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CASE NO. 3703 CRB-06-97-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 12, 1999
CITY OF NEW BRITAIN
The claimant was represented by Albert J. McGrail, Esq., McEleney & McGrail, 363 Main Street, Hartford, CT 06106.
The respondent was represented by Seth Feigenbaum, Esq., Office of Corporation Counsel, City of New Britain, 27 West Main Street, New Britain, CT 06051.
This Petition for Review from the October 8, 1997 Finding and Award of the Commissioner acting for the Sixth District was considered on papers, as the parties agreed to waive oral argument before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the October 8, 1997 Finding and Award of the commissioner acting for the Sixth District. It argues on appeal that the commissioner erred by finding that the claimant provided timely notice of his § 7-433c C.G.S. hypertension claim. We now affirm the trial commissioner’s decision.
The trial commissioner found the following relevant facts. The claimant was employed by the New Britain Fire Department from August 4, 1969, until his requested disability retirement on September 14, 1996. On March 16, 1992, treatment with Dr. Robert S. Sultar produced blood pressure readings of 160/100 and 146/96. Pursuant to the firefighters’ collective bargaining agreement, the claimant underwent a physical examination on March 23, 1994. His blood pressure reading on that date was 140/90. On May 13, 1994 the claimant was again examined by Dr. Sultar with a blood pressure reading of 150/90. The claimant’s blood pressure reading on March 16, 1995 was 140/90.
The commissioner found that the claimant was given medical treatment following the March 16, 1995 physical examination, but that such treatment was for elevated cholesterol and triglyceride levels rather than hypertension or heart disease. Findings,¶ C. On January 4, 1996 the claimant suffered an acute inferior myocardial infarct with right ventricular infarct and further complications. The claimant notified the respondent of his claim on January 5, 1996. The respondent contested liability for the claim, arguing that the claimant’s hypertension manifested itself in 1992, and notice for a claim was due within one year from that date. However, the trial commissioner found that none of the claimant’s treatment prior to January 4, 1996 resulted from hypertension or heart disease. Findings, ¶ B. Therefore, the claimant’s notice pursuant to § 7-433c C.G.S. was timely, and the Workers’ Compensation Commission had jurisdiction over the claim.
Firefighters and police officers who incur health impairments due to hypertension or heart disease are allowed to collect compensation under § 7-433c C.G.S. in the same manner as provided under Chapter 568, provided that they have “successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease . . . .” “[T]he physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of § 7-433c. 94” Suprenant v. New Britain, 28 Conn. App. 754, 758-59 (1992) quoting Horkheimer v. Town of Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 143, 163 CRD-4-82 (Dec. 31, 1987). Because there is no dispute that the claimant passed his physical upon entering service in 1969, the claimant is eligible under § 7-433c.
The determination as to whether a physical examination revealed any evidence of hypertension or heart disease is a factual one committed to the trier’s discretion. Cooper v. Town of Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 277, 1336 CRD-5-91-11 (Nov. 19, 1993). This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). Before the January 4, 1996 heart attack, Dr. Sultar had examined the claimant on a number of occasions. The doctor opined that, prior to the claimant’s infarction, he did not have any heart disease or significant hypertension. (Joint Exhibit 11, pp. 37-38). Dr. Sultar attributed the claimant’s high blood pressure readings in 1992 to momentary stress caused by anxiety or pain, and stated that his blood pressure in 1995 was normal. (Joint Exhibit 11, p. 38).
We have explicitly stated that a blood pressure reading of 140/90 is not per se hypertensive under Connecticut law. “A claimant who is close to the borderline and who is not diagnosed with hypertension by his doctor is someone whom the commissioner must evaluate under all the circumstances of his case.” Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997). The trial commissioner, having the exclusive power to determine issues of credibility, found the opinion of Dr. Sultar on this issue to be persuasive. We are not in a position to reassess this evidence and disturb the commissioner’s findings. See Fair v. People’s Savings Bank, 207 Conn. 535, 542 A.2d. 1118 (1988); Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998).
The respondent further argues that the claimant received medical treatment for hypertension after his May 13, 1994 visit with Dr. Sultar. However, the claimant testified that Dr. Sultar neither discussed anything about his blood pressure nor gave him any treatment for such a condition. (Findings, ¶ 21). Furthermore, Dr. Sultar made no notation in his report of having placed the claimant on a restrictive diet. The only evidence the respondent cites for the proposition that the claimant received treatment for hypertension was that it was the usual practice of Dr. Sultar to place patients on a low salt diet and request them to return to check the patient’s blood pressure. (Findings, ¶ 20). Based on this evidence, the trial commissioner found that prior to January 5, 1996 the claimant did not receive medical care or treatment for any hypertensive condition. (Findings, ¶ B). We are not in a position to disturb this finding. See Webb, supra.
Assuming, arguendo, that the claimant was placed on a low salt diet on May 13, 1994, we do not believe this constituted medical treatment within the meaning of § 31-294c(c). The respondent relies on McNerney v. City of New Haven, 15 Conn. Workers’ Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996), for the proposition that a change in diet is medical treatment. We feel this reliance is misplaced. In McNerney, the claimant made so-called “lifestyle changes,” which included quitting smoking, changes in diet, and giving up alcoholic beverages. In addition, the claimant in McNerney was prescribed medication over a period of years. In the case at bar, the claimant was never prescribed medication for hypertension, and was not placed on a restrictive diet until March 16, 1995 (which date, incidentally, is within one year of the claimant’s request for a hearing). While medical treatment may include lifestyle changes, such changes by themselves need not be construed as medical treatment under § 31-294c(c).
Finally, the respondent argues that the claimant’s failure to quit smoking constitutes willful and serious misconduct under § 31-284(a) C.G.S. However, the finding of willful and serious misconduct is a factual determination, and the burden of proof rests on the respondent. Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-1-90-7 (Aug. 27, 1992), rev’d., 33 Conn. App. 695 (1994), rev’d., 231 Conn. 469 (1994), aff’d. on remand, 37 Conn. App. 266 (1995)(per curiam), Liptak v. State, 176 Conn. 320 (1978). The respondent in the instant case did not present any evidence in support of this affirmative defense. Therefore, we may not substitute another view of the facts for that of the trial commissioner. Muldoon, supra.
The decision of the trial commissioner is hereby affirmed.
Commissioners George A. Waldron and Amado J. Vargas concur.
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