CASE NO. 5009 CRB-2-05-10; Arborio v. Town of Windham Police Department;
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 4, 2006
RICK E. ARBORIO
TOWN OF WINDHAM POLICE DEPARTMENT
The claimant was represented by David J. Morrissey, Esq., Morrissey & Morrissey, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.
The respondent-employer was represented by Henry J. Zaccardi, Esq., Shipman & Goodwin, One Constitution Plaza, Hartford, CT 06103.
This Petition for Review from the October 5, 2005 Finding and Dismissal of the Commissioner acting for the Second District was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, A. Thomas White and Amado J. Vargas.
NANCY E. SALERNO, COMMISSIONER. The claimant appeals from the October 5, 2005 Finding and Dismissal of the Commissioner acting for the Second District. In that Finding and Dismissal the trial commissioner dismissed the claimant’s claim for § 7-433c benefits on the basis that the notice of claim was not timely filed. The appellant argues that the trial commissioner’s determination results from a misapplication of the law. The appellant contends that the commissioner’s ruling in this matter relies on Pearce v. New Haven, 76 Conn. App. 441 (2003), cert. denied, 264 Conn. 913 (2003) and that Pearce misconstrued the notice requirements for hypertension claims brought under § 7-433c.1 We disagree.
The pertinent facts in this matter are as follows. The claimant was a regular member of a municipal police department. At the time of his hiring in 1987, the claimant passed a pre-employment physical at which no evidence of heart disease or hypertension was found. The claimant’s treating physician was Dr. Edward S. Sawicki. Over a period of years Dr Sawicki noted a number of instances in which the claimant’s blood pressure was elevated. However, the claimant contends that he was not diagnosed by Dr. Sawicki as having hypertension until January 23, 2003 at which time Dr. Sawicki prescribed medication for his condition. See Appellant’s Brief p. 3. The claimant filed a Form 30C Notice of Claim on April 21, 2003.
Evidence proffered before the commissioner reflects Dr. Sawicki initially noted an elevated blood pressure reading of 150/86 in December 1997. On April 17, 2000, Dr. Sawicki saw the claimant and noted the following two blood pressure readings 146/90 and 140/94. Dr. Sawicki also advised the claimant to begin to monitor his blood pressure at home. In an office visit on May 17, 2001, Dr. Sawicki noted claimant had a blood pressure reading of 140/100 as well as outside blood pressure recordings in the range of 130/90. Following this office visit, Dr. Sawicki ordered the claimant to undergo a stress test. That stress test was performed on July 18, 2001 and claimant was deemed to have had a hypertensive response. The claimant saw Dr. Sawicki on two subsequent occasions and finally on January 23, 2003 Dr. Sawicki prescribed medication to control his hypertension.
We believe this tribunal’s recent analysis of Pearce, supra, in Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006) is equally applicable to the matter at hand.2 The appellant in Kaminski argued that the commissioner’s dismissal of the claim as untimely was predicated on the Pearce court’s pronouncement of a new standard for determining the timeliness of hypertension claims brought under § 7-433c. In Kaminski, we disagreed with the claimant’s contention that the Appellate Court’s opinion in Pearce invoked a new standard for determining the timeliness of such claims. In Kaminski we reviewed the Appellate Court’s opinion in Pearce, supra, and concluded that Pearce did not significantly alter our interpretation of the applicable law for such claims. We noted:
[In] Pearce v. New Haven, 4385 CBR-3-01-5 (March 28, 2002), aff’d, 76 Conn. App. 441 (2003), cert. denied, [264 Conn. 913 (2003)] . . . this board held that high blood pressure readings in 1988, 1989 and 1990 (of which the claimant had been informed) constituted an injury that obligated the claimant to file a Form 30C at that time, rather than in 1998 when he was formally diagnosed with hypertension. We explained, “The trier had considerable discretion to decide whether the blood pressure readings from 1988-90 constituted evidence of hypertension, rather than temporary symptoms of elevated pressure due to other stressors.” In support of our decision we cited the statute of limitations as set forth in Zalot, supra, [4256 CRB-6-00-6 (March 16, 2001)] and Elumba, supra.[ 4084 CRB-7-99-7 (August 10, 2000)]. [Pearce] was affirmed on appeal by the Appellate Court, which held, “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 v. New Haven, 76 Conn. App. 441, 449, cert. denied, 264 Conn. 913 (2003). . . .
In this board’s decision in Pearce, we explicitly stressed that the trier of fact had discretion to decide whether high blood pressure readings constituted evidence of hypertension. Our holding stated, “it would be reasonable to find that the claimant’s consistent high-blood-pressure readings and his interactions with his doctor indicated that he was manifesting symptoms of sustained hypertension under all the circumstances of this case (which should have put the claimant on notice that he suffered from hypertension).” Pearce, supra (emphasis added). In affirming our decision, the Appellate Court expressed no disagreement with this board’s line of reasoning. The court mainly addressed the claimant’s argument that his claim should not have been time-barred “because he was not diagnosed with, placed on medication for, or disabled by hypertension until October 15, 1998.” Pearce, supra, 446. The court cited the fact that the claimant had received repeated counsel from his family physician regarding elevated blood pressure readings, which he had not communicated to his employer. These readings were later determined to have been related to hypertension. The court held that employer notification was required whether or not immediate disability was occasioned by the claimant’s symptoms, because the purpose of notice is to inform the employer that a claim for benefits at a later time is possible. Id., 449.
The issue before us and the legal arguments are analogous to those presented in Kaminski. We therefore reach the same conclusion as we did in Kaminski. In the matter at hand the trial commissioner’s findings reflect a number of instances where claimant’s blood pressure was elevated. Claimant’s physician encouraged the claimant to monitor his blood pressure at home. These findings, along with other findings set out in the Finding and Dismissal support the trier’s conclusion. As the trier’s conclusion is supported by the record and is not contrary to law it will not be disturbed. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
We therefore affirm the October 5, 2005 Finding and Dismissal of the Commissioner acting for the Second District.
Commissioners A. Thomas White Jr., and Amado J. Vargas concur.
1 In the alternative, the appellant argues that as Pearce, supra, substantively changed the legal criteria for determining the timeliness of hypertension claims pursuant to § 7-433c, the substantive changes effected by Pearce should only be applied prospectively. Given the result we reach we need not address this issue. BACK TO TEXT
2 We note Kaminski v. Naugatuck, 4956 CRB-5-05-6 (June 28, 2006) was decided after oral argument was heard in this matter. We also note the appellants in both matters were represented by the same attorney.