CASE NO. 4829 CRB-4-04-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 22, 2005
ROBERT L. HALLOCK, JR.
TOWN OF WESTPORT
The claimant was represented by Robert R. Sheldon, Esq., Tremont & Sheldon, 64 Lyon Terrace, Bridgeport, CT 06604.
The respondent was represented by Scott Williams, Esq., Maher & Williams, P. O. Box 550, Fairfield, CT 06824.
This Petition for Review from the July 6, 2004 Finding and Award of the Commissioner acting for the Fourth District was heard January 21, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Town of Westport has petitioned for review from the July 6, 2004 Finding and Award of the Commissioner acting for the Fourth District. The town contends on appeal that the trier erred by finding that the claimant filed a timely claim for benefits under § 7-433c C.G.S., and by failing to estop him from claiming compensation based upon the refusal of reasonable medical care. We find no error, and affirm the trial commissioner’s decision.
The claimant began working for the respondent’s Police Department in 1971. Before joining the department, the claimant underwent a pair of physicals, neither of which demonstrated any evidence of hypertension or heart disease. He continued to work for the department through June 12, 2002, when he sustained a myocardial infarction. The claimant was treated at Norwalk Hospital by Dr. Augenbaum, a cardiologist, who performed a cardiac catheterization that showed coronary artery disease. The claimant then underwent coronary artery bypass surgery on June 17, 2002. He was discharged from the hospital on June 22, 2002, and continued to treat with Dr. Augenbaum afterward. Dr. Augenbaum believes that the claimant has a 25-29% permanent partial impairment of the heart due to his myocardial infarction and the responsive surgery. The claimant did not return to work for the police department following his heart attack, though he continued to collect his regular salary until his retirement on June 1, 2003.
In its defense, the respondent argued that the claimant was diagnosed with hypertension in 1991, which should have triggered his duty to file a notice of claim under § 31-294c C.G.S. The claimant was examined annually by Dr. Beck, an internal medicine specialist, from 1973 through 2002 in conjunction with his employment. Dr. Beck took the claimant’s blood pressure each year, and noted only one abnormal blood pressure reading. In 1991, he measured the claimant’s pressure as 140/88, and made a notation of “mild hypertension.” However, he prescribed the claimant no medication, nor did he diagnose the claimant with any type of heart disease. The respondent also makes mention of a 1990 tachycardia diagnosis, a 1978 heart murmur that was identified during testing, and a 1988 diagnosis of high cholesterol. Furthermore, the respondent notes that Dr. Beck had advised the claimant numerous times to stop smoking and to undergo a stress test, neither of which the claimant did. In the respondent’s view, all of these irregularities and ailments started the statute of limitations running for the purpose of filing a notice of claim for hypertension or heart disease under § 7-433c.
The trial commissioner rejected these arguments. He found that the claimant was not diagnosed with heart disease prior to June 12, 2002, nor had he been prescribed medication or disabled from work due to symptoms of heart disease. Further, his single borderline blood pressure reading in 1991 was an isolated instance, and he was never prescribed medication nor disabled from work for hypertension. The trier ruled that the claimant had sustained a 27% permanent partial disability of the heart, and ordered the respondent to accept liability for the claimant’s weekly benefits and related medical bills. The respondent has filed a petition for review from that ruling, and has also claimed error with regard to the denial of its Motion to Correct.
We first address the respondent’s contention that the trier erred as a matter of law by failing to hold that the claimant had not filed a claim within one year of the first manifestation of symptoms of hypertension. The centerpiece of this argument is the respondent’s assertion that the trier made a subordinate factual finding that Dr. Beck diagnosed mild hypertension in April 1991, triggering the application of a legal standard articulated in Pearce v. New Haven, 4385 CRB-3-01-5 (March 28, 2002), aff’d, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003), which would allegedly require the dismissal of the instant claim. The respondent is referring to ¶ 29 of the trier’s Findings, which states that Dr. Beck noted a single blood pressure reading of 140/88 in April 1991, and made a notation of “mild hypertension.”
We note, however, that the respondent subsequently sought a correction to the findings that would have stated, “On April 29, 1991 Dr. Beck noted elevated blood pressure, diagnosed mild hypertension, and conveyed this finding to the claimant.” The trial commissioner denied this correction, which signifies that the trier did not share in drawing that factual inference from the evidence. This ruling constitutes a determination of evidentiary credibility that this board is not empowered to overrule on appeal. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002).
