Nettleton v. Town of East Hartford Police Dept.

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.

The respondents were represented by Frank A. May, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the December 20, 2006 Finding and Dismissal of the Commissioner acting for the First District was first heard on July 13, 2007 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton. The matter was heard again on October 19, 2007 before the same Compensation Review Board panel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 20, 2006 Finding and Dismissal of the Commissioner acting for the First District, contending that the trial commissioner erred in concluding that the claimant’s application for benefits pursuant to § 31-294c C.G.S. was untimely and in denying the claimant’s Motion to Preclude. We find no error, and affirm the decision of the trial commissioner.1

The following factual determinations are pertinent to our review. The claimant was employed as a police officer by the Town of East Hartford. On January 7, 1993, he was examined by his primary care physician, Alan Greenglass, M.D., of Kaiser Permanente in East Hartford, who determined the claimant’s blood pressure was 152/84. The claimant testified at the formal hearing of October 31, 2005 that he spoke with Dr. Greenglass about his blood pressure at that office visit and Dr. Greenglass advised him that his blood pressure was higher than normal.

The claimant next saw Dana Wiseman, M.D., an internist in Glastonbury, Connecticut, for an annual examination on January 22, 1993, and testified that as of the date of this office visit, he was aware he had high blood pressure/hypertension and communicated this information to the nurse. Prior to being seen by Dr. Wiseman, the claimant also completed a medical history form on which he checked “yes” in the section pertaining to palpitations and wrote in the word “recently”. Dr. Wiseman testified in his deposition that he added the notation “HTN” next to the word “recently” so the form would reflect that the word “recently” actually pertained to the claimant’s high blood pressure/hypertension diagnosis.

At this January 22, 1993 office visit, the claimant’s blood pressure was initially taken by Dr. Wiseman’s nurse, who obtained a left-arm reading of 158/106, which reading, according to Dr. Wiseman’s deposition testimony, was in the hypertensive range. Dr. Wiseman then took the claimant’s blood pressure himself, and came up with readings of 145/95 in the right arm and 120/80 in the left arm. Dr. Wiseman testified that he informed the claimant that his blood pressure readings were high enough to be “of concern” (Findings, ¶ 14), and his blood pressure was in the hypertensive range. Dr. Wiseman recommended the claimant return to Dr. Greenglass to discuss his blood pressure readings with him.

The claimant testified that following his appointment with Dr. Wiseman, he started taking his own blood pressure on a regular basis and confirmed that the readings continued to be elevated. Ultimately, Dr. Greenglass referred the claimant to Michael A. Rossi, M.D., a cardiologist in Hartford, Connecticut. The claimant met with Dr. Rossi on May 17, 1994. In his deposition, Dr. Rossi stated that Dr. Greenglass had referred the claimant to him because of his sixteen-month history of hypertension.

On May 20, 1994 (three days after his initial consultation with Dr. Rossi), the claimant filed a Notice of Claim for Compensation (Form 30C) with the Workers’ Compensation Commission for the First District indicating that he had been “diagnosed as having a hypertensive condition and claiming benefits allowed under workers’ compensation2 and the Connecticut Heart and Hypertension Act.”3

Findings, ¶ 4.4 On November 11, 2005, the claimant filed a Motion to Preclude the respondents from denying his claim in light of the fact that the respondents had not filed their Form 43 until February 27, 1995, 284 days after the claimant had filed his Form 30C. Despite the respondents’ tardy filing of their Form 43, the trial commissioner concluded the claimant’s Form 30C was untimely in light of the evidentiary record which indicated the claimant had become aware of his high blood pressure/hypertension in January of 1993 after seeing Dr. Greenglass and Dr. Wiseman. The trial commissioner therefore dismissed the matter for lack of subject matter jurisdiction because the claim was not filed “within one year of the date of injury when the claimant knew or should have known of his condition” (Findings, ¶ A) and also denied the Motion to Preclude as moot because the statute of limitations had run.

