CASE NO. 5098 CRB-3-06-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 1, 2008
TOWN OF HAMDEN
The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, 203 Church St., P.O. Box 31, Naugatuck, CT 06770.
The respondents were represented by Lucas Strunk, Esq., and Heather Porto, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
This Petition for Review from the June 1, 2006 Finding and Dismissal of the Commissioner acting for the Third District was heard December 15, 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.1
NANCY E. SALERNO, COMMISSIONER. The claimant has petitioned for review from the June 1, 2006 Finding and Dismissal of the Commissioner acting for the Third District. He argues that the trier erred by finding that he filed an untimely notice of claim for benefits under § 7-433c C.G.S. We affirm the trial commissioner’s decision.
The trier found that the claimant served as a police officer for the respondent from 1982 through August 2004, and passed a pre-employment physical examination prior to being hired. In 1996, his blood pressure was measured at 128/88 and 140/90 by Dr. Monaco, his treating physician, who testified by deposition that the latter reading was borderline for hypertension. Readings of 138/80 and 130/88 in February 1998 and February 1999 were described as normal. At a December 11, 2000 examination, the claimant showed elevated blood pressure readings of 150/96 and 148/92, leading the doctor to request that he monitor his blood pressure at home. A week later, the claimant reported back with readings of 120/80, 132/84, and 158/120. Blood pressure medication was not discussed. On January 7, 2001, Dr. Monaco examined him and noted readings of 144/92 and 144/88, which he considered borderline for hypertension. He advised the claimant to watch his diet and lose weight. On March 26, 2001, the claimant produced a “normal” blood pressure reading of 132/88. On March 18, 2002, his blood pressure read 160/100 while he was being examined for a lump in his groin that was worrying him. The claimant was advised to resume monitoring his blood pressure. On September 25, 2002, Dr. Monaco took a reading of 148/98 from the claimant, and he took additional readings of 154/82 and 150/82 on March 24, 2003. He considered the 2003 readings to be borderline hypertensive, and discussed lifestyle changes with the claimant, such as cutting his sugar and salt intake, as well as continued blood pressure monitoring at home.
On May 11, 2004, Dr. Monaco took a blood pressure reading from the claimant of 172/94. The claimant reported that he had recently been to the emergency room for headaches, with blood pressure readings of 150/110 and 130/100. Dr. Monaco prescribed Monopril, a hypertension medication. Over the next few days, the claimant gave readings of 140/88 and 136/90. Dr. Monaco identified May 11, 2004, as the point when the claimant was medically deemed to have hypertension. The claimant filed a Form 30C for § 7-433c hypertension benefits on May 20, 2004.
Dr. Krauthamer, a cardiologist, reviewed the claimant’s medical file on October 4, 2005. He stated in his deposition that documented high blood pressure readings dated back to December 2000, which would be considered a diagnosis of hypertension. The trial commissioner accepted this testimony, concluding that the claimant had “multiple hypertension blood pressure readings between December 2000 and March 2003.” Findings, ¶ G. The trier accordingly dismissed his claim as untimely, it having been filed more than one year after the onset of those readings. The claimant has appealed that decision, and the trier’s subsequent denial of his Motion to Correct.
The claimant raises several arguments on appeal, raising some interrelated issues: the allegation that Pearce v. New Haven, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003), altered a prior requirement that a disability exist before a claimant is required to file a notice of claim under § 7-433c C.G.S.; the nature of hypertension as an illness with an identifiable accidental injury or repetitive trauma injury date; and the proper interpretation of § 31-294b and the statute of limitations in § 31-294c with respect to this Commission’s jurisdiction over hypertension claims made pursuant to § 7-433c.
We begin with a review of the governing law. Pursuant to § 7-433c C.G.S., if a regular member of a paid municipal police department or a uniformed member of a paid municipal fire department has passed a physical examination on entry into service that revealed no evidence of hypertension or heart disease, and was hired prior to July 1, 1996, that individual may claim benefits if he or she “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.” The claimant or his or her dependents shall receive from the 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 [the claimant’s] employment, and was suffered in the line of duty and within the scope of [the claimant’s] employment.”2
Although § 7-433c claimants need not prove a causal connection between heart disease or hypertension and their employment, the procedures outlined in chapter 568 apply to making and adjudicating a § 7-433c claim, and accepted claims are administered the same way as claims successfully pursued under chapter 568. Plainville v. Travelers Indemnity Co., 178 Conn. 664, 671-72 (1979); Grover v. Manchester, 165 Conn. 615, 617-18 (1973). This includes the statute of limitations for filing claims and the other notice requirements found in § 31-294c C.G.S. Janco v. Fairfield, 39 Conn. Sup. 403, 406 (1983). Section 31-294c(a) bars proceedings under chapter 568 unless a written notice of claim for compensation is given “within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . . ,” subject to several enumerated exceptions in § 31-294c(c). The purpose of such notice is to reasonably inform the employer that the employee is claiming or proposes to claim compensation under the Act. Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317 (1934). The absence of timely notice constitutes a jurisdictional defect that cannot be waived. Zaleta v. Fairfield, 38 Conn. App. 1, 6 (1995), cert. denied, 234 Conn. 917 (1995).
