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Kaminski v. Borough of Naugatuck

CASE NO. 4956 CRB-5-05-6



JUNE 28, 2006











The claimant was represented by David J. Morrissey, Esq., Morrissey & Morrissey, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the June 17, 2005 Finding and Dismissal of the Commissioner acting for the Fifth District was heard November 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 17, 2005 Finding and Dismissal of the Commissioner acting for the Fifth District. He argues on appeal that the trier erred by holding that his hypertension claim pursuant to § 7-433c C.G.S. was time-barred, and by simultaneously dismissing his heart disease claim. As we have identified a potentially material factual finding that is unsupported by evidence, we remand the case to the trial commissioner for articulation, while dismissing the claimant’s appeal on two other issues.

The trier found that the claimant was hired as a firefighter by the respondent Borough of Naugatuck in 1988, after passing a pre-employment physical examination that showed no signs of heart disease or hypertension. On October 29, 1990, the claimant exhibited abnormal blood pressure readings, which were documented as hypertensive by his primary care physician. In 1995, the claimant filed a Form 30C seeking benefits under § 7-433c C.G.S.1 Subsequently, he yielded several more high blood pressure readings that led to the filing of a second Form 30C in early 2003. Based upon these findings, the trier concluded that the claim was time-barred, as the October 29, 1990 findings of abnormal blood pressure and hypertension by the claimant’s physician triggered a responsibility to file a claim within one year of that date. The claimant has appealed the dismissal of his claim.


The claimant initially argues that there was insufficient evidence to support the trier’s findings that (1) the claimant’s primary care physician diagnosed him with hypertension after his October 29, 1990 blood pressure reading, and (2) the claimant was aware of the doctor’s findings. In fact, the claimant contends that he did not have an ongoing doctor-patient relationship with Dr. Elser, the physician who performed his departmental physical. We note that the claimant filed a Motion to Correct requesting that the findings be changed to reflect that Dr. Elser was not his primary care physician, that examination results were never shared with the claimant, and that the notes from the 1990 examination do not describe the claimant as hypertensive. This motion was denied in its entirety by the trial commissioner. We must assume on appeal that the trier either disagreed with the claimant’s assertions as a matter of evidentiary credibility, or disagreed that the requested corrections were material to the outcome. See Jacobson v. General Dynamics/Electric Boat Div., 4642 CRB-2-03-3 (March 12, 2004); Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). Our analysis proceeds with those assumptions in mind.

Claimant’s Exhibit E consists of a note signed by Dr. Elser indicating that a physical examination was performed on October 29, 1990, which resulted in a blood pressure reading of 148/96. In preparing this note, Dr. Elser used what appears to be a form letter that includes the phrase “All findings were normal with height ___, weight ___, and blood pressure ___,” and he simply filled in the blanks with the claimant’s readings. Beneath the main text was a typed addendum that stated, “Abnormal blood pressure and weight.” Although no form of the word “hypertension” is used, the trial commissioner retained discretion to decide whether these examination results were indicative of hypertension. See King v. New Britain, 3703 CRB-6-97-10 (Jan. 12, 1999); see also, Pernacchio v. New Haven, 63 Conn. App. 570 (2001)(1989 high blood pressure incident was reported to employer, which constituted notice that claimant could file hypertension claim under § 7-433c, even though hypertension was not diagnosed until 1992 and treated with medication until 1994). A claimant seeking benefits for a hypertension claim pursuant to § 7-433c C.G.S. is required to file a written notice of claim pursuant to § 31-294c within one year of the date symptoms of hypertension become manifest (absent proof of occupational disease). Zalot v. Bristol, 4256 CRB-6-00-6 (March 16, 2001); Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). Not every high blood pressure reading is necessarily attributable to hypertension; in some cases, the trier may determine that there is evidence to show that other, transitory factors caused the abnormal reading. Zalot, supra. No such evidence was mentioned here.

