Casimiro v. Town of Westport

The claimant was represented by Robert Sheldon, Esq., Tremont & Sheldon, 64 Lyon Terrace, Bridgeport, CT 06604.

The respondent employer was represented by Eugene E. Cederbaum, Esq., Wake, See, Dimes & Bryniczka, 27 Imperial Avenue, P.O. Box 777, Westport, CT 06881-0777.

This Petition for Review from the May 30, 2006 Finding and Award of the Commissioner acting for the Fourth District was heard November 17, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and George A. Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the May 30, 2006 Finding and Award of the Commissioner acting for the Fourth District, challenging its ruling that the claimant filed a timely request for benefits under § 7-433c C.G.S. We find no error, and affirm the trial commissioner’s decision.1

The claimant was hired as a police officer by the respondent Town of Westport in 1978, after passing a pre-employment physical examination that revealed no evidence of hypertension or heart disease. From 1978 through 2004, he was seen annually by Dr. Beck, an internist. His blood pressure readings were normal through 1997.

On the examination date of April 30, 1998, the claimant recalled that he had complained of pain on his right side. He said that Dr. Beck did not discuss his blood pressure reading during the visit, but recommended he lose weight and reduce his salt intake. Dr. Beck testified that his blood pressure measured 142/94, and stated that he discussed this with the claimant. At an April 15, 1999 examination, the claimant testified that he was told to lose weight and cut back on salt, but was not told to have his blood pressure re-checked, whereas Dr. Beck testified that he took a blood pressure reading of 144/100, shared that information with the claimant, and mentioned possible treatment. The doctor’s notes state that blood pressure medications should be considered.

On the exam date of May 30, 2000, the claimant was experiencing headaches and had recently undergone gall bladder surgery. He recalled that Dr. Beck advised him to lose more weight, and prescribed a diuretic (a drug that promotes the excretion of urine) to that end, without telling the claimant that he was trying to treat hypertension. Dr. Beck testified that the claimant’s blood pressure reading was 160/120, which led him to prescribe hydrochlorothiazide (HCTZ) for 30 days. Dr. Beck explained that HCTZ is often used in combination with other drugs to lower blood pressure (as it is frequently not effective enough alone). He recalled telling the claimant to return in one month, which the claimant did not do.

According to the claimant, he was first told he had hypertension on June 11, 2001, when his blood pressure measured 180/110. Dr. Beck advised him to see a cardiologist. The cardiologist, Dr. Taikowski, began treating the claimant for hypertension by prescribing an ACE inhibitor, Accupril, and resuming the use of HCTZ. He directed the claimant to have several echocardiograms, one of which revealed left ventricular hypertrophy, a thickening of the heart muscle wall. The claimant stated that, prior to June 11, 2001, he did not understand what hypertension was, and did not know what blood pressure levels indicate hypertension. On May 10, 2002, he filed a Form 30C claiming benefits under § 7-433c C.G.S. Dr. Krauthamer, the respondent’s examiner, testified that the claimant suffered from hypertension during his 1998, 1999, and 2000 office visits with Dr. Beck. He described the diagnostic standard for hypertension among cardiologists and the American Medical Association as being two or more separate blood pressure readings of 140/90 or greater.

The trial commissioner found the claimant’s testimony credible and persuasive. Aside from the three blood pressure readings discussed above, all of the claimant’s other physical systems that were examined by Dr. Beck were normal until 2001. The first hypertension diagnosis was made and confirmed in June 2001. The trier found that the respondent had not proven that the claimant was “diagnosed with, or knew, or had a reasonable basis to know, that he had hypertension prior to June, 2001.” Findings, ¶ I. Accordingly, the commissioner ruled that the claimant was entitled to benefits under § 7-433c, and awarded him benefits for a 40% permanent partial impairment of the heart. The respondent has petitioned for review from this ruling, and from the denial of its Motion to Correct.

We recently undertook a detailed analysis of the law governing the triggering of a police officer or firefighter’s duty to file a notice of a § 7-433c hypertension claim using the procedural provisions of § 31-294c C.G.S. Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008). There, we explained,

The trial commissioner here drew the conclusion that, based on the totality of the evidence presented, there was insufficient proof to show that the claimant was diagnosed with hypertension, or knew or should have known that he had hypertension, prior to June 2001. The respondent’s appeal challenges many of the factual findings that the trier derived from the evidence, in essence revisiting the basis of its Motion to Correct the trier’s findings.2 We are mindful that interpreting the significance of evidence, resolving its inconsistencies or uncertainties, and ultimately determining how much credibility to assign to the testimony and opinions of lay and expert witnesses are core functions of a trier of fact. 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). In a workers’ compensation case, the trial commissioner has the sole authority to make assessments of evidentiary credibility in determining whether a claimant has met the elements of his or her claim. DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 342 (2007); Duddy, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). On review, this board may not substitute its own impressions of credibility for those of the trier. Our role is to review the factual findings to determine whether evidence in the record supports them, and whether the trial commissioner omitted undisputed material facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

The respondent seeks to establish that the claimant knew about his high blood pressure readings prior to June 2001 based on the contents of Dr. Beck’s notes, Dr. Beck’s testimony, his prescription for HCTZ, and the claimant’s statement to Dr. Taikowski that Dr. Beck had prescribed HCTZ, which medication Dr. Taikowski referred to in his chart notes as having been prescribed for blood pressure. However, the trial commissioner drew a different inference from the medical records and Dr. Beck’s testimony. It is our duty on review to defer to that inference if it has been reasonably derived from the evidence.

