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CASE NO. 5232 CRB-4-07-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 11, 2008
KIMBERLY VINHAIS BIEHN
CITY OF BRIDGEPORT
The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.
The respondents were represented by Marie E. Gallo-Hall, Esq., Montstream &May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the May 24, 2007 Finding & Dismissal of the Commissioner acting for the Fourth District was heard on December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the May 24, 2007 Finding & Dismissal of the Commissioner acting for the Fourth District, contending that the trial commissioner erred in concluding that the claimant’s application for workers’ compensation benefits was untimely. We find no error, and affirm the decision of the trial commissioner.1
The following factual determinations are pertinent to our review. The parties stipulated that the claimant was employed as a regular member of the paid municipal police department for the City of Bridgeport on October 7, 1991, having successfully passed a pre-employment physical in accordance with the mandates of the Connecticut Heart and Hypertension Act (§ 7-433c C.G.S.).2 The claimant testified that she had no medical records available for the period between 1991 and 2000 but she was “not aware of any issues with regard to her blood pressure during this time frame.” Findings, ¶ 2.
In 2000, the claimant began treating with Domenic Casablanca, M.D., a general practitioner. An office note dated June 5, 2000 from Dr. Casablanca’s chart revealed that the claimant’s blood pressure on that date was 140/80. A subsequent reading taken on January 22, 2001 indicated the claimant’s blood pressure had dropped to 120/84. The claimant became pregnant in March of 2001 and gained over 100 pounds during the course of her pregnancy. Blood pressure readings taken on May 21, 2001, October 9, 2001 and November 20, 2001, of 138/90, 140/100, and 150/90 respectively, placed the claimant in the hypertensive range. On November 21, 2001, the claimant delivered her baby via emergency Caesarean section, and Dr. Casablanca’s notes for that date state, “[p]hone call to patient. Follow up on Monday for B.P. Presently taking Procardia 60 mg 1 tab qd and Aldomet 500 mg tid.” Findings, ¶ 3.f.
The claimant continued to manifest high blood pressure readings after the birth of her child. On December 19, 2001, Dr. Casablanca recorded the claimant’s blood pressure as 130/90. On April 16, 2002, Dr. Casablanca reported the claimant’s blood pressure as 140/100 and wrote in his notes, “check home blood pressures and bring log. Return visit one month.” Findings, ¶ 3.h. Dr. Casablanca’s notes indicate that on May 17, 2002, the claimant’s blood pressure was 140/100 and he had diagnosed the claimant as suffering from hypertension. The doctor prescribed Cardizem for the claimant and recommended she return to see him in one month. On May 31, 2002 and June 26, 2002, the claimant’s blood pressure readings were, respectively, 130/90 and 140/80.
The claimant began treating with Joseph A. Rose, M.D., a cardiologist, in May of 2002. In his report dated May 21, 2002, Dr. Rose wrote that it was his opinion the claimant had suffered from hypertension during her pregnancy, and he questioned whether preeclampsia was the cause of the high blood pressure readings. Dr. Rose recommended a “work up” to rule out secondary forms of hypertension but did not formulate a treatment plan at that time. At trial, Dr. Rose testified that the claimant had exhibited symptoms of labile hypertension at her initial evaluation of May 21, 2002, and a diagnosis of hypertension was “warranted” by August of 2002. Findings, ¶ 8. Dr. Rose further testified that he had informed the claimant of the hypertension diagnosis at that time and started her on hydrochlorothiazide (“HCTZ”) to control her high blood pressure. Dr. Rose stated that, “the fact that the Claimant became hypertensive during her pregnancy does not negate the fact that she remained hypertensive subsequent to her pregnancy.” Findings, ¶ 8.
In 2003, the claimant began treating with Lee Forest, M.D., a primary care physician. Dr. Forest’s records indicate that on February 6, 2003, the claimant’s blood pressure was 124/90, she was taking HCTZ, and Dr. Forest had diagnosed hypertension. On February 20, 2003, Dr. Forest recorded the claimant’s blood pressure as 128/90, and on March 20, 2003, Dr. Forest noted the claimant’s blood pressure was 120/90 and the HCTZ was “done.” The claimant’s blood pressure appeared to stay within normal ranges from April 21, 2003 until July 20, 2004, at which point Dr. Forest’s records report a blood pressure reading of 140/106 and indicate he was putting the claimant back on HCTZ. On August 31, 2004, the doctor’s notes contain the following notation: “HCTZ 12.5 mg question Toprol started by Cardiologist.” Findings, ¶ 9.h.
