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Horn v. State of Connecticut/Department of Correction

CASE NO. 4177 CRB-3-00-1



FEBRUARY 22, 2001









The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The Second Injury Fund was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 21, 2000 Corrected Finding and Award of the Commissioner acting for the Third District was heard September 15, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Ernie R. Walker.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 21, 2000 Corrected Finding and Award of the Commissioner acting for the Third District. He is challenging the trier’s dismissal of his claim for § 5-145a C.G.S. benefits on several different grounds, most notably over the proper meaning of that statute’s presumption of compensability. After careful consideration of these claims of error, we affirm the trial commissioner’s decision.1

Many of the facts relevant to our analysis of this appeal were recited in our December 16, 1998 opinion in Horn v. State/Dept. of Correction, 3727 CRB-3-97-11 (Horn I), and in the November 7, 1997 Finding and Award of the trial commissioner, which we affirmed in part and also reversed in part due to insufficient findings.2 Indeed, the trier incorporated virtually all of his previous factual findings into the January 21, 2000 ruling that is on appeal here. In his initial decision, the trier found that the claimant was employed on both November 12, 1992 and November 20, 1992 as a deputy warden for the Department of Corrections. He took a physical examination upon entry into state service in 1975 that revealed no evidence of heart disease or hypertension. The claimant testified that he became a deputy warden in 1990, which position he found overwhelming due to his lack of special training and the overcrowded, frequently violent working conditions. The situation allegedly made him anxious, and he took up the habit of smoking. He also admitted to several other potential stressors that were centered in his personal life, such as financial difficulties and child support problems.

During early November 1992, the claimant reportedly began feeling dizzy and nauseated, experiencing numbness in his left arm. On November 12, 1992, while in the jail office, he felt excruciating chest pain and more numbness in his arm. He was eventually diagnosed with dyspepsia and acute chest pain at Yale-New Haven Hospital, given Maalox, and told to return to the hospital if the pain recurred. It did so eight days later, and with severe intensity. This time, Dr. Chamberlain at Mount Sinai Hospital diagnosed him with an acute anterior wall myocardial infarction and congestive heart failure. The trial commissioner found that the claimant suffered a myocardial infarction, which kept him totally disabled until January 3, 1993.

According to his findings, the trier was unpersuaded by the claimant’s testimony as to workplace stress prior to November 1992, having noted that the claimant had not complained about his position or duties during the two years prior to his heart attack. “The evidence indicates that Claimant was under no particular job stress at that time but may have suffered stress from events in his personal life. There is ample evidence that Claimant experienced a stressful period immediately following his return to work in January of 1993, but that these conditions were not present during the period immediately prior to November of 1992.” 1997 Findings, ¶ 37-B. Also, Robert Gillis, the warden of the jail, testified that he spent time with the claimant during his term of service, and that in conversation he had mentioned that he had been smoking for many years. Id., ¶ 17.

Dr. Chamberlain reported that the claimant had suffered a transient thrombosis or vasospasm, the latter of which is most commonly precipitated by the use of cigarettes and by stress. He accordingly opined that workplace stress played a major role in the claimant’s myocardial infarction; significantly, his diagnosis was partially based on the history of pre-infarction job stress that the claimant personally related to him. Id., ¶ 25. Dr. Silverstein, a cardiologist, examined the claimant on the respondent’s behalf and came to the conclusion that cigarette smoking, rather than workplace stress, caused the claimant’s attack. Dr. Silverstein did not believe that stress generally causes or is a significant factor in the development of heart attacks, and did not ask the claimant about it during their conversation. However, he acknowledged that there might be some situations in which stress could play a major role in the development of a myocardial infarction, and admitted that some other cardiologists do not share his views on the relationship between stress and heart attacks. Id., ¶ 30.

Despite his lack of conviction that the claimant had indeed experienced a heart attack that was due to job stress, the trial commissioner originally concluded that the claimant was entitled to compensation for his medical bills, temporary total incapacity, and permanent partial impairment. “I . . . find that Claimant is one of the employees covered by C.G.S. 5-145a and is thus presumed to have suffered his myocardial infarction commencing on November 12, 1992 and continuing through November 20, 1992 during the performance of his duty.” Findings, ¶ 37-J. The state appealed that decision to this board, which observed that § 5-145a “‘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 (Jan. 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.’ Id.” Horn I, supra. Because the trial commissioner had not discussed the respondent’s attempt to rebut that presumption despite the presence of evidence that, if believed, would accomplish that task, we remanded the case back to him for further findings. Id.