The claimant testified that he was not made aware of the 1990 test results prior to the November 9, 2004 formal hearing. Transcript, p. 20. The respondents had alleged at the formal hearing that the 1990 blood pressure reading, along with a 1993 incident, would have made the claimant aware of his hypertension. Id., p. 7. The claimant stated that he first became aware of cardiovascular problems and hypertension in 1995, but no treatment was prescribed. Id., pp. 12-15. No further symptoms occurred until 2002, when the claimant was told by Dr. Pito that he had high blood pressure following his annual physical through the fire department. Id., pp. 16-17. From the time of the claimant’s hire until approximately 2000, the department had retained Dr. Elser’s medical group to perform annual physicals. The claimant testified that he had never been informed of the results of any of his physicals during that time, nor had he been warned of high blood pressure problems by Dr. Heubner, his family physician (and Dr. Elser’s partner in medical practice). Id., p. 19, 21. He said that the fire department received the test results on a pass/fail basis, and never revealed any information to him. Id. That included the finding of abnormal blood pressure in the 1990 physical. Id., p. 20.

The respondents also introduced a medical report from St. Mary’s Hospital showing blood pressure readings of 130/100 on October 1, 1996, and 140/96 on October 8, 1996, which were taken in conjunction with a low back injury the claimant had suffered. Respondents’ Exhibit 2. The claimant said that those readings were not brought to his attention. November 9, 2004 Transcript, p. 25. He also stated that his visit to the hospital with a complaint of chest pains in March 1993 was caused by pulled pectoral muscles, and had nothing to do with his heart. Id., pp. 25-26. The report from Industrial Health Care indeed lists a pectoralis strain and costochondritis as the diagnosis, and no blood pressure reading or mention of hypertension is present in that set of documents. See Respondents’ Exhibit 3.

Determinations of evidentiary credibility are the sole province of the factfinder, and it was within the trial commissioner’s discretion to doubt any portion of the claimant’s testimony. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). Though there was no direct evidence that the claimant had been informed of his high blood pressure reading, the claimant still had the burden of proving all of the elements of his claim, including the filing of timely notice. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

Based on the evidence in the record, and the trier’s finding of a documentation of hypertension by the claimant’s primary care physician; Findings, ¶ 8; the trier’s inference that the claimant knew about his high blood pressure reading prior to 1995 seems to be based on an assumption that either Dr. Elser or Dr. Heubner passed that information on to the claimant. Although the claimant contends that Dr. Heubner, and not Dr. Elser, acted as his family physician, he also testified that he thought Dr. Heubner might have performed his annual physical for the fire department once or twice, and that Dr. Heubner and Dr. Elser had been partners in practice together for the entire 15 years that Dr. Heubner acted as his family physician. See November 9, 2004 Transcript, supra, pp. 18-19, 21. From ¶ 12 of the trier’s findings, it seems that the commissioner was swayed by the fact that the test had been performed by Dr. Elser, whom he referred to as the claimant’s “own primary care physician.” Id. However, there is no direct evidence in the record that Dr. Elser was ever the claimant’s primary care physician. Neither party obtained a deposition of either Dr. Elser or Dr. Heubner, which could have shed light on this issue.

Though the trier was entitled to disregard the testimony of the claimant and make findings contrary to his testimony, there remains a necessity for the factual findings of the commissioner to be supported by some evidence. That includes the finding in ¶ 12 that the claimant’s abnormal blood pressure readings were documented as hypertension by his “own primary care physician.” Even if we were to assume arguendo that Dr. Elser at some point in time filled that role, on the date of the 1990 medical examination, Dr. Elser was performing the fire department’s annual physicals at the behest of that employer. A primary care physician is not normally retained by the claimant’s employer to perform an examination for the employer; hence, our confusion with respect to the trier’s finding.

Any explanation we could offer to justify the reasoning used by the trial commissioner regarding this finding of “primary care physician” would require this board to engage in an exercise tantamount to making our own findings of fact. It is outside the scope of our role on review to take such a step. As this unexplained “primary care physician” finding appears to be a key factor in the outcome of this case, some elaboration of the trier’s reasoning process and/or clarification of the findings is needed with regard to this point. Therefore, we must remand the case on that basis.


