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McCarthy v. Town of East Haven

CASE NO. 5174 CRB-3-06-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 22, 2008

KEVIN MCCARTHY

CLAIMANT-APPELLANT

v.

TOWN OF EAST HAVEN

EMPLOYER

and

WEBSTER RISK SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter, Civitello & Douthat, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondent employer was represented by Lawrence Pellett, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

These Petitions for Review from the December 5, 2006 Finding of Dismissal and the January 31, 2007 denial of the Claimant’s Motion to Correct by the Commissioner acting for the Third District were heard July 13, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 5, 2006 Finding of Dismissal by the Commissioner acting for the Third District, and from the January 31, 2007 denial of his Motion to Correct.1 He argues on appeal that the trier erred by dismissing as untimely his claim for hypertension benefits under § 7-433c. He has also requested that this appeal be reserved to the Appellate Court.2 We find no error, and affirm the trial commissioner’s decision.

The claimant was hired as a police officer on February 17, 1987, after passing a pre-employment physical with a blood pressure reading of 145/85. The presiding physician, Dr. Morrison, did not describe this reading as evidence of hypertension. The claimant used his group health insurance coverage to begin treating at the Community Health Care Plan (CHCP) in 1988. In 1999, he started seeing Dr. Jung at CHCP. The respondent contends that the claimant had numerous elevated blood pressure readings during his course of treatment with CHCP, and the findings cite 31 readings in support of this assertion.3 On four or five occasions between 1991 and 1995 (the trier found that there were four, but the record contains a notation of a fifth on January 4, 1991; Claimant’s Exhibit C), he had been scheduled for a one-or two-month follow-up visit to check blood pressure.

In 2000, the claimant told Dr. Rocklin he had a systolic reading of 200 (blood pressure readings are recorded as systolic pressure/diastolic pressure) while being examined at the hospital for a visual migraine problem. On July 11, 2001, Dr. Jung noted elevated blood pressure. The claimant had already given readings of 150/110 (which had been noted as elevated blood pressure in a March 27, 2001 office note), 136/98, 134/98, 118/90, and 124/90 during that year, and on July 11, 2001, his blood pressure was measured as 138/92 and 132/90. Claimant’s Exhibit D. In 2002, he produced additional readings of 126/90, 128/90, and 130/88. On November 18, 2002, the claimant produced blood pressure readings of 150/90 and 124/92. Dr. Jung told the claimant he had elevated blood pressure and scheduled follow-up visits to check that pressure. The claimant’s blood pressure readings were 140/90 and 142/94 on January 27, 2003. When they increased to 160/90 and 140/100 on April 7, 2003, Dr. Jung diagnosed the claimant with hypertension, and prescribed medication. The claimant filed a Form 30C notice of claim on June 26, 2003, listing an April 7, 2003 date of injury. The claimant stopped working for the respondent in September 2003, after sustaining a knee injury.

Dr. Rocklin performed a cardiology examination on the claimant on January 11, 2006, and opined that the claimant had shown persistent elevated blood pressure readings from 2001 through 2003. He diagnosed a 5% permanent partial impairment of the heart due to the claimant’s hypertension condition. The respondent denied the claimant’s request for § 7-433c benefits, arguing that the claimant knew or should have known he had evidence of high blood pressure years before April 7, 2003. The claimant contended that his hypertension should be considered a repetitive trauma injury, giving him until September 2003 to file notice.

The trial commissioner found that the consistent high blood pressure readings measured prior to April 7, 2003 “constituted symptoms of hypertension which required the claimant to file notice of a potential hypertension claim more than a year prior to when he actually filed his claim.” Findings, ¶ C. The trier therefore dismissed the claim as untimely pursuant to § 31-294c. In an articulation, the trier added that he applied the one-year-from-date-of-injury standard in § 31-294c, and stated that the claimant knew or should have known of his potential hypertension claim based on a number of earlier blood pressure readings, citing as examples those in 1992, 1994, and 2001. See n.3, supra. The trier identified no legal or medical basis to consider the hypertension claim as a repetitive trauma injury. The trier also denied the claimant’s Motion to Correct, which sought to add findings stating that his blood pressure readings were not characterized as hypertension prior to April 7, 2003. The claimant has filed a petition for review in response to the Finding of Dismissal and the denial of the Motion to Correct.

This claim for benefits was filed under § 7-433c C.G.S. At the time the claimant was hired, the statute provided that a regular member of a paid municipal police department who, upon entry into service, passed a physical examination that revealed no evidence of hypertension or heart disease, may claim benefits if he “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.” Such benefits consist of “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, and was suffered in the line of duty and within the scope of his employment.”