Following that remand, the trial commissioner issued a Corrected Finding and Award dated January 21, 2000. There, he added several new conclusions to his prior award: that the claimant had been smoking for a number of years prior to meeting Robert Gillis in 1990; that he suffered from personal stressors arising from domestic problems and financial difficulties; and that there was sufficient evidence to support Dr. Silverstein’s opinion that the myocardial infarction was caused by cigarette smoking. Thus, the trier concluded that the presumption of compensability in § 5-145a had been successfully rebutted by the respondent. He then dismissed the instant claim for compensation, which has inspired the present appeal.

The claimant’s appellate argument intuitively divides itself into two parts: a challenge to the interpretation of § 5-145a 3 adopted by the trial commissioner and this board in Horn I, and an attack on the evidentiary foundation for the factual findings themselves. We must necessarily resolve the former issue before we may address the latter. In Horn I, the respondent maintained that the trial commissioner had erroneously applied the presumption in § 5-145a as if it were conclusive, when he should have found that the respondent had (1) successfully rebutted the presumption and (2) proven that the claimant’s heart attack was not compensable. March 31, 1998 Brief, pp. 12-13. In response, the claimant advanced not only the argument that the trier did not find that the presumption had been successfully rebutted as a matter of fact, but also that the presumption was conclusive in the first place, despite certain “dicta” in prior cases of this board. April 8, 1998 Brief, 10-15. Following our holding in Horn I (quoted above), and the trier’s subsequent finding on remand in favor of the respondent, the claimant now raises a more detailed version of the “irrebuttable presumption” argument, in which he characterizes this board’s earlier decision as an impetuous dismissal of the legislature’s obvious intent to create a meaningful presumption. Brief, 9.

These circumstances implicate a traditional doctrine in Connecticut jurisprudence known as the “law of the case.” According to this doctrine, a determination once made will be treated as correct throughout all later stages of the proceeding except when the question comes before a higher court. State v. Daniels, 209 Conn. 225, 237 (1988), cert. denied, 489 U.S. 1069 (1989). This procedural device may not affect the jurisdiction of an appellate tribunal, but it is necessary to keep parties from relitigating issues that have been decided previously. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 294 (1999). Thus, “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn. App. 236, 240 (1998). Examples of such circumstances include substantial new evidence, the issuance of an inconsistent Supreme Court decision subsequent to the first ruling, or a conviction on the part of the second reviewing court that its predecessor’s ruling was clearly erroneous. Id., citing Pagano v. Board of Education, 4 Conn. App. 1, 11, cert. denied, 197 Conn. 809 (1985).

We espy no such circumstances with respect to the issue of statutory construction that the claimant attempts to raise in this appeal. The status of § 5-145a remains precisely as it was when we issued Horn I, both in terms of its application to the facts of this case and the presence—or absence—of any guiding interpretation of that statute from a higher court. Further, we do not believe that the Horn I panel incorrectly decided that the statutory presumption of compensability was rebuttable. The holding in Horn I therefore continues to govern this case. However, we do believe that some elaboration on our interpretation of § 5-145a is advisable, as the parties evince some uncertainty regarding both the reasoning behind our prior holdings and the effect of the presumption itself.

First, we are mildly chagrined to discover that both parties tend to read our holding in Horn I to mean that the statutory presumption in § 5-145a was overcome by the mere presentation of evidence opposing the instant claim, regardless of its weight or credibility. What we said in Horn I, along with Capra v. State, 3791 CRB-4-98-4 (April 27, 1999), and Dibenedetto v. State, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRB-6-89-5 (Jan. 3, 1991), is that the initial burden of persuasion is shifted by the presumption, thereby requiring the employer to present evidence to contest compensability. The trial commissioner 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. Insubstantial or suspect evidence cannot perform the same function. As the claimant diplomatically points out, it is not our goal to render § 5-145a “virtually worthless” by vitiating the force of its presumption. See Brief, 9.