Generally, an accidental injury is one that can be definitely located as to time and place. In a repetitive trauma case, the date of injury is the last day of employment-related exposure to the incidents of repetitive trauma. Malchik v. Division of Criminal Justice, 266 Conn. 728, 745 (2003); Crochiere v. Board of Education, 227 Conn. 333, 354 (1993).3 The statute of limitations is not tolled by a claimant’s lack of knowledge that an accidental injury or repetitive trauma is work-related. Discuillo v. Stone & Webster, 242 Conn. 570, 581-83 (1997). In the case of an occupational disease, which is defined by § 31-275(15), a manifestation of a symptom occurs when the employee claiming compensation, or someone else whose knowledge is imputed to the employee, recognizes (or should recognize) a symptom of the disease and connects it to workplace exposure. Ricigliano v. Ideal Forging Corporation, 280 Conn. 723, 744 (2006). If a claimant does not prove that a condition, including repetitive stress, is an occupational disease under § 31-275(15), the one-year statute of limitations for accidental injuries applies. Zaleta, supra, 6-7 (no evidence in history of § 7-433c that legislature recognized heart disease and hypertension as occupational diseases for police officers and firefighters); see also, Malchik, supra, (coronary artery disease of police officer specializing in criminal investigation did not constitute occupational disease); Discuillo, supra.4
The claimant’s arguments concerning Pearce and the need for disability to be present in order to trigger the running of the statutory notice period are best understood by reviewing some of the case history, though they appear to have been resolved by Arborio v. Windham Police Department, 103 Conn. App. 172 (2007). An early decision addressing this issue, Stachelczyk v. Norwalk, 1 Conn. Workers’ Comp. Rev. Op. 51, 19 CRD-7-80 (August 20, 1981), identified four prerequisites for § 7-433c benefit eligibility: a clean pre-employment examination, a hypertension or heart-disease-related health impairment, a resultant death or temporary or permanent total or partial disability, and economic loss resulting therefrom.5 There, the trial commissioner found that the claimant had been diagnosed with an irregular heartbeat, which condition was controlled by medication; see May 6, 1980 Finding and Award, ¶ 4; but concluded that the absence of total or partial disability required dismissal of the claim. The Compensation Review Division agreed that, though heart disease had caused a health impairment, a claim for benefits had not matured because there was no disability or economic loss. However, the CRD reversed the dismissal order and remanded the case “insofar as it is necessary to protect any future, maturing rights of the claimant.” Id., 53.
A different perspective was taken in Murach v. New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 1172 CRD-6-91-2 (April 20, 1992), where the claimant’s hypertension had been controlled by medication that kept him at work. Applying the reasoning of Deck v. Groton, 8 Conn. Workers’ Comp. Rev. Op. 1, 745 CRD-2-88-6 (1989) (occupational disease theory of recovery applicable to hypertension and coronary heart disease, though not heart attacks), the CRD held “hypertension is an occupational disease and thus governed by the three year statute for filing that type of claim. Thus, if the hypertension which in this case first manifested itself in 1978 was disabling, then the 1988 notice of claim [for an aneurysm that was proximately caused by hypertension] was too late to satisfy the statute.” Id., 91. The Murach panel ruled that medical care and a use of prescription medication made the condition disabling in 1978, requiring dismissal of the claim. Disability was subsequently used to show that § 7-433c claims had matured in cases such as Fortin v. Naugatuck, 14 Conn. Workers’ Comp. Rev. Op. 48, 1898 CRB-5-93-11 (May 4, 1995)(hypertension was controlled by medications and required medical care), and Riccitelli v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 138, 2090 CRB-3-94-7 (January 18, 1996)(hypertension was disabling when it required prescription medication in 1974, triggering duty to file notice), aff’d, 44 Conn. App. 903 (1997)(per curiam). Meanwhile, the occupational disease analysis of Murach was left intact only for a short time. As noted above, in Zaleta, supra, our Appellate Court clarified that one must submit evidence that hypertension is an occupational disease before the three-year statute of limitations may apply. Id., 6-8.
