CASE NO. 5522 CRB-6-10-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 10, 2011
STATE OF CONNECTICUT/JUDICIAL DEPARTMENT
GAB ROBINS NORTH AMERICA, INC.
The claimant was represented by Ralph A. Russo, Esq., 49 Welles Street, Suite 212, Glastonbury, CT 06033.
The respondent was represented by Francis C. Vignati, Jr., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the January 4, 2010 Finding & Award/Dismissal of the Commissioner acting for the Sixth District was heard on June 25, 2010 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the January 4, 2010 Finding & Award/Dismissal of the Commissioner acting for the Sixth District.1 We find no reversible error and accordingly affirm the decision of the trial commissioner.2
The following factual background is pertinent to our review. On July 1, 1999, the claimant was hired by the County Sheriffs and became a Judicial Marshal for the New Britain courthouse on December 1, 2000. As a Judicial Marshal, the claimant was responsible for maintaining the security of the courthouse and had frequent contact with the public, including high-security litigants and/or inmates. Pursuant to § 5-145a C.G.S., the position of Judicial Marshal is considered “hazardous duty” and Judicial Marshals are therefore eligible for enhanced workers’ compensation benefits as provided by the statute.3 On December 7, 2005, the claimant was brought by paramedics to the emergency department of New Britain General Hospital complaining of severe chest pain. He was admitted and underwent cardiac catheterization which revealed significant coronary disease. The claimant was subsequently transferred to St. Francis Hospital where he underwent a multi-vessel angioplasty.
On June 1, 2006, the claimant filed a claim for workers’ compensation benefits pursuant to § 5-145a C.G.S., alleging that “the stressful nature of his job, the lack of support he got from his superiors, the negative issues he had with other co-workers led to the 12/7/05 heart attack.” Findings, ¶ 11. The respondent, relying upon reports in the medical record allegedly documenting prior episodes of chest pain dating back to 1999, contested the trier’s subject matter jurisdiction on the basis that the claim was untimely. In addition, in an attempt to rebut the statutory presumption of compensability, the respondent offered evidence in support of its contentions that the claimant had numerous coronary risk factors and personal health issues and his job was not particularly stressful. However, the trial commissioner, after determining that the claim was timely and the respondent had failed to rebut the presumption of compensability, awarded the claimant benefits pursuant to § 5-145a C.G.S. The trial commissioner further concluded that the claimant had a work capacity and, noting that the claimant had been receiving total disability benefits from the respondent since the December 7, 2005 injury on a withoutprejudice basis, dismissed a claim for any additional temporary total benefits. The trial commissioner left open issues pertaining to temporary partial, permanent partial or discretionary § 31-308a C.G.S. benefits.4
The respondent filed a Motion to Correct which was denied in its entirety, and this appeal followed. The respondent argues that because the claimant’s notice of injury was untimely and therefore non-compliant with the provisions of § 31-294c(a) C.G.S., the trial commissioner should have dismissed the claim for lack of subject matter jurisdiction.5 The respondent also asserts that the trier’s Finding and Award/Dismissal was legally deficient as it included no findings relative to subject matter jurisdiction or “the point from which the statute of limitations was measured.” Appellant’s Brief, p. 7. In addition, the respondent contends that the trier erred in concluding that the respondent’s evidence failed to rebut the presumption of compensability. The respondent also argues that the trier erroneously concluded the claimant suffered a heart attack on December 7, 2005 and failed to find that the claimant actually began his employment with the State of Connecticut Judicial Department on December 1, 2000. Finally, the respondent alleges that the trier’s denial of its Motion to Correct constituted error.
We begin our analysis with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.
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 factfinder 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. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
It is axiomatic that we must first address the respondent’s claims relative to the trier’s subject matter jurisdiction before we can turn our scrutiny to the underlying merits of the claim. “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565 (1963.) Moreover, “once the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented ;’ and the court must ‘fully resolve it before proceeding further with the case.’” (Internal citations omitted.) Castro v. Viera, 207 Conn. 420, 429 (1988).
In order to bring a heart or hypertension action pursuant to § 5-145a C.G.S., a claimant is required “to comport with the jurisdictional and procedural requirements of the Workers’ Compensation Act before their presumptions become applicable to an analysis of causation.” Malchik v. Division of Criminal Justice, 266 Conn. 728, 738739 (2003). Compliance with the notice provisions of the Act enunciated in § 31-294c(a) C.G.S., places upon a claimant the obligation to file a written notice of claim within one year of the date of injury or within three years of the first manifestation of a symptom of occupational injury. However, for heart and hypertension claims, the appropriate identification of the point at which the statute of limitations begins to run has been the subject of considerable litigation. In the instant matter, the respondent relies on Pearce v. New Haven, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003), as authority for its assertion that the claimant’s heart claim was untimely.