The claimant asserts on appeal that the precedent set by our Supreme Court in Discuillo v. Stone & Webster, Inc., 242 Conn. 570 (1997), requires this board to treat hypertension as a repetitive trauma claim in applying the § 31-294c statute of limitations for filing notice of claim, as chronic clinical hypertension is not an accidental injury identifiable to time and place under § 31-275(16)(A) C.G.S., but rather “the result of the slow accretion of daily injurious influence.” Brief, p.1.4 The claimant challenges the use of scienter as a triggering mechanism for the duty to file § 7-433 claims, as exemplified by Peck v. Somers, 4640 CRB-1-03-3 (March 5, 2004), which stated, “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.” He contends this practice is inconsistent with the holding of Discuillo, and advocates the replacement of a scienter-based statute of limitations with a notice period that begins running when exposure to repetitive trauma ceases to occur.

We recently addressed the applicability of the repetitive trauma injury classification to § 7-433c hypertension claims in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008). The claimant also contended in that case that, as a medical matter, hypertension is more properly classified as repetitive trauma rather than accidental injury based upon medical evidence showing the tendency of high blood pressure conditions to evolve over time. We reasoned:

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.) 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. . . . 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. 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 [v. Fairfield, 38 Conn. App. 1 (1995), cert. denied, 234 Conn. 917 (1995)].

Ciarlelli, supra (emphasis in original; footnotes omitted). We also footnoted the Ducharme Court’s observation that the facts of its case would have required an adjudication under § 7-433a 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.’” Id., 140. Because a presumption is a rule of evidence that is substituted for proof, the Ducharme Court held that the legislature had overstepped its authority by legislating the existence of an ultimate fact (compensability under the Workers’ Compensation Act) that need not follow from the subordinate fact on which the presumption was based (the existence of heart disease or hypertension). In Ciarlelli, we concluded that a similar due process violation would occur if we were to treat a § 7-433c hypertension condition as if it had been caused by repetitive trauma throughout a claimant’s employment, given the absence of any causation requirement in the statute.

In fact, our Supreme Court held in Plainville v. Travelers Indemnity Co., 178 Conn. 664, 672, (1979)(insurance policy covering chapter 568 liability not applicable to § 7-433c special bonus legislation) that, under § 7-433c, no presumption of causation is established, and benefits are not required to be paid by the Workers’ Compensation Act, even though its procedures are used in administering § 7-433c benefits. The Court also held that, despite a legislative recognition of the risks to which police officers and firefighters are exposed, including increased susceptibility to hypertension and heart disease, the legislature made no finding that all such ailments suffered by such individuals are causally related to their employment. Id., 673; see also, Claimant’s Brief, p. 5 (citing statements in legislative history of § 7-433c and its predecessor statutes that describe heart disease and hypertension as service-related diseases for police officers and firefighters). Our analysis of a repetitive trauma argument for § 7-433c must respect the approach taken by our higher courts in Plainville, supra, and Zaleta, supra.

In his brief, the claimant asserts that there is no basis in law or logic to treat the “accidental injury” category as a default category where there is insufficient proof of occupational disease or repetitive trauma. Brief, p. 7. To some extent, we disagree. We observed in Ciarlelli that the definition of “personal injury” in § 31-275(16) does not use workplace-specific language while including an “accidental injury that may be definitely located as to the time when and the place where the accident occurred.” We then noted that § 31-284 requires compensation to be paid under the Act for a “personal injury sustained by an employee arising out of and in the course of employment.” (Emphasis added.) Principles of statutory construction require that the phrase “arising out of and in the course of employment” be given specific meaning beyond the general, statutorily-defined term “personal injury.” See Evanuska v. Danbury, 285 Conn. 348, 360-61 (2008). In contrast to the definition of “accidental injury” in § 31-275(16), the definition of repetitive trauma (quoted above) intrinsically requires that there be a causal connection between the incidents of traumatic exposure and the employment. Thus, the statutory language provides support for the notion that an “accidental injury” may serve as a “catch-all” category where the definitions of “repetitive trauma” and “occupational disease” are not met by a particular injury’s etiology.

We further observed in Ciarlelli, supra, that if the claimant had shown at trial that his hypertension was attributable to work-related repetitive exposure, he would have provided evidence sufficient to support a claim under chapter 568. The same is true here. Cases such as Discuillo, supra, and Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003)(coronary artery disease allegedly caused by criminal investigation duties of police officer) were brought under chapter 568, with the injuries having allegedly arisen out of and in the course of employment. Those situations of repetitive exposure to workplace trauma or stress differ from claims brought under the special compensation provisions of § 7-433c. Thus, Malchik and Discuillo do not support the use of a repetitive trauma theory of injury in § 7-433c cases.

