State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cessario v. City of Meriden

CASE NO. 5467 CRB-6-09-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 21, 2010

RAYMOND CESSARIO

CLAIMANT-APPELLEE

v.

CITY OF MERIDEN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

BERKLEY ADMINISTRATOR

ADMINISTRATOR

APPEARANCES:

The claimant was represented by David Chapman, Esq., McHugh, Chapman & Montalbano, LLC, 140 Washington Street, Middletown, CT 06457.

The respondent was represented by James M. Quinn, Esq., Quinn & Quinn, LLC, Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

This Petition for Review from the May 14, 2009 Finding and Award of the Commissioner acting for the Sixth District was heard December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has appealed from a Finding and Award issued to the claimant. They advance a number of rationales for their appeal. They assert that the claimant’s initial claim for benefits was untimely. They argue that the medical evidence was inadequate to support this award. Finally, they argue that as a matter of public policy that an award for temporary total disability is unwarranted for an individual in the claimant’s circumstances. We find that the claimant successfully persuaded the trial commissioner that his present ailments were the sequelae of a prior accepted compensable injury. Therefore, the claim did not require a new Form 30C and is within this Commission’s jurisdiction. We find that the trial commissioner chose to view the medical evidence in a light favorable to the claimant, and we are not in a position to revisit this conclusion. Finally, we conclude that as the public policy arguments presented on appeal were not considered by the trial commissioner or included in the initial Reasons for Appeal, that it would be inappropriate to render a judgment on these questions at this point in the appellate proceedings. We therefore affirm the Finding and Award.

The trial commissioner reached the following findings of fact. He took administrative notice of the Finding and Award dated May 24, 1979 wherein it was determined the claimant suffered a compensable injury pursuant to § 7-433c C.G.S. on November 4, 1978. The parties reached a compromised permanent partial disability rating of the claimant’s heart of 12.02%, with a date of maximum medical improvement of March 27, 1992. The commissioner also took administrative notice of a November 29, 1994 Finding which denied a bid by the claimant for § 31-308a C.G.S. benefits.

The claimant suffered a myocardial infarction on October 29, 2001. He claimed that this event and the associated cardiac disease were compensable as arising from the compensable hypertension. The respondent denied any causal relationship between his compensable hypertension and his myocardial infarction of October 29, 2001. They also argue that a timely claim was not filed subsequent to the infarction therefore the Commission lacked jurisdiction over the claim.

The trial commissioner also found that the claimant had retired in November 1978, at the age of 46, from his employment with the respondent on a disability pension due to his hypertension. The claimant did not testify at the formal hearing either in person or via deposition as his treating physician, Dr. George Spivack, opined that such testimony would be “medically dangerous.” The claimant had been treating with Dr. Spivack in 1993 and continues through the present. The claimant’s hypertension was stable and controlled by medication. He did not totally disable the claimant from employment until December 1, 2005. He attributed this to the claimant’s cardiac condition. On October 24, 2001 Dr. Spivack stated he found “evidence of concentric left ventricular hypertrophy,” and assessed a 25 percent impairment rating of the whole man based upon the claimant’s hypertensive heart disease. As noted, the claimant suffered a myocardial infarction on October 29, 2001 and was subsequently totally disabled for three months. Dr. Spivack opined that, within reasonable medical probability, the claimant’s hypertension was a significant contributing factor in the development of his coronary disease and left ventricular hypertrophy which resulted in his myocardial infarction. He did acknowledge there were other risk factors which may have contributed to the claimant’s cardiac condition.

Dr. Spivack issued a number of reports assessing the claimant’s condition. In his report of April 25, 2007, Dr. Spivack reiterated that hypertension was a major risk factor for coronary artery disease and assigned a 25 percent permanent partial disability rating to the claimant. On January 3, 2008 Dr. Spivack issued a report which stated the claimant was “a functional class iii-iv cardiac with a 70 percent impairment of the whole person.” Dr. Spivack reiterated the 70 percent rating on March 28, 2008, attributing the impairment to coronary heart disease. All these reports found the claimant to be totally disabled.

On January 31, 2007, the claimant underwent a respondent’s medical examination performed by Dr. James E. Dougherty. The respondent’s examiner concluded the claimant’s controlled hypertension was not a significant contributing factor in the development of his coronary artery disease and other non-work-related significant risk factors should be considered. Dr. Dougherty opined the claimant had a sedentary work capacity, had reached maximum medical improvement, and assigned him a 20 percent (20%) permanent partial disability of the heart.