According to Dr. Forest’s records, the claimant continued to manifest blood pressure readings in the normal ranges through September 7, 2005, but all the notes for the office visits during this period reflect an ongoing diagnosis of hypertension and a continuing drug regimen of HCTZ and Toprol. The claimant did not see Dr. Forest between July 11, 2003 and July 20, 2004, and the only recorded blood pressure reading for this time period occurred on January 6, 2004, when the claimant had an office visit with Dr. Harmon, an obstetriciangynecologist, who reported an elevated blood pressure reading of 142/78.
The claimant filed a notice of claim3 for heart and hypertension benefits pursuant to the Connecticut Heart and Hypertension Act in September of 2004. After a formal hearing, the trial commissioner determined that the claimant’s application was time barred pursuant to § 31-294c(a) C.G.S.4 and dismissed the matter.
The claimant subsequently filed a Motion for Articulation in which she requested the trial commissioner specify which provision of the statute of limitations, in accordance with the three classifications of injuries listed in § 31-275(16)(A) C.G.S.,5 she had applied in reaching her conclusions. The claimant also requested the trial commissioner clarify on which date the applicable statute of limitations had commenced; i.e., either one year after an accidental injury; the last date of exposure for a repetitive trauma injury; or the date of the first manifestation of a symptom for an occupational disease. The trial commissioner denied the Motion for Articulation and this appeal followed.
On appeal, the claimant argues that the trial commissioner erred in concluding that the claimant had been diagnosed with and knew of her hypertensive condition in August of 2002 rather than on July 20, 2004. In addition, the claimant identifies as error the trial commissioner’s failure to find that the claimant was cured of her hypertension during the period from April 21, 2003 to July 20, 2004. The claimant also contends that the trial commissioner’s refusal to grant the claimant’s Motion for Articulation and failure to identify which category of personal injury (accidental injury, repetitive trauma or occupational disease) she relied upon in formulating her findings constituted a denial of due process.
We begin our analysis 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 role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
It is well settled that in order for a claimant to collect benefits pursuant to the Workers’ Compensation Act,6 the claimant must prove that the claimed injury or disease “arose out of and in the course of the employment.”7 Notably, this proof of causation is not required in order to be eligible for the benefits provided by the Heart and Hypertension Act. Rather,
[such] a claimant need show only that he or she is a uniformed member of a paid fire department or a regular member of a paid police department, whose pre-employment physical examination revealed no evidence of hypertension or heart disease, who now suffers a condition or an impairment of health caused by hypertension or heart disease that has resulted in death or disability, and has suffered a resultant economic loss.
Zaleta v. Fairfield, 38 Conn. App. 1, 5 (1995), quoting Suprenant v. New Britain, 28 Conn. App. 754, 758 (1992).
However, “[our] Supreme Court] has stated on many occasions that the procedure for determining recovery under § 7-433c is the same as that outlined in chapter 568 [the Workers’ Compensation Act], presumably because the legislature saw fit to limit the procedural avenue for bringing claims under § 7-433c to that already existing under chapter 568 .” 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). Thus, heart and hypertension claimants are bound by the restraints imposed by § 31-294c(a) C.G.S.,8 which sets out the notice requirements for the timely filing of workers’ compensation claims. “Compliance with [§ 31-294c(a)] is essential to maintaining a claim for compensation under chapter 568 and therefore under § 7-433c because timely notice is a jurisdictional requirement that cannot be waived.” Zaleta, supra, 6, quoting Collins v. West Haven, 210 Conn. 423, 430 (1989).
