Brymer v. Town of Clinton

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

The respondent employer was represented by Henry Zaccardi, Esq., Shipman & Goodwin, LLP, One Constitution Plaza, Hartford, CT 06103-1919.

This Petition for Review from the September 20, 2006 Finding and Dismissal of the Commissioner acting for the Third District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 20, 2006 Finding and Dismissal of the Commissioner acting for the Third District, challenging the trier’s conclusion that his hypertension claim under § 7-433c C.G.S. was filed beyond the one-year statutory deadline. We find no error, and affirm the trial commissioner’s decision.

The claimant became a uniformed member of the respondent Town of Clinton’s police department on May 15, 1987, after passing a physical examination that showed no evidence of hypertension or heart disease. That exam was performed by Dr. Sheehan, who also served as the claimant’s treating physician until his retirement in 2000. In 1990, the claimant had been certified as an emergency medical technician, and had learned about the significance of blood pressure readings. He denied that Dr. Sheehan had ever mentioned hypertension to him. Dr. Sheehan diagnosed diabetes in 2000, and referred the claimant to Dr. Knudson, who took a blood pressure reading of 140/100 on June 20, 2000. The trier found that he diagnosed the claimant with diabetes, a cholesterol problem, and hypertension. Dr. Knudson told the claimant that he should watch his blood pressure, and if it remained above 130/85, the doctor would prescribe medication. He indicated that blood pressure readings for diabetic patients should be under 130/85. The trier found that the claimant’s blood pressure was 110/90 on July 21, 2000, and Dr. Knudson indicated no further treatment was necessary for obesity or blood pressure.

In 2001, Dr. Winokur became the claimant’s primary care physician, and took normal blood pressure readings during 2001 and 2002. On July 11, 2003, the claimant presented with complaints of chest pain. Dr. Winokur diagnosed him with hypertension at that time, and started medication for the condition. He also disabled the claimant from work through September 15, 2003. The claimant filed a notice of claim for § 7-433c benefits on August 29, 2003. The trial commissioner found that this claim was late, because the claimant had been diagnosed with hypertension on June 20, 2000, and had discussed the condition with Dr. Knudson. The trier ruled that the claimant should have notified the respondent of a potential § 7-433c claim at that time. He accordingly dismissed the instant claim, from which decision the claimant has petitioned for review.

The claimant also appeals from the denial of his Motion to Correct, in which he sought to recast the June 20, 2000 high blood pressure reading as an isolated event that could not serve as the basis for a diagnosis of hypertension, based on the testimony of Dr. Knudson and the other evidence in the record. In response to the claimant’s Motion for Articulation, the trial commissioner clarified that he relied upon Dr. Knudson’s medical exam and report of June 20, 2000, and considered the fact that the claimant was a certified EMT. He stated that he did not find the claimant’s testimony to be credible when he stated that he was not made aware of the hypertension diagnosis on June 20, 2000. It is well-settled that such credibility assessments are made solely by the trial commissioner in workers’ compensation proceedings, and this board may not substitute its own impressions of credibility on appeal. DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 342 (2007), cert. granted, 281 Conn. 929 (2007); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Hallock v. Westport, 4829 CRB-4-04-7 (July 22, 2005), appeal dismissed, A.C. 26823 (September 26, 2006). The factual inferences drawn by the trier from the evidence must be upheld unless they are without support in the record, or unless undisputed facts have been omitted that are material to the outcome of the case. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

Most of the legal arguments raised by the claimant in his brief concerning the proper interpretation of § 7-433c and § 31-294c C.G.S. were addressed in our recent decision in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008). There, we stated that a § 7-433c claimant “is required to notify his or her employer of a potential claim for benefits by filing a notice of claim when (1) the medical evidence shows that he or she has developed symptoms of hypertension and (2) he or she knows, or should know, that he or she has symptoms of hypertension that may require lifestyle changes and/or treatment (whether or not disability yet exists).” That legal analysis applies here.

As stated above, it was within the trier’s authority to find the claimant’s testimony not credible insofar as he claimed he was unaware in June 2000 of Dr. Knudson’s hypertension diagnosis.1 The essential question, therefore, is whether the trier had sufficient evidence to find that the claimant suffered from hypertension at that time, triggering his duty to file a claim. The claimant argues that Dr. Knudson clarified his initial reports by testifying that the high blood pressure reading on June 20, 2000 and the subsequent reading on July 21, 2000 were not related to hypertension, and by agreeing that the June 2000 reading was an aberration. Moreover, Dr. Knudson had indisputably told the claimant in July 2000 that his blood pressure no longer required treatment. “If he watched his blood pressure, as told, and was then told he was okay and that the following readings were normal, why would he file a claim?” Appellant’s Brief, p. 9.

In Ciarlelli, supra, we explained that our Appellate Court has confirmed its position that a claimant need not be disabled before the duty to file a claim under § 7-433c is triggered. See Arborio v. Windham Police Department, 103 Conn. App. 172 (2007). The emergence of a hypertensive condition combined with a claimant’s knowledge of the condition constitutes the accidental injury that triggers the duty to file. As for Dr. Knudson’s testimony, the trial commissioner found that the more credible evidence was his medical exam and report of June 20, 2000. It was permissible for the trier to make that determination. There have been cases in which a trier’s decision has been reversed when a physician’s report clarifying an earlier opinion has been ignored. See, e.g., Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733 (2001)(1997 report recanted 1996 report, stating that it was incorrect and had been based on incomplete information). Here, however, the statements made by Dr. Knudson during cross-examination do not invalidate the earlier diagnosis as if it were a mistake. They instead place the claimant’s experience in a wider retrospective context, which the trier was entitled to evaluate as he saw fit.