Based on the evidence presented the claimant sought increased permanency benefits or, in the alternative, temporary total incapacity benefits from December 1, 2005 and ongoing. The respondent argued the claim had not been commenced in a timely fashion and that the evidence did not establish the causal relationship between the claimant’s compensable hypertension, the development of his coronary artery disease and subsequent myocardial infarction. The respondent also challenged the alleged lack of work capacity and the permanency rating sought by the claimant.

After considering the evidence presented the trial commissioner found Dr. Spivack’s testimony more persuasive and credible than that of Dr. Dougherty on the issues of causal relationship between the claimant’s compensable hypertension, coronary artery disease, and subsequent myocardial infarction; and on the issue of the claimant’s period of total disability following the 2001 myocardial infarction. The commissioner denied the respondent’s jurisdictional non-claim defense. The trial commissioner found neither physician persuasive on the issues of permanent partial disability and work capacity; therefore he ordered that a commissioner’s examination be performed to assist in determining these issues. He ordered the respondent to accept the claimant’s coronary artery disease and subsequent myocardial infarction of October 29, 2001 as a compensable injury and to pay twelve weeks of total disability benefits.

The respondent filed a Motion to Correct. The primary focus of the motion to correct was to substitute findings that the proximate cause of the claimant’s heart attack was a dispute with his attorney. The trial commissioner denied this motion and the respondent has pursued this appeal.

The respondent advances a number of arguments on appeal. They argue that the claimant failed to establish a causal connection between his prior hypertension and the myocardial infarction. The respondent believes that this invalidates the Finding and Award both due to untimely notice and on substantive grounds. They believe they demonstrated that the proximate cause of the claimant’s heart attack was not a prior compensable injury, but an acrimonious dispute he had had with his lawyer at the time. They also advance in their brief an issue not considered by the trial commissioner—whether public policy should preclude an award for total disability for a claimant whose age (he was born in 1932) would have generally caused an employee in good health to have been retired from the police department.

We will deal first with the public policy arguments. We do not believe that we can address such arguments at this juncture. The Finding and Award specifically reserved the question of whether the claimant is entitled to temporary total disability benefits at this time for further consideration. The commissioner specifically directed that a commissioner’s examination be held on the claimant’s present work capacity. The present record lacks definitive findings, therefore, on the issue which the respondent wishes to have decided by an appellate panel. We defer judgment until there is a fully developed record by the trial commissioner. Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002). At that time, should the parties seek a ruling from this panel they may have the ability to appeal the commissioner’s ruling on this issue.1

We are presented with a sufficient appellate record on the other issues herein. The respondent argues that the trial commissioner lacked a sufficient basis to link the claimant’s myocardial infarction to the prior compensable injury. To a great extent this constitutes a determination as to whether sufficient facts were placed before the trial commissioner, since we must extend great deference to the fact-finding conclusions of a trial commissioner. As we stated in Smith v. Waterbury, 5326 CRB-5-08-3 (February 4, 2009).

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as fact-finder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakesles Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

Smith, supra.

We have reviewed the medical records and testimony submitted as evidence before the trial commissioner. Claimant’s Exhibit A included two reports from Phillip Fazzone M.D. A March 27, 1992 report stated the claimant developed hypertension after he had been hired as a police officer. A February 8, 1993 report stated the claimant’s work capacity was limited as he could not handle “the severe emotional stress of the type which might be encountered with police work.”

Claimant’s Exhibit F was the deposition transcript of a deposition held of Dr. Spivack. Dr. Spivack did describe the dispute the claimant had with counsel as the “straw that broke the camel’s back,” Transcript, Volume 2, p. 9, “[b]ut that meant that his system was just waiting for a trigger that probably would have happened, sometime, you know, in the relatively near future, from that event . . .” Transcript, Volume 2, p. 10. Dr. Spivack noted that shortly prior to the myocardial infarction the claimant developed left ventricular hypertrophy. Dr. Spivack specifically opined that the claimant’s hypertension was a significant contributing factor to the development of the claimant’s left ventricular hypertrophy. Transcript, Volume 2, p 47. Dr. Spivack further concluded that someone who had such a condition was at greater risk of a heart attack. He stated that hypertension was “a contributing factor to someone having a myocardial infarction.” Transcript, Volume 2, p. 49. He described hypertension as a “material factor” in causing a myocardial infarction. Dr. Spivack was asked to weigh the relative weight of factors behind the claimant’s heart attack. He indicated that family history of coronary disease was the most significant, followed by cholesterol, with hypertension being the third most significant factor. Dr. Spivack placed the claimant’s age and sex as less significant factors for a heart attack behind hypertension. Transcript, Volume 2, p. 73-75.