In order to evaluate whether a potential heart and hypertension claimant’s notice of claim is timely and therefore preserves this agency’s subject matter jurisdiction, this board generally utilizes the analysis articulated in Pearce, supra. There, the Appellate Court affirmed a decision by this board to uphold a trial commissioner who had concluded that a claim for heart and hypertension benefits was not timely filed. The Pearce claimant had received repeated warnings from his family physician in 1988, 1989, and 1990 regarding his elevated blood pressure readings but neglected to file a notice of claim until 1998. “In Pearce, the trier had decided that numerous elevated blood pressure readings on eight separate occasions (ranging from 140/98 to 180/94 and 170/110), the prescribing of a blood pressure monitor, and frequent discussions between the claimant and his doctor concerning his blood pressure all helped create a circumstance under which the claimant should have been aware that he suffered from hypertension.” Hallock v. Westport, 4829 CRB-4-04-7 (July 22, 2005). Citing Pernacchio v. New Haven, 63 Conn. App. 570, 576 (2001), the Pearce court stated,
Such notification is required by §§ 31-294b and 31-294c, despite whether those symptoms cause immediate permanent or partial disability. The reason for prior notice is to inform the employer of a possibility of a claim for benefits being filed at a later time. 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, supra, 449 (internal citations omitted).
Thus, it can be inferred that “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.” Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008), appeal docketed, A.C. 18201 (August 13, 2008). Ciarlelli, supra, this board concluded, “[c]ollectively, the § 7-433c case law establishes that 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).” See also Hunt v. Naugatuck, 4607 CRB-5-02-12 (February 9, 2004), appeal dismissed for lack of final judgment, A.C. 25129 (April 21, 2004), cert. granted, 269 Conn. 916 (2004), rev’d and remanded Appellate Court’s dismissal for lack of final judgment, 273 Conn. 97 (2005); Chernak v. Stamford, 5012 CRB-7-05-10 (December 13, 2006); Peck v. Somers, 4640 CRB-1-03-3 (March 5, 2004).
Practically speaking, then, the onus is on the claimant to file for benefits as soon as symptoms of hypertension become manifest. “Because causation by employmentrelated exposure is not legally part of this equation, and there is no workplace incident or pattern of trauma that may function as a date of injury, we are left with the emergence of symptoms of hypertension as the triggering mechanism for the filing of a notice of a § 7-433c claim.” McCarthy v. East Haven, 5174 CRB-3-06-12 (May 22, 2008), appeal docketed, A.C. 29997 (June 2, 2008).
Ultimately, it is the trier who must decide if and when the requisite medical threshold for a diagnosis of hypertension or heart disease has been reached. “The determination as to whether a physical examination revealed any evidence of hypertension or heart disease is a factual one committed to the trier’s discretion.” King v. New Britain, 3703 CRB-6-97-10 (January 12, 1999), quoting Cooper v. Seymour, 11 Conn. Workers’ Comp. Rev. Op. 274, 277, 1336 CRD-5-91-11 (November 19, 1993). See also Pearce v. New Haven, 4385 CRB-3-01-5 (March 28, 2002) aff’d, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003). In addition, not all elevated blood pressure readings substantiate a diagnosis of hypertension. Pain, illness or apprehension may create temporary situations which contribute to blood pressure readings exceeding normal limits. It should also be noted that this board has never declared that a particular blood pressure reading is indicative of hypertension per se. Elumba v. Stamford, 4084 CRB-7-99-7 (August 10, 2000). See also Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997); King, supra; Anzidei v. Cheshire, 3782 CRB-8-98-3 (April 23, 1999).
In the instant matter, the claimant does not dispute the trial commissioner’s findings that the claimant manifested symptoms of high blood pressure both during and after her pregnancy and was prescribed medication to control same. However, the claimant suggests that the trial commissioner’s findings appear to stand for the proposition that (1) the claimant took hypertension medication for either “just over one year” or “six to eight months” after delivery of her baby in November, 2001; and (2) that “continuing for about one and one half years, the claimant was not on medications and that her blood pressures were within normal limits.” Appellant’s Brief, p. 2. We do not consider these characterizations of the factual findings to be completely accurate.