We remanded the case back to the trier because his conclusions were phrased in such a manner that we could not readily tell whether he had rejected Dr. Silverstein’s causation analysis as insufficient to overcome the rebuttable presumption in § 5-145a, or had simply failed to weigh the doctor’s opinion because he considered the presumption to be conclusive. Given that the trier was not persuaded that the claimant had suffered workplace stress prior to November 1992; 1997 Findings, ¶ 37-B; which made it doubtful that the claimant could maintain a viable case without the assistance of the presumption, it became vital that the trier apply that presumption properly. On remand, he clarified his thought process and resolved this legal ambiguity in the state’s favor. His penultimate finding, i.e., “There is sufficient evidence to support Dr. Silverstein’s opinion that Claimant’s myocardial infarction was caused by cigarette smoking;” 2000 Findings, ¶ 37-N; taken in conjunction with the totality of his corrected findings and his conclusion in ¶ 37-O, establish that the trier deemed the respondent’s evidence persuasive enough to rebut the statutory presumption of compensability, once he recognized that it was indeed rebuttable. As such, the trier has corrected his previous error of law.

Second, the claimant continues to urge that no higher court has ever suggested that the presumption in § 5-145a is anything but conclusive, and attempts to demonstrate that § 5-145a is a “bonus or special compensation” statute similar to § 7-433c C.G.S. Both now and on previous occasions, we have carefully considered not only the legislative history and existing judicial interpretation of § 5-145a, but also the history and caselaw surrounding similar provisions such as § 7-433c. We acknowledge that no legal authority higher than this board has ever spoken to the nature of the presumption incorporated into § 5-145a. Still, our own analysis has led us to conclude that it must be rebuttable in order to remain consistent with our Supreme Court, which has stricken down on a constitutional basis similar statutes that attempted to legislate binding presumptions of compensability under the Workers’ Compensation Act. Capra, supra, citing Ducharme v. Putnam, 161 Conn. 135, 140 (1971)(original version of § 7-433a declared unconstitutional, as it attempted to legislate a factually unsupportable conclusive adjudication in violation of due process).

Ducharme followed a rule set down by the United States Supreme Court in Tot v. United States, 319 U.S. 463 (1943), stating that for a presumption to be constitutionally valid there must be a “rational connection between the fact proved and the ultimate fact presumed;” Id., 467; and that the presumption cannot exist solely because it is otherwise difficult for the opposing side to prove its case. Ducharme, supra, 141. Regardless of the legislature’s intent to recognize the peculiar problems of police officers and firefighters and the unusual risks attendant upon their occupations, it was impermissible for our lawmakers to use the mechanism of a statutorily conclusive presumption to establish a fact that would in reality be disputable, i.e., the causal connection between an individual’s employment and his or her heart ailment.4 The court noted, however, that many states had legitimately recognized the special situation of police officers and firefighters by enacting a rebuttable presumption establishing a causal relationship between their employment and a subsequent heart ailment. Id., 142-43. Following the Ducharme decision, § 7-433a was repealed, and a revised version was codified at § 7-433c. The new version of the statute did away with the presumption altogether, and instead provided “special compensation, or even an outright bonus, to qualifying policemen and firemen.” Grover v. Manchester, 168 Conn. 84, 88 (1975). This revision of the statute was held to be constitutional, though it incidentally conferred an undisguised direct benefit to a certain class of individuals, because its methods no longer ran contrary to the constitutions of this state and this country. Id., 89.

The claimant enthusiastically points out that the legislative history of § 5-145a establishes that the legislature intended to grant the same heart and hypertension benefits to state security officers that had been granted in 1959 to police officers and firefighters via § 7-433a. See, e.g., 14 H.R. Proc., Pt. 9, 1969 Sess., p. 4122 (remarks of Rep. Gerald Stevens); Conn. Joint Standing Committee Hearings, Public Personnel, Pt. 3, 1967 Sess., p. 671 (remarks of Rep. Henry Becker). Assuming that this is true, then it would follow that the same constitutional defect present in § 7-433a and discussed in Ducharme, supra, would also be present in § 5-145a if we were to construe its presumption as a conclusive one. It is worth observing, though, that § 7-433a used the phrase “conclusively presumed,” while § 5-145a invokes the less adamant “shall be presumed.” Having been presented with two possible constructions of “shall be presumed,” this board is inclined to opt for the one that is less likely in violation of the due process clause of our federal and state constitutions, and more in line with existing decisions of our Supreme Court. Further, our legislature did not amend § 5-145a in the same manner as it did § 7-433a following the Ducharme decision. As the legislature is presumed to be aware of all precedential legal decisions, we must assume that they have acquiesced in our long-standing interpretation (Dibenedetto was decided in 1991) of § 5-145a, and that they have recognized the statute as being ambiguous enough to lend itself to more than one reading. Thus, we confirm our holding in Horn I that the § 5-145a presumption is rebuttable.

