State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Savo v. City of Bridgeport

CASE NO. 5451 CRB-4-09-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 8, 2011

DAVID F. SAVO

CLAIMANT-APPELLANT

v.

CITY OF BRIDGEPORT

EMPLOYER

and

BERKLEY ADMININSTRATORS

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Marie E. Gallo-Hall, Esq., Montstream & May, LLP, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review1 from the March 24, 2009 Finding and Dismissal of the Commissioner acting for the Fourth District was heard April 29, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case requires us to ascertain what impact the Supreme Court’s decision in Ciarlelli v. Hamden, 299 Conn. 265 (2010) has on pending cases involving § 7-433c C.G.S. The claimant in this matter has appealed from a Finding and Dismissal which found his claim was jurisdictionally barred due to late filing. In reviewing the holding of Ciarlelli and applying that decision to the facts found by the trial commissioner, we conclude the legal standard has changed and it is not clear the record herein supports a dismissal for jurisdictional deficiencies. We therefore remand this matter to the trial commissioner for new findings as to whether the facts on the record support a dismissal of the case based on the standards delineated in Ciarlelli.

The following facts are pertinent to our discussion. The claimant was hired in late 1987 or early 1988 as a Bridgeport firefighter and it is acknowledged he passed a physical exam which showed no evidence of hypertension. The claimant filed a Form 30C citing a January 26, 2002 date of injury alleging hypertension.2 He retired from the Bridgeport Fire Department in 2006. He has been treating with Dr. Michael Cavaliere, a primary care physician, since September 14, 1982. Dr. Cavaliere’s records indicated that during the years the claimant had 31 occasions in which the claimant exhibited elevated blood pressure readings. Findings, ¶ 7. However, Dr. Cavaliere testified that systolic blood pressure can go up depending on exercise, activity and pain. Findings, ¶ 12. He discounted high systolic readings the claimant received in the late 1980’s as the claimant was young and the diastolic reading is much more indicative of hypertension. Findings,¶ 13. Dr. Cavaliere testified the claimant’s blood pressure fluctuates between normal and high normal which did not cause a need for pharmacological therapy, but that he probably told the claimant to keep his eye on his blood pressure and not to abuse salt. Findings, ¶ 17.

Dr. Cavaliere testified that he believed the claimant was aware of his numerous elevated blood pressure readings. He offered explanations for some of the readings. On April 20, 1998 the claimant had a reading of 160 over 100 that he attributed to a reaction from decongestants. Findings, ¶ 20. The claimant had three elevated readings in a row between December 10, 1998 and December 15, 1999 and the claimant was directed to return for a blood pressure check. On April 18, 2000 the claimant’s reading was 140 over 95, and Dr. Cavaliere said he probably told the claimant his blood pressure was mildly elevated. Findings, ¶ 22. Finally, on January 28, 2002 the claimant had a reading of 140 over 100, which was his third reading in four visits with a diastolic reading of 100 or more. On that date Dr. Cavaliere diagnosed exercise-induced asthma and hypertension. Dr. Caveliere said it was the first time the claimant was told he had hypertension. Findings, ¶ 23.

The respondent presented Martin Krauthamer, M.D. as an expert witness. Dr. Krauthamer testified that he believed the claimant had hypertension no later than 1998 and possibly as early as 1994. Findings, ¶ 28. Dr. Krauthamer testified that a hypertension diagnosis was justified in 1994 and clearly justified in 1998. Findings, ¶ 29. He further testified he would have started medication for the claimant after his second consecutive systolic reading of 150. Findings, ¶ 30. He also disagreed with Dr. Cavaliere that a systolic reading of 140 was not high for a younger patient, finding it more normal for a 50-60 year old patient. Findings, ¶ 31.

The claimant testified Dr. Cavaliere never advised him of elevated blood pressure readings. The claimant also testified Dr. Cavaliere never told him prior to January 2002 to make some lifestyle or diet changes due to elevated blood pressure readings. The claimant also testified Dr. Cavaliere never told him to monitor his blood pressure prior to 2002. Findings, ¶¶ 7-10.