For instance, the duration of the time period between November 21, 2001 (when the claimant gave birth) and April 21, 2003 (the date by which Dr. Forest’s records indicate the claimant had discontinued the HCTZ) is neither “just over one year” or “six to eight months” but, rather, a year and five months. In addition, relative to the claimant’s assertion that the trial commissioner determined the claimant’s blood pressure was normal “for one and one half years,” what the trial commissioner actually wrote in Findings, ¶ F, of her Finding & Dismissal is, “[f]rom April 21, 2003 through July 20, 2004, Dr. Forest’s records indicate that Claimant was not taking HCTZ and her blood pressure readings were within normal limits.” While the disparity between the appellant’s assertions regarding the intervals of time between several legally significant blood pressure readings and the time periods as actually stated in the trier’s findings may not be medically significant, we must make every effort to distinguish between advocacy and accuracy.
Moreover, the claimant relies upon this particular finding to provide the basis for her contention that she was “cured” of her hypertension during this time period. We find no factual support in the record for this position. The medical reports in evidence indicate the claimant did not see Dr. Forest between July 11, 2003 and July 20, 2004, which lapse in our estimation essentially constitutes a gap in treatment, rather than proof positive of a cure. In fact, as mentioned previously, the only documented blood pressure reading taken between July 11, 2003 and July 20, 2004 occurred on January 6, 2004, when Dr. Harmon, the claimant’s obstetrician-gynecologist, recorded an elevated reading of 142/78. Claimant’s Exhibit E. Despite the claimant’s testimony at trial that Dr. Harmon did not inform her about her elevated blood pressure, this medical report simply does not serve to bolster the claimant’s contention that she was in any way cured of her hypertension during this interval.9 December 19, 2006 Transcript, p. 46.
We therefore find we are inclined to agree with the respondents, who point out that the record is devoid of any medical evidence which would substantiate the claimant’s asserted cure. This is particularly so in light of the expert testimony proffered by Dr. Rose, “who specifically opined that the claimant’s hypertension continued from the date of his (sic) diagnosis in August 2002 through the present time. Furthermore, [Dr. Rose] explained that any ‘normal’ blood pressure readings between August 2002 and July 2004 were likely the result of medication that had been prescribed for her condition.” Appellees’ Brief, p. 8.
The concept of a cure is critical to the claimant’s contention that the trial commissioner erred by neglecting to recognize that the instant matter should have been controlled by McNerney v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996). In McNerney, the claimant, a firefighter, was diagnosed as hypertensive on August 15, 1975 and prescribed medication for this condition from that date until August of 1981. “During this time period, the claimant was overweight, smoked cigarettes, and drank alcoholic beverages. Subsequently, the claimant changed his lifestyle by giving up drinking, reducing his weight, and quitting smoking.” Id., 331. Ostensibly because of these lifestyle changes, the claimant succeeded in reducing his blood pressure to normal levels until March of 1991, at which time he was once again diagnosed with high blood pressure and prescribed medication.
The claimant in McNerney successfully argued that the reemergence of his high blood pressure in 1991 represented a new injury, which contention was supported by testimony from the claimant’s treating physician’s assistant to the effect that “the claimant’s hypertension during the period from 1975 to 1981 constituted secondary hypertension which was cured through lifestyle changes.” Id., 332. In light of our longstanding principle that “the question of whether an injury is a recurrence or a new injury is a factual determination for the trial commissioner,” id., citing Perry v. Union Lyceum Taxi Co., 13 Conn. Workers’ Comp. Rev. Op. 16, 17, 1695 CRB-4-93-4 (November 3, 1994), this board affirmed the trial commissioner’s conclusion that the claimant’s manifestation of high blood pressure in 1991 was a new injury.10
We find the instant matter is easily distinguished from McNerney on several grounds. First, the fifteen-month time period in question, April 21, 2003 through July 20, 2004, is considerably less than the ten-year period which elapsed between the McNerney claimant’s hypertension manifestations. Second, the McNerney claimant provided expert testimony in support of the proposition that the claimant had indeed experienced a longterm hiatus from hypertension as a result of the lifestyle changes he had made. Here, the expert testimony provided by Dr. Rose seems to consistently dismiss the possibility that the claimant ever experienced a significant cessation in her high blood pressure.11
