State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lembrick v. State of Connecticut/Department of Correction

CASE NO. 5543 CRB-1-10-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 10, 2011

GENE LEMBRICK

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Proloy K. Das, Esq., and Jeffrey L. Ment, Esq., Rome McGuigan, P.C., One State Street, Hartford, CT 06103-3101.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, Office of the Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06106.

This Petition for Review from the March 31, 2010 Finding and Award of the Commissioner acting for the First District was heard September 24, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this matter appeals from a Finding and Award issued to the claimant, finding him eligible for benefits pursuant to § 5-145a C.G.S. The respondent argues that the claimant should be barred from such benefits as neither party could locate a copy of the claimant’s pre-employment physical. The respondent also argues that it successfully rebutted the presumption that the claimant’s hypertension was compensable. We are satisfied that the trial commissioner properly applied the law and weighed the evidence in this matter. Accordingly, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts at the conclusion of the formal hearing. The claimant was hired as a correction officer by the respondent on or about March 6, 1992. The claimant worked at a maximum security prison where he was called upon to intervene in fights among inmates, among his other duties. The claimant testified that in 1991 he was administered a pre-employment physical at the Osbourne Correctional Facility in which his blood pressure was checked. He did not request a copy of the examination report. The claimant said that he was also asked to have his blood pressure taken at a second pre-employment physical, which was performed in 1992 at a walk-in clinic on Franklin Avenue in Hartford. He did not request a copy of this examination report. Despite efforts by both claimant’s and respondents’ counsel, no one has been able to obtain a copy of either pre-employment physical medical report. The claimant testified that neither examiner told him, after either of his pre-employment physical examinations, that he had high blood pressure or hypertension.

The claimant testified that as of his understanding of blood pressure readings and hypertension that “I’ve always been led to believe that the second number, if it’s above 90 or better, that’s hypertension. I wasn’t too sure about the first number, though.” Findings, ¶ 7. The trial commissioner found the claimant had had at least 35 blood pressure readings by a doctor between May 28, 1997 and August 1, 2008. Six readings had a second number at 90 or higher with a maximum high of 100; one of which was o. January 7, 2008 with two others occurring on January 11, 2008. The claimant filed a Form 30C with a date of injury of January 11, 2008.

The trial commissioner reviewed the medical records and determined that while the claimant had complained of chest pains prior to 2008, and had occasionally been rechecked for blood pressure readings, at no time had the claimant been diagnosed with hypertension, and that one note stated “BP- not hypertensive”. The trial commissioner also noted the results of an August 1, 2008 commissioner’s examination performed by Dr. Stephen Horowitz. Dr. Horowitz wrote, “Mr. Lembrick does have early hypertension without end organ system involvement. This is most likely idiopathic and influenced by heredity, obesity and stress in the workplace. Dissecting how much of this problem is from each of these causes is almost impossible.” Dr. Horowitz also opined that the claimant would need to be out of work for several months in order to better determine the effect of the workplace on his blood pressure. Findings, ¶ 18. Arthur Landry, M.D., also examined the claimant. Dr. Landry wrote, “The Claimant may be at great risk of developing hypertension due to his obesity and family history.” Dr. Landry did not comment on any effect from job stress. Findings, ¶ 19.

Based on this record the trial commissioner concluded the claimant’s testimony as to his blood pressure readings, diagnosis of hypertension and treatment for the same was credible and persuasive. The commissioner found Dr. Horowitz’s report credible and persuasive as to the likely causes of the claimant’s hypertension. Dr. Horowitz did not find a sole cause of the claimant’s hypertension and cited the workplace among three factors. Dr. Landry’s opinion, since it does not address workplace stress in any way, was not persuasive. The trial commissioner concluded the claimant’s pre-2008 high blood pressure readings were isolated and were not accompanied by a diagnosis of hypertension. The trial commissioner found the respondent’s evidence did not rebut the presumption of compensability under § 5-142a C.G.S., finding that the presumption that the claimant developed hypertension due to his work as a correction officer the claim for workers’ compensation benefits under § 5-142a C.G.S. was met.1 The trial commissioner also determined the Form 30C had been filed in a timely fashion.

