Zalot v. City of Bristol

The claimant was represented by Kevin Coombes, Esq., McCarthy, Schuman & Coombes, 107 Oak Street, Hartford, CT 06106.

The respondent was represented by Richard E. Lacey, Esq., Corporation Counsel, City of Bristol, 111 North Main Street, Bristol, CT 06010.

This Petition for Review from the June 20, 2000 Finding and Award of the Commissioner acting for the Sixth District was heard October 27, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and Ernie R. Walker.

OPINION

ROBIN L. WILSON, COMMISSIONER. The respondent, the City of Bristol, has petitioned for review from the June 20, 2000 Finding and Award of the Commissioner acting for the Sixth District. The city contends on appeal that the trier erred by failing to dismiss the instant § 7-433c hypertension claim for lack of timely notice. We find no error, and affirm the trial commissioner’s decision.

The trier found the following facts relevant to this appeal. The claimant filed a Form 30C on June 13, 1997, alleging that he had developed a hypertension condition during the course of his employment as a Bristol police officer. This notice was based on a diagnosis of hypertension by Dr. Julie Vernon on June 2, 1997. Hers were not the first blood pressure readings that showed the claimant to have elevated pressure, however. The claimant had begun his employment with the city in 1984, and had successfully passed a pre-employment physical with no evidence of hypertension or heart disease. In November 1991, he treated with Dr. Mead at the Bristol Occupational Health Program for a work-related back injury. He submitted to two blood pressure tests, both of which read 150/100. Respondent’s Exhibit 1. Dr. Mead referred the claimant to Dr. Gary Miller, an internal medicine specialist, with a presumptive diagnosis of “Hypertension 150/100 — persistent.” Findings, ¶ 9.

Dr. Miller proceeded to treat the claimant on a number of occasions over the years. On January 10, 1995, the claimant’s blood pressure read 150/100 and 140/90. Dr. Miller gave him a written prescription for Monopril, a blood pressure medication. The claimant testified that the doctor did not discuss hypertension, high blood pressure readings or Monopril on January 10, 1995, and did not have the prescription filled. He also testified that his young son was gravely ill at the time of those readings. Dr. Miller, meanwhile, testified that there was a difference between a diagnosis of hypertension and a high blood pressure reading. Though he characterized the claimant as hypertensive on January 10, 1995; Findings, ¶ 18; he also stated that the most likely reason for the elevated blood pressure readings was stress due to his son’s illness. Id., citing January 20, 2000 Transcript, pp. 8-9. Commenting on Dr. Mead’s 1991 referral, he also stated that “whenever patients have an elevated blood pressure the presumptive diagnosis is hypertension until it’s either ruled in or ruled out . . . .” Findings, ¶ 20, citing Transcript, supra, p. 11. He opined that a presumptive diagnosis of hypertension is not in fact a diagnosis of hypertension, which was a significant distinction here because the claimant’s blood pressure readings of August 2, 1996 were within normal limits at 130/80. The doctor testified that he would expect a person who was hypertensive to have elevated blood pressure at that time unless he was taking blood pressure medication, which the claimant was not. Transcript, supra, pp. 10-11.

Based on this testimony, the trier concluded that Dr. Miller’s opinion was credible and persuasive. He accepted the explanation that the claimant’s January 10, 1995 hypertensive readings were caused by stress stemming from his son’s illness, and that his 1991 readings were attributable to prescription medication that he was taking at the time to alleviate his back pain. The claimant’s blood pressure was within normal limits in August 1996. Therefore, the trier concluded that the claimant’s notice of June 2, 1997 was timely under § 31-294c C.G.S., which generally requires that a notice of claim be filed within one year of the date of an accidental injury or the last incidence of exposure to repetitive trauma, and awarded the claimant benefits under § 7-433c. The respondent has appealed that decision to this board.