We therefore believe the expert testimony provided by Dr. Rose not only sharply distinguishes this matter from McNerney but also lends a great deal of credence to the trial commissioner’s conclusion that the claimant became hypertensive during her pregnancy in 2001 and essentially remained so throughout the intervening years until the present time. The only evidence provided to the trial commissioner as to when the claimant started and stopped taking her blood pressure medications was that offered by and through the claimant as a witness. In her findings, the trial commissioner specifically states that she “[did] not find the claimant’s testimony persuasive in regard to this claim.” Findings, ¶ J. Claimant’s counsel suggests that the trial commissioner’s concern as to the claimant’s credibility was limited to the claimant’s testimony that she had only been diagnosed with preeclampsia, and not hypertension as a “stand-alone diagnosis.” Appellant’s Brief, p. 3. Again, we appreciate counsel’s advocacy on behalf of his client. However, the record reflects that the medical history as recounted by the claimant in her testimony was not consistent with other evidence proffered. It would therefore not be unreasonable for the trial commissioner to doubt the veracity of other portions of the claimant’s testimony.12
It is axiomatic that the trial commissioner is charged with making the determination as to which evidentiary submissions, or certain parts thereof, are credible. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino, supra, 195. In addition, a trial commissioner does not weigh specific evidence in isolation. It is within the trier’s authority to resolve inconsistencies or contradictions in the evidence. Gibson v. Keebler Co., 37 Conn. App. 392, 395-396 (1995). Here, the evidentiary record fully supports the trial commissioner’s various findings with regard to the onset and duration of the claimant’s hypertension and we find no basis for overturning her conclusions in this regard.
The claimant also asks us to consider whether it was error for the trial commissioner to fail to grant the claimant’s Motion for Articulation; specifically, whether the trial commissioner’s refusal to designate which category of injury she applied in determining the timeliness of the claim deprived the claimant of due process. The claimant argues the trier’s failure to explain whether she applied the time limitations set out in § 31-294c(a)13 for accidental injury, repetitive trauma, or occupational disease leaves the claimant guessing as to the applicable provision of the statute of limitations.
We find the claimant’s assertions regarding the trial commissioner’s alleged failure to appropriately classify the claimant’s injury and state the pertinent statute of limitations on which she relied to be without merit. The claimant offered no evidence, either at trial or any other point in the proceedings below, in support of the proposition that her injury was either the result of repetitive trauma or constituted an occupational disease. Therefore, we are hard-pressed to understand why the trial commissioner needed to comment more fully on her findings in this regard.
There is no question that a Motion for Articulation is a suitable remedy when the basis for the trial commissioner’s conclusions is unclear or the factual findings as written are perceived to be ambiguous. “An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification .” Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204 (2003), citing Miller v. Kirschner, 225 Conn. 185, 208 (1993).
However, in the instant matter, we can find no evidence in the record in support of either theory. Consequently, it would have been virtually impossible for the trial commissioner to infer the injury was the result of repetitive trauma or occupational disease. With regard to repetitive trauma, if “there is absolutely no evidence in the record that the claimant’s hypertension was causally related to [her] employment, nor is there any evidence that the claimant was exposed to repetitive trauma during [her] employment,” then “there is no basis in the record for finding that the claimant’s hypertension was caused by repetitive trauma.” Riccitelli v. New Haven, 15 Conn. Workers’ Comp. Rev. Op. 138, 2090 CRB-3-94-7 (January 18, 1996), aff’d, 44 Conn. App. 903 (1997)(per curiam). Absent this evidence, this board is likewise not permitted to consider such a theory on appeal; as we observed in 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):
Had the claimant sought a finding that he had suffered a repetitive trauma, he could have submitted proposed findings of fact to establish this claim. He did not do so, nor did he submit in his Motion to Correct a proposed finding of repetitive trauma. 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.” Id.
In a similar vein, relative to the notion that the trial commissioner might have found the claimant’s injury constituted an occupational disease, we would draw the claimant’s attention to the fact that that in Zaleta, supra, our Appellate Court specifically held that the language of § 7-433c C.G.S. makes no presumption that hypertension is an occupational disease, and that “[w]ithout evidence establishing that the claimant’s injury is a result of an occupational disease, the one year statute of limitations applies.” Zaleta, supra, 6.