The respondent filed a Motion to Correct which sought to substitute virtually every finding by the trial commissioner. The trial commissioner granted only one correction which corrected a scrivener’s error. The respondent have now pursued this appeal.

The respondent appeals on a variety of fronts. They contend that the claimant cannot present a claim under § 5-145a C.G.S. when he does not present a copy of the pre-employment physical examination to the commissioner. They further contend that the trial commissioner misread Dr. Horowitz’s report and reached an impermissible inference supportive of compensability. They find the trial commissioner’s conclusion that the claimant would not have been hired had he had a prior history of hypertension improper and unsupported by the evidence. Finally, they contend that as they successfully rebutted the statutory presumption of compensability under § 5-145a C.G.S., the claimant failed to meet his burden of proof and the claim should be denied.2

We find one argument of the respondent meritorious. Conclusion, ¶ F of the Finding and Award states “It is not credible that the Department of Corrections would have hired the Claimant as a corrections officer if his pre-employment physical examination had revealed hypertension.” Such a conclusion must be based on testimony or documentary evidence which appears in the record of the Formal Hearing. We are unable to ascertain from the record herein a specific representation on this matter. As a result, we believe the precedent in McFarland v. State/Dept. of Developmental Services, 115 Conn. App. 306, 318 (2009) governs this issue. As the record on this issue is silent, the respondent’s Motion to Correct should have been granted as to Correction ¶ 13.

Nonetheless, we do not find that this specific conclusion controls the ultimate issue as to whether or not the claimant presented a sufficient quantum of proof that he was hired after a pre-employment physical failed to reveal pre-existing hypertension. Therefore, we deem this issue harmless error. See Connors v. Stamford, 5484 CRB-7-09-7 (July 23, 2010) and Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006).

The gravamen of the respondent’s argument is that since no pre-employment physical examination was presented to the trial commissioner, the claimant’s bid for § 5-145a C.G.S. benefits must fail. In his brief, counsel for the respondent cites cases dealing with unrelated issues such as Kulis v. Moll, 172 Conn. 104 (1976) and Kinney v. State, 213 Conn. 54 (1989) as imposing a very stringent standard for benefit eligibility. The precedent we have adopted governing the various heart and hypertension statutes for public employees do not evidence such a restrictive approach, and lead us to the position that under these circumstances the claimant could proceed with his claim.

The claimant relies on precedent in Collingwood v. Branford, 4787 CRB-3-04-2 (July 6, 2005) as supporting his position that the inability to locate and present a pre-employment physical should not bar a claim for heart and hypertension benefits. The respondent argues that Collingwood was a case concerning § 7-433c C.G.S. benefits and should be distinguished from this case. We are not persuaded that on this issue there is a material difference between § 7-433c C.G.S. and § 5-145a C.G.S., and therefore, find Collingwood persuasive authority.

In Collingwood the town of Branford hired the claimant as a dispatcher, and then later he was hired as a firefighter. The claimant was administered an exam when he was first hired which did not identify any heart disease. The town did not administer a new exam when the claimant was hired for a firefighting position where he had potential eligibility for § 7-433c C.G.S. benefits. The town argued successfully at the formal hearing that the claimant had failed to sustain his burden of proof that he did not have heart disease upon his employment as a firefighter as the old exam had not been performed to the standard of § 7-433c C.G.S. This panel reversed that decision.

The respondent argued that when they failed to perform an examination at the time of employment, this failure rendered the claimant’s bid for benefits outside the terms of the statute. We pointed out “the statute does not address the consequences of a town’s failure to give an applicant a physical examination prior to his or her hire as a firefighter or police officer.” Collingwood, supra. We rejected the town’s argument “that this ‘lost examination’ provision also implies that, in cases where no examination was given at the time of hire, the legislature deliberately sought to bar a prospective claimant from making a claim.” Id. Reviewing the legislative history behind § 7-433c C.G.S. “it would run contrary to that legislative design if a town could have circumvented the effects of § 7-433c by omitting the standard physical examination as part of the hiring process for uniformed firefighters.” Id.

