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

CASE NO. 4842 CRB-4-04-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 12, 2005

JOHN PRIBESH

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

SELF-INSURED

EMPLOYER

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Robert Sheldon, Esq., Tremont & Sheldon, 64 Lyon Terrace, Bridgeport, CT 06604.

The respondent was represented by Marie Gallo-Hall, 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 August 9, 2004 Finding and Award of the Commissioner acting for the Fourth District was heard March 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent City of Bridgeport has petitioned for review from the August 9, 2004 Finding and Award of the Commissioner acting for the Fourth District. The city contends on appeal that the trial commissioner erred by failing to bar the claimant’s § 7-433c action based on the presence of evidence of hypertension in the claimant’s pre-employment physical examination. We find no error, and affirm the trier’s decision.

The trial commissioner found that the claimant worked for the towns of Easton and Westport as a police officer from 1981-1987, during which time he exhibited no signs of heart disease or hypertension. On May 17, 1987, he was hired as a patrol officer by the respondent Bridgeport Police Department. He underwent two physical examinations prior to his hire by the city of Bridgeport. The first was in February 1987 with Dr. Noonan, and the second was in March 1987 with Dr. Steremberg. The claimant was told that he had passed both examinations, though he was never shown the written reports. Neither doctor ever told the claimant that he had hypertension or heart disease, nor was the claimant ever prescribed medication for such a condition. However, Dr. Steremberg’s report includes a single blood pressure reading of 140/90, which the doctor characterized as being in the “mild hypertensive range.” Otherwise, Dr. Steremberg’s exam showed normal, healthy responses and results, including a blood pressure reading of 180/70 at peak activity on the treadmill exercise test.

In 1994, the claimant was promoted to the rank of detective. Between June and July 2000, the claimant began experiencing chest pains and headaches. He set up an appointment with Dr. Sciefo, who diagnosed him with hypertension on August 17, 2000, and prescribed Lisinopril to treat his symptoms. This was the first time since being hired as a police officer that the claimant had ever been told that he had hypertension, or prescribed medication for such a condition. Immediately following that diagnosis, the claimant gave notice of his condition to his supervisor as the Bridgeport Police Department. The supervising sergeant prepared a written incident report, and notified the respondent’s third-party workers’ compensation claims administrator, Berkley Administrators, on August 21, 2000. The respondent then filed a Form 43 notice of intention to contest liability dated August 24, 2000.

The trial commissioner stated in her Finding and Award that it was her responsibility to “evaluate all of the circumstances in a 7-433c case where the claimant is borderline hypertensive and where the claimant has never previously been diagnosed with high blood pressure.” Findings, ¶ A. She found that the claimant’s isolated blood pressure reading in March 1987 was a borderline hypertensive reading, which was accompanied by no other instances of high blood pressure readings, diagnoses of hypertension, or medication for hypertension. She also noted that, if Dr. Steremberg had believed that the claimant’s 140/90 reading was evidence of hypertension, the respondent could have required the claimant to sign an Acknowledgment of Physical Defect for that condition under the former § 31-325, which was in effect in 1987. No such action was taken, however. The trier stated that “[a]n isolated, elevated blood pressure reading in the middle of a twenty year career is not evidence of hypertension, rather it is more likely than not the result [of] nervousness or illness or some transient factor.” Findings, ¶ F. Accordingly, the trier concluded that the claimant’s claim for benefits under § 7-433c was timely, and that the respondent was required to assume liability under the statute. The respondent then took the instant appeal to this board.1

The respondent’s arguments on appeal boil down to one proposition: that the 140/90 blood pressure reading by Dr. Steremberg, together with his description of that reading as being in the “mild hypertensive range,” must be viewed as evidence of hypertension within the meaning of § 7-433c. The relevant portion of § 7-433c reads as follows:

. . . 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 . . . .

(Emphasis added.) This board has stated on many occasions that there is no per se legal hypertension line based on one blood pressure reading. See, e.g., Hunt v. Naugatuck, 4607 CRB-5-02-12 (February 9, 2004); Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999); Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997). “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. . . . 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.” Cefaratti v. Wethersfield, 4179 CRB-6-00-1 (February 27, 2001). Whether such evidence is present or not is a factual issue committed to the trier’s discretion. Id.; Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000); Leary, supra.

In this case, there were two physical examinations performed prior to the claimant’s being hired by the Bridgeport Police Department. The one performed by Dr. Noonan on February 18, 1987 listed the claimant as being in “excellent health” with “excellent physical ability,” and reported his blood pressure as 132/80. Respondent’s Exhibit 1. The other exam was performed by Dr. Steremberg on March 20, 1987. The cardiovascular evaluation there showed normal responses while the claimant was exercising, with a peak blood pressure reading of 180/70. While at rest, the claimant’s blood pressure tested at 140/90, next to which notation Dr. Steremberg wrote in parentheses, “Mild hypertensive range.” Id. Dr. Steremberg did not go on to suggest that he was diagnosing the claimant with hypertension, however, nor did he attempt to explain how a cardiac stress test could show normal results if a claimant had elevated blood pressure while at rest. The claimant also testified that Dr. Steremberg said nothing to him about elevated blood pressure. March 24, 2004 Transcript, pp. 20-21.2

These two physical examinations were performed only several weeks apart. The trier was therefore in a position where she had to decide whether or not the 140/90 blood pressure reading constituted evidence of hypertension in this context, taking into account the claimant’s 132/80 blood pressure reading at the other examination, and his normal results following the cardiac stress test. Given the claimant’s otherwise completely healthy test results, it was reasonable for the trier to determine that the 140/90 reading was not evidence of hypertension, and that the 132/80 reading more accurately reflected the claimant’s actual physical condition. Where two medical reports conflict with each other, the trial commissioner is empowered to choose which is the more credible. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board cannot substitute its own findings for those of the trier of fact on appeal, and cannot second-guess the trier’s evaluations of credibility as long as the trier’s findings have roots in the evidence. Duddy, supra; Leary, supra. Therefore, we must honor the trial commissioner’s decision not to interpret the 140/90 blood pressure reading as evidence of hypertension, in light of the other information contained within the claimant’s pre-employment physical examinations.

The trial commissioner’s decision is accordingly affirmed. Insofar as the payment of benefits may have been delayed pending the outcome of this appeal, interest is awarded as required by § 31-301c C.G.S.

Commissioners Stephen B. Delaney and Nancy E. Salerno concur.

1 We note for the record that the appellant filed a motion for extension of time to file its Reasons of Appeal in this matter, which was granted by this board. BACK TO TEXT

2 In Gillette v. Monroe, 56 Conn. App. 235 (1999), the Appellate Court of the State of Connecticut held that, where a pre-employment physical exam contained no mention of problems with the claimant’s heart, the trial commissioner erred by considering evidence beyond the contents of that examination, i.e., the examining doctor’s previous knowledge of the claimant’s congenital heart disease, as a basis for finding that the examination contained evidence of heart disease, thereby barring claimant from receiving benefits. While Gillette establishes that a trial commissioner cannot look outside the contents of a pre-employment physical to identify evidence of hypertension that is not apparent from the exam itself, we are of the opinion that a trier may look at parol or external evidence to help ascertain whether ambiguous information contained within the four corners of a pre-employment physical, such as a borderline blood pressure reading, constitutes evidence of hypertension under the circumstances. For example, it was acceptable for the trial commissioner in this case to mention in her findings her inference that Dr. Steremberg seems not to have communicated any concern over hypertension to the respondent police department, as the department did not require the claimant to execute an Acknowledgement of Physical Defect pursuant to § 31-325 C.G.S., which statute was still in effect at the time in question. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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