McNerney v. City of New Haven

The claimant was represented by Thomas Farver, Esq., Farver & DeMarco, 2842 Old Dixwell Ave., Hamden, CT 06518.

The employer was represented by Donna Chance Dowdie, Esq., Assistant Corporation Counsel, City of New Haven, 165 Church St., New Haven, CT 06510.

This Petition for Review from the July 8, 1994 Finding of Compensability of the Commissioner acting for the Third District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has appealed from the July 8, 1994 Finding of Compensability of the Commissioner acting for the Third District. In that decision, the trial commissioner found that the claimant, a New Haven firefighter, suffered from hypertension which was compensable pursuant to § 7-433c C.G.S.1 The trial commissioner determined that the claimant’s notice of claim filed on May 27, 1993 was timely because, although he had previously been suffering from hypertension, his hypertension constituted a new injury effective in March of 1991. In support of its appeal, the employer contends that the record does not support the trial commissioner’s finding that the claimant sustained a new injury in March of 1991.

The trial commissioner found the following relevant facts. The claimant was hired as a firefighter on July 4, 1970 after successfully completing a pre-employment physical examination which did not show any evidence of hypertension. The claimant was diagnosed with hypertension on August 15, 1975, and was prescribed hypertension medication from August of 1975 through August of 1981. During this period, the claimant was overweight, smoked cigarettes, and drank alcoholic beverages. Subsequently, the claimant changed his lifestyle by giving up drinking, reducing his weight, and quitting smoking. These changes “cured his hypertension.” (Finding No. J). The claimant remained normotensive until March of 1991, at which time he was placed on prescription hypertension medication. (Finding No. 17). On May 27, 1993, the claimant filed a notice of claim for hypertension benefits pursuant to § 7-433c.

This board has specifically ruled that the disease of hypertension, when it requires medical care and prescription drugs, constitutes a disability pursuant to §7-433c C.G.S. Murach v. City of New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 1172 CRD-6-91-2 (April 20, 1992). The employer does not dispute the fact that when the claimant was hired, he successfully passed a physical examination, with no evidence of hypertension or heart disease, nor does the employer dispute the fact that the claimant subsequently developed hypertension which required prescription drugs. The only issue on appeal is whether the claimant filed a timely notice of claim. The employer contends that the claimant suffered from hypertension which was controlled by medication from August of 1975 through August of 1981, and contends that the claimant was prescribed medication for hypertension on September 8, 1988 and July 21, 1989. Thus, the employer contends that the statute of limitations should commence running from one of these earlier dates rather than from March of 1991.

We will first address the trial commissioner’s determination that the claimant’s hypertension constituted a new injury in March of 1991.2 We have long held that the question of whether an injury is a recurrence or a new injury is a factual determination for the trial commissioner. Perry v. Union Lyceum Taxi Co., 13 Conn. Workers’ Comp. Rev. Op. 16, 17, 1695 CRB-4-93-4 (Nov. 3, 1994). In close cases where the facts could support either conclusion, this board will defer to the commissioner’s finding on that issue. Id.; see Fair v. People’s Savings Bank. 207 Conn. 535, 539 (1988).

In the instant case there is ample evidence in the record to support the trial commissioner’s decision that the claimant’s hypertension which manifested itself in March of 1991 constituted a new injury. Specifically, the trial commissioner found that the claimant had suffered from hypertension from 1975 through 1981, but had “cured his hypertension” by lifestyle changes such as giving up drinking, reducing his weight, and quitting smoking. (Finding No. J). The claimant’s treating physician’s assistant testified that the claimant’s hypertension during the period from 1975 to 1981 constituted secondary hypertension which was cured through lifestyle changes. (Transcript at 11-12). He also testified that on September 8, 1988 he advised the claimant to exercise and lose weight, but that no medication was required for hypertension (Transcript at 24-27) and that the claimant’s elevated blood pressure reading on July 21, 1989 was related to a migraine headache condition. (Transcript at 31-33). In addition, the claimant testified that he was not prescribed any medication for hypertension from 1980 through 1991.3 (Transcript at p. 37).

We conclude that the record supports the trial commissioner’s determination that the claimant’s hypertension constituted a new injury in March of 1991. It was within the province of the commissioner to resolve inconsistencies or contradictions in the evidence. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988). As the conclusions reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, those conclusions must stand. Fair, supra, 539.

The claimant contends on appeal that the trial commissioner improperly denied his motion to correct. On review of the denial of a motion to correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A motion to correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). A commissioner, as a trier of fact, has the right to reject testimony even if it is seemingly uncontradicted. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996). We find no error in the commissioner’s denial of the claimant’s motion to correct.

Finally, we will address section 31-294c(a) C.G.S. which requires a claimant to file a written notice of claim for compensation “within one year of the date of the accident or within three years from the first manifestation of a symptom of the occupational disease....” The Appellate Court has recently held that a claim for hypertension pursuant to § 7-433c is not presumed to be an occupational disease. Zaleta v. Fairfield, 38 Conn. App. 1, 7 (1995). Specifically, the Appellate Court stated: “Without evidence establishing that the claimant’s injury is a result of an occupational disease, the one year statute of limitations applies.” Id. at 6. In the instant case, there was no evidence presented at the formal hearing which would indicate whether the claimant’s hypertension constituted an occupational disease.4

Accordingly, the trial commissioner’s decision is remanded solely for a determination of whether the claimant’s hypertension constituted an occupational disease such that the three year statute of limitations applied. See Zaleta, supra, see also Crochiere v. Board of Education, 227 Conn. 333, 352-353 (1993).

Commissioners Roberta Smith Tracy and Michael S. Miles concur.

1 Section 7-433c of the Connecticut General Statutes provides in pertinent part: “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.... shall receive from his municipal employer compensation and medical care in the same amount and in the same manner as that provided under chapter 568....” (Emphasis added). BACK TO TEXT

2 It should be noted that on March 20, 1995, this board issued a decision denying the employer’s request to submit additional evidence regarding whether the claimant’s original hypertension was curable because that evidence was available at the time of the formal hearing. Accordingly, we are limited to the existing record. BACK TO TEXT

3 We note that the parties agreed on the record that the claimant had never missed time from work due to hypertension from July 4, 1970 through February 18, 1993. (Transcript at p. 5). BACK TO TEXT

4 Section 31-275(15) C.G.S. defines an occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such....” BACK TO TEXT