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Gioielli v. City of Stamford

CASE NO. 5313 CRB-7-08-1



DECEMBER 23, 2008











The claimant was represented by Patrick Mullins, Esq., Cotter, Cotter & Mullins, LLC, 6515 Main Street, Suite 10, Second Floor, Trumbull, CT 06611.

The respondents were represented by Maribeth McGloin, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the December 26, 2007 Finding and Dismissal of the Commissioner acting for the Seventh District was heard August 29, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter is appealing the decision of the trial commissioner denying his claim for benefits under the municipal Heart and Hypertension Act, § 7-433c C.G.S. The trial commissioner determined the claim was untimely since the claimant was hypertensive for more than a year prior to filing his claim, triggering an obligation to file a claim pursuant to § 31-294c C.G.S. We conclude the trial commissioner had probative evidence supporting this conclusion and therefore, affirm the Finding and Dismissal and dismiss this appeal.

The trial commissioner found the following facts following a formal hearing held on July 2, 2007. The parties agree that claimant was hired by the respondents’ Police Department on March 6, 1989. On October 21, 2004 he filed a Form 30C asserting he had suffered compensable hypertension with a date of injury of September 9, 2004.

The trial commissioner focused on her review on the medical records of the claimant’s treating physician, Dr. Michael Zucker. The claimant started treating with Dr. Zucker in January 2000 for a variety of minor ailments. Dr. Zucker received a health history from the claimant advising of a history of borderline high blood pressure and high cholesterol and that the claimant’s father had high blood pressure. The claimant acknowledged that at the January 2000 visit Dr. Zucker mentioned that the claimant had borderline hypertension; however, he prescribed no medication.

The claimant was examined by Dr. Zucker in June 2002 for a leg contusion and had two blood pressure readings. The first reading was 160/100; the second reading was 140/90. Dr. Zucker testified that under the standards delineated in JNC7 or JNC6 this reading was Stage II hypertension. There is some dispute between Dr. Zucker and the claimant as to what was discussed when the claimant treated in November 2002 for an upper respiratory infection. The claimant reported blood pressure readings at that time of 140/100 and 140/90. The claimant testified that he had been advised to cut back on salt, lose weight and exercise more, but denied that he was advised he had high blood pressure or hypertension at this appointment. Dr. Zucker testified that he would have offered this advice because of borderline hypertension readings. The claimant testified that he knew salt was bad for blood pressure and he assumed that he was being told to cut back on salt, lose weight and exercise more to help with his high blood pressure.

On May 28, 2003 the claimant was treated for poison ivy. At that point his blood pressure was 150/100. Dr. Zucker testified that this reading, as well as the claimant’s prior readings was in Stage I hypertension category, but Dr. Zucker, other than recommending that the claimant return for a blood pressure check, cannot specifically say that he told the claimant that his blood pressure was high. He testified that the claimant’s 2002 leg infection could have elevated his blood pressure. Dr. Zucker testified that he considered the claimant’s elevated blood pressure rating was “borderline” for hypertension and he did not consider the claimant to be hypertensive until he prescribes medication. Dr. Zucker first prescribed blood pressure medication for the claimant on January 30, 2004.

The trial commissioner also considered the testimony of Dr. Martin Krauthamer, who performed a records review of the claimant’s medical history. Dr. Krauthamer opined that treatment for hypertension with Dr. Zucker was delayed and should have been started on June 11, 2002. Dr. Krauthamer stated that there is no question in his mind that a recommendation for weight loss, increased exercise and decreased salt are indicative of a physician diagnosing a patient with hypertension. He also testified that the medical community identifies hypertension as a reading of 140/90 or higher.