We note at the outset that Pearce and its progeny implicate § 7-433c C.G.S., a different, albeit similar, statutory scheme.6
General Statutes § 7-433c gives a special compensation to those who qualify, in the sense that they have no burden of proof that the disease resulted from the employee's occupation or that it occurred in the course of employment. The mere fact that the employee has hypertension or heart disease and dies or is disabled because of it is all that is necessary. The employee does not need to prove that his heart disease is causally connected to his employment.
Middletown v. Local 1073, 1 Conn. App. 58, 62 (1983), cert. dismissed, 192 Conn. 803 (1984).
The statute “was originally drafted as part of the Workers’ Compensation Act and provided police officers and firefighters with a rebuttable presumption that heart disease and hypertension were causally connected to their occupations.” Zaleta v. Fairfield, 38 Conn. App. 1, 7 (1995), cert. denied, 234 Conn. 917 (1995). However, “[i]n 1969, this rebuttable presumption was made conclusive and the statute was soon declared unconstitutional in Ducharme v. Putnam, 161 Conn. 135, 143 (1971).” Id. As a result, “§ 7-433c was enacted in its present form in 1977 as legislation separate and distinct from the Workers’ Compensation Act,” Id., and currently “acts as bonus legislation that provides ‘special compensation’ to firefighters and police officers by allowing those who suffer from heart disease or hypertension outside the line of duty to collect benefits in the same manner as those who are injured in the line of duty.” (Internal citations omitted.) Id., at 5-6. See also, Grover v. Manchester, 168 Conn. 84, 87-88 (1975). As such, § 7-433c C.G.S., in its current rendition differs from § 5-145a C.G.S., which has retained the burden-shifting mechanism of the rebuttable presumption.
In Pearce, supra, which involved a hypertension claim rather than a claim of heart disease, the court found untimely a claim filed in 1998 by a claimant who had received repeated warnings from his family physician regarding his elevated blood pressure readings in 1988, 1989 and 1990. The court held that the claimant, in failing to notify his employer of the elevated readings, had fallen afoul of the provisions of § 31-294b and § 31-294c which require such notification “to inform the employer of a possibility of a claim for benefits being filed at a later time.” Id., at 449. The Pearce court stated that “[t]he employee need not be disabled at the time he or she files a notice that symptoms are being experienced related to hypertension or heart disease; the notice is required to alert the employer to a potential claim.” Id.
However, in Arborio v. Windham Police Dept., 103 Conn. App. 172 (2007), the Appellate Court concluded that a claimant’s awareness that he had a potential hypertension problem was not a sufficient triggering event to file a notice of claim. The court distinguished the Arborio claimant from the Pearce claimant who “repeatedly had been told, over a three year period, that his blood pressure was elevated, and, rather than address the issue chose to stop seeing his physician for the next eight years.” Id., at 176. The court held that
[t]wo office visits showing high blood pressure readings, a stress test and an employee’s awareness of those elevated readings and awareness that ‘he had a potential hypertension problem that may require medication’ simply are not sufficient to support the conclusion that the plaintiff had an accidental injury that required him to notify his employer and to file a claim for benefits.
Id., at 187, citing the October 5, 2005 Finding & Dismissal of the Commissioner acting for the Second District, ¶ 19.
In Ciarlelli v. Hamden, 5098 CRB 3-06-6 (April 1, 2008), rev’d, 299 Conn. 265 (2010), this board attempted to synthesize the seemingly disparate holdings of Pearce and Arborio, ultimately determining that “[c]ollectively, the § 7-433c case law establishes that a claimant is required to notify his or her employer of a potential claim for benefits by filing a notice of claim when (1) the medical evidence shows that he or she has developed symptoms of hypertension and (2) he knows, or should know, that he or she has symptoms of hypertension that may require lifestyle changes and/or treatment (whether or not disability yet exists).” Id. However, in a recent decision, the Supreme Court reversed this board’s findings relative to the issue of timeliness in Ciarlelli, concluding instead “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 v. Hamden, 299 Conn. 265, 300 (2010). Noting that “[i]n both Pearce and Arborio, 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,” Id., at 296, the court went on to observe that “the standard presently applied by the board places the intended beneficiaries of § 7-433c in the untenable position of having to diagnose themselves with hypertension, on the basis of their symptoms, or having to run the risk of losing benefits under that statute.” Id., at 299. The Ciarlelli court ultimately determined that,
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, § 7-433c must be liberally construed in favor of the claimant.7
Id. (Internal citations omitted.)