We are also challenged regarding our holdings that a claimant’s awareness of hypertension is relevant to the running of the statute of limitations for filing a § 7-433c claim, even though the “accidental injury” category applies rather than the “occupational disease” category. Essentially, this is a concession to practical necessity. A claimant who is eligible for § 7-433c benefits must have passed a physical examination upon entry into employment that revealed no evidence of hypertension or heart disease. The statute assumes that an eligible claimant will develop the condition during his period of employment and subsequently become disabled, though the condition or impairment of health caused by hypertension or heart disease may be suffered on or off duty.

Because causation by employment-related exposure is not legally part of this equation, and there is no workplace incident or pattern of trauma that may function as a date of injury, we are left with the emergence of symptoms of hypertension as the triggering mechanism for the filing of a notice of § 7-433c claim. See Hunt v. Borough of Naugatuck, 273 Conn. 97, 105 (2005)(claimant sought to alert employer that he had developed hypertension condition that could spawn claim for monetary benefits in the future). A claimant must know or have reason to know that he or she has symptoms of hypertension before he or she can be expected to file a claim. Thus, we have continued to recognize a scienter requirement following the decision in Zaleta, supra, even though it is not directly contemplated by the language of § 7-433c or § 31-294c. Given the legal precedents interpreting § 7-433c, including Pearce v. New Haven, 76 Conn. App. 441, cert. denied, 264 Conn. 913 (2003), and Arborio v. Windham Police Department, 103 Conn. App. 172 (2007), which confirmed that disability need not exist before a prospective § 7-433c claimant is required to file notice of a potential claim, we see no practical alternative upon which to base a statute of limitations.

We have also taken note of the holding in Arborio, supra, which distinguished the initial emergence of high blood pressure readings from the quantum of evidence that was required in Pearce, supra, to put the claimant on notice that a hypertensive condition had developed. Thus, we set forth the following approach 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). 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.” In a contested case, that date will depend on interconnected factual circumstances. These include the presence of symptoms, the opinions of medical providers, the dialogue between physician and patient, and the claimant’s level of knowledge as to his or her condition.

Often, such decisions will depend on the trial commissioner’s authority to assess the credibility of evidence, including testimony and medical reports, and to draw inferences from that evidence. See, e.g., Ciarlelli, supra; Casimiro v. Westport, 5099 CRB-4-06-6 (April 25, 2008)(trier found claimant’s testimony more credible than that of physician); see also, Pearce, supra, 445-46 (trial commissioner is charged with selecting most reasonable inference where facts would permit diverse inferences). This board may not disturb a trier’s factual inferences on review unless they are illegally or unreasonably drawn from the subordinate facts, nor may we draw our own impressions of credibility. Id.; Casimiro, supra. Here, again, we must defer to impressions of credibility that the trier drew in response to the evidence and the claimant’s testimony.

The claimant testified that the first time a doctor suggested he had a condition of hypertension was in January 2003, when Dr. Jung stated that he was concerned about the claimant’s elevated readings, and would start treatment if the claimant produced elevated readings the next time he came in for a visit. May 15, 2006 Transcript, p. 10. The claimant was aware that he had produced occasional elevated readings prior to that, but he said that he had not been treated. Id., pp. 11, 16. However, Dr. Jung had frequently recommended that he lose weight. Id. In terms of family history, the claimant’s father had suffered from hypertension as well. Id., p. 15. The claimant stated that he could not recall telling Dr. Rocklin that his blood pressure had become persistently elevated in 2001-2003 (as reflected in Dr. Rocklin’s January 11, 2006 report). Id., p. 15; Claimant’s Exhibit E. He did recall telling Dr. Rocklin about a severe migraine headache and an elevated systolic blood pressure reading of 200 that he had experienced in 2000. He also said that he had waited until April 7, 2003 to file a Form 30C because that was when he was diagnosed by his doctor. Id., p. 16. This was corroborated by Dr. Jung. Claimant’s Exhibit D, May 11, 2006 letter. Dr. Rocklin stated in his January 11, 2006 report that he had too few medical records to time the onset of the claimant’s hypertension.