Based on this testimony, the trial commissioner concluded Dr. Zucker’s testimony, taken as a whole, indicates that he was discussing the claimant’s high blood pressure readings at each office visit. She also concluded seven of the eight blood pressure readings taken between November 2002 and May of 2003 would qualify as hypertensive pursuant to JNC6 and JNC7. She also concluded the claimant recalled discussing his high blood pressure readings with Dr. Zucker in November of 2002, including the doctor’s recommendations for exercise, salt and weight reduction. The trial commissioner concluded that based on the record a reasonable person knew or should have known to give notice of a claim for hypertension benefits under § 7-433c to his employer no later than May 28, 2004 (one year after the May 28, 2003 office visit), even if his doctor had not prescribed medication and even if he was not disabled by his condition or suffering economic loss.

As the claimant had not filed a claim for § 7-433c benefits within one year of when a reasonable person would have known he had hypertension, the trial commissioner concluded the claim was time-barred and dismissed the claim for lack of subject matter jurisdiction. The claimant filed a Motion to Correct which sought to substitute findings that the claimant should not be deemed to be aware of his hypertension until he was prescribed medication, claiming this was the standard in Arborio v. Windham Police Department, 103 Conn. App. 172 (2007). The trial commissioner denied this motion and the claimant has taken this appeal.

The gravamen of the claimant’s appeal is that the claimant’s hypertension in Arborio, was more severe than the situation in the present case. The trial commissioner’s decision that Mr. Arborio’s claim was time barred was overturned by the Appellate Court. The claimant’s reasoning therefore is the trial commissioner did not properly apply the precedent in Arborio and this constitutes reversible error. We do not agree, as a review of the actual language of the Arborio decision indicates that decision is not on point.

In Arborio, the trial commissioner’s finding of facts indicated that the claimant, while he may have been advised of elevated blood pressure readings, was not prescribed medication or any other responsive course of action to this condition. The commissioner concluded the claimant knew “he had a potential hypertension problem that may require medication.” Id., at 187. While reiterating the standard in Pearce v. New Haven, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003) the Appellate Court concluded the standard had not been met based on the facts on the record. “[T]he mere awareness of some ‘potential problem’ that might, one day, require medication simply cannot be enough to trigger the notice of claim provision.” Arborio, supra, at 187-188.

We note that this panel considered the Arborio case at some length in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008). We concluded Arborio did not alter the standard in Pearce, applying § 31-294c C.G.S. to when a claimant needs to file a claim. In Ciarlelli, we restated “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.” Since we decided Ciarlelli we have decided a case which is factually closer to the present case.

In Wabno v. Derby, 5283 CRB-4-07-10 (September 12, 2008), we considered an appeal from a claimant who was deemed to have filed an untimely claim for § 7-433c benefits. Mr. Wabno had been advised of elevated blood pressure in 1999 and had received medication. The evidence was that at that time the claimant had not been advised that he had hypertension. Nonetheless, the trial commissioner found that this claim was untimely under the Pearce standard. We upheld the trial commissioner, finding the facts indistinguishable from Chernak v. Stamford Police Department, 5012 CRB-7-05-10 (December 13, 2006).

In Wabno, and Chernak, the claimant had undergone numerous medical examinations and had received consistent blood pressure readings above normal. Unlike Arborio, in both cases the treating physicians had directed the claimant to take responsive action. In Wabno the claimant had been prescribed medicine. In Chernak the claimant had been directed to make lifestyles changes and obtain additional treatment. In Wabno we found the rationale in Chernak applicable to that case as well.