Based on this evidence the trial commissioner found Dr. Cavaliere credible and the claimant not credible on the issue of whether the claimant was advised of elevated blood pressure readings and directed to monitor his blood pressure and limit salt intake. Conclusions, ¶¶ c, d & e. He found the claimant was advised as early as 1992 to make lifestyle changes to address his blood pressure. Conclusions, ¶ j, and as a result, the claimant should have known it was probable he had hypertension from that point forward Conclusions, ¶ o. As “the claimant had knowledge of his elevated blood pressure readings and of the need to change his lifestyle more than one year prior to filing his claim on January 23, 2003” Conclusions, ¶ v, the trial commissioner found the claim was untimely and the commission lacked jurisdiction, Conclusions, ¶ w, thereby dismissing the claim.

The claimant filed a Motion to Correct which was denied in its entirety. He has then pursued this appeal. The gravamen of the appeal is that the facts on the record do not sufficiently establish the claimant was apprised he had hypertension more than one year prior to filing his Form 30C for § 7-433c C.G.S. benefits. Therefore, the claimant believes he met the jurisdictional requirements under § 31-294c C.G.S. and the Commission has jurisdiction over this injury.

Prior to the issuance of the aforementioned Ciarlelli decision, this tribunal also adhered to a scienter standard for determining when a claimant should file a claim for § 7-433c C.G.S. benefits. That standard was regarding whether or not what a reasonable person should have known following a medical examination he had hypertension. At that juncture, based on what he or she was informed or directed to do, then the employee had one year from that point to file a claim. In the present case, the trial commissioner determined that based on the evidence the claimant knew or should have reasonably known he was hypertensive at a point more than one year prior to filing his claim. Clear precedent such as Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006) and Wabno v. Derby, 5283 CRB-4-07-10 (September 12, 2008) would be supportive of the trial commissioner’s decision in the present case. Our reading of the Ciarlelli decision however, leads us to conclude the Supreme Court has materially changed the jurisdictional standard for filing § 7-433c C.G.S. claims.

The Supreme Court in Ciarlelli overturned the compensation review board decision (5098 CRB-3-06-6 (April 1, 2008)). In the compensation review board Ciarlelli decision we acknowledged that the critical question was

when the claimant knew or should have known under the circumstances that he was experiencing symptoms of hypertension, initiating his responsibility to notify his employer of a potential claim for hypertension benefits under § 7-433c. . . . Looking at the evidence, we believe that it was reasonable for the trier to find that, under the circumstances here, the claimant was given enough information to know that he had symptoms of hypertension more than one year prior to May 20, 2004, whereupon he should have notified his employer of his condition.

The Supreme Court did not accept this standard for jurisdiction over § 7-433c C.G.S. claims.

The plaintiff maintains, therefore, that it is unreasonable to require an employee, who is not a medical professional, to file a notice of claim under § 7-433c merely because he or she has symptoms of hypertension. In the plaintiff’s view, the only fair standard to apply is one that requires the filing of a notice of claim when an actual diagnosis of hypertension has been communicated to the employee by a medical professional. We agree with the plaintiff.

Ciarlelli, supra, at 287.

The Supreme Court further considered the manner in which the jurisdictional requirements of § 7-433c C.G.S. cases have been considered in the past, and found legal error. In particular, the Supreme Court rejected efforts to retroactively impute knowledge to the claimant as whether they were hypertensive at the time and as we interpret the court’s reasoning suggests we focus attention on a single identifiable action or statement by the treating physician.

