Exhibit F. Because the claimant had returned to full duty without restrictions, the respondent sought to establish that he had not suffered a 20% permanent impairment. In response, Dr. Rubin testified that the claimant had sustained permanent damage to his heart muscle that was never going to recover, and stated that the claimant’s peak cardiac output would be diminished because of his heart attack. Deposition, pp. 26, 27. Though the other parts of the claimant’s heart might be pumping harder to keep blood flowing normally throughout the body, stress or a second heart attack could cause a steep decline in the effectiveness of that organ. Id., pp. 29-30. Thus, the claimant’s ability to exercise normally and maintain normal pumping output did not prove to Dr. Rubin that his heart function was normal. Id., 32.

It is clear from the entirety of Dr. Rubin’s opinion that he focused his analysis on the claimant’s heart and its function, and based his rating on the permanent physical damage that was done to the heart muscle itself, despite the continued normalcy of blood flow output. This was proper, and is not comparable to the Barton case, in which the claimant’s doctor analyzed loss of use of several scheduled body parts based solely on damage to the skin, without taking into account the manner in which the skin affects the function of the scheduled organ. Unlike the skin, the heart is itself a scheduled organ. We believe that the trier was entitled to find Dr. Rubin’s method of analyzing permanent heart damage to be a legitimate and credible means of reaching an impairment rating, and find no error in his reliance on Dr. Rubin’s opinion over that of Dr. Silverstein. Thus, we decline to reverse the trial commissioner’s finding of a 20% permanent partial impairment to the claimant’s heart pursuant to § 31-308(b).

The trial commissioner’s decision is accordingly affirmed in its entirety.

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

1 The full text of § 29-4a provides, “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a member of the Division of State Police within the Department of Public Safety 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 performance of his duty and shall be compensable in accordance with the provisions of section 5-142 for a period of three months. If, at the end of that period, the administrator of the state’s workers’ compensation claims wishes to contest whether the disability occurred in the actual performance of police duty as defined in subsection (a) of section 5-142, he shall notify the member of his decision. The member or the employee organization may then bring the matter before the workers’ compensation commissioner of the appropriate district to determine if the disability is compensable under chapter 568 or subsection (a) of section 5-142. A member who has suffered such total or partial disability shall have the right to elect to receive either (1) the compensation indicated in section 5-142, or (2) the benefits produced under chapter 568 and the state employees retirement system, but not both. The provisions of subsection (a) of section 5-142 shall apply with regard to the timing of such election.” BACK TO TEXT

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