The record reflects that on a number of occasions during a period commencing in 1998 the claimant was advised by his physicians that he had elevated blood pressure and that corrective action on his part was required. The claimant points out that he was not officially diagnosed with hypertension until October 1, 2003 and filed his claim for benefits shortly thereafter. This argument goes to the weight of the factual evidence. The trial commissioner could consider the earlier diagnosis of elevated blood pressure as the functional equivalent of the term “hypertension.” “The established standard is that the time of onset of a claimant’s hypertension symptoms presents a factual question. . . .” Kaminski [v. Naugatuck, 4956 CRB-5-06-6 (June 28, 2006)], supra.
An assessment of the weight of the evidence indicated that on three or more occasions the claimant was informed of an elevated blood pressure reading and directed to take responsive action. We cannot find a factual distinction between this case and our holding in Pearce, supra, as restated in Kaminski, supra, and Arborio, supra. There was adequate evidence in the record for the trial commissioner to conclude hypertension was present more than one year prior to the filing of the claim for § 7-433c benefits. “In this board’s decision in Pearce, we explicitly stressed that the trier of fact had discretion to decide whether high blood pressure readings constitute evidence of hypertension.” Kaminski, supra. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725 (2002). We must defer to the findings of fact he reached herein.
We believe it is a permissible inference for the fact-finder in this case to determine that the claimant knew or should have known he had elevated blood pressure amounting to hypertension. The claimant was told to take action to address this problem. The claimant knew or should have known there was a time limit on filing a § 7-433c C.G.S. claim for hypertension. It is uncontroverted that no claim was filed until years after the initial determination of elevated blood pressure. Given those subordinate facts, the trial commissioner could readily determine the filing of the § 7-433c C.G.S. claim was untimely.

Chernak, supra.

In the present case, the trial commissioner specifically found the claimant had a number of elevated blood pressure readings, including a reading of 160/110 in June 2002; and in November 2002 the claimant acknowledges his treating physician directed him to cut back on salt, lose weight and exercise more. The claimant also acknowledged he was aware such recommendations were meant to address high blood pressure. This awareness clearly went beyond knowing about a “potential problem;” the problem had to exist or responsive action would presumably not have been directed by the treating physician. We cannot find any material difference between the claimant’s situation and the claimant in Chernak, hence, stare decisis compels a similar result.

The other arguments presented by the claimant can be distilled down to the concept that since the claimant and the treating physician did not regard the claimant’s blood pressure as unusually high, that the trial commissioner was required to accept their testimony at face value. Therefore, the claimant argues a finding that he had scienter of his condition more than one year prior to filing his claim was inconsistent with the facts on the record. We disagree for two reasons. First, the uncontroverted facts on the record demonstrate that in 2002 the claimant was directed to take responsive action for his blood pressure;1 and consistent with Chernak, the claimant’s obligation to file was triggered.

Secondly, this argument amounts to trying to reevaluate the factual evidence. See Thompson v. New Canaan, 5228 CRB-7-07-5 (August 21, 2008); “[t]he 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.”

“[I]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony . . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). The trial commissioner in Finding, ¶ F did not find the treating physician’s actions consistent with his hearing testimony.2 The trial commissioner was also presented with abundant evidence from Dr. Krauthamer that the claimant’s blood pressure readings constituted hypertension and Dr. Zucker’s recommendations were consistent with a physician diagnosing a patient with hypertension.3 The commissioner simply did not believe a reasonable person under these circumstances would not have known that they had hypertension prior to May 28, 2003. We do not find her conclusion herein was “clearly erroneous.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 17, 2007).4

We believe the trial commissioner had a reasonable basis on the record presented herein that the claimant knew or should have known he had hypertension more than one year before he filed his claim. We therefore affirm the Finding and Dismissal, and dismiss this appeal.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 See July 2, 2007 Transcript, pp. 13-14. BACK TO TEXT

2 Dr. Zucker testified that while his usual protocol was to advise patients of elevated blood pressure readings, Respondent’s Exhibit 1, p. 25, that “I can’t say I definitely did, if you can put it that way.” Respondent’s Exhibit 1, p. 31. The claimant, however, testified he had been advised of his blood pressure readings by Dr. Zucker. July 2, 2007 Transcript, pp. 13-14. BACK TO TEXT

3 See Respondent’s Exhibit 2, pp. 16-21. BACK TO TEXT

4 The claimant argues the trial commissioner erred in rejecting the Motion to Correct. However, since the Motion to Correct essentially sought to interpose the claimant’s conclusions as to the facts presented, we find no error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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