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Wabno v. City of Derby

CASE NO. 5283 CRB-4-07-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 12, 2008

EDWARD WABNO

CLAIMANT-APPELLANT

v.

CITY OF DERBY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard Franchi, Esq., Law Offices of Richard M. Franchi, 205 Church Street, Suite 331, New Haven, CT 06510.

The respondent employer was represented by Joseph Coppola, Esq., 115 Technology Drive, Suite B-207, Trumbull, CT 06611.

This Petition for Review from the September 27, 2007 Finding & Dismissal of the Commissioner acting for the Fourth District was heard May 16, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter is appealing the decision of the trial commissioner denying his claim for benefits under the municipal Heart and Hypertension Act, § 7-433(c) C.G.S. The trial commissioner determined the claim was untimely since the claimant was hypertensive for more than a year prior to filing his claim, triggering an obligation to file a claim pursuant to § 31-294c C.G.S. We conclude the trial commissioner had probative evidence supporting this conclusion and therefore, affirm the Finding & Dismissal and dismiss this appeal.

The trial commissioner found the following facts after a formal hearing held on December 18, 2006. The claimant worked for the respondent’s Police Department on a part time basis starting in 1980, and was hired full time in 1987. In 2005 he filed a Form 30C asserting he had suffered compensable hypertension with a date of injury of April 6, 2005. The trial commissioner reviewed the claimant’s medical records, starting with that of his treating physician, Dr. Frank Spano, in 1999. On May 6, 1999 Dr. Spano noted a blood pressure of 130/84 and noted the claimant was on Prinzide. The claimant testified that at that time Dr. Spano advised him he had elevated blood pressure, but was not advised of hypertension. Dr. Spano treated the claimant again in late 2003 and early 2004. On December 4, 2003 the claimant recorded a blood pressure of 168/100 and Dr. Spano’s notes document “HTN” at this time, with a past medical history of “HTN.” The claimant acknowledged he had been advised of this reading and that he had been treating with Dr. Spano for his blood pressure at this time, and may have changed his medication. Dr. Spano’s notes for examinations on March 22, 2004 and May 24, 2004 document blood pressure readings of 148/100 and 150/96 respectively. Dr. Spano noted “HTN” at each visit and prescribed a new medication, Maxzide, after the May visit.

The trial commissioner found the claimant treated with Dr. Albert Walters in 2001 and 2002. Dr. Walters’ reports documented a blood pressure reading of 130/90 on October 15, 2001, 150/96 on June 14, 2002 and 140/100 on November 1, 2002. The reports noted “HTN” at the October 15, 2001 visit and high blood pressure at the other visits. The claimant acknowledged that after the October 15, 2001 visit he was prescribed a diuretic blood pressure pill “Zestoretic,” but testified the doctor did not discuss hypertension.

The trial commissioner also reviewed evidence submitted by the respondent’s expert witness, Dr. Henry Borkowski, who performed a records review of the claimant’s medical records. Dr. Borkowski opined that the medication Prinzide, which the claimant was taking in 1999, was prescribed to treat hypertension. He also opined that “Zestoretic,” which the claimant took in 2001, was prescribed for the treatment of hypertension. He testified that the claimant’s June 14, 2002 blood pressure reading of 150/96 was consistent with hypertension and that the notation of “HTN” in Dr. Spano’s reports stands for hypertension. Dr. Borkowski’s October 26, 2005 report concluded that the claimant first evidenced systemic hypertension in a blood pressure reading on September 4, 1987, with the first documented treatment for hypertension on May 6, 1999.

Based on those subordinate facts the commissioner concluded that the claimant had been advised by Dr. Spano both in 1999 and in 2003 of his elevated blood pressure. She found the claimant was on Prinzide at the time of his May 6, 1999 stress test which noted hypertension. The trial commissioner found Dr. Borkowski’s testimony credible and persuasive and noted the documented hypertension treatment on May 6, 1999. Since the claimant had knowledge of his hypertension as of May 6, 1999 and did not file a claim until 2005, the claim for benefits was time barred by § 31-294c C.G.S. and was dismissed.

The claimant appealed and cites five separate grounds of appeal. He claims the commissioner improperly referenced a 1987 date of hiring and should have applied a 1980 date of hiring; prior to any alleged hypertensive reading. He also alleges a lack of documentation for Dr. Borkowski’s opinion as to the 1987 blood pressure reading. We can expeditiously deal with these averments. The trial commissioner’s conclusions did not rely on these subordinate facts and for the purpose of this appeal; they are irrelevant to its determination. The gravamen of the trial commissioner’s decision was the claimant was treated for hypertension and had scienter of this fact in 1999. Similar to Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), any error present from the inclusion of these extraneous statements as subordinate facts does not constitute reversible error.

