Sullivan v. Town of Madison Police Department

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

This Petition for Review from the November 16, 2004 Finding & Award for the Commissioner acting for the Third District is being considered on the papers submitted for the October 14, 2005 oral argument1 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The board is presently faced with the appeal of a trial commissioner’s decision finding that the hypertension of the claimant, Donald Sullivan, was job related, and hence, a compensable injury. The respondent, Town of Madison, challenges the decision on the basis the claimant failed to meet his burden of proof because there was insufficient evidence presented to the commissioner to justify an award.

The claimant, Donald Sullivan, commenced employment as a 911 emergency dispatcher with the Town of Madison on December 27, 1997. Prior to his hiring he had a pre-employment physical on or about November 13, 1997 indicating he was in good health. In July 2001, the claimant developed hypertension. He was treated by his physician, Dr. Kyrcz, on or about August 14, 2001 who diagnosed the claimant with “essential” hypertension and prescribed medication to address the issue.2 Dr. Kyrcz then referred the claimant to a cardiologist, Dr. Seltzer, who examined the claimant. The claimant then filed a claim on June 24, 2002 under Chapter 568 asserting he had suffered a work related ailment.3

The record reflects a work history which at least would suggest a relationship between work related stress and the claimant’s medical condition. He testified that he was frequently required to work a double shift (16 hours) as a dispatcher, and had to work one stretch of twenty-one consecutive days without a day off. This caused the claimant to file a grievance with the town over staffing levels. December 3, 2003 Transcript, p. 14. The claimant also testified that in 2000 changes to the 911 system increased the call volume into the Madison 911 system, as cell calls previously sent to the State Police barracks were now routed there. Id., p. 17. He also recounted a 1999 incident in which a death occurred while he had been on break and the officer who relieved him did not properly use the equipment to summon assistance. December 3, 2003 Transcript, p. 19.

The respondents do not challenge the claimant’s description of his working conditions. They do take issue with the medical evidence he presents linking his hypertension with his occupation.

In their brief, the respondents point out that the claimant had a “borderline” hypertensive reading in 1993, which his physician treated with salt avoidance, weight loss and a low fat diet. Respondents also state the claimant had gained weight between 1993 and 2001, which would tend to increase one’s blood pressure. These issues go to the weight of the evidence before the trial commissioner, and are relevant only to the extent competent medical evidence was or was not presented relating the claimant’s condition to his employment.

Respondents present a more salient argument that the claimant’s treating physician was somewhat equivocal in his statements, stating work stress “is likely playing some role in his disease.” December 5, 2003 Deposition, p. 53. While supportive of the claim, this statement must be balanced with his answer that to attribute job stress as the cause of claimant’s hypertension “would be speculation, yes.” Id., p. 32, and his unwillingness to attribute “a reasonable degree of medical certainty” to the role the claimant’s employment played in his hypertension. Id., p. 53. Respondents filed a Motion to Correct to remove a statement in paragraph nine of the Finding and Award attributing a medical conclusion of causation to Dr. Kyrcz. This motion was denied.

The respondents did not seek a correction regarding the testimony presented by Dr. Seltzer. He stated in his December 4, 2002 letter to Dr. Kyrcz. “Mr. Sullivan has labile hypertension which clearly gets worse during periods of emotional stress. Emotional stress on his job contributes to the patient’s labile hypertension and makes ongoing anti-hypertensive therapy and stress management essential.” In his decision, the trial commissioner makes specific reference to Dr. Seltzer’s opinion in determining that the claimant had met his burden of proof that his hypertension was substantially caused by his employment with the Town of Madison. Finding ¶ 10.

In reviewing this decision, we are faced with interwoven threshold questions. All judgments of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable. Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). However, the burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). As our Supreme Court held in McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987), in cases where heart related stress is alleged to be caused by one’s employment “in order to recover, the claimant must prove causation by a reasonable medical probability.” See Hummel v. Marten Transport, Ltd., 4667 CRB 5-03-5 (May 3, 2004), appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005).

While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. “The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).

As Dr. Kyrcz was unwilling to testify to a reasonable medical certainty that the claimant’s work caused his hypertension, his testimony cannot sustain the Finding and Award as it is insufficient based on the precedent in McDonough, supra. Any weight provided to his opinion as to causation would be an incorrect application of the law since he failed to offer an opinion on causation sufficiently unequivocal to satisfy the McDonough test.4 As we may correct a commissioner’s misinterpretations of the law, or misapplications of the law to the subordinate facts found, Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003), we herein determine Dr. Kyrcz’s testimony is to be given no weight.

The trial commissioner is left with the evidence of Dr. Seltzer. Dr. Seltzer does state emotional stress on the job contributes to the claimant’s hypertension. However, he did not opine to any medical certainty or probability on whether the claimant’s hypertension was caused by his employment. His letter also does not identify whether the contribution of job stress on a pre-existing condition is substantial or not. While the presence of a specific word or phrase is not required for a medical opinion to be deemed authoritative, Struckman v. Burns, 205 Conn. 542, 555-56 (1987), here we are faced with the absence of an affirmative statement by a physician linking the cause of the hypertension to the claimant’s occupation. Therefore, since neither medical witness testified to a reasonable medical certainty, the trial commissioner simply had insufficient evidence as a matter of law to justify his Finding and Award.5

As pointed out earlier, the trial commissioner must correctly apply the law to reach a valid award. “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish, supra, 602. Here, Dr. Krcyz testified in a manner inconsistent with the legal requirements for causation in McDonough and Dr. Seltzer’s evidence in the record is simply inadequate for a trier of fact to determine he has reached a medical conclusion sufficient to satisfy the McDonough test.6

For those reasons, we are compelled to uphold the respondents’ appeal. The Finding and Award of November 16, 2004 is herein set aside.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur in this opinion.

1 We note that the instant matter was subject to a postponement during the pendency of this appeal. BACK TO TEXT

2 “Essential” hypertension is hypertension without an obvious physical foundation which occurs in about 95% of hypertensive patients diagnosed. When no ascertainable cause of hypertension is found, the disease mainly has been attributed to a wide range of factors including genetics, environmental factors, and habits such as smoking, diet, alcohol use, occupation, living conditions and a host of other factors. See December 5, 2003 Deposition p. 6, § 31-20 and § 31-22. Attorney’s Textbook of Medicine (Third Edition) Matthew Bender, 1992. BACK TO TEXT

3 This clearly places the burden of proof on the claimant, as there is no presumption herein that hypertension was caused by his employment, unlike claims filed under § 7-433c C.G.S. BACK TO TEXT

4 It appears that part of respondents’ Motion to Correct should have been granted, deleting paragraph nine of the Finding. BACK TO TEXT

5 We have declined to hold that one’s occupation be the sole proximate cause of cardiac stress to justify an award, but we have adopted the “substantial factor” test. See Hummel v. Marten Transport, Ltd., supra. In this case, neither physician testified as to the relative weight of job related stress as opposed to other risk factors, leaving insufficient evidence before the trial commissioner that either the cause of the hypertension was job related or the substantial aggravating factor of the hypertension was job related to justify a finding and award in this instance. BACK TO TEXT

6 When compared with similar cases where we found a physician proved work aggravated a pre-existing condition, Dr. Seltzer’s statements fall short. See Seeger v. Borough of Naugatuck, 15 Conn. Workers’ Comp. Rev. Op. 240, 2220 CRB-5-94-11 (May 9, 1996) “the trial commissioner largely relied on the medical report of Dr. Yu, who stated that the claimant’s job as a patrolman ‘requiring excessive walking constantly definitely aggravated his condition.’” (Emphasis added) BACK TO TEXT