In support of this finding, we observe that the claimant testified that Dr. Beck had not diagnosed him with mild or borderline hypertension at any time between 1971 and 2002. December 9, 2003 Transcript, p. 4. Nor had the doctor prescribed medication for the claimant. Id. Dr. Beck likewise never told the claimant he had heart disease, nor did he prescribe medication for such. Id., pp. 4-5. The only advice he gave the claimant was to try to lose weight, to exercise, to stop smoking, and to eat a healthier diet. Id., p. 5. The claimant also testified that Dr. Beck had recommended a stress test on several occasions, but didn’t explain the purpose of the test or how important it could be. Id., p. 10. Because the claimant felt healthy at the time, and had heard a few “horror stories” about people dropping dead during stress tests, he elected not to have such a test. Id., pp. 10-11. The claimant’s wife also testified that the claimant had not told her that he had been diagnosed with either hypertension or heart disease, because if he had, she would have insisted that he file a claim, based on her own experience working for the police department. Id., p. 39.
Dr. Beck, meanwhile, testified with regard to the claimant’s April 29, 1991 visit that the claimant’s blood pressure was elevated, after having been “pretty normal” up to that point. October 22, 2003 Transcript, p. 38. When asked if he made a finding or diagnosis regarding hypertension, he said that he had not done so at that time. “His blood pressure was 140 over 88 which is really borderline and it’s something that we don’t always jump in with medication. We tell people to lose weight, which he had to do, and also stop adding salt to your food, and very often that makes a difference. I wrote down mild hypertension and wrote that he should lose 11 pounds.” Id, p. 39. Dr. Beck then testified that he discussed his findings with the claimant, including his finding of mild hypertension, but the trial commissioner was entitled to judge the claimant’s recollection with respect to that point more reliable than the recollection of Dr. Beck, insofar as they conflicted. Such findings of credibility cannot be disturbed on review. Duddy, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
Moreover, in Pearce, we stated that a claimant is required to notify his employer of a compensation claim within one year of the date that hypertension symptoms become manifest. We did not state, however, that one borderline blood pressure reading need constitute evidence of hypertension as opposed to a temporary instance of raised blood pressure. “It is up to the trial commissioner to assess the significance of [a particular] reading within the complete factual framework of the case before him.” Id., quoting Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997).
In Pearce, the claimant had demonstrated elevated blood pressure readings on every occasion he was tested during a two-year timespan. The board contrasted his case with cases in which isolated instances of high blood pressure readings were interspersed with numerous normal readings such as Zalot v. Bristol, 4256 CRB-6-00-6 (March 16, 2001), and Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). In the latter situations, the triers of fact had reasonably found that the respective claimants were not on notice that they suffered from hypertension based upon the isolated high blood pressure readings. In Pearce, the trier had decided that numerous elevated blood pressure readings on eight separate occasions (ranging from 140/98 to 180/94 and 170/110), the prescribing of a blood pressure monitor, and frequent discussions between the claimant and his doctor concerning his blood pressure all helped create a circumstance under which the claimant should have been aware that he suffered from hypertension. This board upheld the trial commissioner’s decision, stating that it “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.” Id., citing Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).
In the present case, the respondent is asking this board to do exactly that: to substitute its own findings for those of the trial commissioner. The trier found that a single borderline high blood pressure reading had not constituted a manifestation of hypertension. That is consistent with our caselaw, and we will not reverse that determination on appeal.
The respondent also argues that the claimant refused reasonable medical treatment by failing to heed the advice of Dr. Beck, and should now be precluded from collecting benefits. “If the recommended treatment was reasonable,” states the respondent’s brief, “then pursuant to the precedent of D’Anna v. Kimberly Clark, 12 Conn. Workers’ Comp. Rev. Op. 194, 1580 CRB-7-92-12 (May 4, 1994), the entitlement to benefits should be suspended.” Brief, p. 11 (citation reformatted). D’Anna, however, was a case involving surgery that was recommended by a physician who was treating the claimant pursuant to a pending workers’ compensation case. Section § 31-294e(b) applied to that case because the claimant was an “injured employee” who “refused to accept and failed to obtain reasonable medical and surgical aid or hospital and nursing service” as contemplated by the Workers’ Compensation Act, thereby suspending all of her compensation rights during the term of such refusal.
The claimant in the instant case was not an injured employee within the meaning of the Act at the time of the alleged refusal of treatment, as he had not yet filed a claim. Thus, the statute does not apply on its face. Furthermore, it is very questionable whether a claimant’s failure to follow a doctor’s advice to stop smoking or obtain a stress test would amount to the refusal of medical treatment under § 31-294e, even in a pending workers’ compensation claim. Most “refusal of medical treatment” cases have focused on a claimant’s refusal to obtain potentially pivotal surgery, and it would be an unusual extension of the statute to apply it to the circumstances here. See Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997)(claimant’s unwillingness to attend pain clinic and receive injections that were suggested by doctor did not require suspension of benefits.) We decline to take the dramatic step of reversing a trial commissioner’s decision on appeal in order to apply § 31-294e(b) to the instant set of facts.
The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits due the claimant may have remained unpaid pending the outcome of this appeal, we are required to award interest pursuant to § 31-301c(b) C.G.S.
Commissioners Stephen B. Delaney and Michelle R. Truglia concur.