The claimant filed a Motion to Correct in which he asserted that the trial commissioner committed reversible error by finding the claimant knew of his high blood pressure condition in January of 1993. The claimant also requested that the trial commissioner set aside his conclusions with regard to his lack of jurisdiction over the claim, find that high blood pressure/hypertension in a police officer is an occupational disease,5 and grant the claimant’s Motion to Preclude. The trial commissioner denied the claimant’s Motion to Correct in its entirety, and this appeal followed.

We begin by reciting the standard of deference we apply to a trial commissioner’s findings and legal conclusions. As this board recently articulated in Heilweil v. Montville Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007),

The instant matter presents a number of issues for analysis. We begin with the threshold issue of whether the evidentiary record supports the trial commissioner’s conclusion that he did not have subject matter jurisdiction to hear this matter in light of the claimant’s untimely filing of his claim. As previously mentioned herein, the record shows that the claimant ultimately elected to pursue his claim under the auspices of the workers’ compensation statutes (§ 31-275 C.G.S., et. seq.) rather than the Connecticut Heart and Hypertension Act (§ 7-433c C.G.S). October 31, 2005 Transcript, p. 7. Also see July 13, 2007 Transcript, p. 10. By electing this remedy, the claimant assumed the burden of proving that he sustained a legally cognizable compensable injury, defined by statute as an injury “arising out of and in the course of his employment.”6 Encompassed within the proof required for such a claim is the proof of the causal connection between the claimant’s employment and the claimed personal injury.

A claimant who elects to pursue benefits under the Heart and Hypertension Act is not required to make such a showing; rather,

However, it is well settled that the procedural requirements for bringing a claim under either statutory scheme are the same. Pearce v. New Haven, 76 Conn. App. 441, 448 (2003), cert. denied, 264 Conn. 913 (2003), quoting Gauger v. Frankl, 252 Conn. 708, 712 (2000). The notice requirements for the timely filing of a workers’ compensation claim are set out in § 31-294c(a) C.G.S., which states, in pertinent part, that “[N]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury. . . .”

In assessing whether the claimant’s Form 30C was untimely and therefore deprived this agency of subject matter jurisdiction, the trial commissioner was guided in his analysis by the court’s reasoning in Pearce, supra. In Pearce, the court affirmed a decision by this board concluding that a Form 30C filed in 1998 by a claimant who had received repeated warnings from his family physician in 1988, 1989, and 1990 regarding his elevated blood pressure readings was untimely. Citing Pernacchio v. New Haven, 63 Conn. App. 570 (2001), the Pearce court stated that,

Thus, as this board observed in its recent decision Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008), “two key elements were held to be important in Pearce: the existence of hypertension, and knowledge sufficient to alert the claimant of the condition’s presence.” The trier is charged with determining whether these elements are sufficiently supported by the evidentiary record. “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.” Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006).

On appeal, the claimant advances several arguments in support of his position that his Form 30C was timely. First, in his appellate brief, he references the recent decision Arborio v. Windham Police Dept., 103 Conn. App. 172 (2007), remarking that although Arborio involved a heart and hypertension claim, it was “ideal for clarifying the facts in this case.” Appellant’s Supplemental Brief, p. 6. In Arborio, the claimant, a police officer for the Windham police department, filed a claim for heart and hypertension benefits after his physician placed him on high blood pressure medication following several years of elevated blood pressure readings which the claimant’s physician had monitored and treated conservatively. The defendants contested the claim and the matter proceeded to a formal hearing at which the trial commissioner found for the defendants and dismissed the claim for lack of subject matter jurisdiction on the basis of untimely notice. This board upheld the decision of the trial commissioner7 and on appeal the appellate court reversed the trial commissioner and this board. Although the court recognized that the factual findings in the record revealed a number of instances when the claimant’s physician had reported the claimant had elevated blood pressure readings, the court concluded “under the thin facts of this case” (Arborio, supra, 187), that:

In further support of his position that his Form 30C was timely, the claimant also takes issue with the trial commissioner’s reliance on Dr. Greenglass’ notes from the claimant’s office visit of January 7, 1993, arguing that “[N]owhere in Dr. Greenglass’ notes of that visit does he mention that there was a conversation regarding high blood pressure between the two on that date.” Appellant’s Brief, p. 3. In addition, the claimant asserts that although he testified that he did have a conversation with Dr. Greenglass regarding his high blood pressure, he could not remember on which date that conversation occurred. Id. The claimant contends that he did not see Dr. Greenglass again until October 22, 1993 (at which time he registered a blood pressure reading of 160/92 when the nurse checked, and 136/86 in the right arm and 144/90 in the left arm when Dr. Greenglass checked) and maintains that it was not until the office visit of October 22, 1993 that Dr. Greenglass diagnosed hypertension and discussed with the claimant a weight loss and exercise regimen. Id., p. 4. Also see Respondent’s Exhibit 1, Dr. Greenglass’ medical report of October 22, 1993.

Finally, the claimant seeks to buttress his argument that his Form 30C was timely with the testimony of the respondents’ expert, Patrick Corcoran, M.D., who defined hypertension as “consistently elevated blood pressure” (December 15, 2005 Deposition, p. 34) and opined that more than one blood pressure reading would be required in order to determine whether a patient was hypertensive. Id., p. 26. According to Dr. Corcoran, such a diagnosis would involve “repeated readings in a controlled environment over a certain length of time, say, three or four visits in a quiet area, taking the blood pressure in the proper manner.” Id. In further support of Dr. Corcoran’s testimony, the claimant cites Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999) for the proposition that “a single blood pressure reading need not automatically establish the existence of hypertension and that two readings may be construed to establish evidence of such.” Appellant’s Supplemental Brief, p. 7.

We are not persuaded by the claimant’s arguments. In fact, what this board actually stated in Anzidei is, “there is no per se legal hypertension line based on one blood pressure reading. However, a single high blood pressure reading may constitute evidence of hypertension.” Id. (Internal citations omitted; emphasis added in the original). Ultimately, the determination regarding how many high blood pressure readings suffice to establish a hypertension diagnosis rests with the trier of fact and must be made on a casebycase basis. Kaminski, supra.

We also interpret the evidentiary record quite differently. For instance, the claimant stated at trial that he had a conversation with Dr. Greenglass on January 7, 1993 regarding his high blood pressure which lasted approximately twenty minutes (October 31, 2005 Transcript, p. 48) and that during that discussion, Dr. Greenglass went over the claimant’s chart and pointed out prior multiple elevated readings. Id., p. 45. It would seem, then, that regardless of what Dr. Greenglass’ notes do or do not indicate, the claimant by his own admission indicated not only that he was aware of his current high blood pressure readings on January 7, 1993 but had been aware of other high blood pressure readings in the past.

The evidentiary record also shows that when the claimant saw Dr. Wiseman on January 22, 1993, he indicated on the medical history form that he had recently become aware he had hypertension (Respondent’s Exhibit 3, pp. 78) and informed the nurse he had hypertension. Id., 11. In his deposition, Dr. Wiseman stated he was sure the claimant’s high blood pressure numbers in the January 22, 1993 report were based on an average of two or three readings, and confirmed that he “absolutely” would have shared his concerns with the claimant regarding the elevated blood pressure readings. Id., p. 14.

The claimant also admitted at trial that he began performing selfadministered blood pressure checks after seeing Dr. Wiseman (October 31, 2005 Transcript, p. 54) and would on occasion have his blood pressure checked at Red Cross facilities. Id., p. 43. Finally, we note that Dr. Rossi’s report of November 10, 1994 indicates the claimant was initially referred to Dr. Rossi because of a sixteen-month history of hypertension. Claimant’s Exhibit D. Also see Claimant’s Exhibit D, p. 32.

