Tarzia v. City of Stamford

The claimant was represented by Daniel Benjamin, Esq., Benjamin & Gold, 350 Bedford St., Suite 403, Stamford, CT 06901.

The respondent was represented by Booth M. Kelly, Jr., Esq., Murphy & Beane, 2 Union Plaza, P. O. Box 590, New London, CT 06320.

This Petition for Review from the August 19, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the August 19, 1996 Finding and Award of the Commissioner acting for the Seventh District. The city argues on appeal that the trier erred by finding that the claimant has suffered a compensable injury pursuant to § 7-433c C.G.S. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant, a Stamford uniformed firefighter, filed a Form 30C on June 11, 1993 alleging a § 7-433c chest pain and hypertension claim with a June 3, 1993 date of injury. The city filed a notice of contest alleging that the injury did not arise out of and in the course of employment, that there was untimely notice, and that the injury did not satisfy the requirements of § 7-433c or Chapter 568. Dr. Schuster, a cardiologist who treated the claimant, concluded that his blood pressure readings indicated diastolic hypertension with a five percent permanent partial impairment. The trier noted that the respondent offered no expert testimony to attack that opinion. Instead, the city simply contended that Dr. Schuster’s opinion did not conform to AMA guidelines because he did not attempt drug therapy to control the claimant’s condition. The trier concluded that the claimant had compensable hypertension, and the respondent has appealed that decision.

Although the respondent has briefed three separate arguments in this appeal, the resolution of those issues depends upon two questions. The first of those questions is whether a claimant who has not been prescribed medication to treat hypertension can qualify as hypertensive within the meaning of § 7-433c. It is true that 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).” Fortin v. Borough of Naugatuck, 14 Conn. Workers’ Comp. Rev. Op. 48, 49, 1898 CRB-5-93-11 (May 4, 1995). However, contrary to the respondent’s argument, it is not a necessary corollary that a lack of medical care and prescription drugs prevents a commissioner from finding that a claimant is hypertensive.

In Cooper v. Town of Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 1336 CRD-5-91-11 (Nov. 19, 1993), this board upheld a trier’s dismissal of a § 7-433c claim where a single elevated blood pressure measurement was obtained during a pre-employment physical, even though the examining physician stated that there was no evidence of hypertension. Section 7-433c allows certain municipal employees to receive benefits only where the employee has passed a physical examination upon entry into service that fails to reveal any evidence of hypertension or heart disease. The trier in Cooper held that the single blood pressure reading of 146/88 constituted “some evidence of hypertension,” and dismissed the claim. On review, we noted that “hypertension” is defined as “abnormally high arterial blood pressure,” and affirmed the commissioner’s decision even though no doctor had diagnosed the claimant as hypertensive. Similarly, the claimant’s lack of prescriptive medical treatment in this case did not necessarily preclude the trier from finding that he suffered from hypertension. Instead, the commissioner was entitled to look at all of the circumstances to determine if there was proof of hypertension in this case.

This brings us to the second question on this appeal: was there sufficient evidence to support the trial commissioner’s decision? The respondent argues that only 30% of Dr. Schuster’s diastolic blood pressure readings were greater than 90, and that the trier’s finding improperly ignored the fact that the majority of the diastolic readings did not indicate hypertension. The city also raises certain statements made by the medical experts in support of its position.

As we recently stated in Leary v. City of Stamford, 3280 CRB-7-96-3 (decided September 17, 1997), “[t]he determination of whether a physical examination revealed any evidence of hypertension or heart disease is a factual issue committed to the trier’s sound discretion. . . . As long as a commissioner’s findings have roots in the evidence, this board may not invalidate them on review.” (Internal citations omitted). See also Zaleta v. Fairfield, 38 Conn. App. 1 (1995). Just as the import of a pre-employment physical examination must be interpreted by the trier, he must also decide whether a subsequent examination reveals a condition or impairment of health due to hypertension.

Here, a July 1993 physical examination by Dr. Schuster produced a high diastolic blood pressure reading. (Claimant’s Exhibit E.) His August 1994 report indicated that the claimant had demonstrated high diastolic readings on two recent occasions (Claimant’s Exhibit C), and a May 1995 report showed that one of four readings taken in May 1995 was over 90. Dr. Schuster stated that “the majority of the blood pressure readings indicate diastolic hypertension. It is my opinion that he had some diastolic hypertension that at this time does not require anti-hypertensive medications. I would give him a 5% impairment based on the diastolic hypertension.” (Claimant’s Exhibit D). The trier was certainly entitled to infer from these reports that the claimant had begun suffering from a compensable hypertensive condition. Whether or not “majority” was an inaccurate term used by the doctor is immaterial. There is evidence in the record to support the trier’s decision, and we must uphold it on review. Zaleta, supra, 4-5.