Next, we turn to a discussion of Pearce v. New Haven, 4385 CBR-3-01-5 (March 28, 2002), aff’d, 76 Conn. App. 441 (2003), cert. denied, 265 Conn. 913 (2003) where this board held that high blood pressure readings in 1988, 1989 and 1990 (of which the claimant had been informed) constituted an injury that obligated the claimant to file a Form 30C at that time, rather than in 1998 when he was formally diagnosed with hypertension. We explained, “The trier had considerable discretion to decide whether the blood pressure readings from 1988-90 constituted evidence of hypertension, rather than temporary symptoms of elevated pressure due to other stressors.” In support of our decision we cited the statute of limitations as set forth in Zalot, supra, and Elumba, supra. That decision was affirmed on appeal by the Appellate Court, which held, “The employee need not be disabled at the time he or she files a notice that symptoms are being experienced related to hypertension or heart disease; the notice is required to alert the employer to a potential claim.” Pearce v. New Haven, 76 Conn. App. 441, 449, cert. denied, 264 Conn. 913 (2003).

The claimant argues in his brief that Pearce created new rules regarding the filing of notices of claim for § 7-433c hypertension claims, and that this departure from established case law should not be applied retrospectively. In his view, prior to the Pearce decision, a single high blood pressure reading did not automatically constitute hypertension under § 7-433c, while following Pearce, the one-year statute of limitation is mechanically triggered as soon as a claimant has a high blood pressure reading. We disagree with the claimant’s interpretation of the Pearce holding, and with his assertion that Pearce changed the manner in which high blood pressure readings trigger the statute of limitations for § 7-433c claims.

In this board’s decision in Pearce, we explicitly stressed that the trier of fact had discretion to decide whether high blood pressure readings constituted evidence of hypertension. Our holding stated, “it would be reasonable to find that the claimant’s consistent high-blood-pressure readings and his interactions with his doctor indicated that he was manifesting symptoms of sustained hypertension under all the circumstances of this case (which should have put the claimant on notice that he suffered from hypertension).” Pearce, supra (emphasis added). In affirming our decision, the Appellate Court expressed no disagreement with this board’s line of reasoning. The court mainly addressed the claimant’s argument that his claim should not have been time-barred “because he was not diagnosed with, placed on medication for, or disabled by hypertension until October 15, 1998.” Pearce, supra, 446. The court cited the fact that the claimant had received repeated counsel from his family physician regarding elevated blood pressure readings, which he had not communicated to his employer. These readings were later determined to have been related to hypertension. The court held that employer notification was required whether or not immediate disability was occasioned by the claimant’s symptoms, because the purpose of notice is to inform the employer that a claim for benefits at a later time is possible. Id., 449.

Importantly, the court never stated that the claimant’s high blood pressure symptoms would have triggered the running of the § 31-294c notice period had they been subsequently determined to be unrelated to hypertension or heart disease. Indeed, such a holding would not have been tenable. The established standard is that the time of onset of a claimant’s hypertension symptoms presents a factual question, as does whether a given high blood pressure reading constitutes a manifestation of that hypertension. See, e.g., Zalot, supra; Elumba, supra; Tarzia v. Stamford, 3409 CRB-7-96-8 (March 18, 1998)(lack of prescription drug treatment did not preclude finding that claimant suffered from hypertension; trier was entitled to look at all circumstances to determine if hypertension existed at time of blood pressure readings); Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997)(where reading is close to hypertension “borderline,” trier must base decision on facts of individual case); see also, Riccio v. Windsor, 15 Conn. Workers’ Comp. Rev. Op. 279, 2232 CRB-1-94-12 (June 20, 1996)(results of echocardiogram established onset of hypertension/heart disease symptom, though claimant was not disabled from work or prescribed medication). Nothing has changed in that regard because of Pearce.

As evidence of that fact, this board has issued a decision subsequent to the issuance of Pearce in which we held that a single high blood pressure reading was an isolated event that did not trigger a claimant’s duty to file a hypertension claim under § 7-433c. Hallock v. Westport, 4829 CRB-4-04-7 (July 22, 2005). There, we noted that Pearce did not stand for the proposition that “one borderline blood pressure reading need constitute evidence of hypertension as opposed to a temporary instance of raised blood pressure.” Id. Since Pearce, we have also decided Peck v. Somers, 4640 CRB-1-03-2 (March 5, 2004), in which it was determined that the claimant had knowledge of certain high blood pressure readings that were also symptoms of hypertension, and was subsequently time-barred from making his claim due to the filing of notice more than one year after the claimant became aware of those readings. The varied outcomes of these cases reflect that the trial commissioner still has discretion to determine the significance of a given high blood pressure reading under the circumstances of a particular case. Therefore, we reject the claimant’s argument regarding this point of law.