The other three averments raised by the claimant do challenge material elements of the trial commissioner’s Finding & Dismissal. He claims the trial commissioner made an improper reference to “HTN” as standing for “hypertension” on medical reports. He claims that Dr. Borkowski’s opinion that the claimant’s pre 2005 hypertension was systemic was unreliable. Finally, he argues that since the claimant did not suffer an impairment due to his hypertension that this did not trigger an obligation to file a claim. While these arguments are directed at material elements of the Finding & Dismissal, we find them unpersuasive.

The challenge to the trial commissioner’s determination “HTN” stood for hypertension on the claimant’s medical reports is essentially a challenge to the sufficiency of evidence. As we pointed out in Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007) n.5 “in proceedings under Chapter 568, ‘[t]he commissioner is not bound by common law or statutory rules of evidence or procedures. He may make inquiry in the manner best calculated to do so to ascertain the rights of the parties. . . .’ Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 667-668 (1947); Parisi v. Yale University, 89 Conn. App. 716, 723 (2005). See also, § 31-298 C.G.S. which states the commissioner ‘shall not be bound by the ordinary common law or statutory rules of evidence or procedure ….’ ” Id., n.5. We also note the trial commissioner specifically referenced Dr. Borkowski’s testimony as to the meaning of the abbreviation “HTN” as standing for “hypertension.” “[I]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony….” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). We do not find her conclusion herein was “clearly erroneous.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

The claimant also criticizes Dr. Borkowski’s opinions as being unreliable since a) he did not physically examine the claimant and b) the claimant asserts a variety of other ailments such as back and leg injuries during the period from 1999 to 2005 might have triggered non-systemic hypertension. Although these factors may go to the weight the trial commissioner attribute to the expert testimony it does not preclude its consideration. At his deposition Dr. Borkowski had questions posed to him concerning the other possible explanations for the claimant’s blood pressure readings. He testified that the claimant’s medications, however, were “commonly used for essential hypertension” Respondent’s Exhibit 4, p. 18. The trial commissioner had the right to rely on this evidence to conclude the claimant had systemic hypertension at a date more than one year prior to filing his claim. O’Reilly, supra. See also Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006) and Thompson v. New Canaan, 5228 CRB-7-07-5 (August 21, 2008) “[t]he determination as to whether a physical examination revealed any evidence of hypertension or heart disease is a factual one committed to the trier’s discretion.” Id.

On the other hand, the respondent argues that the factual record herein is “saturated” with documentation as to the claimant’s knowledge of hypertension. Respondent’s Brief, p. 5. The respondent therefore argues that this case is indistinguishable on both the facts and the law from Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006). We concur.

In Chernak the claimant had been treated by his family physician on a number of occasions, advised as to his elevated blood pressure readings, and directed by his physician to take responsive action. We concluded that consistent with precedent 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 well as subsequent cases such as Kaminski, supra, the claimant’s obligation to file a claim under § 7-433c had already occurred more than one year prior to the claim’s filing, thus making the claim time-barred. Our rationale in Chernak, supra, is equally applicable herein.

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 [v. Windham, 5009 CRB-2-05-10 (October 4, 2006)]. 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.

Id.1

In the present case the trial commissioner specifically found the claimant had a number of elevated blood pressure readings and been advised of his elevated blood pressure readings, establishing scienter on his part. The trial commissioner also credited evidence that the claimant received medication to treat hypertension. This meets the test this board delineated in Ciarlelli v. Hamden, 5098 CRB3-06-6 (April 1, 2008) to determine whether a hypertension claim was filed in a timely fashion, “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 finally argues that an identifiable impairment from his hypertension should be a condition precedent to his obligation to file a claim for § 7-433c benefits. He cites no precedent supporting this interpretation of law. As we pointed out in Ciarlelli, supra, citing Arborio v. Windham Police Department, 103 Conn. App. 172, 177 (2007), “proof of disability is not a jurisdictional prerequisite to the filing of a claim under § 7-433c.” The claimant’s argument is therefore inconsistent with binding precedent.

The trial commissioner’s conclusion that the claimant had hypertension in 1999 and that this triggered his obligation to file a § 7-433c claim at that time is both supported by probative evidence on the record and binding appellate precedent. We find no error, and therefore we affirm the Finding & Dismissal and dismiss this appeal.

Commissioners Ernie R. Walker and Stephen B. Delaney concur in this opinion.

1 We note that the claimant herein received medication that the trial commissioner concluded was for hypertension, as opposed to Mr. Chernak, who had been directed by his physician to take non-medicinal action responsive to his hypertension. BACK TO TEXT

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