Several cases then sought to identify when symptoms of hypertension first existed. See, e.g., Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997). In Tarzia v. Stamford, 3409 CRB-7-96-8 (March 18, 1998), the claimant had filed a Form 30C after his cardiologist identified diastolic hypertension with a 5% permanent impairment. Relying on Stachelczyk, supra, the respondent cited the absence of lost time from work, medical care or prescription drug therapy (a required step under AMA guidelines) in arguing that the claimant did not have hypertension. Citing Murach and Fortin, supra, we held, “‘hypertension, when it requires medical care and prescription drugs, constitutes a disability pursuant to § 7-433c C.G.S. . . .’ However, . . . it is not a necessary corollary that a lack [thereof] . . . prevents a commissioner from finding that a claimant is hypertensive.” (Emphasis added.) Several blood pressure readings establishing diastolic hypertension were adequate to support the trier’s finding of a “compensable hypertensive condition.” See also Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000)(stating that employee with symptoms of hypertension must notify his employer of claim for compensation within one year of the date symptoms become manifest).
In Pearce v. New Haven, 4385 CRB-3-01-5 (March 28, 2002), the claimant was diagnosed with hypertension in 1998. Between 1988 and 1990, he had produced elevated blood pressure readings on eight occasions, which he and Dr. Kasper had regularly discussed. He was advised to change his diet, lose weight, and use a blood pressure monitor. Both Dr. Kasper and a cardiologist later opined that those symptoms showed hypertension. The trial commissioner dismissed the § 7-433c claim, reasoning that the 1998 Form 30C was untimely because there was clear evidence of hypertension by 1990. This board decided on appeal that the high-blood pressure readings established an injury under § 31-294c(a). Applying the statute of limitations for accidental injuries and repetitive traumas, we affirmed the trier’s finding “that the claimant’s consistent high-blood-pressure readings and his interactions with his doctor indicated that he was manifesting symptoms of sustained hypertension under all the circumstances.”
The case was then brought to our Appellate Court, which defined the claimant’s issue as whether § 7-433c requires a firefighter who is informed of high blood pressure readings to file a claim despite not losing time from work, being placed on medication, or being disabled. Pearce v. New Haven, supra, 76 Conn. App. 446, cert. denied, 264 Conn. 913 (2003). Repeating its observation in Pernacchio v. New Haven, 63 Conn. App. 570, 575-76 (2001), that a claimant must provide both notice of injury under § 31-294b and notice of claim under § 31-294c, the court reasoned that, having received repeated counsel of his elevated blood pressure from his family doctor, the claimant was required to notify his employer of elevated readings “despite whether those symptoms cause immediate permanent or partial disability. The reason for prior notice is to inform the employer of a possibility of a claim for benefits being filed at a later time.” Pearce, supra, 449.6
Following Pearce, our Supreme Court endorsed the notion that a claim should be filed when a condition of hypertension has been established. In Hunt v. Naugatuck, 4607 CRB-5-02-12 (February 9, 2004), this board stated that a claimant has a duty to report elevated readings to his employer regardless of disability status. A March 26, 2001 Form 30C was thus timely, because it followed a blood pressure reading that could have led to a claim. Our Appellate Court dismissed an appeal for the lack of a final judgment, inasmuch as the claimant was not yet entitled to benefits. Hunt v. Naugatuck, A.C. 25129 (April 21, 2004). Reviewing that dismissal, our Supreme Court held that the judgment was final, as the claimant was not seeking an award of monetary benefits. “Rather, the plaintiff’s motivation for filing the notices when he did was to bring his claim within the statute of limitations period and to alert his employer that he had developed a condition, namely, hypertension, that could spawn a claim for monetary benefits in the future.” Hunt v. Naugatuck, 273 Conn. 97, 105 (2005). In a footnote (n.9), the Court acknowledged the Appellate Court’s holding in Pearce that notice must be filed under § 31-294b and § 31-294c whether or not there is immediate disability.