Finally, the claimant argues that the dismissal of his hypertension claim should not have incorporated his tachycardia claim as well. In Mayer v. East Haven, 4620 CRB-3-03-2 (March 3, 2004), appeal dismissed for lack of final judgment, A.C. 25244 (September 15, 2005), cert. denied, 276 Conn. 918 (2005), this board held that a claimant who was diagnosed with hypertension in 1987 and coronary artery disease in 1995 was free to pursue his coronary artery disease claim under § 7-433c despite not having filed a claim based upon the prior hypertension diagnosis. “[I]f a claimant suffers from an impairment of health caused by hypertension or heart disease, they are eligible for benefits. The statute does not in itself create a bar for collecting benefits for one of the two ailments when a claimant has previously suffered from the other.” Id. Because there was no indication from the medical evidence in Mayer that the claimant suffered from coronary artery disease in 1987, or any other time prior to 1995, the trier was entitled to find the notice of claim for heart disease timely. Also cited was McNerney v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996)(later period of hypertension was legally distinguishable from earlier period of hypertension that had been resolved for several years).

The trier here made no specific finding as to whether the claimant’s tachycardia (rapid heart rate) symptoms were distinguishable from the hypertension claim. Both conditions were listed on the same 1995 notice of claim. At that time, the claimant had been diagnosed with both hypertension and tachycardia, and prescribed medication. See March 1, 2004 Transcript, p. 4; Respondent’s Exhibit 1. As of July 24, 1995, the diagnosis as per the attending doctor at St. Mary’s Hospital was hypertension and heart palpitations, while the August 7, 1995 medical report from Dr. Elser (which followed the claimant’s two-week absence from work) lists the claimant’s diagnosis as arrythmia, without mentioning hypertension. Claimant’s Exhibit B. A September 4, 2002 medical report shows a blood pressure reading of 146/88 and lists tachycardia as the claimant’s diagnosis, describing it as a chronic condition. Claimant’s Exhibit C.

In the claimant’s Motion to Correct, he requested additional findings that he suffered from both hypertension and heart disease (sinus tachycardia) in 1995, and that his claim for benefits for the hypertensive condition and for the tachycardia were both timely. Those corrections were denied. As discussed above, we must infer from the denial of requested corrections that the trier was not persuaded as to their accuracy or materiality, and proceed with our review accordingly. See Beedle, supra. The medical evidence contains no discussion concerning the relationship, or lack of one, between the hypertension and tachycardia symptoms. We are left with only the bare fact that they were being experienced contemporaneously. A March 30, 2003 report from Dr. Anthony, a cardiologist, does mention that the claimant’s left ventricle was beginning to undergo changes because of the hypertension, but it does not discuss whether the hypertension was related to the tachycardia that had been shown during earlier holter monitor tests. (We note that the only symptom that was clearly present at the time of that March 27, 2003 examination was high blood pressure.)

Ultimately, the claimant was unable to satisfy his burden of proving to the trial commissioner that his heart disease claim was a separate causal entity from his hypertension claim. We cannot remedy that situation here on appeal by finding additional facts that would assist the claimant in distinguishing the two conditions. As such, we find no error in the trier’s inclusion of the tachycardia claim as part of the hypertension claim.

The trial commissioner’s decision is accordingly affirmed in part, and remanded for clarification with regard to the discussion in Part I of this opinion.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 The Form 30C asserts a “heart and hypertension claim being filed under Chapter 568, and 7-433c.” Respondents’ Exhibit 1. However, at the formal hearing, the claimant’s attorney specifically clarified that “although the 1995 claim was filed in the alternative he has elected to pursue this claim under Section 7-433c only.” November 9, 2004 Transcript, p. 5. BACK TO TEXT


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