Turning to the matter at bar, the respondent asserts that “[t]he claimant’s treatment reports by Dr. Albala, Dr. Malkin, and Dr. Chorzepa, note repeated indicators and warning signs of heart disease, including chest pain, shortness of breath, obesity, referral to two separate cardiologists, submissions for EKG’s, and prescriptions for heart and cholesterol medications.” Appellant’s Brief, p. 2. As such, the respondent contend that “the factual record shows a great deal of evidence that Claimant was knowingly experiencing symptoms of heart disease well before May 2005.” Appellant’s Brief, p. 9. We disagree. Rather, our review of the record in its entirety leads us to conclude that a sufficiently definitive diagnosis of heart disease, such that the standard articulated by our Supreme Court in Ciarlelli, supra, could be invoked, did not occur until the claimant underwent a cardiac catheterization at New Britain General Hospital on December 8, 2005.
There is no question that the claimant had a longstanding history of hypertension which evidently preceded his employment as a Judicial Marshal for the State of Connecticut in 2000. However, at trial, the claimant testified that although he had been told by his doctors in the late 1990’s that he had both high blood pressure and elevated cholesterol readings, he was never told he had a heart problem. April 14, 2009 Transcript, p. 17. The claimant indicated that he was given medication for high blood pressure and elevated cholesterol, and a review of Dr. Albala’s records from this time period indicates that both conditions were well-controlled. Joint Exhibit 4. Moreover, while Dr. Albala’s report of December 17, 1999 does indicate that the claimant was suffering from chest pain upon exertion,8 id., Dr. Tally’s Respondent’s Medical Evaluation report of February 1, 2007 states that a stress test conducted in 2000 “was apparently negative for the diagnosis of ischemic coronary artery disease.”9 Joint Exhibit 1.
Dr. Chorzepa’s reports of January 5, 2005, March 31, 2005, and August 4, 2005, indicate that the claimant’s blood pressure and cholesterol continued to be well-controlled and the claimant was not experiencing chest pains. Joint Exhibit 8. In fact, it wasn’t until November 3, 2005 that the claimant once again reported that he was experiencing chest pain upon exertion, at which time Dr. Chorzepa changed the claimant’s cholesterol medication and referred the claimant for an evaluation and stress test with Dr. Malkin. Id. On November 11, 2005, Dr. Malkin examined the claimant and concluded that the claimant should “undergo Sestamibi stress testing to better rule out the possibility of coronary disease.” Id. See also, Joint Exhibit 7. The claimant’s stress test was scheduled for December 2, 2005. Appellee’s Brief, p. 3. Unfortunately, on the date of the appointment, the courthouse in New Britain where the claimant was employed experienced a bomb scare which compelled the claimant’s supervisor to rescind all previously-authorized leaves; as a result, the claimant was unable to attend the stress test. October 7, 2009 Transcript, p. 83.10
On December 7, 2005, the claimant placed a 911 call after “he experienced about 10-15 minutes of fairly severely [sic] 10/10 chest pain that awoke him from sleep.” Joint Exhibit 9 (New Britain General Hospital Discharge Summary of 12/12/05), p. 1. The paramedics administered nitroglycerin and transported him to the New Britain General Hospital emergency department where he was subsequently admitted. On December 8, 2005, the claimant underwent a cardiac catheterization which revealed “severe three-vessel disease. Therefore a decision was made to transfer the patient to St. Francis Hospital for an elective multivessel angioplasty.” Id., at 2. Ultimately, the claimant underwent both an angioplasty and a quadruple coronary artery bypass. Id. (Saint Francis Hospital and Medical Center Discharge Summary), p. 1.
The instant medical record indicates that in the course of performing a Respondent’s Medical Evaluation on February 1, 2007, Dr. Tally reviewed the claimant’s medical history and opined:
[t]he date for onset of Mr. Rizzo’s coronary artery disease in my opinion is December 7, 2005 when the patient was clearly diagnosed with an acute coronary syndrome during his admission to New Britain General Hospital. This time can be pushed back by a few weeks to the initial presentation to his primary care doctor with symptoms of chest pain, which were later discovered to be in fact due to severe coronary artery disease.
Joint Exhibit 1.