This position was reiterated in Arborio, supra, where the treating physician had noted a number of instances of elevated blood pressure over the years, but did not diagnose hypertension until January 2003, when he prescribed medication. The claimant’s notice was filed on April 21, 2003. The trier dismissed the claim as untimely, finding that the claimant’s doctor had advised him to monitor his blood pressure at home following two readings in April 2000, and told him to take a stress test in 2001, which produced a hypertensive response. This board affirmed. Arborio v. Windham, 5009 CRB-2-05-10 (October 4, 2006). The case then moved to the Appellate Court, which held that Pearce had followed existing law by stating that proof of disability is not a jurisdictional prerequisite to the filing of a claim under § 7-433c. “Certainly, proof of a disability is a prerequisite to the actual collection of benefits, but one need not be disabled before being required to notify one’s employer of an accidental injury and to file a claim within one year of that injury.” Arborio, supra, 177. The court cited Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 303, cert. denied, 225 Conn. 916 (1993), for the proposition that the purpose of notice under § 31-294c “is to alert the employer to the fact that a person has sustained an injury that may be compensable . . . and that such person is claiming or proposes to claim compensation under the [Workers’ Compensation Act]” (emphasis added in Black). See Otero v. Bridgeport, 13 Conn. Workers’ Comp. Rev. Op. 248, 1713 CRB-4-93-4 (April 17, 1995)(notice of claim late though back strains caused no immediate disability).7
Given the holdings in Arborio and Hunt, supra, it appears settled that disability need not exist before a claimant has a duty to file a notice of claim under § 7-433c, even though weekly benefits cannot be collected until a claimant’s medical impairment produces disability. Arborio has also settled the claimant’s argument that the Appellate Court has confused the nonjurisdictional employer notification requirement of § 31-294b with the jurisdictional notice of claim filing requirements of § 31-294c. We agree with the claimant that § 31-294b does not set a jurisdictional standard. However, inasmuch as the emergence of a hypertension condition would trigger the duty to report an injury to one’s employer under § 31-294b, it also constitutes an injury under § 31-294c, creating a duty for a prospective claimant to file a Form 30C. The Arborio decision’s analysis of § 31-294c(c), which allows for the reduction of benefits if an employer is prejudiced by a defect or inaccuracy in a notice of claim (in contrast to the complete absence of notice), and the court’s discussion of Kuehl v. Z-Loda Systems Engineering, 256 Conn. 525 (2003); see n.7, supra; are founded on the premise that § 31-294c is triggered by the presence of hypertension, irrespective of the language in § 31-294b. Arborio, 179-181. It is not for this board to challenge that reasoning here.
With regard to the classification of this injury, the claimant raises two arguments. He first contends that, under the Pearce rationale, he is expected to file a notice of claim within one year of the manifestation of a symptom of hypertension. He argues that this standard incorrectly borrows from the occupational disease provision of § 31-294c, though without the use of a three-year statute of limitations.
That issue was also addressed in Arborio, supra, where the Appellate Court disagreed that Pearce had confused occupational disease with repetitive trauma and accidental injury claims by applying a “first manifestation of symptom” standard. The court noted that the hypertension had been treated as an accidental injury, and that repetitive trauma was not made an issue during the Pearce trial. The court also denied that Pearce requires a claimant to notify his employer upon first manifestation of a symptom of hypertension. “Because so much time had passed between his elevated readings from 1988 through 1990 and the time at which he filed a claim in 1998, the commissioner did not make a factual finding as to the exact date on which the plaintiff was on notice of his injury, but we certainly did not read the commissioner’s decision as indicating that the date of injury was the first day that the plaintiff had a high reading, nor did we so hold on appeal.” Id., 176. Instead, the court agreed with the finding that the claimant knew of his hypertensive status by 1990 based on the repeated advice of his physician. Thus, two key elements were held to be important in Pearce: the existence of hypertension, and knowledge sufficient to alert the claimant of the condition’s presence.
The claimant also contends that “on a medically factual basis, hypertension is more properly classified as repetitive trauma rather than accidental injury definitely located in time and place.” Brief, p. 6. He cites medical evidence discussing the tendency of high blood pressure conditions to evolve over time, often during the aging process. No appellate decisions of § 7-433c hypertension cases following Zaleta have been construed as repetitive trauma claims, though repetitive trauma was not alleged at any of those formal hearings. See Arborio, supra; see also, Chernak, supra, n.6; Riccitelli, supra (no evidence hypertension was causally related to employment). In this case, repetitive trauma was not alleged or addressed at the formal hearing, though it was raised when the claimant moved for articulation as to whether the trier had applied the statute of limitations for accidental injury or repetitive trauma.
Because a § 7-433c claimant need not prove that hypertension arose out of and in the course of employment, the claimant is actually arguing that a police officer or firefighter’s last date of regular employment should serve as the injury date under a quasi-repetitive trauma approach that we would apply in light of common medical knowledge about hypertension. However, this would expand the concept of “repetitive trauma” beyond its statutory meaning. Section 31-275(16)(A) includes in the definition of “personal injury” an injury “that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment.” (Emphasis added.)8 The statutory trigger is actual exposure to trauma. The date of injury in a repetitive trauma case has thus been defined by case law as the last date a claimant is exposed to the incidents of workplace trauma, whereas the last date of employment (as well as scienter) has no separate legal significance. See n.3, supra.
It is not for us to presume that work-related exposure has occurred which can be treated as the cause of a hypertension claim made under § 7-433c, a statute enacted in direct response to our Supreme Court’s decision in Ducharme v. Putnam, 161 Conn. 135 (1971). Ducharme had invalidated a predecessor workers’ compensation statute, § 7-433a, that violated constitutional due process requirements by legislating a conclusive presumption that hypertension and heart disease were causally connected to a police officer or firefighter’s employment.9 Lawmakers responded by reconstructing the benefits as bonus legislation outside the workers’ compensation scheme, with no presumption of causation required. Grover v. Manchester, 168 Conn. 84, 87 (1975). A comparable constitutional obstacle to that identified in Ducharme would exist here if we were to presume (without evidence of a legislative finding) that employment-related stress was the cause of hypertension, even if only for the evidentiary purpose of establishing a date of injury as a subordinate fact in an action for special compensation. We are disinclined to take that step, noting again that our Appellate Court declined to take that step vis-à-vis occupational disease in Zaleta, supra.