Thus, while we agree that an analysis of Arborio is instructive in this matter, we are less sure that it is in fact “ideal” for the claimant’s purposes. In light of the evidentiary record, we believe the claimant’s reliance on Arborio to be misplaced, as the various physicians involved in this matter unanimously diagnosed much more than a mere “potential” hypertension problem. Rather, we find that the facts of this matter conform more closely to Pearce than to Arborio, and the current state of the law under Pearce is clear: “a 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).” Ciarlelli, supra.

The evidentiary record in this matter clearly indicates that several of the claimant’s treating physicians diagnosed symptoms of hypertension and communicated those findings to the claimant. We therefore find it was reasonable, on the basis of the claimant’s own testimony and the medical evidence presented, for the trial commissioner to conclude that the claimant knew or should have known of his hypertension in January of 1993 and to dismiss the claim for lack of subject matter jurisdiction. As we do not consider the trial commissioner’s conclusion that the claimant was aware of his hypertension in January of 1993 to be an impermissible inference, “[W]e must honor that factual determination on review, as it is not our place to retry the facts on appeal.” Brymer v. Clinton, 5135 CRB-3-06-9 (April 23, 2008), citing Ciarlelli, supra.

The claimant also argues on appeal that the trial commissioner’s decision to deny the claimant’s Motion to Preclude for lack of subject matter jurisdiction was “clearly a misapplication of the law.” Appellant’s Brief, p. 2. As mentioned previously herein, the respondents did not file their Form 43 until February 27, 1995; 284 days after the claimant filed his Form 30C on May 20, 1994, which eventually prompted the claimant to file a Motion to Preclude on November 11, 2005. The pertinent law for the analysis of the preclusion doctrine is articulated in § 31-294c(b) C.G.S., which states that,

It is well settled that a Motion to Preclude does not absolve the claimant from satisfying the initial jurisdictional requirements for bringing a claim in the workers’ compensation forum. In Del Toro v. Stamford, 270 Conn. 532 (2004), the court stated, “we previously have established that this conclusive presumption does not prevent an employer from contesting liability on the basis that the commissioner lacks subject matter jurisdiction.” Id., 543 (emphasis added in the original). Given that “the timeliness of the employee’s claim is essential to the operation of the preclusion provision,” Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 281 (1988), cert. denied, 207 Conn. 805 (1988), “[T]he statutory scheme contemplates, therefore, that the employer will have, upon receipt of the claim, the opportunity for such an investigation. Unless the claim itself was presented in a timely fashion, the employer is deprived of that opportunity.” Id. Thus, “subject matter jurisdiction must exist before the [Workers’ Compensation Act] applies. . . . Furthermore, the lack of subject matter jurisdiction does not, strictly speaking, address the right not to contest liability to pay compensation, but rather amounts to declaring that the [Workers’ Compensation Act] does not apply at all.” Castro v. Viera, 207 Conn. 420, 437 n.9 (1988). Thus, in light of our determination herein that the claimant’s Form 30C was untimely, we accordingly affirm the trial commissioner’s conclusion that the claimant’s Motion to Preclude was moot.

It should be noted that when the parties appeared before this board for oral argument on July 13, 2007, the question arose as to whether municipal heart and hypertension claims, when litigated pursuant to the workers’ compensation statutes, should be treated as repetitive trauma claims, presumably because the onset of heart disease and/or hypertension cannot generally be ascribed to a particular point in time.

Discuillo v. Stone and Webster, 242 Conn. 570, 583 (1997). However, such claims “resulting from cases of repetitive trauma are subject to the same one year limitation period as claims for accidental injuries.” Malchik v. Division of Criminal Justice, 266 Conn. 728, 744 (2003), quoting Discuillo, supra, 581.

Although claimant’s counsel asserted at oral argument that the claimant should prevail in a repetitive trauma action, given that the respondents were precluded from contesting the claim and the claimant was still employed by the respondent employer at the time of the hearing, upon review, we find there is insufficient evidence in the record to conclude that the claim filed in this matter represented a repetitive trauma injury. To begin with, at no time during the proceedings below did the claimant argue or present evidence to the effect that his hypertension was the result of repetitive trauma. As the respondents correctly observe, “[d]eciding an appeal upon a claim never presented to the trial commissioner goes against all procedural deference that has been routinely afforded triers of fact by appellate tribunals in the state of Connecticut.” Appellee’s Supplemental Brief, p. 4.