At his deposition held on April 13, 2007, Dr. Tally was given the opportunity to expand upon this opinion, at which time he elaborated, a “patient is not considered to have coronary heart disease until atherosclerosis progresses to the point of producing symptoms and having other diagnostic features established over many decades in the practice of medicine.” Respondent’s Exhibit 1, p. 20. Dr. Tally further differentiated between gradual narrowing of the arteries and coronary heart disease by elaborating that “atherosclerosis is a condition. And coronary artery disease, or symptomatic atherosclerosis is a disease state.” Id. When queried regarding Dr. Albala’s report of December 17, 1999, Dr. Tally agreed that the claimant’s symptoms at that time could have been “signs of symptomatic coronary atherosclerosis.” Id., at 17. However, he concurred with Dr. Albala’s recommendation for a stress test, stating that such follow-up testing would have been required because “[t]here was still some doubt as to whether the patient had symptomatic coronary atherosclerosis at this time, according to Dr. Albala’s note of that date.” Id.
Having carefully reviewed the medical reports contained in the instant record within the context of currently applicable case law, we find support for the trial commissioner’s determination that the claimant’s notice of claim was timely. We recognize that the claimant had a longstanding history of high blood pressure and elevated cholesterol readings. Likewise, there is no dispute that the claimant possessed a number of risk factors for coronary artery disease, including a positive family history and a former smoking habit. Moreover, although at trial the claimant disputed Dr. Malkin’s notation in his report of November 11, 2005 that the claimant had suffered “continued palpitations almost all the time over the last year,” October 7, 2009 Transcript, p. 55, see also, Joint Exhibits 7, 8, the claimant did concede that he had experienced episodes of chest burning while walking in the park over the preceding six months.11 Id.
Nevertheless, prior to the New Britain General Hospital report of December 8, 2005 following the claimant’s cardiac catheterization, the record is devoid of a definitive diagnosis of coronary artery disease. The record is similarly devoid of any indication that prior to December 2005 the claimant had developed a disability associated with his coronary artery disease given that the claimant testified he was still employed as a Judicial Marshal at that time. October 7, 2009 Transcript, p. 55. Indeed, even when the claimant consulted Dr. Malkin on November 11, 2005, Dr. Malkin referred him for a Sestamibi stress test in order “to better rule out the possibility of coronary disease.” (Emphasis added.) Joint Exhibits 7, 8. Thus, although the record indicates that the claimant had experienced episodes of chest pain in late 1999, we believe these prior episodes are easily distinguished from the sequence of events which unfolded on December 7, 2005 and ultimately resulted in the claimant undergoing a quadruple coronary bypass.
In light of the lack of a definitive diagnosis prior to December 2005, then, we find this matter can be distinguished from Pearce, supra, in which the claimant disregarded repeated warnings from his physician regarding his high blood pressure readings, and is factually more akin to Arborio, supra, and Ciarlelli v. Hamden, 299 Conn. 265 (2010), , 299 Conn. 265 (2010), in which the claimant appeared to have a “potential” problem. While the luxury of hindsight unquestionably allows for the reasonable inference that the instant claimant’s earlier symptoms may have been caused by the gradual development of his coronary artery disease, our Supreme Court’s holding in Ciarlelli clearly militates against saddling claimants with the requirement that they file a claim for benefits on the basis of their suspicion that they might have a certain disease or condition. Moreover, “[b]ecause a diagnosis of hypertension involves the sound exercise of medical judgment, it is particularly inappropriate to expect a patient to discern that he or she suffers from that condition in the absence of a diagnosis by a professional with the requisite training and expertise.” Id., at 300. Given that the same observation may be reasonably made about heart disease, we affirm the trial commissioner’s conclusion that the claimant’s notice of claim was timely and the claimant is therefore entitled to benefits pursuant to § 5-145a C.G.S.
As a corollary to its argument that the trial commissioner did not possess subject matter jurisdiction over the claim, the respondent also contends that the trial commissioner erroneously failed to address the respondent’s jurisdictional argument in his Finding and Award/Dismissal. The respondent asserts that the Finding and Award/Dismissal is legally deficient because it did “not address any jurisdictional facts such as date of injury or scienter, presence of which would impact whether this claim was timely filed pursuant to C.G.S., § 31-294.” Appellant’s Brief, p. 7. We disagree. Our review of the trial commissioner’s Finding and Award suggests that he did address the respondent’s jurisdictional argument. In his findings, the trier determined the claimant had filed a notice of claim pursuant to § 5-145a C.G.S., as a result of a heart attack sustained on December 7, 2005. Findings, ¶ 2. The trier went on to state that he “[accepted] the claimant’s position as to this issue” and “[found] Section 5-145a applies.” Findings, ¶ 18. From these statements, it may be reasonably inferred that the trial commissioner believed the claimant’s narrative relative to when the claimant realized he had developed a compensable condition which warranted the filing of the requisite notice of claim. We decline to hold a trial commissioner’s findings to the degree of exactitude sought by the respondent, particularly in light of the strictures of § 31-301-3 C.G.S.12
The respondent also contends that the trial commissioner erroneously concluded that the respondent failed to rebut the presumption of compensability contained in § 5-142a C.G.S. The respondent points out that it “has provided ample evidence” in support of its assertion that the claimant’s heart disease pre-existed his employment and his position was not particularly stressful. Appellant’s Brief, p. 10. We are not so persuaded and find, on the contrary, that the instant record provides more than adequate support for the trial commissioner’s determination in this regard.