In both Pearce [76 Conn. App. 441, 450, cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003)] and Arborio, [103 Conn. App. 172, 177, (2007)] the board applied a standard that essentially authorizes workers’ compensation commissioners to accept a post hoc diagnosis of hypertension based on a claimant’s symptoms and then impute knowledge of that diagnosis retroactively to the claimant. We believe that such a standard is inconsistent with the meaning of accidental injury and our case law applying that principle, which ‘‘requires proof of an accidental injury which can be definitely located both as to time and place.’’ (Emphasis added.) Stier v. Derby, supra, 119 Conn. 49.

Ciarlelli, supra, at 296.

We conclude that a trial commissioner 2’s evaluation as to whether a § 7-433c C.G.S. claim was filed in a timely manner must now focus not on what the claimant should have known, but must now focus on what his or her treating physician actually said or did. A trial commissioner must now try and establish at what point a claimant’s treating physician actually diagnosed hypertension, or in the alternative, when a claimant received a prescription for medicine to treat hypertension or some other treatment for hypertension.3

Both parties have submitted briefs outlining their view of the case in the wake of the Supreme Court’s Ciarlelli decision. In the claimant’s view the Finding and Dismissal must be reversed and the trial commissioner directed to find a date of injury which would be less than one year before the claimant filed his Form 30C. The respondent argues that the application of footnote, ¶ 18 of Ciarlelli to the facts found by the trial commissioner compels this panel to affirm the Finding and Dismissal. We find neither argument persuasive, nor do we find either resolution appropriate.

The record reflects that the trial commissioner reached a number of findings concerning the actions and statements of Dr. Cavaliere which, considered separately, would support a conclusion that the claim was jurisdictionally valid, or in the alternative, that the claim was time barred as late. The commissioner found the claimant had received advice more than a year prior to filing this claim that was consistent with a medical response to hypertension. See Conclusions, ¶¶ e, j and m. It is unclear, however, as to what the physician told the claimant was the reason for that advice, and if the physician affirmatively conveyed to the claimant this regimen was intended to treat high blood pressure.

Conversely, the record also finds the treating physician did not tell the claimant he was specifically diagnosed with hypertension until January 28, 2002. Findings, ¶ 23. In light of this conflicting evidence we do not believe an appellate panel should now undertake to weigh the evidence itself. The present Finding and Dismissal was the result of the application of the legal standards in force pre-Ciarlelli. We believe the appropriate direction to take would be to remand the matter to the trial commissioner so he may evaluate the evidence on the record consistent with the new legal standards promulgated by the Supreme Court.

The matter is remanded for a new Finding applying the precedent in Ciarlelli.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 We note that a Motion to Stay Proceedings was granted during the pendency of this appeal. BACK TO TEXT

2 At various points the Finding and Dismissal states the Form 30C was “filed” on January 26, 2002. See Findings, ¶ 3 and Conclusions, ¶ g. The form itself states it was signed by the claimant on January 23, 2003 and received by the Commission on January 23, 2003. To give this Commission jurisdiction pursuant to § 31-294c C.G.S. and § 7-433c C.G.S. the claim would have to reference an injury no earlier than January 23, 2002. We will treat the inaccurate reference to the 2002 filing date as a scrivener’s error and afford it no weight. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

3 Counsel for the respondent placed great emphasis in her brief and at oral argument on footnote, ¶ 18 in the Ciarlelli opinion, which states:

Of course, this standard is not so inflexible as to require a finding in all cases that the medical professional used the term “hypertension” in communicating the diagnosis to the employee. For example, evidence that an employee was prescribed antihypertensive medication for the treatment of high blood pressure related to hypertension, and not some other illness, likely would support a finding that the employee formally had been diagnosed with hypertension and knew, or should have known, of that diagnosis.

We find this essentially a restatement of the Supreme Court’s longstanding position that the trier of fact shall not be bound by “magic words” in considering medical testimony Struckman v. Burns, 205 Conn. 542 (1987). It also indicates the Supreme Court may consider a physician’s actions to be a substitute for directly and precisely communicating a hypertension diagnosis to the claimant. BACK TO TEXT

Workers’ Compensation Commission

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