Balfore v. Town of Windsor Locks

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

The respondents were represented by Jonathan F. Reik, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review1 from the November 16, 2005 Finding and Dismissal of the Commissioner acting for the First District was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Nancy E. Salerno and Amado J. Vargas.

OPINION

DONALD H. DOYLE, JR., COMMISSIONER. This case involves the issue of whether a claim for § 7-433c C.G.S. benefits for heart disease or hypertension was brought in a timely fashion when the claim was filed many years after the claimant received examination results consistent with a hypertensive condition. For the reasons stated in Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006) we determine that the claimant’s opportunity to file a claim commenced more than one year prior to this claim being filed thus making this claim untimely under § 31-294c C.G.S. Accordingly, we uphold the trial commissioner and uphold the Finding and Dismissal in this case.

The trial commissioner found the following facts. The claimant has been a Windsor Locks police officer since 1987. Findings, ¶ 1. From 1992 to 1999 the claimant visited Dr. David Howlett as a primary care physician. Findings, ¶ 2. At an April 7, 1999 examination Dr. Howlett determined the claimant had blood pressure readings of 172/102 and 142/90. Dr. Howlett testified the two 1999 readings were above the threshold for stage I hypertension. Findings, ¶¶ 3-4. Dr. Howlett scheduled a follow-up visit for the claimant on April 23, 1999 for another blood pressure check but the claimant did not return for the examination. Findings, ¶ 5. Dr. Howlett also testified that on a number of occasions prior to 1999, examinations of the claimant revealed high blood pressure readings at his examination, of which the claimant was so advised. Findings, ¶ 8.

In March 2001, the claimant visited another doctor, Dr. W.B. Spector, for an examination. At that time, he received a blood pressure reading of 134/100 on the left side and 138/100 on the right side. Findings, ¶ 9. The claimant was advised to return for a follow-up blood pressure test and as he did in 1999, decided not to return to the doctor. Findings, ¶ 10. Finally, in August 2002 the claimant began treating with Dr. Carolyn Kosack who diagnosed the claimant as hypertensive and prescribed medication. Findings, ¶ 14.

The claimant and the respondent submitted conflicting medical evidence as to whether the claimant was hypertensive during the 1990s. Dr. Howlett testified that the blood pressure readings between 1992 and 1999 did not constitute stage I hypertension. Findings, ¶ 12. The respondent’s expert witness, Dr. Kevin Tally, a cardiologist, testified that he had no doubt the claimant had stage I hypertension from 1992 to 1999. Findings, ¶¶ 13-15.

The trial commissioner determined that Dr. Tally was more credible than Dr. Howlett on the issue as to whether the claimant had hypertension during the 1990s. Findings, ¶ B. Since he believed the claimant was hypertensive more than one year before filing his claim in August 2002, and was aware of his condition, he concluded the claim was time barred by statute. Findings, ¶ D.

In reaching his decision, the trial commissioner relied on the precedent in Peck v. Somers, 4640 CRB-1-03-3 (March 5, 2004). “If the claimant had knowledge of hypertensive blood pressure readings and failed to file a notice of claim within a year from that knowledge, the case is subject to dismissal for lack of jurisdiction. Pearce, supra, [4385 CRB-3-01-5 (March 28, 2002), aff’d, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003)].” Id. The claimant argues the Peck and Pearce cases were based on an incorrect application of the statute. We believe that even were we to accept the claimant’s argument, that the trial commissioner had sufficient grounds to find the claimant has failed to file a claim within the requisite jurisdictional limitations.

The parallels between this case and Chernak, supra, make them almost identical. In Chernak, the trial commissioner found that the claimant had been advised of hypertension in 1998 and needed to take steps to reduce it. The claimant subsequently failed to follow up with his doctor to obtain treatment. Under these facts, the trial commissioner could reasonably find a medical impairment existed. In this case, Dr. Howlett identified hypertension in an April 7, 1999 medical examination and scheduled the claimant for a follow-up visit on April 23, 1999 which the claimant disregarded. Dr. Spector’s March 9, 2001 examination also yielded blood pressure readings consistent with hypertension; and once again the claimant was advised to return for further examinations which he neglected. While the claimant denies that he had been advised in 1999 that he had hypertension, the trial commissioner believed the opposite, i.e. he had been advised he had the condition and was scheduled for more treatment. Findings, ¶ A. Therefore, we believe the evidence credited by the trial commissioner supports a conclusion that medical treatment was being provided to treat hypertension and thus there is sufficient evidence to find the claim is untimely were we to interpret this statute in the manner proposed by the claimant.

In reaching this conclusion, we rely on longstanding precedent predating Pearce in which the provision of medical care related to hypertension triggered the time to file a claim pursuant to § 31-294c C.G.S.2 See Murach v. New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 1172 CRD-6-91-2 (April 20, 1992) and Fortin v. Naugatuck, 14 Conn. Workers’ Comp. Rev. Op. 48, 1898 CRB-5-93-11 (May 4, 1995). Taking into account the more recent holdings of Chernak and Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006), which establish that consistent high blood pressure readings can identify scienter on the claimant’s part that hypertension is present, the claimant is well outside the statutory deadline to file this claim, as the respondents’ expert witness testified to a reasonable medical certainty that the claimant had hypertension during the years from 1992 to 1999.

The claimant also argues that hypertension should be deemed a repetitive trauma ailment and therefore subject to the notice requirements for those injuries. This would permit claims filed within one year of the last date of exposure (presumably the last day of active employment) to be deemed as having been filed in a timely fashion. We reject this argument for the same reason we deemed this theory unpersuasive in Chernak, supra.

The record is bereft of evidence that the claimant sought to have this claim decided on those grounds, including no proposed finding of repetitive trauma in the Motion to Correct.3 “Our precedent in Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005) bars this theory of recovery. ‘We have often stated that a party is not entitled to present his case in a ‘piecemeal’ fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try.’” Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006).

The claimant also claims that the precedent in Pearce, supra, is being improperly given retrospective effect. We rejected this argument in Kaminski, supra. Accordingly, for the reasons previously set forth in Kaminski we need not consider whether Pearce should have merely prospective application.

Therefore, we find no error and uphold the Finding and Dismissal of the trial commissioner.

Commissioners Nancy E. Salerno and Amado J. Vargas concur in this opinion.

1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 The claimant asserts a date of injury of August 15, 2002. The trial commissioner did not accept that assertion. BACK TO TEXT

3 The trial commissioner rejected the claimant’s Motion for Articulation and Motion to Correct. For the same reasons as stated in Chernak, supra, we find no error. BACK TO TEXT