Furthermore, if the instant claimant had shown at trial that his hypertension was attributable to work-related repetitive exposure through some specific date, he would have provided evidence of a claim under chapter 568. The cases cited by the claimant in his brief, such as Discuillo, supra, and Malchik, supra, are cases that were brought under chapter 568, with injuries that allegedly arose out of and in the course of employment. Because they involved assertions of workplace exposure to stress, Malchik and Discuillo do not signify that a repetitive trauma theory also applies to § 7-433c claims.
We thus review the trier’s holding using the one-year statute of limitations for accidental injury claims. Collectively, the § 7-433c case law establishes that a claimant is required to notify his or her employer of a potential claim for benefits by filing a notice of claim when (1) the medical evidence shows that he or she has developed symptoms of hypertension and (2) he or she knows, or should know, that he or she has symptoms of hypertension that may require lifestyle changes and/or treatment (whether or not disability yet exists). See Hunt, supra (condition had developed that could spawn claim for monetary benefits in future); Pearce, supra (suggesting that formal diagnosis using the term “hypertension” is not always required); Peck, supra n.6; Chernak, supra n.6 (claimant “knew or should have known he had elevated blood pressure amounting to hypertension).10
Here, the trial commissioner found that Dr. Krauthamer’s medical opinion established that there were multiple hypertensive blood pressure readings between December 2000 and March 2003. This suffices to show that the claimant suffered from hypertension prior to May 2004, when Dr. Monaco made a formal diagnosis of hypertension and prescribed medication. Insofar as Dr. Monaco’s assessment of the claimant’s medical condition conflicts with Dr. Krauthamer’s report, we must infer that the commissioner did not find Dr. Monaco’s opinion credible—particularly in light of the articulation stating that Dr. Krauthamer’s opinion verified that the blood pressure readings taken by Dr. Monaco should have alerted the claimant to file a notice of claim for hypertension benefits. See also, Respondent’s Exhibit 2 (stating hypertension documented as early as December 11, 2000). The findings do not state whether the trier drew other assessments of credibility about Dr. Monaco’s deposition testimony, though they do reflect Dr. Monaco’s characterizations of the claimant’s blood pressure readings as “borderline” for hypertension in 1996, 2001, and 2003. Findings, ¶¶ 10, 21, 31.
The question, then, is when the claimant knew or should have known under the circumstances that he was experiencing symptoms of hypertension, initiating his responsibility to notify his employer of a potential claim for hypertension benefits under § 7-433c. The trier explained in his articulation that the claimant “received repeated advice from his treating physician that he had elevated and/or borderline blood pressure readings in December 2000, January 2001, March 2002, September 2002 and March 2003,” and that the claimant had been advised by Dr. Monaco about dietary and lifestyle changes, losing weight, and monitoring his blood pressure at home, thereby alerting him of a potential claim for hypertension benefits. Looking at the evidence, we believe that it was reasonable for the trier to find that, under the circumstances here, the claimant was given enough information to know that he had symptoms of hypertension more than one year prior to May 20, 2004, whereupon he should have notified his employer of his condition.
The record can be read to support this factual inference, either directly or by giving reasons for prior conduct that may have given rise to credibility inferences. The claimant testified that he began monitoring his blood pressure at home at Dr. Monaco’s request in 2000-01. November 29, 2005 Transcript, p. 14. When asked why Dr. Monaco had asked him to follow his blood pressure at home in December 2000, he said, “I don’t recall the reason why. He’s my doctor, he said do it, I did it.” Transcript, p. 20. However, the claimant had been aware of the Heart and Hypertension Act since before he was hired as a police officer, having learned of it from talking to members of the department while he was serving as a dispatcher. Id., p. 17. He testified that he had never been told he was hypertensive or borderline hypertensive, even though Dr. Monaco continued to tell him to monitor his blood pressure, and had advised him to lose weight and cut down on sweets and salt. Id., pp. 13, 17. He also acknowledged that Dr. Monaco had told him he had high blood pressure readings, and had asked him to continue monitoring his blood pressure several times during 2002 and 2003. The claimant said that he had not filed a claim prior to May 11, 2004 because he was not a doctor, and had put trust in what his doctor told him. Id., p. 18. Dr. Monaco’s testimony, meanwhile, contains five instances in which the claimant’s pre-2004 blood pressure readings are described as borderline. Joint Exhibit 1, pp. 9, 11, 13-15.