As mentioned previously herein, § 5-145a C.G.S., “grants to individuals a rebuttable presumption of compensability if they suffer disability or death due to hypertension or heart disease.” Dibenedetto v. State/University of Connecticut Health Center, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRD-6-89-5 (January 3, 1991). “The function of this presumption is to shift the initial burden of persuasion. It ‘cease[s] to have any effect once the respondent employer presents evidence to contest compensability.’” Horn v. State/Department of Correction, 4177 CRB-3-00-1 (February 22, 2001), quoting Dibenedetto, supra. However, the trier “must, of course, find this evidence sufficiently credible to meet that burden of persuasion before the statutory presumption can be said to have been successfully rebutted.” Horn, supra. Such a finding is necessary given that “it is not our goal to render § 5-145a ‘virtually worthless’ by vitiating the force of its presumption.” Id.
In the instant matter, there is no question that the record contains a number of medical reports from an assortment of providers indicating that the claimant suffered from high blood pressure and elevated cholesterol readings prior to his employment as a County Sheriff and a Judicial Marshal. In addition, the record also indicates that the claimant reported experiencing episodic chest pain in late 1999, although a subsequent stress test in 2000 revealed no evidence of heart disease. Finally, although the claimant reported experiencing palpitations in 2004, Dr. Tally testified that palpitations are not generally a symptom of coronary artery disease and the claimant testified that he believed his palpitations were medication-induced. In light of this evidence, it may be reasonably inferred that the trial commissioner simply did not find persuasive the respondent’s contention that the medical record vindicates its claim that the claimant’s heart disease pre-existed his employment with the State. We decline to overturn this finding on appeal. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Moreover, the claimant provided extensive testimony in support of his position that his employment with the Judicial Department was a significant source of stress for him. For instance, the claimant testified that he was frequently worried about his personal safety when bringing prisoners from the lock-up to their court appearance because the number of prisoners would occasionally be larger than the number of marshals. April 14, 2009 Transcript, p. 28. He also testified as to his concerns that a prisoner in his charge would become violent and physically attack him or try to escape. Id., at 28-29. James Hinckley, a former co-worker of the claimant, was also called as a witness and testified that he too had been particularly apprehensive when taking prisoners from the holding area to arraignment as they tended to be more volatile and unpredictable. Id., at 47-48. Under cross-examination, Hinckley conceded that the courthouse does have certain security protections in place such as X-ray screening and wand-searching of the general public in addition to searching and leg-shackling the prisoners, but he also recited the various safety measures utilized by the marshals such as wearing radios on their shoulders, carrying batons and OCAT spray, and receiving training in the management of aggressive behavior. Id., at 52-56.
On a more personal note, the claimant testified regarding the difficulties he encountered in trying to balance the demands of his position as a marshal with his role as caretaker for his mother. He indicated that while he generally had no problems attending to his mother at lunchtime, a late-running trial could present complications if he was required to transport the prisoners afterwards. Id., at 37. The claimant stated that although he had requested in writing that he not be assigned to drive late in the afternoon, his request was not acknowledged and, in fact, he was written up in 2004 for refusing to drive one afternoon and visiting his mother in the emergency room instead. Id., at 37-38. See also, Claimant’s Exhibit D. The claimant testified that at the suggestion of his union steward, he provided the employer with a note from Dr. Chorzepa stating that overtime requirements were preventing him from caring adequately for his mother, but nothing changed.13 Id., at 42. See also Claimant’s Exhibit C.
The claimant also described a confrontation concerning this note he had with James Brown, a fellow marshal who was also a union steward, and stated that he felt he was subsequently retaliated against for filing an incident report against Brown.14 October 7, 2009 Transcript, p. 10. See also, Claimant’s Exhibit G. The claimant testified that he sent a letter to the chief marshal following his confrontation with Brown in which the claimant requested that “in the best interests for everyone involved” he not be assigned to work directly with Brown. Respondent’s Exhibit 5; Claimant’s Exhibit F. However, at trial the claimant testified that “[n]othing was done.” October 7, 2009 Transcript, p. 37.