Administrative Regulation § 31-301-3 clearly states that the “finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from the evidence or merely evidential facts, nor the reasons for his conclusions.” (Emphasis added) “Thus, by the express terms of § 31-301-3 of the regulations, the scope of the commissioner’s finding and award is limited to the ‘ultimate, relevant and material facts essential to the case ....” Cable v. Bic Corp., 270 Conn. 433, 440 (2004), quoting Luciana v. New Canaan Cemetery Assn., 3644 CRB-7-97-7 (August 12, 1998).14
In summary, we find that the trial commissioner’s Finding and Award in this matter fully comported with the requirements set out in Administrative Regulation § 31-301-3, and the claimant’s allegations of a due process violation are without substance.
Having found no error, the decision of the trial commissioner acting for the Fourth District is accordingly affirmed.
Commissioners Amado J. Vargas and Scott A. Barton concur in this decision.
1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT
2 Sec. 7-433c C.G.S. [Benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease] states, in pertinent part,
(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467. BACK TO TEXT
3 A claimant generally gives notice by filing a “Form 30C—Notice of Claim for Compensation (Employee to Commissioner and to Employer).” BACK TO TEXT
4 Sec. 31-294c(a) [Notice of claim for compensation. Notice contesting liability. Exception for dependents of certain deceased employees] reads as follows: No 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, … BACK TO TEXT
5 Sec. 31-275(16)(A) [Definitions] states, “Personal injury” or “injury” includes, in addition to accidental injury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease. BACK TO TEXT
6 § 31-275 C.G.S., et. seq. BACK TO TEXT
7 § 31-275(1) C.G.S. BACK TO TEXT
8 See footnote 4, supra. BACK TO TEXT
9 The claimant admitted as much under cross-examination. When respondents’ counsel asked the claimant, “[s]o you really have no way of knowing as to whether or not your blood pressure was elevated during that year period from July of 2003 to July of 2004; correct?,” the claimant replied, “No.” Transcript, p. 40. BACK TO TEXT
10 This board remanded McNerney for additional findings as to whether the claimant’s hypertension was the result of an occupational disease, which would thereby toll a three-year statute of limitations. BACK TO TEXT
11 For instance, at his deposition, while under direct examination by respondents’ counsel, Dr. Rose testified that he would have expected the claimant’s hypertension “to go away most likely within six months to a year within having delivered,” and if the hypertension did not go away during this time frame, it may be because the “person may be prone to hypertension, and the pregnancy may have been the event that brought this to light, so to speak.” Respondents’ Exhibit 1, p. 10. Dr. Rose indicated that he thought the fact that the claimant still had elevated blood pressure readings six months after delivery was “significant because it’s clearly an abnormal reading for her age group.” Id., p. 14. In addition, although Dr. Rose conceded he did not examine the claimant between January 17, 2003 and July 21, 2004, he agreed with the assertion by respondent’s counsel that, “just by virtue of the fact that her blood pressure was in a normal range in October of ’02 and January of ’03, that doesn’t mean that she was cured ….” Id., pp. 25 26. Dr. Rose also stated, “I personally would say there’s no conclusive evidence that she was, quote, cured, because she has shown pressures that normalized with treatment and then evidently stopped the diuretic treatment at some point ….” Id., pp. 27-28. Finally, Dr. Rose testified, “But I can feel comfortable saying, after her pregnancy, that she continued to manifest blood pressure elevations and that it was never truly cured and, in some cases, it wasn’t under control completely.” Id., p. 30. BACK TO TEXT
12 For instance, the claimant’s testimony regarding her awareness of her diagnosis was undercut by the May 21, 2002 note from Dr. Rose indicating that he referred the claimant for an echocardiogram in order to determine whether her ongoing high blood pressure had caused any damage to her heart. In addition, under cross examination, the claimant testified that she had no recollection of having any elevated blood pressure readings prior to becoming pregnant in March of 2001; however, the medical file obtained by the respondents appeared to contain medical notes from June 2000 and February, 2001 showing blood pressure readings of 140/80 and 130/90, respectively. Transcript, p. 30. BACK TO TEXT
13 See footnote 4, supra. BACK TO TEXT
14 Administrative Regulation § 31-301-3 also provides that “the opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.” BACK TO TEXT
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