In the present case the parties agree that the claimant was examined. However, neither party can presently locate the examination. As a practical matter it would appear the respondent would have the greater ability to maintain appropriate medical and personnel records over a period of decades than the claimant. Moreover, given the rebuttable presumption in the statute the respondent would have a material incentive to produce medical evidence contesting the claimant’s bid for benefits. Given these circumstances, we simply find the respondent’s arguments herein are a reprise of the “lost examination” argument we rejected in Collingwood. We do not believe that the legislative intent behind bonus legislation such as § 5-145a C.G.S. was to bar claims when the respondent cannot produce the one piece of evidence that would be dispositive of the claim’s outcome. If the failure to administer an examination creates potential liability for a respondent under bonus legislation, we are not persuaded the failure to proffer the results of an examination should lead to a different result.

Nonetheless, the statute does require the claimant, who was hired after June 28, 1985, to “show proof” that he successfully passed a physical examination prior to his employment in order to gain the rebuttable presumption in the statute. This constitutes a question of evidentiary sufficiency for the tribunal.3

The claimant testified at length as to the circumstances of his pre-employment examination. September 29, 2009 Hearing Transcript pp. 15-19 and pp. 25-29. He also presented personal medical records dating back to 1995, where an exam for a rapid heartbeat determined a “normal Holter monitor”. These medical records included over 35 blood pressure readings from examinations from 1997 to 2009. Claimant’s Exhibit A. Based on this evidence the trial commissioner concluded that at neither of the two pre-employment examinations was the claimant advised that he had hypertension or high blood pressure. Findings, ¶ 6. The trial commissioner found the claimant credible and persuasive. Conclusion, ¶ A. We believe that the claimant advanced a sufficient quantum of evidence to allow the trial commissioner to reach this determination. This determination meets the statutory requirement of “proof” he was administered an examination and did not have evidence of preexisting hypertension or heart disease.4

Our reasoning herein is this constitutes an issue as to the weight and relevance of evidence. In Valiante v. Burns Construction Company, Inc., 5393 CRB-4-08-11 (October 15, 2009) we pointed out “decisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact”. LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) stands for a similar proposition “a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion.” Counsel for the respondent objected to the claimant’s testimony as to the results of his pre-employment physical, which objection was overruled by the trial commissioner. September 29, 2009 Transcript, pp. 15-16. We find no abuse of discretion.

We turn now to the issue of whether the trial commissioner could rely on Dr. Horowitz’s report. The respondent asserts it was error for the trial commissioner not to rely on Dr. Landry’s report instead of Dr. Horowitz’s report. We disagree. See O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999) “It is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” We note that Dr. Horowitz was the commissioner’s examiner and as we held in Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009) we generally extend deference when a trial commissioner relies on their opinion; “while the trial commissioner was not bound to accept (the commissioner’s examiner’s) opinion, generally he would need to proffer a reason why he found another expert more persuasive. See Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009), and Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009).” Damon, supra. The trial commissioner could properly determine that Dr. Horowitz was more persuasive than Dr. Landry, whom the commissioner noted made no reference to workplace stress in his report.

The respondent raises a further issue that even if the trial commissioner could decide to credit Dr. Horowitz, that the trial commissioner erred by reaching an improper inference from Dr. Horowitz’s report. In Conclusion, ¶ B the trial commissioner stated “Dr. Horowitz did not indicate a sole cause of the hypertension. He has given equal weight to heredity, obesity and stress in the workplace, making stress in the workplace a substantial factor.” The respondent argues that Dr. Horowitz never stated in his report that stress in the workplace was a substantial factor and that the trial commissioner’s conclusions go beyond the expert opinions on the record.