Finally, our review of the record indicates that although Dr. Tally discounted the role stress may have played in contributing to the development of the claimant’s coronary artery disease, Dr. Wolfson opined differently, indicating in his report of October 31, 2006 that “[a]t the very least, the stresses attendant upon his employment as a sheriff and then marshall [sic] would appear to be the precipitating factors contributing to the onset of symptoms.”15 Joint Exhibit 2. In addition, in his follow-up note of November 2, 2006, Dr. Wolfson stated that the claimant’s “employment as a Sheriff and/or Judicial Marshal was a substantial factor in the development of coronary artery disease which resulted in bypass surgery in December, 2005.” Id.
At his deposition of June 1, 2007, Dr. Wolfson reiterated this opinion several times, Respondent’s Exhibit 2, pp. 27, 31, 34, and also acknowledged the discrepancy between his opinion regarding the role stress had played and Dr. Tally’s. Id., at 24. The doctor accounted for this discrepancy by describing his understanding of the mechanics of the progression of coronary artery disease, explaining that as the arteries become more narrow, “they may begin limiting the amount of blood flow that the heart muscle receives during exercise, even when the blood flow is adequate at rest, and that is when patients actually might develop symptoms: During exercise or during periods of emotional stress.” Id., at 25. Dr. Wolfson testified that he had also found persuasive several studies examining the association between heart attack and stress, noting in particular a study that was performed on Israeli shoulders during the first Gulf war. Id., at 26.
Having reviewed the record in its entirety, we find sufficient support for the trial commissioner’s determination that the respondent failed to successfully rebut the presumption of compensability pursuant to § 5-145a C.G.S. As previously stated herein, it can be reasonably inferred that the trial commissioner simply found the medical record inadequate in terms of substantiating the respondent’s position that the claimant’s heart disease predated his employment. Further, while there can be no question that Dr. Tally and Dr. Wolfson advanced contradictory opinions on the role of stress in the development of heart disease, it is axiomatic that “[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted, emphasis added.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). We also note that even Dr. Tally conceded that the role of stress in the development of coronary artery disease “is a fair area of dispute among competent practitioners.” Respondent’s Exhibit 1, p. 34. Moreover, the claimant testified at length regarding the various workplace stressors he felt he had been subjected to during his employment as a Judicial Marshal, and the trier was entitled to award this testimony the evidentiary weight he deemed appropriate.
Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.
Burton v. Mottolese, 267 Conn. 1, 40 (2003).
We therefore affirm the trier’s conclusions in this regard and decline to overturn them on appeal. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it dId. ” Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton, supra, at 54.
The respondent also contends that the trial commissioner erroneously concluded that the claimant suffered a heart attack on or about December 7, 2005, contending that the medical record does not support such a finding but, rather, shows “that his experience was only actually chest pain, a symptom which he had experienced prior to December 2005.” Appellant’s Brief, p. 11. The respondent points to the various medical reports contained in the file, particularly the discharge summaries from New Britain General Hospital of December 12, 2005 and St. Francis Hospital of December 22, 2005, and assert that in none of these reports is it stated the claimant suffered a heart attack. The respondent also relies upon the deposition testimony of Dr. Tally, in which the doctor opined that the claimant did not in fact suffer a heart attack.
Unfortunately, heart attack is a very non-specific layman’s term, which usually is taken to mean by people in the medical field as a myocardial infarction. Infarction implies that there is necrosis, or death, of heart tissue. And in the modern era that is seen as a rise in certain markers in the blood.16
Respondent’s Exhibit 1, pp. 12-13.
Similarly, Dr. Wolfson opined that the claimant did not sustain a myocardial infarction on December 7, 2005. Respondent’s Exhibit 2, pp. 15-16, 27. However, Dr. Tally, in his RME report of February 1, 2007, observed that on December 7, 2005, the claimant experienced chest pain which “became precipitous and severe in nature” and his eventual diagnosis was “an acute coronary syndrome without significant myonecrosis.” Joint Exhibit 1. As the doctor explained at his deposition:
[a]cute coronary syndrome is a fairly new diagnostic term that covers a spectrum of blockages of heart arteries expanding. Those folks who present with chest pain are presumed to have that on the basis of blocked arteries all the way up to patients who actually suffer heart attacks. Which includes evidence of heart muscle, necrosis or death of heart muscle tissue. Otherwise known as a heart attack. So, it covers quite a broad spectrum of conditions.