The trier found that Dr. Beck testified it is his “normal practice” to discuss a diagnosis of hypertension with a patient. He also stated that he probably referred to “high blood pressure” rather than “hypertension” when he talked to the claimant, in order to avoid a misunderstanding over what hypertension was. Respondent’s Exhibit 5, p. 14. The trier noted in her findings that Dr. Beck generally used the terms “blood pressure” and “high blood pressure” when he spoke with patients, as the term “hypertension” was often misunderstood. We agree with the respondent that a doctor’s use of the word “hypertension” is not legally required to express the existence of a hypertension-related problem to a claimant. The question, instead, is whether information was communicated that should have put the claimant on notice that he had symptoms of hypertension that might require some form of treatment, thereby establishing an injury with the potential to develop into a claim for benefits against his employer.

Dr. Beck’s handwritten notes include notations as to the claimant’s blood pressure readings, and his 1999 and 2000 entries provide documentary evidence of his awareness that the claimant had hypertension that required treatment. The 2000 notation also said “concerned re: B.P. – Discussed.” Claimant’s Exhibit B. However, the trier denied the respondent’s proposed corrections seeking findings in accordance with Dr. Beck’s testimony that he told the claimant he had high blood pressure, which was the basis for recommended changes in his diet, weight loss, and other treatment. This shows that she drew contrary factual inferences, which were supported by the contrary testimony of the claimant.

For instance, the claimant testified that during routine exams, Dr. Beck used a device to check the vessels inside his eye for signs of high blood pressure. Each time this test was performed prior to June 2001, the claimant would ask Dr. Beck what he’d found, and he always replied that the claimant had no signs of high blood pressure. November 9, 2005 Transcript, pp. 15, 24-25. The claimant also testified that Dr. Beck continued to tell him that his EKG results were normal each year until 2001. Id., pp. 16-18. The claimant stated that Dr. Beck did not share with the claimant the results of his blood pressure readings, and testified that he did not know what hypertension and high blood pressure were until 2001. Id., pp. 20-21. He stated that Dr. Beck had not explained why he wanted the claimant to lose weight or change his diet, nor was he told that “water pills” (the HCTZ) were being prescribed for anything beyond weight loss. Id., pp. 22-23.

Also, in his deposition, Dr. Beck had said that he talked about blood pressure with the claimant at the 1998, 1999 and 2000 examinations, and that he remembered what was discussed. Respondent’s Exhibit 5, pp. 11, 13-14, 15-16. When asked if anything in his written records indicated that he told the claimant he had hypertension on May 30, 2000, however, Dr. Beck answered “yes” to that question by explaining, “[i]f it says ‘hypertension,’ it means I told him.” Id., p. 49. He clarified that he did not have a specific recall of telling the claimant he had hypertension as he did not have “that kind of photographic memory.” Id. He also stated on cross-examination that, after prescribing HCTZ to the claimant, he “probably” explained to him that his blood pressure was elevated and it was time for him to start taking some medication. Id., p. 55.

The trial commissioner was not required to explain why she found the claimant’s testimony credible insofar as it was inconsistent with the testimony and reports of Dr. Beck. Admin. Reg. § 31-301-3 (finding should not contain the reasons for the trier’s conclusions). Ciarlelli, supra. It is not for us to speculate as to the reason for her decision on appeal, either. It suffices for us to recognize that she had the authority to credit the testimony of the claimant over that of the employer-provided physician. As for the notation in Dr. Taikowski’s June 21, 2001 office chart stating that the claimant was prescribed HCTZ for blood pressure in 2000, this was acknowledged by the claimant, who explained that Dr. Beck probably provided the information about the HCTZ that was given to Dr. Taikowski, as the claimant would not have been able to remember the name of that drug. November 9, 2005 Transcript, p. 41; Claimant’s Exhibit A. Again, we cannot say that the claimant’s testimony was legally inadequate to avoid the conceivable contrary inferences that the trier could have drawn from Dr. Taikowski’s medical records. However the trial commissioner reached her conclusions, it is not for this board to override the trier’s assessments of credibility on review.

Having determined that the evidence supports the trial commissioner’s factual finding that the claimant did not know, nor should he have known, that he had symptoms of hypertension prior to June 2001, we conclude that the statute of limitations under § 31-294c did not begin running until June 21, 2001, making the claimant’s May 2002 notice of a § 7-433c claim timely. Thus, we affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr., and George A. Waldron concur.

1 The respondent was granted a two-month extension of time to file Reasons of Appeal in this matter. BACK TO TEXT

2 The respondent proposed corrections to 13 of the trial commissioner’s factual findings in its June 15, 2006 Motion to Correct. Only one was granted, removing the adjective “isolated” from the references to the three blood pressure readings in 1998, 1999 and 2000 that are found in ¶ 21 and ¶ D of the award. A party seeking to correct the finding of the commissioner is required to file a Motion to Correct pursuant to Admin. Reg. § 31-301-9. The trial commissioner then rules on the motion. Where there is evidence to support a trier’s original factual findings, or requested corrections are based upon testimony or other evidence that depends on a determination of credibility or is otherwise subject to dispute, this board will not overturn the denial of such corrections by drawing a contrary inference on appeal. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003); see also, Burke v. Shaw’s Supermarkets, Inc., 4503 CRB-6-02-3 (August 25, 2003), appeal dismissed, A.C. 24693 (February 17, 2004). BACK TO TEXT