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Chernak v. City of Stamford Police Department

CASE NO. 5012 CRB-7-05-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 13, 2006

ALLAN J. CHERNAK

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD POLICE DEPARTMENT

EMPLOYER

and

WEBSTER INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David J. Morrissey, Esq., Morrissey & Morrissey, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Maureen E. Driscoll, Esq., and James Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06824-0550.

This Petition for Review from the October 21, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District was heard April 28, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The following appeal is based on a ruling by the Commissioner acting for the Seventh District that the claimant’s claim for § 7-433c C.G.S. benefits was untimely. We believe this matter is virtually identical to the situation 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). As a result, we are compelled to reach a similar result and therefore dismiss the appeal.

The trial commissioner found the following facts. The claimant was hired as a Stamford police officer in 1980. At the time, he weighed 180 to 190 pounds. Findings, ¶¶ 1-2. In 1998, the claimant treated with a primary care doctor, Michael Cafaro, M.D. for a sinus condition. Finding, ¶ 6. During an April 21, 1998 visit, Dr. Cafaro noted that the claimant “has a history of obesity and it looks like elevated blood pressure.” He directed the patient to try weight reduction (he now weighed over 280 pounds) and salt reduction as his blood pressure was reported as 140/100. An assessment reported the claimant had “uncontrolled blood pressure.” Finding, ¶ 7. The claimant recalls being told his blood pressure was “a little high.” Another examination note, dated April 27, 1998, reported a blood pressure reading of 140/90 and reported an assessment of “Hypertension: weight reduction first.” Finding, ¶ 8. On September 21, 1998, the claimant revisited Dr. Cafaro, who noted a blood pressure of 160/100 that date. His notes reported “hypertension: uncontrolled” and that the claimant “needs to lose 10 pounds in six weeks” and indicated he was likely to start the claimant on blood pressure medication. Finding, ¶ 10. The claimant did not recall the issue of medication at the formal hearing, but did recall the issues of weight loss and salt intake reduction as responsive to the elevated blood pressure. January 20, 2005 Transcript, p. 40. While he knew he was supposed to schedule a follow up visit after September 21, 1998, he did not return to see Dr. Cafaro. Id., 45.

The claimant did not visit Dr. Cafaro again until January 18, 2001 for treatment of a kidney stone. The notes from that visit indicate the claimant’s diastolic pressure was 98 and the matter was discussed with him. The claimant recalls being told he had elevated blood pressure but that the doctor never told him he had hypertension. Finding, ¶ 11. There is no evidence in the record that the respondents were informed as to the elevated blood pressure diagnosis from the claimant’s 1998 or 2001 treatments. The claimant testified that he was instructed to return for a follow up visit six weeks after his January 18, 2001 examination, but never went back. January 20, 2005 Transcript, p. 49.

On November 18, 2003, the claimant filed a Form 30C alleging a compensable heart injury dated September 24, 2003. Following a formal hearing the trial commissioner issued a Finding and Dismissal on October 21, 2005 concluding that the claimant had in fact suffered from hypertension in 1998 and had failed to file a Form 30C for the condition and consequently, was now time barred from obtaining an award under § 7-433c C.G.S. due to his failure to file a claim within one year of injury. Findings, ¶¶ A-B.

The claimant responded by filing a Motion for Articulation and a Motion to Correct, which were denied. He subsequently pursued the instant appeal, arguing that the Form 30C was in fact filed in a timely fashion.

Our inquiry here is simple. Do the facts as outlined above conform to the scenario in Pearce, supra? This board recently had the opportunity to revisit the legal issues in Pearce and consider how to apply that precedent. See Kaminski v. Borough of Naugatuck, 4956 CRB-5-05-6 (June 28, 2006) and Arborio v. Town of Windham, 5009 CRB-2-05-10 (October 4, 2006). The present case is virtually indistinguishable from those cases. Consequently, we are compelled to reach the same result.

The record reflects that on a number of occasions during a period commencing in 1998 the claimant was advised by his physicians that he had elevated blood pressure and that corrective action on his part was required. The claimant points out that he was not officially diagnosed with hypertension until October 1, 2003 and filed his claim for benefits shortly thereafter. This argument goes to the weight of the factual evidence. The trial commissioner could consider the earlier diagnosis of elevated blood pressure as the functional equivalent of the term “hypertension.” “The established standard is that the time of onset of a claimant’s hypertension symptoms presents a factual question . . . .” Kaminski, supra.