The respondents’ attack on the evidentiary foundation of the trier’s decision can itself be divided into two parts: a challenge to the diagnosis and medical credentials of Dr. Silverstein, and a brief foray into the details of Robert Gillis’ testimony regarding the claimant’s smoking habit. Initially, we note the well-established standard that governs our review of a trial commissioner’s factual findings. “[T]he quintessence of a trier’s factfinding prerogative is the power to determine the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board may disturb the factual findings of the trial commissioner only if they lack any support in the evidence, or if he has failed to include undisputed material facts. Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-08 (Sept. 2, 1999). We may not retry a case on appeal and substitute our own findings for those of the trier. Id. ” Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000).

“The commissioner’s plenary factfinding authority provides him with a great deal of latitude in evaluating the evidence. He is not required to regard any particular statement as probative, even if it is apparently uncontradicted, nor is he required to deem any particular witness unpersuasive just because her remarks contain inconsistencies or uncorroborated assertions . . . . Gagliardi v. Raimondo Maintenance, L.L.C., 4012 CRB-1-99-4 (July 20, 2000); Pallotto, supra. Indeed, we have stated very directly that this board lacks the authority on review to declare a claimant’s testimony unreliable as a matter of law. VanStraten v. Hartford Courant, 3999 CRB-8-99-3 (March 23, 2000). The same principle applies to statements made by any witness, including an expert such as a doctor (although a medical diagnosis itself must be stated within a reasonable degree of probability; Struckman v. Burns, 205 Conn. 542, 555-56 (1987)). Where the veracity of a witness’ factual representations is at issue, the trial commissioner’s credibility assessment is virtually inviolable on appeal.” Goldberg, supra.

With respect to the testimony of Robert Gillis, we agree with the respondent that he did not specifically say that the claimant told him he had been smoking for “a number of years” prior to their acquaintance, as suggested by the trier’s findings. See 1997 Findings, ¶ 17; April 25, 1997 Transcript, pp. 59-63. However, in response to questioning by the respondent’s counsel, Gillis did testify as follows:

Q: Do you have any knowledge as to whether the Claimant had just started smoking or whether he had a habit of smoking in the past?
A: Not direct. I think he told me he had smoked. Basically what I am and what I consider myself to be at times which is on again, off again, sometimes heavy, sometimes light and always trying to quit.
. . . Q: Did you come to a conclusion as to whether the Claimant was someone who had just started smoking as he testified or whether he had a habit for some period of time?
. . . A: He told me that he had smoked before. That he had cut down or stopped and started smoking again. But I don’t know for how long a time period he had stopped. That’s all I remember.

Although this testimony does not place a definitive timetable on the claimant’s history of cigarette use, we do not think that it was unreasonable for the trier to infer from these remarks that he had been a regular smoker prior to his interactions with Gillis. The trier was entitled to evaluate the demeanor of the witness on the stand, and decide whether his memory was accurate. He may also have factored in the claimant’s mention of smoking as part of his medical history upon admission to the hospital. Respondent’s Exhibit 1. The phrase “a number of years” might be imprecise, but it would be unlikely to affect the outcome of this case if ¶ 17 of the findings were changed to read, for example, that the claimant “had been a smoker in the past.” See Pallotto, supra (immaterial corrections to findings need not be granted by trier). The gist of the warden’s testimony is plausibly reflected in the trier’s finding. As the record adequately supports the challenged finding, we cannot disturb it on appeal. Goldberg, supra.