The trial commissioner was entitled to evaluate the claimant’s testimony (including his credibility as a witness), the deposition and notes of Dr. Monaco, and the report of Dr. Krauthamer, and draw the inference that the claimant had been given enough information over a period of years to put him on notice that his symptoms were caused by hypertension, obligating him to file a notice of claim under § 31-294c. Of course, a trial commissioner need not state the reasons for his conclusions under Admin. Reg. § 31-301-3, or his reasons for finding one witness more credible than another; Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000); and we have never required a trial commissioner to explicitly say that a party’s witness is not credible before disregarding part or all of his testimony, though such a direct statement often provides a helpful means to understand the trier’s reasoning.
On that basis, I would therefore affirm the trial commissioner’s decision.
JOHN A. MASTROPIETRO, CHAIRMAN, CONCURRING. I concur in my colleague’s affirmance of the trial commissioner’s decision. I write separately with regard to the dissent, wishing to observe that the trial commissioner could not have decided this case without having considered the parts of the claimant’s testimony that the dissent cites. Logically, the trier must have already rejected the implicit finding of evidentiary credibility that the dissent now makes by proposing that the testimony of the claimant and Dr. Monaco is insufficient to establish knowledge that he had hypertension-indicative symptoms. The trier could just as easily have made the readily available inference that those witnesses were not being completely forthcoming. The dissent therefore engages in a retrying of some of the facts of this case, which is not the role of this board on appeal. We need not speculate as to the weight that was given to specific pieces of testimony in order to uphold the trier’s decision. Moreover, the claimant has the burden of proving an entitlement to benefits, which includes the burden of proving that he has met the notice requirements of § 31-294c. By requiring the respondent to prove, in essence, that the claimant had such knowledge where the evidence allows for multiple inferences, the dissent is shifting the burden of proof to the respondent on a material element of the claimant’s case. I disagree that the burden can be so shifted.11
DONALD H. DOYLE, COMMISSIONER, DISSENTING. I disagree that the evidence shows that the claimant had enough information to put him on notice that his high blood pressure readings were symptoms of hypertension. Even if one assumes that, based on his endorsement of Dr. Krauthamer’s opinion, the trial commissioner doubted Dr. Monaco’s testimony and suspected that he had sufficient information to diagnose the claimant with hypertension sometime between 2000 and 2003, there is nothing in the record to show that this information was communicated to the claimant, giving him subjective knowledge that he had hypertension, “borderline hypertension,” or sustained high blood pressure readings that required some form of treatment or lifestyle change.
The claimant testified that, when he began monitoring his blood pressure at home at Dr. Monaco’s request, he usually got systolic readings in the “normal” range of 120-125, and diastolic readings in the low eighties. November 29, 2005 Transcript, p. 14. He testified that he had never been told he was hypertensive or borderline hypertensive. Id., p. 17. In explaining why he did not file a claim prior to 2004, he not only indicated that he trusted his doctor, but also stated, “He never told me I was hypertensive and I don’t have the schooling to dispute him otherwise. Additionally I never noted any consistently high numbers myself when monitoring my own blood pressure at home.” Id., p. 18. Dr. Monaco had generally instructed the claimant to call his office if the readings at home were elevated. Claimant’s Exhibit A; see also, Joint Exhibit 1, pp. 13-14.
Dr. Monaco explained that the claimant’s pressures were “never consistently elevated if you look back at all the numbers over time,” and the claimant’s readings were often higher in the office than they were at home. Joint Exhibit 1, p. 19. “He was always considered to have a white coat effect” [increased blood pressure readings while one is in the doctor’s office] . . . “and his pressures were usually normal at home, borderline to some degree in the office.” Id. When asked specifically on re-direct examination, the claimant testified that blood pressure concerns were not mentioned when he and Dr. Monaco discussed losing weight and making dietary changes. Transcript, p. 25. It appears that he continued to actively treat with his physician and followed his instructions to monitor blood pressure, lose weight, and alter his diet, in contrast to the claimants in Pearce, supra, and Chernak, supra, who disregarded requests from their doctors to return for treatment. I do not believe that this record contains sufficient evidence to support an inference of knowledge or neglect of hypertension symptoms by the claimant, and I would reverse the trier’s conclusion that this claim was untimely.
