CASE NO. 5460 CRB-4-09-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 26, 2011
CITY OF BRIDGEPORT
BERKLEY ADMINISTRATORS OF CONNECTICUT
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, 655 Winding Brook Drive, Salmon Brook Corporate Park, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review1 from the May 7, 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 Christine L. Engel and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. This case is another appeal focusing on issues related to the Supreme Court’s decision in Ciarlelli v. Hamden, 299 Conn. 265 (2010). The claimant herein has appealed from a Finding and Dismissal which determined that his claim for § 7-433c C.G.S. benefits was time-barred due to an untimely notice of claim. He argues that under the terms of the Ciarlelli decision this claim is jurisdictionally valid, as he argues Ciarlelli creates a “medication standard” for jurisdiction. We disagree. In reviewing the evidence and the trial commissioner’s findings, we conclude that even had Ciarlelli been decided prior to the formal hearing, the trial commissioner would have been required to have dismissed this claim as untimely. The trial commissioner applied the proper test as delineated in Ciarlelli which is a “diagnosis standard.” We affirm the Finding and Dismissal and dismiss this appeal.
The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. As there was no Motion to Correct filed in this matter we may give them conclusive effect. See Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). The parties stipulated the claimant was a member of the Bridgeport police force who had passed a pre-employment physical in 1993. The claimant filed a Form 30C seeking § 7-433c C.G.S. benefits on May 3, 2007, stating a date of injury of October 12, 2006. The claimant testified that he was first informed to get his blood pressure “checked” at a 2005 dental exam when he was told his pressure was “high.” On November 3, 2005, the claimant presented to Dr. John A. Testa, a primary care physician, upon the recommendation of his dental hygienist. As a result of the examination, Dr. Testa told the claimant his blood pressure was “elevated.” He instructed the claimant to “lose some weight” and that they would “monitor” his blood pressure. The claimant testified he was told by Dr. Testa at this initial examination that he was not “diagnosed” with hypertension. Findings, ¶¶ 6-8.
Dr. Testa’s medical report of November 3, 2005 stated “This 36 year old male presents with Hypertension for Week(s), as reported by Patient.” The report further stated the claimant’s blood pressure was 148/98 and Dr. Testa diagnosed “elevated blood pressure reading without diagnosis of hypertension - Status: acute.” He recommended “cholesterol control”, “increase exercise” and ordered lab work. Findings, ¶ 9. The claimant next presented to Dr. Testa’s office “just before Christmas” of 2005. He testified Dr. Testa placed him “on a blood pressure monitor for 24 hours.” In a medical report of December 20, 2005, Dr. Testa provided the following notes when readings were reviewed from the claimant’s blood pressure monitor:
1) 24 hour average - 127/80. Normal is 130/80; 2) day average - 142/91. Normal is 135/85; 3) night average - 113/70. Normal is 120/75; 4) *day time BP is elevated @142/91; 62% of readings are > than 140mmHg systolic; 76% of readings are > than 90 mm Hg Diastolic. This likely represents early pre-hypertensive as his office BP was elevated as well lifestyle changes may help. Findings, ¶¶ 14-17.
The claimant presented again to Dr. Testa on January 6, 2006. He testified that Dr. Testa told him his readings were elevated during the day, much lower at night, and the average between the two was normal. On direct examination the claimant testified he was not told at that time he had a diagnosis of hypertension, just that Dr. Testa was concerned about his weight. On cross-examination the claimant admitted he was told by Dr. Testa at this visit that he should lose weight and exercise in order to bring his blood pressure levels down. He further stated that if that didn't work Dr. Testa was going to put him on medication. Findings, ¶¶ 18-19. Dr. Tesla’s report following that examination stated as follows:
“PT HERE TODAY FOR A HTN FOLLOW UP. DISCUSSED RESULTS OF THE B/P MONITOR...PT IS AWRE OF THE NEED FOR DIET AS WELL AS EXERCISE, O/W HE WILL NEED AN BP MED.” Findings, ¶ 20.
