Opinion
CASE NO. 5577 CRB-4-10-7CLAIM NO. 400064962
JULY 27, 2011
This Petition for Review from the July 6, 2010 Finding and Dismissal of the Commissioner acting for the Fourth District was heard April 29, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.
We note that a Motion to Stay Proceedings was granted during the pendency of this appeal.
The claimant was represented by Lawrence F. Morizio, Esq., Cousins, Desrosiers Morizio, P.C., 2563 Main Street, Stratford, CT 06615-5844.
The respondents were represented by Marie Gallo-Hall, Esq., Montstream May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
OPINION
The claimant in this matter has appealed from a Finding and Dismissal which determined that his claim for § 7-433c C.G.S. benefits was jurisdictionally deficient as a result of having been filed late. We determine that this case was decided based on the standards in place prior to the issuance of the Supreme Court's decision in Ciarlelli v. Hamden, 299 Conn. 265 (2010). As we cannot determine from the record whether the trial commissioner in this matter would have reached the same result had he applied the standard delineated in Ciarlelli, we therefore remand this matter to the trial commissioner for new findings as to whether the facts on the record support a dismissal of the case based on the standards delineated in Ciarlelli.
The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. The claimant testified that he was hired as a Bridgeport firefighter in 1989 and underwent a pre-employment physical that included an echocardiogram and stress test. He said no abnormalities were reported to him other than a physician telling him he had an extra heart beat. He was never hospitalized nor did he take medication related to heart issues prior to the pre-employment physical. The report from the pre-employment physical documented a pre-exercise blood pressure of 160/80 and premature ventricular contractions.
In 1993 the claimant was evaluated by a company hired to do firefighter evaluations and advised of an abnormal EKG, after which he saw Dr. Michael Cavaliere, his family physician. The claimant said Dr. Cavaliere told him everything was all right, but may have suggested he reduce his salt intake and increase his exercise as a result of the elevated blood pressure. The claimant testified that he may have seen the letter from the evaluating firm to Dr. Cavaliere that questioned the claimant's fitness for duty as a result of hypertension and ventricular hypertrophy.
Dr. Cavaliere testified via deposition that he had been the claimant's treating physician since October 5, 1989. He testified that he will not treat a patient for hypertension unless they have at least three to four blood pressure readings with a systolic pressure reading greater than 160 and a diastolic pressure reading greater than 100. He did not consider the claimant's 160/80 pre-exercise blood pressure evidence of hypertension because in 1988 the diastolic number was normal, which would have deemed the entire reading normal. In addition, the systolic reading was not greater than 160 and a second reading taken at the same visit showed a 150 systolic reading. The 150/100 and 140/95 blood pressure readings during an August 27, 1993 appointment were hypertensive numbers and he advised the claimant to exercise and limit his salt intake, explaining he considered the claimant to have borderline hypertension, not treatable hypertension that would have required medication.
Dr. Cavaliere further testified that he considered the claimant's blood pressure readings to be acceptable through 2005, although he listed a 150/91 reading on June 14, 2005 to be hypertensive just to get it paid by an insurer; deeming this a "high normal" isolated reading that would resolve itself. He said the claimant did not have related health problems such as diabetes or high cholesterol which would require treatment. He considered the claimant to be in excellent physical condition despite those blood pressure readings. The first time Dr. Cavaliere diagnosed hypertension was April 25, 2006 when the claimant showed a blood pressure reading of 160/105. He prescribed Lisinopril for the claimant on that date. The claimant subsequently filed a Form 30C that was received by this commission on May 22, 2006, reflecting a date of injury of April 25, 2006.
The respondent presented evidence from their expert witness, Dr. Martin Krauthamer, a board-certified cardiologist. Having reviewed the claimant's medical records, he testified the claimant had multiple elevated blood pressure readings over a 15 year period from 1990 to 2005. He testified the appropriate medical standard of hypertension was systolic blood pressure equal to or greater than 140 or diastolic blood pressure equal to or greater than 90. The 160/80 pre-exercise blood pressure constituted evidence of hypertension although it was insufficient to issue a diagnosis of hypertension. While a single elevated blood pressure reading was not adequate to prove hypertension exists, as blood pressure fluctuates, the claimant had three abnormal readings in 1993, making a diagnosis of hypertension appropriate. Dr. Krauthamer further testified a high systolic pressure or high diastolic pressure without the other reading would still constitute hypertension. He also testified being told to decrease sodium intake and to exercise constitutes a lifestyle change indicating awareness of hypertension.