An assessment of the weight of the evidence indicated that on three or more occasions the claimant was informed of an elevated blood pressure reading and directed to take responsive action. We cannot find a factual distinction between this case and our holding in Pearce, supra, as restated in Kaminski, supra and Arborio, supra. There was adequate evidence in the record for the trial commissioner to conclude hypertension was present more than one year prior to the filing of the claim for § 7-433c benefits. “In this board’s decision in Pearce, we explicitly stressed that the trier of fact had discretion to decide whether high blood pressure readings constitute evidence of hypertension.” Kaminski, supra. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725 (2002). We must defer to the findings of fact he reached herein.

We believe it is a permissible inference for the fact-finder in this case to determine that the claimant knew or should have known he had elevated blood pressure amounting to hypertension. The claimant was told to take action to address this problem. The claimant knew or should have known there was a time limit on filing a § 7-433c C.G.S. claim for hypertension. It is uncontroverted that no claim was filed until years after the initial determination of elevated blood pressure. Given those subordinate facts, the trial commissioner could readily determine the filing of the § 7-433c C.G.S. claim was untimely.

The claimant advances three other arguments. He argues that Pearce should not be given retrospective effect to those claims grounded in events that predated the decision. The appellants in both Kaminski, supra and Arborio, supra, raised a similar argument based on their theory that Pearce, supra, altered the time limitations for filing a § 7-433c hypertension claim. We rejected this argument in Kaminski, supra. As a result, for the reasons previously set forth in Kaminski we need not consider whether Pearce should have merely prospective application.

The claimant also argues that hypertension should be deemed a repetitive trauma ailment and therefore subject to the notice requirements for those injuries. This would permit claims filed within one year of the last date of exposure (presumably the last day of active employment) to be deemed as having been filed in a timely fashion. This argument fails for two reasons. The claimant advances no legislative history, medical treatise or case law to support such a change. The claimant’s effort to rely on Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003) is misplaced. Malchik was not a case regarding a claim for § 7-433c C.G.S. benefits.

In addition, the claimant’s Form 30C, the claimant’s Statement of Facts, his hearing brief and his Motion to Correct are all bereft of any argument that the present hypertension is a repetitive stress injury. This prevents us from considering this argument on appeal, for the same reasons we could not consider a repetitive trauma theory in Abbotts v. Pace Motor Lines, 4974 CRB-4-05-7 (July 28, 2006).

Had the claimant sought a finding that he had suffered a repetitive trauma, he could have submitted proposed findings of fact to establish this claim. He did not do so, nor did he submit in his Motion to Correct a proposed finding of repetitive trauma. Our precedent in Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005) bars this theory of recovery. “We have often stated that a party is not entitled to present his case in a “piecemeal” fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try.” Id.

Finally, the claimant challenges the need to file a claim for § 7-433c C.G.S. benefits prior to the onset of disability. We believe that this issue was fully resolved in Hunt v. Naugatuck, 273 Conn. 97 (2005); where the Supreme Court specifically approved of this practice while citing the precedent in Pearce, supra; see footnote 9 of the Hunt decision.

In Pearce v. New Haven, 76 Conn. App. 441, 449, 819 A.2d 878, cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003), the Appellate Court concluded that timely notice is required by §§ 31-294b and 31-294c; see footnote 2 of this opinion; regardless of whether symptoms of hypertension or heart disease cause immediate permanent or partial disability. The court explained: “The reason for prior notice is to inform the employer of a possibility of a claim for benefits being filed at a later time . . . . The employee need not be disabled at the time he or she files a notice that symptoms are being experienced related to hypertension or heart disease . . . .” (Citation omitted.) Pearce v. New Haven, supra, 449. Id.1

Whether or not the claimant had hypertension more than one year prior to filing his claim was a factual determination for the trial commissioner to resolve. He applied the correct legal standard to reach this determination. Accordingly, there is no error and the appeal is dismissed.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 The claimant also alleges error for the failure of the trial commissioner to adopt his Motion to Correct or his Motion for Articulation. We believe the Motion for Articulation was redundant as it is readily apparent what legal standard guided the trial commissioner. As for the Motion to Correct, it appears merely to substitute the claimant’s findings of fact for that of the trial commissioner and was thus properly denied. See D’Amico, supra, 728. BACK TO TEXT

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