CASE NO. 5122 CRB-8-06-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 23, 2008
THOMAS A. ROOHR
TOWN OF CROMWELL
The claimant was represented by Andrew J. Morrissey, Esq. Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.
The respondent employer was represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the August 10, 2006 Finding and Dismissal of the Commissioner acting for the Eighth District was heard January 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 10, 2006 Finding and Dismissal of the Commissioner acting for the Eighth District. He contends that the trier erred by dismissing his claim under § 7-433c on the ground of untimeliness. Finding no error, we affirm the trial commissioner’s decision.
The claimant was hired in 1983 by the respondent Town of Cromwell as a regular member of its police department, successfully passing a pre-employment physical exam that revealed no evidence of hypertension or heart disease. He presented with a blood pressure reading of 130/88 on December 6, 1994, a reading of 136/90 on January 31, 1995, and a reading of 118/74 on May 8, 1995. On May 28, 1997, his blood pressure read 132/100 when he presented at Middlesex Hospital, with subsequent readings that day of 123/66, 122/73, and 128/70. In April 2002, the claimant’s primary physician became Dr. Kimmel. He recorded a blood pressure reading of 150/94 on April 29, 2002, with a reading later that day of 128/92. On June 3, 2002, he recorded readings of 150/100 and 128/92. On September 24, 2003, the claimant’s blood pressure was 159/88 when he presented at Middlesex Hospital, and he also showed readings of 152/92 and 148/98 when he saw Dr. Kimmel on October 17, 2003. Dr. Kimmel prescribed medication for hypertension at that point. The claimant filed a notice of claim for § 7-433c C.G.S. hypertension benefits on March 22, 2004.
Dr. Kimmel testified that the claimant’s blood pressure readings on January 31, 1995 and May 28, 1997 would be considered borderline hypertensive, as would the readings on April 29, 2002. Dr. Kimmel also testified that he diagnosed the claimant with hypertension on April 29, 2002, and discussed the condition with him. He also testified that he had told the claimant on more than one occasion that he should lose weight, exercise, and change his diet in order to address his elevated blood pressure readings. The claimant testified that he recalled the advice regarding diet and weight loss, but did not recall that it related to elevated blood pressure. The trial commissioner concluded that the claimant was advised of his high blood pressure on April 29, 2002, which triggered the running of the statute of limitations under § 31-294c. As the March 22, 2004 claim was filed more than one year later, the trier held that notice was untimely, and dismissed the claim. The claimant has petitioned for review from that ruling.
On appeal, the claimant raises several legal arguments concerning the correct application of the law to the facts found by the trier. He contends that (1) disability, rather than a mere manifestation of hypertensive symptoms, is required under § 7-433c in order to trigger the running of the statute of limitations under § 31-294c; (2) the reasoning of Pearce v. New Haven, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003), incorrectly interprets the jurisdictional standard for filing such a claim; and (3) the correct analysis to use for a hypertension claim under § 7-433c is a repetitive trauma approach, requiring filing within one year of the date of last exposure to the incidents of trauma, or in the alternative, an “accidental injury” approach that would start the running of the notice period on the date of actual diagnosis and disability. Each of these arguments was raised and addressed in our recent decision in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008), in which we undertook an extensive analysis of the prevailing law. Our decision in Ciarlelli fully applies here.
In Ciarlelli, we confirmed that our Appellate Court has resolved the disability issue in Pearce, supra, and in Arborio v. Windham Police Department, 103 Conn. App. 172 (2007), by holding that a § 7-433c hypertension claim generally falls within the definition of accidental injury specifically attributable to a time and place, and by confirming that an employee need not be disabled prior to filing. “Given the holdings in Arborio and [Hunt v. Naugatuck, 273 Conn. 97, 105 n.9 (2005)], 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.” We also confirmed that the court has rejected the notion that it has confused the non-jurisdictional employer notification of injury requirement in § 31-294b with the jurisdictional provisions in § 31-294c.
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) . . . are founded on the premise that § 31-294c is triggered by the presence of hypertension, irrespective of the language in § 31-294b.
In Ciarlelli, the claimant’s § 7-433c hypertension claim was not presented as a repetitive trauma claim at the formal hearing. Rather, the issue was first raised in a Motion for Articulation filed after the issuance of the Finding and Dismissal. On appeal, the claimant cited common medical knowledge about hypertension in order to establish that the last date of regular employment for a police officer or firefighter should serve as the injury date. We observed that the date of injury in a repetitive trauma case is the last date on which a claimant has been exposed to the incidents of workplace trauma, as provided by § 31-275(16)(A). “The statutory trigger is actual exposure to trauma.” However, a claimant need not prove that hypertension arose out of and in the course of employment in order to make a claim under § 7-433c, and it is clear that § 7-433c does not incorporate a legal presumption that workplace exposure to stress has actually caused a claimant to develop hypertension. See Ducharme v. Putnam, 161 Conn. 135 (1971). Accordingly, there would be no factual ground to adopt the “last date of employment” as an injury date for such a claimant. Furthermore, if a 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.” Ciarlelli, supra. We therefore held that a repetitive trauma analysis does not apply to § 7-433c hypertension claims.
In this case, the claimant checked off the box for “occupational disease or repetitive trauma” on his Form 30C, and also filed a trial brief contending that a repetitive trauma analysis should apply in lieu of a “first manifestation of symptom” analysis. Yet, no evidence was presented at trial that his hypertension was traceable to stress he experienced during his employment. Instead, the claimant’s strategy at the formal hearing was to establish that any high blood pressure readings prior to 2003 were brought on by transitory problems unrelated to sustained hypertension. October 6, 2005 Transcript, p. 3. We find no ground to analyze this case any differently than we did Ciarlelli, and thus we reject the claimant’s contention that a repetitive trauma analysis should apply here.
In determining an accidental injury date for a § 7-433c claim, we explained in Ciarlelli, “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).” Here, the trial commissioner determined that the claimant presented an elevated blood pressure reading on April 29, 2002, and was informed by Dr. Kimmel that he suffered from hypertension. The claimant had also testified that it was possible he was told that he had problems with his blood pressure in 2002, but forgot. Transcript, p. 10. Based on the trial commissioner’s finding that the claimant knew of his hypertensive condition on April 29, 2002, the statute of limitations began running on that date, giving the claimant one year to file his claim. As that was not done, the trial commissioner properly dismissed the claimant’s request for benefits.
The trial commissioner’s decision is hereby affirmed.
Commissioners Amado J. Vargas and Scott A. Barton concur.