Dr. Testa testified that after the January 6, 2006 examination he discussed the findings with the claimant. While he termed some of the findings “questionable” as whether the claimant had “true hypertension or pre-hypertension” he discussed medicinal treatment but decided to hold off. Dr. Testa said the claimant “really wanted to try diet and exercise”, but Dr. Testa said the claimant also needed to “have his echocardiogram done, to make sure he didn't have any hypertensive cardiac disease.” Dr. Testa did testify that he informed the claimant on that date of a diagnosis of hypertension but that the claimant was directed to address the problem with diet and exercise rather than medication. Findings, ¶¶ 22-23.
The claimant next treated with Dr. Testa on April 27, 2006. He testified he “was not diagnosed” with hypertension by Dr. Testa at this visit. However he also said his blood pressure was still elevated at that examination, and that Dr. Testa again discussed with him the need for medication if he did not lower his blood pressure. His blood pressure reading was “160/100” at this visit. Dr. Testa diagnosed the claimant with “hypertension, essential, benign - Status: acute” at the April visit and recommended “cholesterol control” and to “increase exercise.” Findings, ¶¶ 25-27. Dr. Testa said he did not prescribe medication at that time as the April 27, 2006 blood pressure reading was not an “average reading” and he suspected the claimant had “white coat effect” which elevated his blood pressure at office examinations. Dr. Testa testified he considered the claimant to be hypertensive on the April visit. He further provided the claimant was aware of this diagnosis. Findings, ¶¶ 28-31.
The claimant’s next office visit was on October 12, 2006. The claimant testified that at that visit Dr. Testa prescribed “Avalide” to control his hypertension, which was the first time he had been prescribed blood pressure medicine. The claimant’s blood pressure reading was “168/100” at this appointment. Dr. Testa diagnosed “hypertension, essential, benign - Status: persistent.” He recommended “cholesterol control” and prescribed “Avalide” to treat the claimant’s hypertension. Dr. Testa testified that the term “persistent” meant an ongoing problem and there was no difference in the claimant’s hypertensive condition of October 12, 2006 as opposed to prior visits. He further said the claimant’s weight gain was the primary reason he prescribed medication for the claimant on October 12, 2006. Findings, ¶¶ 32-39.
Based on this evidence the trial commissioner reached these conclusions. He did not find the claimant’s testimony fully credible and persuasive. Conclusion, ¶ E. He determined that on January 6, 2006 Dr. Testa informed the claimant he was hypertensive and discussed with him the possible need for medication. Conclusion, ¶ M. He determined the claimant knew his blood pressure was still elevated at the time of the April 27, 2006 examination and the need for medication was discussed again between the claimant and Dr. Testa. Conclusion, ¶ R. Although Dr. Testa did not place the claimant on medication on April 27, 2006 he again diagnosed him with hypertension. Dr. Testa stated the claimant was aware of this diagnosis. Conclusion, ¶ S. The trial commissioner found Dr. Testa as fully credible and persuasive on the issues presented. Conclusion, ¶ W. The commissioner determined that on January 6, 2006 and April 27, 2006 the claimant was diagnosed with hypertension by Dr. Testa and was aware of the diagnosis. Conclusions, ¶¶ X-AA. The claimant was on notice that he had an accidental injury that required a claim for benefits as a result of the January 6, 2006 and April 27, 2006 diagnosis and did not file a timely claim within one year of those dates. Conclusions, ¶¶ BB-DD. As a result, the trial commissioner found the commission lacked jurisdiction over this claim as a result of the late filing and dismissed the claim.
The claimant’s argument on appeal is straightforward. He argues that under his reading of Ciarlelli that the triggering event that causes a Notice of Claim to be filed is the existence of a “disability.” He also cites Arborio v. Windham Police Dept., 103 Conn. App. 172 (2007) that a “potential” problem with hypertension does not trigger the need for a claim to file a § 7-433c C.G.S. claim. As the claimant views the appropriate standard, a claimant may never suffer a disability creating a need to file a claim under § 7-433c C.G.S. until the moment a physician prescribes medication to treat hypertension. Since Dr. Testa did not prescribe medication until October 12, 2006 , the claimant believes the claim filed herein is jurisdictionally valid as it was filed within one year of that date. We do not agree as we do not believe the totality of the Supreme Court’s Ciarlelli opinion supports this conclusion.2
In Ciarlelli the Supreme Court addressed what it viewed as the critical question as to when a claimant had sustained an accidental injury which created the need under the statute to provide timely notice of the claim to the employer.