The claimant had many opportunities to modify his claim prior to appearing at oral argument before this board; we have previously remarked in another matter that,

Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008).

Thus, to allow the claimant to advance such a theory at this stage of the proceedings, would, in our estimation, inflict substantial damage on the due process rights of the respondents and the interests of judicial economy in general. “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.” Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB-3-94-9 (December 7, 1995), citing Kearns v. Torrington, 119 Conn. 522, 529 (1935); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 542 (1992); Germe v. Conway Eastern Express, 10 Conn. Workers’ Comp. Rev. Op. 148, 150, 1180 CRD-3-91-2 (June 29, 1992).

In addition, the claimant did not identify a repetitive trauma injury when he filed his Form 30C, although the directions on the form itself clearly indicate that the applicant is to “state Nature of Accident, Occupational Disease or Repetitive Trauma and Part of Body Injured in ordinary language.”8 Finally, even had the claimant more aggressively prosecuted a repetitive trauma theory of recovery, we do not find that the medical evidence in the record establishes a causal connection between the claimant’s employment and his hypertension. In fact, we would tend to agree with the respondents, who contend that “the record before the Trial Commissioner contained solid evidence eliminating any connection between the claimant’s employment and his hypertension, and any medical connection between job stress and the development of hypertension.” Appellee’s Supplemental Brief, p. 7 (emphasis added).

For example, both Drs. Rossi and Corcoran declined to testify to the existence of a medical link between the claimant’s high blood pressure and his employment. Although Dr. Rossi did concede that the claimant’s employment may on occasion have “aggravated or worsened” the claimant’s hypertension (Claimant’s Exhibit D, p. 55), when asked by respondents’ counsel whether he believed the claimant’s work as a police officer was a substantial factor in causing his hypertension, he replied, “[N]ot in causing it, Mr. May, no” (Id., p. 58), and he agreed with respondent’s counsel’s observation that “hypertension is, in essence, rampant in American society.” Id., p. 48.

Similarly, when Dr. Corcoran was queried during his deposition as to whether the claimant’s occupation as police officer caused his hypertension, he replied, “[T]he opinion I have always said about this type of thing is that if hypertension was caused by being a policeman, then every policeman should have hypertension. . . . So, no, I can’t say that being a police officer causes hypertension. I have never seen anything published that it did.” Respondent’s Exhibit 4, pp. 15-16.

In short, we agree with respondent, who stated “[N]ot only did the claimant in this case fail to offer any evidence to support a repetitive trauma theory of causation for his own hypertension, he utterly failed to enter any evidence that ‘repetitive trauma’ or ‘stress’, has any role in causing hypertension in anyone. To the contrary, the medical evidence in the record . . . confirmed that there is no basis to conclude that hypertension is caused by any repetitive acts or by ‘stress.’ ” Appellee’s Supplemental Brief, p. 8.

In light of the foregoing analysis, we hereby affirm both the trial commissioner 2’s decision to dismiss this claim for lack of subject matter jurisdiction and the corollary determination that the claimant’s Motion to Preclude was moot.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 We note that several extensions of time were granted during the pendency of this appeal. BACK TO TEXT

4 At the formal hearing held on October 31, 2005, counsel for the claimant stated in his opening argument that the claimant had elected to pursue benefits solely under the auspices of the Connecticut Workers’ Compensation Act. BACK TO TEXT

5 As the claimant did not refer to this proposed finding in his Reasons of Appeal, allude to it in his brief, or address it at oral argument before this board, we deem it abandoned on appeal. Christy v. Ken’s Beverage, Inc., 5157 CRB-8-06-11 (December 7, 2007); St. John v. Gradall Rental, 4846 CRB-3-04-8 (August 10, 2005). BACK TO TEXT

8 The claimant utilized the “Form 30C-Rev 90” version of this document. BACK TO TEXT