As we noted in Smith, supra, “it is the burden of the claimant to establish their medical condition is causally related to their employment. . . .” The claimant must prove that their compensable ailment was a substantial factor in their current disability. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008); LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) and Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008).” The trial commissioner concluded the claimant met this burden. In reviewing this conclusion we cannot usurp the role of the trial commissioner, who has the “function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999).

In many ways, our discussion of the “substantial factor” test in Weir, supra, 5226 CRB-1-07-5 (April 16, 2008) is applicable. In Weir, the trial commissioner did not find the injury compensable, as the evidence presented made the work-related injury the least important factor of a number of contributing factors to the claimant’s condition. We upheld this decision, citing this colloquy on the record.

And there’s no percentage. You know, it’s not that it has to be more than 50 percent to be a substantial factor. It just needs to be substantial and it’s really for the Workers’ Comp. Commissioner to determine what is or is not substantial. Joint Exhibit, p. 22. (Emphasis added)

Weir, supra.

While Dr. Spivack did identify other factors behind the claimant’s heart attack he did clearly identify the claimant’s hypertension as a significant risk factor. As we pointed out in Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008); Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000) stands for the proposition that the test is not whether a work related condition is the sole cause of injury, it is the claimant’s burden to prove it is among the “substantial contributing factors.” Id., n7. We believe the trial commissioner was presented with sufficient probative evidence to conclude the claimant’s compensable hypertension was a substantial factor behind the myocardial infarction.

The respondent points to extensive testimony by their expert, Dr. Dougherty, which concluded the claimant’s cardiac injuries, were not related to his prior employment. The trial commissioner found Dr. Spivack more credible and persuasive. That is his prerogative. See Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006), n.1, and Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007).

It is long standing precedent that when a medical condition is the sequelae of a previous compensable injury there is no need for the claimant to file a new Form 30C to seek compensation for this condition. See Landrette v. Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (August 19, 1993), “. . . once the trial commissioner determined that the mouth injury was causally related to a work injury the need for any further notice of claim was unnecessary.” See also Khazzaka v. Torrington Co., 3966 CRB-5-99-1 (March 2, 2000), “it would not be necessary for the claimant to file a separate notice of claim for any other conditions related to the same repetitive trauma.” We are satisfied that sufficient probative evidence links the claimant’s prior compensable hypertension with the myocardial infarction to constitute a sequelae. Therefore, we agree with the trial commissioner that the respondent’s non-claim argument is unpersuasive.2

Finally, we uphold the trial commissioner’s denial of the respondent’s Motion to Correct. This motion sought to interpose the respondent’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).

We affirm the Finding and Award and dismiss this appeal.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 We note that the respondent did not include the issue in their initial Reasons for Appeal. The claimant argues that this precludes appellate consideration of this issue. We decline to address this issue since even were we to consider the issue, the trial commissioner clearly deferred his decision until after receipt and evaluation of a Commissioner’s Examination. We note also that what type of occupation the claimant may reasonably pursue at this juncture, see Osterland v. State, 135 Conn. 498 (1949), is also a factual matter for the trial commissioner’s determination. BACK TO TEXT

2 The respondent argues that Pearce v. New Haven, 76 Conn. App. 441 (2003) and related cases stands for the proposition that “hypertension” and “heart disease” are distinct illnesses. In light of Dr. Spivack’s testimony which specifically identified hypertension as a significant factor in the claimant’s myocardial infarction we are not persuaded that Pearce directs this panel to reverse the trial commissioner. The respondent further points out that the initial hypertension was found compensable pursuant to the presumptions delineated in § 7-433c C.G.S. The claimant did not assert that his present claim was brought under the heart and hypertension statute, and carried the burden of proof before the trial commissioner required under Chapter 568. BACK TO TEXT

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