Dr. Knudson testified that the claimant had been referred to him primarily for diabetes, with additional signs of elevated cholesterol and blood pressure, and complaints of erectile dysfunction and fatigue. Deposition, Claimant’s Exhibit D, p. 13. Because the claimant had diabetes and was at heightened risk for cardiovascular disease, Dr. Knudson said that he would have discussed the claimant’s blood pressure with him. Id., p. 14. Following the claimant’s reduction in blood pressure from 140/100 on June 20, 2000 to 110/90 on July 21, 2000, Dr. Knudson would have observed further and taken several more readings before recommending any specific treatment, considering too that the claimant had other problems that needed to be addressed. Id., p. 16-17. He stated that the claimant no longer showed systolic hypertension as of July 21, 2000, but his diastolic pressure was slightly elevated. Id., pp. 18-20. Dr. Knudson’s July 21, 2000 report states, “[Patient] will exercise regularly. No further treatment at this time for obesity or blood pressure. Return in three months.” Claimant’s Exhibit D.

The respondent’s attorney recited the claimant’s blood pressure readings between 1995 and 2002, noting that the diastolic reading in July 1990 was also a little high, but that the numbers had thereafter normalized. He then asked Dr. Knudson if, presuming the numbers were accurate, it was fair to say that he would consider the claimant not to have been hypertensive for that multi-year period. Dr. Knudson replied, “I believe that is correct.” Id., p. 26. He also agreed that the claimant did not have an actual diagnosis of hypertension that would have been treated medically in 2000, beyond the one high blood pressure reading. “High blood pressure is extremely common in people that are diabetic and also in people that are overweight . . . no matter what his blood pressure was, we would keep very close watch of it. But it probably would not require treatment and would not be a high priority compared to his diabetes during those times.” Id., pp. 26-27. Dr. Knudson also stated that it was possible that the claimant had followed through on his stated plan to watch his diet and lose weight, which could have contributed to decreased blood pressure readings in 2001 and 2002. Id., pp. 29-30.

The trier was entitled to determine how much weight to give this testimony, and whether to connect the claimant’s signs of high blood pressure in 2000 to his diagnosis of hypertension in 2003. Compare Pernacchio v. New Haven, 63 Conn. App. 570, 575 (2001)(in affirming finding that parties were informed in 1989 of hypertension condition that was diagnosed several years later by virtue of medical treatment that was provided for 1989 symptoms of high blood pressure and dizziness, court noted that neither party introduced medical evidence to elucidate relationship between high blood pressure and hypertension). We note that Dr. Knudson never said that the claimant’s high blood pressure reading in 2000 was unrelated to his later hypertensive symptoms. The claimant described being anxious the first time he visited Dr. Knudson, but the trier was free to decide that this did not constitute a transitory event that caused an temporary spike in blood pressure, as has happened in other cases. See, e.g., Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). The trier also denied ¶ 3 of the claimant’s Motion to Correct, seeking to change the findings to state that the blood pressure reading was an “aberration.” We must respect this credibility determination on appeal. Hallock, supra.

Ultimately, the trial commissioner was not required to treat Dr. Knudson’s deposition as a retraction of his earlier opinion.2 “A trier of fact is entitled to accept all, part or none of a doctor’s opinion; Tartaglino, supra; Gillis v. White Oak Corporation, 49 Conn. App. 630, 638 (1998); as long as the opinions the trier relies on are expressed with a reasonable degree of medical probability.” Walter v. Bridgeport, 5092 CRB-4-06-5 (May 16, 2007). Whether or not a blood pressure reading constitutes evidence of hypertension is a question of fact, which is determined based on the totality of the evidence. Arborio, supra, 187, citing Pearce v. New Haven, 4385 CRB-3-01-5 (March 28, 2002), aff’d, 76 Conn. App. 441, cert. denied, 264 Conn. 913 (2003). The trier found here that the reading did indicate hypertension. We must honor that factual determination on review, as it is not our place to retry the facts on appeal. Ciarlelli, supra.

The trial commissioner’s decision is hereby affirmed.

Commissioners Amado J. Vargas and Scott A. Barton concur.

1 In a November 16, 2006 response to the claimant’s October 4, 2006 Motion for Articulation, the trial commissioner explained, “The finding that the Claimant was aware of the diagnosis of hypertension on June 20, 2000 was based on Dr. Knudson’s physical exam and report. I also considered the fact that the Claimant was a certified Emergency Medical Technician. I did not find the testimony of the Claimant to be credible when indicating that he was not made aware of the hypertension diagnosis on June 20, 2000.” BACK TO TEXT

2 We note that Dr. Knudson’s June 2000 opinion, standing alone, is sufficient to establish a diagnosis of hypertension. Thus, the credibility of Dr. Knudson’s subsequent testimony could be independently assessed by the trier of fact in choosing the degree of weight to place on that report. We distinguish this circumstance from that in Safford v. Brockway, 262 Conn. 526 (2003), where our Supreme Court held that an initial medical report that prescribed a 20% permanent partial disability rating of the shoulder (an unscheduled body part under § 31-308(b)) was insufficient to stand alone as competent evidence independent of a subsequent clarification that equated the 20% shoulder rating with a 12% rating of the upper extremity (a scheduled body part). Because the second report was needed to clarify the meaning of the first report in order to tie it into the statutory schedule of benefits, the trier of fact was not able to disregard the second report and rely on the first report to establish a 20% rating of the upper extremity. BACK TO TEXT