1 The claimant was granted a two-month extension of time to file Reasons of Appeal in this matter. BACK TO TEXT
2 As per Public Act 92-81, for qualifying employees who were hired on or after July 1, 1992, two years of service must have been completed before eligibility for benefits exists, and entitlement will be disproven if the municipal employer shows by a preponderance of the evidence that the member’s health condition or impairment caused by hypertension or heart disease is not job-related. BACK TO TEXT
3 Our Supreme Court has confirmed that the last date of a claimant’s employment does not have independent significance where the last date of workplace exposure to the incidents of repetitive trauma is different. Discuillo v. Stone & Webster, 242 Conn. 570, 581 n.11; Malchik v. Division of Criminal Justice, 266 Conn. 728, 745 (2003) (compensable exposure to incidents of repetitive trauma could not have occurred after last date of official employment). See also Masucci v. Ray’s Auto Body, Inc., 4598 CRB-6-02-12 (November 10, 2003)(last date of exposure to stressful job duties, rather than last employment date, triggered one-year statute of limitations). BACK TO TEXT
4 In Discuillo, the Court stated that designating the applicable statute of limitations for repetitive trauma under § 31-294c rests on whether the injury more closely “resembles” an occupational disease or an accidental injury. Id., 578-80. The Court took this tack after noting that there is no express mention of repetitive trauma in § 31-294c, even though injuries that are the direct result of “repetitive trauma or repetitive acts” incident to one’s employment are included in the definition of “personal injury” under what is now § 31-275(16). In determining which of the two existing jurisdictional categories—accidental injury or occupational disease—applied to the repetitive trauma claim of a painter who suffered a heart attack, the Court held that it more closely resembled an accidental injury than an occupational disease, as there was no evidence the stresses at issue were distinctively associated with the claimant’s job. In subsequent cases, the Court has not used this “resemblance” language, and has instead made a clear-cut determination as to whether a condition meets the statutory definition of occupational disease before applying the three-year statute of limitations. See, e.g., Estate of Doe v. Department of Correction, 268 Conn. 753 (2004)(Court found HIV to be occupational disease for correction officers in decedent’s job classification, and remanded case for determination as to whether claimant’s HIV infection arose out of and in course of that employment); Biasetti v. Stamford, 250 Conn. 65 (1999)(plaintiff’s post-traumatic stress disorder was an occupational disease because job as police officer was more likely to cause PTSD than other kinds of employment in similar conditions). Where the “occupational disease” criteria are not met, the Court has stated that an injury is subject to the one-year statute of limitations applicable to accidental and repetitive trauma injuries. Malchik v. Division of Criminal Justice, 266 Conn. 728, 742 (2003). BACK TO TEXT
5 “Economic loss” was identified as a prerequisite because of a legislative finding that served as a preamble to § 7-433c until 1996, when it was deleted from the statute by Public Act 231. Among the legislature’s original findings was a recognition that “the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment.” BACK TO TEXT
6 The role of scienter was later spotlighted in Peck v. Somers, 4640 CRB-1-03-3 (March 5, 2004), where the claimant’s physician had diagnosed hypertension and prescribed medication in 1995. The trial commissioner dismissed the claim because the claimant was aware of “borderline” high-blood-pressure readings more than one year before his February 1997 hearing request. This board affirmed, citing Pearce for the proposition that “a claimant with hypertensive symptoms is required to file a notice of claim when he is told he has high blood pressure readings, even if he has not been placed on medication, lost time from work or become disabled.” More recently, but prior to the Appellate Court’s decision in Arborio v. Windham Police Dept., 103 Conn. App. 172 (2007), we decided Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006). There, numerous high blood pressure readings were noted in 1998. The claimant was advised to lose weight and reduce salt intake. The treating physician’s notes reported hypertension, and said he was likely to start blood pressure medication. The claimant neglected to schedule a follow-up visit. After returning in 2001 to treat for a kidney stone, he again disregarded instructions to return to treat his high blood pressure. He filed a Form 30C in 2003. We affirmed the trier’s finding that the claimant suffered from hypertension in 1998, but failed to take responsive action. BACK TO TEXT
7 The court also addressed the claimant’s argument that Pearce merged nonjurisdictional requirements of § 31-294b with the jurisdictional requirement of § 31-294c, focusing on § 31-294c(c), which states, “No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.” The claimant had asserted that an employer could claim a reduction in benefits under § 31-294b and § 31-294c(c) should an employer demonstrate prejudice from the non-filing of a claim in response to hypertension symptoms. The court observed that § 31-294c(c) does not include the failure to file timely notice as a “defect” that can be cured by a reduction in benefits, citing Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525 (2003). BACK TO TEXT
8 In contrast, “personal injury” does not use workplace-specific language while including in its definition an “accidental injury that may be definitely located as to the time when and the place where the accident occurred,” and an “occupational disease.” Section 31-284 requires compensation under the Act for a “personal injury sustained by an employee arising out of and in the course of employment.” We read the phrase “arising out of and in the course of employment” as adding independent meaning to the more general term “personal injury.” See Evanuska v. Danbury, 285 Conn. 348, 360-61 (2008)(Court declined to construe § 7-314(a) as giving no independent meaning to provision’s “catch-all” phrase). BACK TO TEXT
