CASE NO. 5427 CRB-7-09-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 13, 2010
DAVID R. GLADSTONE
CITY OF STAMFORD
PMA MANAGEMENT CORPORATION OF NEW ENGLAND
The claimant was represented by Gary J. Wilson, Esq., Attorney At Law, 4 Daniels Farm Road, Suite 168, Trumbull, CT 06611.
The respondent was represented by Scott W. Williams, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824, who not appear at oral argument. However, the matter was considered on the basis of papers submitted on behalf of the respondent.
This Petition for Review from the January 26, 2009 Finding Re: Remand of the Commissioner acting for the Seventh District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. This is the second time this panel has considered the issues regarding the timeliness of the claimant’s bid for § 7-433c C.G.S. benefits. In Gladstone v. Stamford, 5124 CRB-7-06-8 (April 23, 2008) we remanded this matter back to the trial commissioner for a determination as to the claimant’s scienter, pursuant to the standards enunciated in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008), appeal pending, S.C. 18201. The trial commissioner upon remand concluded in her Finding Re: Remand of January 26, 2009 the claimant did not have actual or constructive knowledge he was suffering hypertension more than one year prior to commencing this claim. Therefore, she concluded the claimant sought benefits in a timely fashion and the Commission had jurisdiction over the claim. We find that this determination was the result of weighing the evidence on the record. Therefore, we affirm the trial commissioner’s determination herein and dismiss this appeal.
The trial commissioner reached the following factual findings. She noted that the claimant did not file a Form 30C with the local Commission office, Findings, ¶ 3, but gave notice of his claim in June 2, 2003 at an informal hearing before the Commission. Findings, ¶ 11. The trial commissioner found the claimant had treated with his family physician, John Farens, M.D. from July 9, 1994 through April 2003. The Claimant testified that while his physician did discuss issues related to weight and diet, Dr. Farens never discussed any concerns regarding high blood pressure or hypertension Findings, ¶ 5. The claimant testified to first experiencing palpitations in 2002, but after he was placed on a monitor the results were normal and he returned to work. When the palpitations returned the claimant was referred on February 21, 2003 to Dr. Edward Schuster, a cardiologist. Dr. Schuster diagnosed the claimant with hypertension.
The trial commissioner reviewed Dr. Farens’s deposition testimony which indicated that while the claimant did have some systolic readings above 140, there were no contemporaneous notes reflecting a finding of hypertension, nor any evidence that the claimant had been directed to take responsive action to address hypertension. Dr. Farens however, testified that he “would have” shared information pertaining to the systolic blood pressure with the claimant. Dr. Farens documented that he had discussed the claimant’s hypertension diagnosis at an April 9, 2003 examination, where the claimant was directed to monitor his blood pressure and recommended to pursue a low-salt diet and exercise.
The commissioner also reviewed the testimony of the respondent’s expert witness, Martin Krauthamer, M.D. Dr. Krauthamer testified that the claimant’s systolic blood pressure was at “borderline levels” but this “was not sufficient to substantiate a diagnosis of hypertension.” Findings, ¶ 12.
Based on these subordinate findings of fact the trial commissioner concluded that the claimant was credible on the issue of whether he was informed by Dr. Farens of hypertension prior to August 1, 2002. After reviewing the testimony of Dr. Farens, the commissioner found he was “not persuasive” on the issue of when the claimant was informed as to his elevated blood pressure readings. Noting the witness failed to document this issue in writing, the trial commissioner was not persuaded the claimant was informed at the time of his high readings. The commissioner concluded the claimant knew or should have known he had hypertension as the result of his August 1, 2002 medical examination, where high blood pressure readings were noted and the claimant was referred to a cardiologist. Since the claimant gave notice on June 2, 2003, the claim was within the statutory time period to commence a claim and not time-barred.
The respondent filed a timely petition for review from the trial commissioner’s Finding Re: Remand, but did not file a Motion to Correct. The gravamen of the respondent’s appeal according to the respondent, is the argument that the claimant’s hypertension “became manifest” on December 21, 2000. Respondent’s Brief, p. 6. Therefore, respondent argues the claimant’s time window to file a claim commenced on this date; thus making the 2003 filing jurisdictionally deficient.
The respondent did not file a Motion to Correct. Therefore, we must accept the validity of the facts found by the trial commissioner in this matter. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008); Claros v. Keystone Pipeline Services, Inc., 5399 CRB-1-08-11 (October 28, 2009) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). We are limited on appeal to ascertaining whether the trial commissioner misapplied the law as restated in Ciarlelli, supra.
In Ciarlelli we pointed out the claimant’s understanding of his medical condition is essential to the determination as to whether he should have commenced his claim. See Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006) (claimant knew or should have known he had elevated blood pressure amounting to hypertension). In Ciarlelli the trial commissioner concluded the evidence established that the claimant had knowledge of multiple high blood pressure readings well prior to filing his claim. The trial commissioner in this case did not find facts consistent with the factual findings of Ciarlelli, and therefore, reached a different conclusion on the issue of jurisdiction.
The trial commissioner found the claimant’s testimony on the issue of scienter credible. That is her prerogative. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The trial commissioner also found the testimony of Dr. Farens unpersuasive. That is also her prerogative. See O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999) “It is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” The respondent’s argument essentially rests on their position that the trial commissioner was obligated to find the testimony of Dr. Farens credible. We find no precedent supportive of this position, and indeed, the trial commissioner cited the respondent’s own witness (Dr. Krauthamer) in support of her position the claimant could reasonably have not known of his alleged hypertension in 2000.
In cases involving the review and weighing of evidence, this panel has required the appellant to establish the trial commissioner’s decision was “clearly erroneous” to justify a reversal. Berube, supra. The respondent can point to no such error on the part of the trial commissioner, who simply found the claimant’s position more credible and persuasive than that of his treating physician. The trial commissioner found the claimant lacked scienter of his hypertension prior to 2002, and cited probative evidence supportive of this conclusion. Therefore, we must uphold her decision.
We find no error, and herein affirm the Finding Re: Remand. The appeal is dismissed.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.