Were this a standard case under Chapter 568 the respondent would have a significant argument. The respondent correctly points out that Dr. Horowitz never used the words “substantial”, “significant”, “major” or any synonym to describe the impact workplace stress had on the development of the claimant’s hypertension. Cases such as McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987) require such an expert opinion to find causation in a Chapter 568 case involving heart disease. While we examine the totality of the medical evidence to determine whether this standard has been reached, see Solonick v. Electric Boat Corporation, 5170-CRB-2-06-12 (January 9, 2008), aff’d, 111 Conn. App. 793 (2008) and Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008), aff’d, 118 Conn. App. 248 (2009), certainly the absence of a definitive opinion as to the weight of workplace factors behind an ailment can lead a trial commissioner to determine the claimant has failed to establish compensability. Voronuk, supra.

On the other hand we have pointed out that when an expert witness does not use the specific term “substantial” in his or her opinion that the trial commissioner must apply their discretion as to whether they believe the totality of the evidence supports compensability. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008). In addition we believe that the case of Salmeri v. State/Department of Public Safety, 70 Conn. App. 321 (2002) has greatly strengthened the presumption of compensability in cases involving § 5-145a C.G.S. We look to the discussion of the statutory presumption the Appellate Court used in Salmeri, supra.

A statutory presumption requires a rational connection between the fact proved and the ultimate fact presumed. See H. Ashford & D. Risinger, ‘‘Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview,’’ 79 Yale L.J. 165, 166 (1989). A presumption is equivalent to prima facie proof that something is true. It may be rebutted by sufficient and persuasive contrary evidence. A presumption in favor of one party shifts the burden of persuasion to the proponent of the invalidity of the presumed fact. That burden is met when it is more probable than not that the fact presumed is not true. Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). Id, 339.

In the present case, both Dr. Landry and Dr. Horowitz identified the claimant as having hypertension. Dr. Horowitz specifically listed workplace stress as an influence on the development of this condition.5 We believe the record demonstrates that a “rational connection” exists between the claimant’s hypertension and the statutory presumption. The burden thus shifts to the respondent to prove it is more probable than not that the workplace did not play a substantial role in the claimant’s medical condition. The respondent’s reliance on precedent on the issue of causation predating Salmeri such as Bergin v. State/Department of Correction, 4200 CRB-8-00-3 (August 23, 2001) is unavailing as such cases are trumped by more recent precedent from a superior tribunal.6 As a leading treatise explains, “The Salmeri court stated explicitly that, if the statutory prerequisites are met, the employer must prove lack of causation.” Carter, Civitello, et al, Connecticut Practice Series Volume 19, Workers’ Compensation Law § 9:10 (2008).

The respondent’s review of the law is that once any evidence is presented challenging the statutory presumption then the presumption has been rebutted. This position is inconsistent with Salmeri. We recently discussed the issue of § 5-145a C.G.S. statutory presumption at length in Rizzo v. State/Judicial Department, 5522 CRB-6-10-1 (January 10, 2011). We find the record herein far more congruent with the decision which we upheld in Rizzo than the cases relied on by the respondent for their claim they successfully rebutted the claimant; such as McFarland, supra, and Jones v. Connecticut Children’s Medical Center Faculty Practice Plan, 5420 CRB-1-09-1 (July 1, 2010).7 We note that in the present case, as in Rizzo, the claimant was found to be a credible witness. As a result, it is understandable why the trial commissioner found medical evidence consistent with the claimant’s narrative to be more weighty and persuasive than medical evidence inconsistent with the claimant’s narrative. “While cases such as Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008), Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006) and Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008) clearly establish that a trial commissioner may decide uncontroverted medical evidence is unreliable when he or she finds the claimant’s narrative not to be credible; the converse is also true. A trial commissioner may rely on expert testimony which is grounded in a claimant’s narrative he or she does find credible.” Wiggins v. Middletown, 5300 CRB-8-07-12 (January 15, 2009).8

The claimant in this matter was employed by the Department of Correction and developed hypertension during his employment. He testified that he did not have this condition when he was hired and he passed a pre-employment physical. He was found to be a credible witness by the trial commissioner. As she did not find the respondent’s evidence persuasive she found the claimant was entitled to the statutory presumption of compensability under § 5-145a C.G.S. We find this determination consistent with the law and the facts on the record.9

We herein affirm the Finding and Award. The appeal is dismissed.