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, 287.
The Supreme Court further discussed how it viewed diagnosis as the functional equivalent of accidental injury for the purposes of commencing claims under § 7-433c C.G.S. We turn to pages 298 and 299 of the Ciarlelli opinion.
Because General Statutes § 7-433c (a) provides for an award of benefits to an otherwise eligible claimant who ‘‘suffers . . . any condition or impairment of health caused by hypertension or heart disease resulting in his death or his . . . disability,’’ it stands to reason that a formal diagnosis of hypertension or heart disease, communicated to an employee by his or her physician, constitutes the ‘‘injury’’ that triggers the running of the limitation period of§ 31-294c. Indeed, under § 7-433c, a claimant may recover benefits for hypertension only if he suffers from that condition; a claimant is not entitled to benefits merely because he exhibits symptoms consistent with hypertension, such as elevated blood pressure, from time to time. Furthermore, requiring that an employee file a notice of claim for hypertension benefits only after he has been informed by a medical professional that he is suffering from that condition, and not merely from its symptoms, is consistent with the principle that, as a remedial statute; see Costello v. Fairfield, 214 Conn. 189, 194, 571 A.2d 93 (1990);§ 7-433c must be liberally construed in favor of the claimant. Id.
The claimant draws our attention to various passages in the Ciarlelli opinion which provide a narrative of how previous tribunals, in the Supreme Court’s opinion, misconstrued the appropriate jurisdictional standard for filing § 7-433c C.G.S. claims. See Ciarlelli, supra, at 288-297. The claimant argues therefore this proves the trial commissioner in this case acted in contravention of precedent. We do not find this argument persuasive for a number of reasons. First, it is apparent that while the Supreme Court herein declined to follow the reasoning the Appellate Court utilized in Pearce v. New Haven, 76 Conn. App 441 (2003), we cannot automatically conclude that the Supreme Court adopted the claimant’s position in Pearce.3 We believe we must follow as binding precedent the actual language the Supreme Court used in its most recent decision.
In light of the foregoing, we conclude that the one year limitation period for claims under § 7-433c begins to run only when an employee is informed by a medical professional that he or she has been diagnosed with hypertension. Ciarlelli, supra, at 300.
In addition, given that the Supreme Court adopted an unequivocal “diagnosis” jurisdictional standard for § 7-433c C.G.S., in Ciarlelli we are hard pressed to ascertain how this actually constitutes a “medication” jurisdictional standard for § 7-433c C.G.S. claims. Had the Supreme Court intended such a standard, they would have made that clear. Since the text of the opinion makes clear the court has deemed “diagnosis” to mean “disability” for notice purposes, we must rely on the text of the opinion. We simply find this language clearly and unambiguously establishes “diagnosis” as the defined standard.
To the extent there is any ambiguity with the “diagnosis standard” in the Supreme Court’s Ciarlelli opinion it appears to rest with footnote ¶ 18, which stated:
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. Id., 301.
This provision does not apply in cases such as the present case where the claimant received an unequivocal diagnosis of hypertension. It does appear to provide greater flexibility to trial commissioners to ascertain based on a “totality of the circumstances” test whether the prescription of medicine can act to formalize an otherwise vague diagnosis of hypertension by the treating physician.4 While it is clear that the Ciarlelli decision means in a § 7-433c case the use of a respondent’s expert witness to second-guess a treating physician’s diagnosis is no longer probative, it can be argued that footnote, ¶ 18 actually served to reinstate this tribunal’s “totality of the circumstances” standard as we enunciated in Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006). We do not find that footnote, ¶ 18 makes the prescription of medicine a condition precedent to a formal diagnosis of hypertension. Perhaps this footnote serves primarily to codify the applicability of the holding of Struckman v. Burns, 205 Conn. 542 (1987) that a hypertension diagnosis need not rely on so-called “magic words”. We believe the Supreme Court or Appellate Court will be compelled at some point to resolve these ambiguities as footnote, ¶ 18 may obscure the “bright-line” standard the Supreme Court sought to create. Despite the ambiguity created by this footnote to the Ciarlelli opinion, however, we believe the facts in the present case are unambiguous that the claimant filed his claim beyond the statutory deadline to commence a § 7-433c claim.