Respondent’s Exhibit 1, p. 11.
In light of the foregoing testimony, then, the respondent’s claim of error is technically correct; the claimant did not suffer a heart attack in the medically accepted sense of the word. However, we take exception to the respondent’s characterization of the events of December 2005 as being merely another episode of the same symptoms the claimant had been experiencing “for years prior to December 7, 2005.” Appellant’s Brief, p. 11. Rather, we believe the prior episodes of chest pain in 1999 and palpitations in 2004 are easily distinguished from the sequence of events which unfolded on December 7, 2005 and ultimately resulted in the claimant undergoing a quadruple coronary bypass. This is particularly so in light of the claimant’s diagnosis at that time of acute coronary syndrome, as compared with the prior instances in which the etiology of the claimant’s chest pain and palpitations appeared to be non-specific in nature. As such, while the trial commissioner perhaps used the term “heart attack” imprecisely in his findings, we find harmless error at worst, given that the record clearly indicates that on December 7, 2005, the claimant experienced a definitive cardiac event which ultimately revealed both the nature and extent of his coronary artery disease. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003).
The respondent also contends that the trial commissioner’s failure to find that the claimant commenced his employment with the state on December 1, 2000 constituted error. Our review of the file indicates that the claimant was hired as a County Sheriff on July 1, 1999 and became a Judicial Marshal on December 1, 2000. Claimant’s Exhibit A, Respondent’s Exhibit 4. At trial, the claimant agreed that he became a state employee on December 1, 2000, when the County Sheriffs were “subsumed” into the Judicial Department. October 7, 2009 Transcript, p. 8. Accordingly, the trial commissioner’s finding wherein he determined the respondent hired the claimant as a Judicial Marshal in 1999 is, again, technically incorrect. However, we fail to appreciate the significance of this claim of error, given that the parties, evidently without possessing an actual copy of the report, stipulated that the claimant had passed his pre-employment physical at the time of his hire in accordance with § 5-145a C.G.S.17 Appellant’s Brief, fn. 1. Moreover, while we recognize that the medical record contains a report of Dr. Albala dated December 17, 1999 which attests to the claimant’s complaints of exertional chest pain at that time, the record also contains Dr. Tally’s Respondent’s Medical Evaluation report of February 1, 2007 indicating that a stress test conducted in 2000 was negative for the diagnosis of coronary artery disease. Joint Exhibit 1. Perhaps had the trial commissioner found Dr. Wolfson’s opinion regarding date of onset more probative than Dr. Tally’s, the claimant’s actual date of hire as a Judicial Marshal would carry more evidentiary significance. In light of the trier’s factual findings and our analysis herein, however, it appears to possess very little probative value.
Finally, the respondent contends that the trial commissioner erroneously denied their Motion to Correct. Obviously, in light of the preceding discussion, the trier’s failure to correct the findings as to his use of the term “heart attack” and the recitation of the claimant’s incorrect date of hire as a Judicial Marshal did constitute harmless error. Relative to the balance of the corrections sought by the respondent, however, this board has previously observed that when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Having found no reversible error, the January 4, 2010 Finding & Award/Dismissal of the Commissioner acting for the Sixth District is affirmed.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
1 On February 8, 2010, the claimant submitted a document which he described as a “counter appeal;” however, in his brief of May 10, 2010, the claimant acknowledged that the document did not purport to be a Petition for Review and had been submitted after the filing deadline. Appellee’s Brief, p. 4. BACK TO TEXT
2 We note that a motion for extension of time was granted during the pendency of this appeal. BACK TO TEXT
3 Section 5-145a C.G.S., (Rev. to 2005) states, in pertinent part: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to … any state employee designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568....” BACK TO TEXT
4 Section 31-308a C.G.S. (Rev. to 2005) provides as follows: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury… and the weekly amount which such employee will probably be able to earn thereafter …, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.” BACK TO TEXT
5 Section 31-294c(a) C.G.S. (Rev. to 2005) states, in pertinent part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury.... Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed....” BACK TO TEXT
6 Section 7-433c C.G.S. (Rev. to 2005) states, in pertinent part: “(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems....” BACK TO TEXT