The claimant’s attack on Dr. Silverstein’s testimony and credentials, meanwhile, is quite spirited. See Brief, pp. 21-27. He characterizes the doctor’s analysis of the case as “shockingly prejudiced and shoddy,” and asserts that “[i]t provided no reasonable basis for reliance on it by the trial commissioner, not merely as a matter of credibility, but as a matter of minimal professional and ethical competence.” Id., 21. His grounds for such a vehement attack are numerous: that Dr. Silverstein failed to ask the claimant anything about his job or about work-related stress; that he considered the critical factor to be the amount of the claimant’s heart disease rather than its etiology, and thus based his opinion on speculation and conjecture; that he had prejudged the issue insofar as he believes that stress can never contribute to a heart attack; and that the “deviant nature” of his medical practice and his exaggerated advertisement that he is able to “reverse virtually all diseases simultaneously” should disqualify his testimony from professional consideration. Id., 25. However, after reviewing the transcript of Dr. Silverstein’s deposition; Respondent’s Exhibit 2; we are satisfied that his diagnosis does not fall outside the bounds of acceptable, reliable expert testimony.

During his deposition, Dr. Silverstein clearly articulated the basis of his belief that the claimant’s heart attack was caused by cigarette smoking; e.g., Id., pp. 18, 22-23; and stated that his opinion was being given with a reasonable degree of medical certainty, as required by caselaw. Id., 25; see Struckman, supra. He explained that, in his view, stress seldom plays a role in heart attacks and heart muscle damage, and offered an alternative explanation for the claimant’s heart attack, which the trial commissioner accepted. Id., 43, 73. In his view, there was no need to inquire about the stress and pressure that the claimant was under at his job, because that could not be the cause here. Id., 60-61. The trier was entitled to credit Dr. Silverstein’s opinion if he found his diagnosis to be persuasive, and we are required to accord great deference to that conclusion on review. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 196 (1999); Pallotto, supra.

As for the alternative nature of Dr. Silverstein’s medical practice, he explained that his ability to “reverse and prevent virtually all diseases simultaneously” refers to the fact that most diseases have recognizable causes, or risk factors, that include the air—or smoke—people breathe, the foods and beverages they consume, their exercise habits and their psychological states. He explained that once people are educated, they can change the natures of their diseases, and make such conditions as diabetes and high blood pressure virtually disappear by making dietary adjustments and implementing exercise regimens. Transcript, pp. 55-57. He also offered an explanation as to the origin of the advertisement that has drawn the claimant’s fire, though this point has little legal significance. Id., 69. To this board, Dr. Silverstein’s viewpoints hardly seem revolutionary or scientifically unsound, and we see no reason to question the validity of the methodology underlying his diagnostic techniques. See Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). Therefore, we hold that the trial commissioner did not err in finding that Dr. Silverstein’s medical opinion, together with other evidence, was sufficient to rebut the § 5-145a presumption that the claimant’s heart attack was compensable.

The trial commissioner’s decision is hereby affirmed.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 As per the request of claimantís counsel, we note for the record that both parties to this appeal waived any objection as to the presence of Commission Chairman John A. Mastropietro on this review panel. The Chairman stated that the presence of Attorney Donna Hixon-Smith as respondentís counsel would not compromise his ability to remain objective in this case. Attorney Hixon-Smith represents the chairman and this Commission on certain official matters in her capacity as an assistant attorney general for the State of Connecticut. BACK TO TEXT

2 The portion of the Finding and Award that was affirmed concerned the claimantís satisfaction of the § 31-294c(c) notice requirement exception for medical care provided by an employer. We need not readdress that topic in this appeal, and omit the factual findings from the 1997 Finding and Award that are germane to that issue alone. The portion of the award that was reversed and remanded due to insufficient findings will be discussed below. BACK TO TEXT

3 The pertinent portion of § 5-145a provides that “[a]ny condition of impairment caused by hypertension or heart disease resulting in total or partial disability or death to . . . state personnel engaged in guard or instructional duties . . . or 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, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. Any such employee who began such service prior to June 28, 1985, and was not covered by the provisions of this section prior to said date shall not be required, for purposes of this section, to show proof that he successfully passed a physical examination on entry into such service.” BACK TO TEXT

4 Section 7-433a C.G.S. (Rev. to 1969) indisputably attempted to establish such a presumption, as it stated that “[A]ny condition or impairment of health occurring on duty or off duty, caused by hypertension or heart disease . . . to a uniformed member of a paid fire department or a regular member of a paid police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be conclusively presumed to be a personal injury which arose out of and in the course of his employment, and which was suffered in the line of duty and within the scope of his employment . . . .” (Emphasis added.) BACK TO TEXT


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