The facts as found by the trial commissioner were that on two occasions the claimant’s treating physician specifically diagnosed him with hypertension prior to prescribing medication.5 This is not a circumstance such as we addressed in our recent decisions in Savo v. Bridgeport, 5451 CRB-4-09-4 (July 8, 2011) or Rodriguez v. Bridgeport, 5577 CRB-4-10-7 (July 27, 2011). In those cases it was clear the trial commissioner had viewed the evidence in a manner inconsistent with Ciarlelli and in light of the equivocal evidence on the record, we remanded the cases for new findings. In the present case the trial commissioner did not attempt to impute knowledge to the claimant as to when he knew he had hypertension. No testimony was presented by an expert witness for the respondents. This claimant was not placed “in the untenable position of having to diagnose themselves with hypertension, . . .” Ciarlelli, supra, 299. The trial commissioner followed the test going forward we had delineated in Savo, supra.
We conclude that a trial commissioner’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 what his 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. Id.
The trial commissioner found that on January 6, 2006 and April 27, 2006 the claimant’s treating physician diagnosed hypertension and conveyed this diagnosis to the claimant. This was not notification of a “potential” issue as was deemed inadequate in Arborio, supra. Such an unequivocal finding ascertaining a date certain of when the clamant received a diagnosis commences the notice period for an accidental injury claim based on the standard enunciated in Ciarlelli, supra, 280-285, 296.6 The claimant received two separate hypertension diagnoses and even the more recent hypertension diagnosis renders this claim jurisdictionally time-barred.
Under the claimant’s construction of the statute, he could receive continuous reports of extremely high blood pressure over a period of many years, be advised repeatedly by a treating physician to respond to the problem in a manner that did not include prescription medicine, and even be specifically told by his physician he had diagnosed hypertension; yet be still exempt from filing a § 7-433c C.G.S. claim. We cannot find this result tenable and it is not a result consistent with the “diagnosis standard” articulated by the Supreme Court’s Ciarlelli opinion.
The Finding and Dismissal is affirmed and the appeal is dismissed.
Commissioners Christine L. Engel and Ernie R. Walker concur in this opinion.
1 We note that a Stay of Proceedings was granted during the pendency of this appeal. BACK TO TEXT
2 The claimant also argues that Hunt v. Naugatuck, 273 Conn. 97 (2005) and McNerney v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996) deemed this claim jurisdictionally valid. We do not find these issues were adequately addressed at the formal hearing level to provide a basis at this point for appellate review. Had the claimant filed a Motion to Correct on these issues, we could properly ascertain if the trial commissioner reached an erroneous decision. We therefore confine our consideration to those issues actually litigated before the Commission. BACK TO TEXT
3 While the Supreme Court in Ciarlelli v. Hamden, 299 Conn. 265 (2010) said that “[i]n many respects, this [the court’s opinion] simply represents a return to the standard that the board applied prior to Pearce, [v. New Haven, 76 Conn. App. 441 2003)], which, in our view, more faithfully adhered to the statutory definition of accidental injury in view of the fact that, as a general matter, a formal diagnosis of hypertension can be definitely located in time and place” Ciarlelli, supra, 300-301, we do not equate the term “many respects” to constitute an unequivocal return to the standards in place prior to the decision in Pearce, supra. BACK TO TEXT
4 While it is possible under Ciarlelli this claim may have been timely had it been filed earlier or had the physicians’ opinions been more equivocal, we decline to address hypothetical questions and defer such consideration to appellate tribunals. BACK TO TEXT
5 In his brief, the claimant argues that a “formal diagnosis” of hypertension is required prior to triggering the obligation to file, and cites various medical reports supportive of a finding such had not occurred on January 6, 2006 or April 27, 2006. We are not persuaded by this argument as the trial commissioner specifically found this diagnosis was made by the treating physician and conveyed to the claimant. See Conclusions, ¶¶ X-AA and Findings, ¶¶ 22, 23, 27, & 31. We cannot usurp the fact-finding functions of the trial commissioner, who is best able to determine how “formal” a physician’s diagnosis actually is. BACK TO TEXT
6 In Savo v. Bridgeport, 5451 CRB-4-09-4 (July 8, 2011) we cited Ciarlelli that the accidental injury statute of limitations “‘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.” BACK TO TEXT