Commissioners Jack R. Goldberg and Daniel E. Dilzer concur with this opinion.

1 The reference to § 5-142a C.G.S. was a scrivener’s error corrected by the trial commissioner. BACK TO TEXT

2 The relevant portion of the statute reads as follows:

Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to a member of (lists enumerated positions) 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

3 We note the plain language of § 5-145a C.G.S. does not require a claimant to present a copy of the specific pre-employment physical at the time he files his claim. Presumably had the General Assembly intended such a mandate it would have been specified in the statute. The application of § 1-2z C.G.S. to this statute leads this panel to conclude the definition of what constitutes “proof” is left to the trier of fact. BACK TO TEXT

4 We note that in Tremblay v. Connecticut State Employee Retirement Commission, 31 Conn. Supp. 75 (1975), aff’d, 170 Conn. 410 (1976) it was a “discretionary determination” as to whether an examination revealed evidence of heart disease in a § 5-145a C.G.S. claim; which the Supreme Court said enabled the board “to exercise their judgment in determining whether any such evidence has been revealed.”. Id, 415. Enabling a trial commissioner to make a discretionary determination whether the claimant had a successful examination in this case is consistent with the precedent in Tremblay. BACK TO TEXT

5 The respondent did not depose Dr. Horowitz following the issuance of his report to obtain a clarification as to his conclusions, nor did they seek to follow up on Dr. Horowitz’s recommendation to conduct further tests to evaluate the claimant’s condition in the absence of workplace stress. As a result they must accept Dr. Horowitz’s opinions “as is” along with any reasonable inferences from such opinion Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT

6 We may further distinguish Bergin in that the claimant in that case had retired prior to filing his claim and the present claimant was employed by the DOC at the time he suffered his disability and filed his claim. In Bergin this panel held that the trial commissioner correctly determined the claimant was not eligible for § 5-145a C.G.S. benefits when the first manifestation of heart disease occurred after he had already retired. BACK TO TEXT

7 Neither McFarland or Jones deal with the relevant statute herein. In addition as noted, in McFarland, supra, the trial commissioner reached findings of fact which were not supported by evidence on the record. In Jones v. Connecticut Children’s Medical Center Faculty Practice Plan, 5420 CRB-1-09-1 (July 1, 2010) we concluded “as we are unable to discern from the evidentiary record a medical basis for the trier’s conclusion that the motor vehicle accident was a substantial contributing factor in the development of the claimant’s subsequent psychological issues, we are unable to affirm a finding which seems to suggest that those emotional impairments constitute a compensable injury.”. Id. We also noted that on various issues in Jones the trial commissioner appeared to rely on an expert witness he found not to be credible. Id. While Dr. Horowitz’s report may not be the enthusiastic endorsement of the claimant’s position the respondent’s desire, it does provide a medical basis for the trial commissioner’s conclusions, especially as, unlike the claimants in McFarland and Jones, the present claimant has a statutory presumption of compensability. BACK TO TEXT

8 We note that we first rejected the respondent’s construction of what is required to overcome a rebuttable statutory presumption in Fuessenich v. State/Department of Public Safety, 4416 CRB-1-01-7 (June 21, 2002). While Fuessenich involved a § 29-4a C.G.S. claim; the principle herein is the same. The trial commissioner must find the respondent’s expert witness more persuasive than that evidence presented by the claimant for the respondent to prevail. As we pointed out in a prior case involving § 5-145a C.G.S. “[t]he mere presentation of evidence does not require the trial commissioner to find it probative and persuasive.”. Jamieson v. State/Military Department, 5471 CRB-1-09-6 (June 16, 2010). BACK TO TEXT

9 With the exception of Correction, ¶ 13, which we have ordered granted, we uphold the trial commissioner’s denial of the respondent’s Motion to Correct. The other corrections in 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 either would not have compelled a different result, Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. State/Department of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), or the trial commissioner did not find the evidence probative or persuasive Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011)(per curiam). BACK TO TEXT

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