9 Section 7-433a, stated in relevant part, “for the purpose of the adjudication of claims for the payment of benefits under the provisions of chapter 568 . . . any condition or impairment of health occurring on duty or off duty, caused by hypertension or heart disease resulting in death or temporary or permanent, total or partial disability to a uniformed member of a paid fire department or a regular member of a paid police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be conclusively presumed to be a personal injury which arose out of and in the course of his employment, and which was suffered in the line of duty and within the scope of his employment . . . .” (Emphasis added.) Observing that the facts of Ducharme would require an adjudication that “a perfectly healthy off-duty Putnam policeman who brought on a heart attack by overexertion on the last day of a lengthy out-of-state vacation suffered the attack ‘in the course of his employment, ‘in the line of duty’ and ‘within the scope of his employment,’ the Court reasoned that a presumption is a rule of evidence that acts as a substitute for proof, and in this case represented a legislative effort to enact into existence a fact that was not an accurate depiction of reality. There must be a rational connection between the fact proven (hypertension symptoms) and the ultimate fact presumed (exposure to trauma at work that caused the condition)’. “Constitutionally, the legislature can no more bind the courts to such a factually unsupportable conclusive adjudication than it can require their adjudication that a camel is a horse by the enactment of a statutory conclusive presumption that all four-footed animals are horses.” Ducharme v. Putnam, 161 Conn. 135, 140 (1971). BACK TO TEXT
10 Following its confirmation of the holding in Pearce, the Arborio tribunal went on to reverse the decisions of the trier and this board, based upon conclusions the trier had drawn from the stipulated facts and other evidence. After taking the claimant’s elevated blood pressure readings on separate occasions in 2000 and 2001, the treating physician had noted “labile hypertension” on his chart. He testified that consideration had been given to a “potential need” to prescribe medication. The commissioner subsequently concluded that the claimant by mid-2001 “was aware he had elevated blood pressure readings and had a potential hypertension problem that may require medication.” (Emphasis added.) While professing to agree with our statement in Pearce that “[i]t is up to the trial commissioner to assess the significance of such a reading within the complete factual framework of the case;” Id., 187; the court held that the record did not establish late notice. Singling out the specific findings of the trial commissioner as accepted by this board, the court stated, “Two office visits showing high blood pressure readings, a stress test and an employee’s awareness of those elevated readings and awareness that ‘he had a potential hypertension problem that may require medication’ simply are not sufficient to support the conclusion that the plaintiff had an accidental injury that required him to notify his employer and to file a claim for benefits. . . . The employee . . . must have had some type of accidental injury (not necessarily an immediately disabling injury) before being required to file a claim. Unlike the factual record in Pearce v. New Haven, supra . . . under the thin facts of this case, the mere awareness of some ‘potential problem’ that might, one day, require medication simply cannot be enough to trigger the [accidental injury] notice of claim provision.” Id., 187-88. As we strive to read Arborio consistently with Pearce, we take note of the Pearce court’s deference to the trier’s finding that the claimant had received repeated counsel from his family physician regarding elevated blood pressure readings, which gave him reason to know he had symptoms related to hypertension that required the filing of a notice to alert his employer to a potential claim. Id., 449. In contrast, Arborio explicitly rested its holding on the reasoning that “The commissioner did not find that the plaintiff had hypertension but only that he had a potential hypertension problem,” which fell short of being an accidental injury. Id., 187 (Emphasis in original.) Thus, Arborio was apparently reversed because the findings as written were insufficient to support a conclusion that the claimant had hypertension in 2001. BACK TO TEXT
11 I wish to mention also that Arborio, supra, appears to rest on the conclusion that the trier’s findings were “not sufficient to support the conclusion that the plaintiff had an accidental injury.” The court also hints that a claimant’s knowledge is a relevant component of the duty to file notice for a hypertension-related accidental injury under § 7-433c, even though the importance of a claimant’s awareness (or willful ignorance) of hypertension symptoms, which was acknowledged in Pearce, is less clear from the language of Arborio. See note 10, supra. After many readings, I find myself hard-pressed to implement Arborio as precedent for future cases. Is it not the trial commissioner’s role to determine when an “accident” has occurred that triggers the one-year statute of limitations, by weighing the presence of hypertension indicators such as high blood pressure readings, abnormal stress test results, or any other factors that the commissioner finds to be revealing? The claimant in Arborio had produced elevated blood pressure readings during two doctor’s visits in 2000 and 2001, and was ordered to take a stress test that showed a “hypertensive response.” The claimant’s doctor had not yet decided to prescribe medication. It is unclear whether the evidentiary insufficiency to establish hypertension as an accidental injury rests in the total weight of those subordinate facts, or whether the problem is in the wording of the trier’s resulting finding (which mentioned only that two doctor’s visits and the scheduling of a stress test had made the claimant aware of elevated blood pressure and a “potential hypertension problem that may require medication”). As discussed in Part II-B of this opinion, neither the statute nor the case law says that the need for medication is the triggering event for a § 7-433c notice of claim—nor has an explicit diagnosis of “hypertension” ever been required. BACK TO TEXT