Pursuant to § 7-433c, uniformed members of municipal fire and police departments whose health becomes impaired due to hypertension or heart disease are entitled to collect compensation identical to that provided by Chapter 568, as long as a pre-employment physical examination “failed to reveal any evidence of hypertension or heart disease.” Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997). Assuming that condition is met, a claimant who subsequently develops symptoms of hypertension must notify his employer of a claim for compensation within one year of the date those symptoms become manifest (absent proof that the condition is an occupational disease, which would require the application of a three-year notice period). Zaleta v. Fairfield, 38 Conn. App. 1, 6-7 (1995); see also, Leary, supra. The respondent here contends that the claimant first developed symptoms of hypertension in 1995, having been prescribed a blood pressure medication by Dr. Miller. Thus, it asserts that the trier erred by concluding that the instant claim was filed in a timely manner.

For purposes of our review, this case is virtually identical to the recent case of Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000), and is wholly controlled by that decision. In Elumba, the claimant filed a notice of claim on May 12, 1998 following a December 23, 1997 diagnosis of hypertension. However, the claimant had produced elevated blood pressure readings in the past: in 1975, he had been measured at 160/100, 150/100, and 138/88 by his family doctor, and in 1984, he had given a reading of 152/86. In the interim years, numerous readings had shown his blood pressure to be within normal limits (with a brief, mild elevation in 1982), as did readings in 1986, 1988 and 1990. An independent medical examiner stated that the 1975 readings were indicative of a transitory blood pressure elevation due to emotional stress or pain, rather than true hypertension. He also attributed the 1984 reading to physical stress associated with an infection, rather than hypertensive vascular disease. Those symptoms went away when the claimant was prescribed Dyazide, a blood pressure medication that eliminates excess salt, and Xanax, an anxiety medication. The trier found that neither of these occurrences rendered the May 1998 notice of claim untimely.

The respondent in Elumba contended that the claimant’s 1984 blood pressure readings were legally significant because he was prescribed medication to treat those symptoms, and that his obligation to file a hypertension claim under § 7-433c was triggered at that time. It had sought to amend the findings to state that the claimant was diagnosed with mild arterial hypertension in 1984, a correction that was denied. This board affirmed the trier’s decision on appeal. We began by noting that the commissioner retains “considerable discretion to decide whether a doctor’s examination reveals evidence of hypertension,” and that he has the sole authority to assign credibility to the testimony offered by lay and expert witnesses. King v. New Britain, 3703 CRB-6-97-10 (Jan. 12, 1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We acknowledged our prior holding that “the disease of hypertension, when it requires medical care and prescription drugs, constitutes a disability pursuant to § 7-433c C.G.S.” Tarzia v. Stamford, 3409 CRB-7-96-8 (March 18, 1998). Then, we stated the following:

Just as the trial commissioner in Elumba was within her rights to conclude that the claimant’s prior high blood pressure readings were due to temporary stresses other than hypertensive heart disease, the trial commissioner here did not err in making a similar decision. Dr. Miller testified that the claimant “had some isolated, elevated readings in his blood pressure above 140/90 at [earlier] visits explainable by other stressors in his life or medication or pain . . . .” Transcript, supra, p. 12. He noted that, despite having taken no medications for blood pressure, the claimant evinced normal readings when his pressure was taken in the emergency room. This indicated to Dr. Miller that it was difficult to call the claimant hypertensive at that time, even if he later developed the disease hypertension. Dr. Miller also explained that he prescribed Monopril for the claimant (which, again, he never took) because he was erring on the side of safety after identifying certain risk factors for hypertension that the claimant possessed, such as a weight problem and a smoking habit. Id., 14. The trial commissioner was entitled to accept this testimony, and rely upon the claimant’s non-elevated blood pressure reading of 1996 as evidence that the claimant was not pathologically hypertensive until 1997. Thus, we may not encroach upon the trier’s factfinding authority.

The trial commissioner’s decision is hereby affirmed. Insofar as the claimant has yet to receive any benefits due him pending the outcome of this appeal, interest is awarded on those unpaid amounts as required by § 31-301c(b).