7 We note that in his concurrence, Justice Zarella opined that since “nothing in General Statutes § 7-433c requires that notice of hypertension or heart disease be given to a municipal employer within a specified period of time in order for a claimant to receive compensation,” Ciarlelli v. Hamden, 299 Conn. 265, 301 (2010) (Zarella, J., concurring) and “the notion that hypertension or heart disease is an ‘accidental injury’ is absurd and contrary to common medical knowledge because such conditions are not definitively determinable as to time and place,” id., at 303, he would overrule the court’s prior heart and hypertension decisions. Noting that claims under § 7-433c C.G.S. are not included in the Workers’ Compensation Act but, rather, “are contained in part II of title 7 of the General Statutes, which concerns the retirement benefits of municipal employees,” id., at fn. 4, Justice Zarella stated that “there is no reason for this court to assume that the legislature intended to place claims brought pursuant to § 7-433c on equal footing with claims brought pursuant to the act because, had the legislature intended to do so, it would have included such benefits expressly within the act.” Id. The majority, while conceding that they “might agree with Justice Zarella if [they] were writing on a clean slate,” Ciarlelli v. Hamden, 299 Conn. 265, fn. 12 (2010), professed a not unreasonable unwillingness to overrule twenty years of precedent. The majority also asserted that they believed § 7-433c was “reasonably susceptible” of the court’s previous interpretation and defended that interpretation in the face of longstanding legislative acquiescence. Id. BACK TO TEXT
8 At trial, the claimant disputed an entry in Dr. Albala’s December 17, 1999 report stating that the doctor gave the claimant sublingual nitroglycerin to take for chest pain. The claimant contends that he did not begin taking nitroglycerin until after his heart surgery in December 2005. October 7, 2009 Transcript, p. 66. BACK TO TEXT
9 The record indicates that Dr. Wolfson, who ascribed an onset date of December 1999 or earlier to the claimant’s coronary artery disease, was unaware that the claimant had undergone a stress test in 2000 which yielded a negative result. Respondent’s Exhibit 2, p. 33. BACK TO TEXT
10 At trial, the claimant spoke quite bitterly regarding this incident, alleging that other co-workers who could have covered for him were permitted to leave early once the bomb scare situation was resolved. October 7, 2009 Transcript, pp. 83-84. The claimant further contended that as a result of the delayed stress test, he was deprived of the opportunity to seek treatment with his own hospital and doctors and his subsequent coronary issues were far more severe than they would have been had he been able to attend the scheduled stress test. Id., at 96. BACK TO TEXT
11 We note that a May 12, 2004 Holter Report Summary ordered by Dr. Malkin lists “palpitations” under the “Indications” category. However, at trial, the claimant testified that he believed the medication Welbutrin was responsible for his palpitations. October 7, 2009 Transcript, p. 67. Moreover, at his deposition of April 13, 2007, Dr. Tally testified that palpitations are not generally considered a sign of narrowing of the arteries, although chest burning and pressure “are considered part of atherosclerotic heart disease in the gradual sense.” Respondent’s Exhibit 1, p. 16. BACK TO TEXT
12 The entire text of § 31-301-3 C.G.S. (Rev. to 2005) is as follows: “The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.” BACK TO TEXT
13 The claimant testified that he found the employer’s lack of response to Dr. Chorzepa’s note “degrading” and stated, “[t]o me this was added stress, Commissioner. Very added stress to me, and I don’t think I should have been treated like that.” April 14, 2009 Transcript, pp. 42-43. BACK TO TEXT
14 The claimant testified that when he asked the union steward what had happened to the note from Dr. Chorzepa, the union steward “blew up at me, started swearing. The veins were popping out of his neck. He was coming at me like an animal.” October 7, 2009 Transcript, pp. 11-12. BACK TO TEXT
15 At his deposition of April 13, 2007, Dr. Tally indicated that in his opinion, “there is no clear role for work stress as a direct contribution to coronary artery disease,” Respondent’s Exhibit 1, p. 20, and “[t]here is no consensus in the scientific medical literature on the role of quote stress, in quotations marks, in the development of symptomatic coronary atherosclerosis.” Id., at 22. BACK TO TEXT
16 The American Heritage Stedman’s Medical Dictionary (Copyright 2001, 1995 by Houghton Mifflin Company) defines a heart attack as an “[a]cute myocardial infarction typically resulting from an occlusion or obstruction of a coronary artery and characterized by sudden, severe pain in the chest that often radiates to the shoulder, arm, or jaw.” The dictionary further defines myocardial infarction as “[n]ecrosis of a region of the myocardium caused by an interruption in the supply of blood to the heart, usually as a result of occlusion of a coronary artery. Also called cardiac infarction.” (Emphasis in the original.) BACK TO TEXT
17 At trial, the claimant testified at length regarding his recollections of circumstances surrounding his attendance at the physical, and remarked that he knew he had passed the physical the day that he went “because if I didn’t I wouldn’t have got the job as the sheriff.” October 7, 2009 Transcript, p. 30. BACK TO TEXT