The claimant protests that the trial commissioner’s finding relies on his own judgment as to the significance of blood pressure readings, rather than medical evidence interpreting those readings. Our Appellate Court has explained that the burden is on the parties to show that hypertension is something more than its plain, common-sense meaning of “abnormally high arterial blood pressure,” a definition that has been cited in the absence of evidence elucidating some other relationship between high blood pressure and hypertension. See Merriam-Webster’s Collegiate Dictionary (10th Ed. 1998), cited in Pernacchio v. New Haven, 63 Conn. App. 570, 573, 575 (2001)(claimant filed first report of injury for “high blood pressure” in 1989, which tolled statute of limitations for § 7-433c claim, though hypertension was diagnosed several years later); see also, Cooper v. Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 1336 CRB-5-91-11 (Nov. 19, 1993)(high blood pressure reading during pre-employment physical examination constituted evidence of hypertension, i.e., “abnormally high arterial blood pressure,” even though no doctor had diagnosed claimant with hypertension). By stating in his January 11, 2006 report that he did not have enough of the claimant’s medical history before him to declare a hypertension onset date, Dr. Rocklin seems to have been referring to the other primary variation of the everyday-use “hypertension” definition: “arterial disease in which chronic high blood pressure is the primary symptom.” American Heritage Dictionary, Fourth Edition (2006). When Dr. Rocklin stated that the claimant’s blood pressure “apparently returned to normal [after the 2000 reading of a 200 systolic pressure] but became persistently elevated in approximately 2001 to 2003,” it was clear that he considered the presence of chronic symptoms to be important. Claimant’s Exhibit E.

In giving his opinion, however, Dr. Rocklin was knowingly relying on the claimant’s self-reported history of “an isolated blood pressure elevation in the late 80s or early 90s.” Id. He did not have access to the history of periodically elevated blood pressure readings shown by the CHCP reports cited by the trial commissioner in ¶ 8 of the Finding and Dismissal. The trier’s response to the claimant’s Motion for Articulation explains, “The claimant knew, or should have known, he had a potential hypertension claim as indicated by multiple elevated blood pressure readings for several years prior to the date he filed his notice of claim in April, 2003. In particular, the readings in 1992 were 150/92 and 150/90, in 1994 were 156/90 and 130/98 and in 2001 were 150/110 and 156/98,5 which indicate examples of elevated blood pressure readings . . . .” As noted above, several of the corresponding medical reports list blood pressure checks as a follow-up priority.

These findings indicate that the trier found evidence of numerous elevated high blood pressure readings, rather than one isolated reading. It was reasonable for the trier to infer that these readings showed that the claimant suffered from and was aware of persistent symptoms of hypertension, i.e., sustained high blood pressure, more than one year prior to April 2003. In order to establish the elements of his § 7-433c claim, the burden was on the claimant to demonstrate that he satisfied the applicable statute of limitations articulated in Ciarlelli, supra. The evidence in this case is competent to support a finding that the claimant did not meet that burden of proof, and it is not our place to reverse that finding on appeal.

The trial commissioner’s decision is therefore affirmed.

Commissioners Amado J. Vargas and Scott A. Barton concur.

1 The claimant received a one-month extension of time to file a Motion to Correct in this case. BACK TO TEXT

2 The proposed question for reservation to the appellate court as per Practice Book § 76-5 was, “What is the applicable statute of non-claim in heart and hypertension claims under Sec. 7-433c?” The claimant contends that there is a “flat contradict[ion]” between the knowledge-conscious statute of limitations applied by this board in cases such as 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) and the rule set forth in Discuillo v. Stone and Webster, 242 Conn. 570 (1997). The respondents filed an objection to the request for reservation, arguing that there is no conflict of law. Section 76-5 states that this board may reserve a case for the opinion of the appellate court if it “is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the appellate court, in order that a definite rule be established applicable to future cases.” As we are not of the belief that the conditions required for reservation of appeal have been met in this case, we decline the claimant’s request. BACK TO TEXT

3 The following were offered as examples of high blood pressure readings through 1995: in 1988, 126/90 and 130/90; in 1990, 130/98, 128/90 and 130/90; in 1991, 120/94; in 1992, 150/92, 150/90, 140/90, and 130/90; in 1993, 138/90, 132/88, and 130/90; in 1994, 156/90, 130/98, 156/90 and 130/88; and in 1995, 132/88. BACK TO TEXT

4 Section 31-294c requires notice of a compensation claim to be filed “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, . . .” while § 31-275(16)(A) defines “personal injuries” to include “in addition to accidental injury that may definitely be located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” BACK TO TEXT

5 Dr. Jung’s March 27, 2001 report shows that this blood pressure reading was in fact 136/98. Though the claimant did not request correction of this finding, we take note of the discrepancy under the plain error doctrine. See Practice Book § 60.5; Gladstone v. Stamford, 5124 CRB-7-06-8 (April 23, 2008); Gauthier v. State/Uncas-On-Thames, 4779 CRB-2-04-2 (April 1, 2005). We do not consider the error material to our decision, however. BACK TO TEXT

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