Durso v. City of New Haven

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

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the May 11, 2001 Finding and Award of the Commissioner acting for the Third District was heard January 25, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle Jr., and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant1 has petitioned for review from the May 11, 2001 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant, a former firefighter, sustained heart disease which is compensable under § 7-433c. Additionally, the trial commissioner concluded that the claimant did not suffer from hypertension, and thus denied his claim for hypertension benefits under § 7-433c. The sole issue on appeal is the claimant’s contention that the medical evidence in the record indicates that he suffers from hypertension. We find no error.

In the instant case, it is not disputed that the claimant filed a timely notice under § 7-433c for heart and hypertension benefits.2 Additionally, the trial commissioner’s award of benefits for heart disease under § 7-433c is not disputed. The only issue on appeal is whether the trial commissioner erred in concluding that the claimant did not also suffer from hypertension. Section 7-433c allows a uniformed member of a paid municipal fire department who was hired before July 1, 1996 to receive compensation and medical care in the same amount and manner as that provided under the Workers’ Compensation Act whenever such member can show that his “preemployment physical examination revealed no evidence of hypertension or heart disease, [and that he] now suffers a condition or an impairment of health caused by hypertension or heart disease that has resulted in death or disability, and has suffered a resultant economic loss.” Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995).

The trial commissioner found the following relevant facts. On April 20, 1997, the claimant, after responding to an alarm described as an airplane crash, informed his lieutenant that he did not feel well. On April 21, 1997, the claimant did not feel well and was experiencing chest pain and left arm pain while at the firehouse. An ambulance was called and he was transported to the hospital. The claimant’s blood pressure taken at the emergency room on April 21, 1997 was 120/72. Although the claimant has taken medication for hypertension since his April 21, 1997 admission, his chart from the April 21, 1997 admission does not reflect a diagnosis of hypertension. Except for one blood pressure reading of 138/100 which was taken upon being transported for prepping for catherization, the claimant’s blood pressure readings were all within normal limits. Findings, ¶ 10. Moreover, the majority of the blood pressure readings in the notes of Dr. Ferando, the claimant’s primary care physician, were within normal range.

At the request of the respondents, an independent medical examination was performed by Dr. Wiske, who is board certified in cardiovascular diseases, practices cardiology, and is an associate clinical professor at Yale Medical School. Dr. Wiske opined with a reasonable degree of probability that the diagnosis of hypertension had not been established in the claimant’s case. Findings, ¶ 14. The trial commissioner reviewed numerous medical records, and found Dr. Wiske’s opinion to be consistent with the medical records. Findings, ¶ 22.

Here, there was conflicting medical evidence as to whether the claimant suffered from hypertension. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony.” Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999) (citation omitted). Whether a claimant suffers from a medical condition such as hypertension is a factual decision for a trial commissioner to make. Elumba v. Stamford, 4084 CRB-7-99-7 (Aug. 10, 2000); Pearce v. New Haven, 4385 CRB-3-01-5 (March 28, 2002). Indeed, we have explained that “[t]he trier of fact retains considerable discretion to decide whether a doctor’s examination reveals evidence of hypertension.” Elumba, supra, citing King v. New Britain, 3703 CRB-6-97-10 (Jan. 12, 1999).

We have repeatedly explained there is no particular systolic or diastolic pressure reading that constitutes a legal hypertension line in this state. Id., citing King, supra; Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997); Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999). “A high blood pressure reading may be attributable to other factors, such as pain, illness or momentary apprehension, and it is up to the trial commissioner to assess the significance of such a reading within the complete factual framework of the case before [her].” Elumba, supra, (citations omitted). “Similarly, medical treatment of high blood pressure may or may not be indicative of hypertension, depending on the circumstances.” Id. Moreover, “[w]hether or not a claimant’s use of blood-pressure medication is attributable to compensable hypertension is a factual question to be addressed by the trial commissioner in [her] findings, and not by this board on review.” Id.

In the instant case, the trial commissioner’s conclusion that the claimant did not suffer from hypertension is fully supported by the evidence in the record, including the medical opinion of Dr. Wiske. Accordingly, it may not be disturbed.

The trial commissioner’s decision is hereby affirmed.

Commissioners Donald H. Doyle Jr., and Amado J. Vargas concur.

1 We note that the respondents initially filed an appeal, but subsequently withdrew said appeal. BACK TO TEXT

2 The procedural rules of Chapter 568 are applicable to § 7-433c claims, and thus a claimant must satisfy the requirements of § 31-294c(a), which requires “a written notice of claim for compensation . . . within one year from the date of the accident or within three years from the first manifestation of the occupational disease, as the case may be, which caused the personal injury . . . .” BACK TO TEXT