Based on this evidence the trial commissioner concluded the claimant did not have hypertension when he was hired as a firefighter. He did not find the claimant credible as to the circumstances of his 1993 examination and not being aware of the evaluating firm letter prior to being told by Dr. Cavaliere to exercise and to reduce his salt intake. The commissioner found Dr. Cavaliere credible and persuasive concerning the fact that he told the claimant to exercise and to reduce his salt intake in 1993. The commissioner also found Dr. Krauthamer credible and persuasive. The trial commissioner concluded the claimant had hypertension in 1993 and should have known it was probable he had hypertension from the time Dr. Cavaliere told him to exercise and to reduce his salt intake. As the claimant had knowledge of his hypertension more than one year prior to filing a Form 30C, the trial commissioner deemed the claim time-barred and dismissed the claim for lack of jurisdiction.
The claimant filed a Motion to Correct which was denied by the trial commissioner. He has pursued the instant appeal, which asserts the trial commissioner erred in determining the claimant had an obligation to file a Form 30C as a result of his 1993 examinations. He asserts that cases such as Casimiro v. Westport, 5099 CRB-4-06-6 (April 25, 2008) andArborio v. Windham Police Dept., 103 Conn. App. 172 (2007) stand for the proposition that the claimant must have a more substantial awareness of his hypertensive condition prior to being obligated to file a § 7-433c C.G.S. claim. He further argues that as Ciarlelli has materially changed the standard for determining the timeliness of a § 7-433c claim, this matter must be remanded to the trial commissioner. On that point, we agree with the claimant.
We recently reviewed the post-Ciarlelli legal landscape at some length in Savo v. Bridgeport, 5451 CRB 4-09-4 (July 8, 2011). While there are numerous factual distinctions between this case and Savo we find the cases indistinguishable on a legal basis. In both cases it appears the trial commissioner, relying in part on the opinions of the respondent's expert witness, imputed scienter on the claimant at a date in which the commissioner believed the circumstances should have placed the claimant on notice. Under Ciarlelli we believe the trial commissioner must evaluate the evidence in a different manner. As we stated in Savo, supra.
[w]e conclude that a trial commissioner's evaluation as to whether a § 7-433c C.G.S. claim was filed in a timely manner must now focus not on what the claimant should have known, but what his treating physician actually said or did. A trial commissioner must now try and establish at what point a claimant's treating physician actually diagnosed hypertension, or in the alternative, when a claimant received a prescription for medicine to treat hypertension or some other treatment for hypertension. Id.
While we must provide "every reasonable presumption" supportive of the trial commissioner's finding, Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009); we do not believe we can affirm the trial commissioner in a situation where had the present test to determine jurisdiction been applied to the same evidence; a different result could have been reached. The record demonstrates Dr. Cavaliere did not formally diagnose the claimant with hypertension until April 25, 2006. Findings, ¶ 5 i. Under this standard the Form 30C was filed in a timely fashion to preserve this commission's jurisdiction. On the other hand, the various circumstances involving the 1993 firefighter evaluation and Dr. Cavaliere's reaction to this information could within reason place this claim within the ambit of footnote, ¶ 18 of Ciarlelli, where a physician's directions to the claimant could serve as a substitute for a formal diagnosis of hypertension. See Findings, ¶¶ 3 c d and 5 d. This conflict constitutes a question of fact which cannot be resolved by this tribunal and must be resolved by the trial commissioner.
Footnote, ¶ 18 of Ciarlelli reads as follows:
Of course, this standard is not so inflexible as to require a finding in all cases that the medical professional used the term ``hypertension'' in communicating the diagnosis to the employee. For example, evidence that an employee was prescribed antihypertensive medication for the treatment of high blood pressure related to hypertension, and not some other illness, likely would support a finding that the employee formally had been diagnosed with hypertension and knew, or should have known, of that diagnosis.
The claimant has sought a remand of this matter to the trial commissioner. Based on the facts herein and the legal reasoning in Savo, supra, we believe such a result is warranted.
The matter is remanded for a new finding applying the precedent inCiarlelli to the evidence on the record.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.