Heart and Hypertension Cases aka Heart or Hypertension *
In Staurovsky v. City of Milford Police Dept., 134 A.3d 1263 (2006), the Appellate Court reversed the CRB affirmation of the Trial Commissioner’s determination or finding and award that the claimant was entitled to benefits under the Heart and Hypertension Act, otherwise known as CGS § 7-433c. In this case, a retired City of Milford police officer had timely filed a claim for an injury prior to his retirement, and one week after his official retirement he was working for a new employer when he was shoveling snow and sustained a myocardial infarction. The plaintiff’s cardiologist provided evidence that the claimant’s coronary artery disease was a chronic disease that developed over a period of years. The Trial Commissioner initially dismissed the claim because she found that in order to receive benefits under § 7-433c “the claimant’s heart condition and the resulting disability had to be suffered while he was a member of the department”. The claimant filed a motion for reconsideration following the Commissioner’s finding asserting that the Commissioner had improperly applied the law, and that, pursuant to Arborio v. Windham Police Dept., 103 Conn. App. 172, (2007), the claimant did not have to sustain a disability while he was a police officer to have a viable claim for heart and hypertension benefits but rather only sustain an injury and file a claim within one year of that event. The Trial Commissioner amended her finding and concluded that in fact the claimant had demonstrated a condition or impairment of his health caused by hypertension or heart disease while he was employed by the department, and therefore awarded benefits.
* See Holston v. City of New Haven below
The Supreme Court reviewed a number of Appellate Court decisions addressing § 7-433c but found that all of them except one involved claimants who suffered injuries or impairments attributable to heart disease or hypertension during the course of their employment as police officers or firefighters. Therefore, all of those cases were inapposite to this claim in which the claimant was no longer employed by the City of Milford. The one case in which the claimant had been injured after his period of appointment was Gorman v. Waterbury, 4 Conn. App. 226, (1985) in which a retired police officer died of heart disease. In that case, the court determined “the hypertension did not have any disabling effects on the claimant’s husband during his tenure as a police officer.” At 2:30 claimant’s counsel argued that the Gorman case had been overruled sub silento by the Arborio case but the Appellate Court distinguished Arborio from Gorman because Gorman concerned an issue of compensability under § 7-433c, whereas Arborio involve merely a jurisdictional issue under § 31-294c(a), specifically, the Appellate Court indicated that Arborio focused on the issue of when the one year statute of limitations begins to run and held that one need not be disabled before being required to notify one’s employer of an accidental injury under 31-294c(a).
In Vitti v. City of Milford, 6066 CRB-4-15-12 (April 21, 2017) the claimant suffered from a rare autoimmune disease that was localized to the heart and did not impact other organs. The police officer ultimately underwent a heart transplant. There was no evidence to demonstrate that the heart disease was causally related to the claimant’s work duties as a police officer. However, under the statute, the claimant was merely required to demonstrate that he suffered from heart disease. Based on the statute in effect at the time of the claimant’s heart surgery and diagnosis of heart disease in 2010, the claimant was merely required to show presence of heart disease as well as a condition or impairment of health caused by the hypertension or heart disease. The predecessor statute to § 7-433c was § 7-433a, which provided a conclusive presumption that any firefighter or police officer who suffered heart disease had a compensable claim. “The conclusive presumption utilized in § 7-433a did not pass constitutional muster because the statue required that all claims be paid under the Workers’ Compensation Act, thereby creating a Workers’ Compensation claim even if there were evidence that the claim did not arise out of the employment.” (Carter, Civitello p. 490 § 9:1) The statute was revised to provide an “outright bonus” to police officers and firemen who passed a pre-employment physical. The statute as written in 1992 afforded municipalities a rebuttable presumption allowing the town to prove the heart condition was not related to the police officer or firefighter’s job. The relevant part of the statute provided that the employee would not recover benefits under § 7-433c “…if the municipal employer proves by a preponderance of evidence that the member’s condition or impairment of health cause by hypertension or heart disease is not job-related.” When § 7-433c was again revised in 1996, this rebuttable presumption language was deleted, although as the attached cases demonstrate, respondents are still avidly arguing that the rebuttable presumption is alive and well. The respondents argued that the 1992 version of the law, which included a “rebuttable presumption” provision in § 7-433c, should have applied, in which case the respondents could have argued that there was no nexus between the autoimmune disease and the claimant’s work duties. However, the CRB agreed that there was a reasonable basis to support the conclusion that the Giant Cell Myocarditis was a heart disease. Having made that finding, it was irrelevant as to whether or not there was a legal nexus between the heart disease and the claimant’s duties as a police officer. The Trial Commissioner had the discretion to find the treating physician’s opinion as to the GCM constituting heart disease, and as such, the claimant was entitled to heart and hypertension benefits.
Holston v. City of New Haven Police Department, 5940 CRB-3-14-5 (May 27, 2015). In this case a police officer who was hired in June, 1996, passed a pre-employment physical with no evidence of any heart-related conditions such as hypertension or heart disease. In 2009, the claimant presented to his physician for a physical examination which revealed that he had a blood pressure reading of 130/95 and in the medical report the doctor indicated that he had a diagnosis of Stage I hypertension. In March, 2011 the claimant suffered from a heart attack, and four days later filed a notice of claim for compensation under § 7-433c.
The treating physician testified that he had told the claimant that he was suffering from hypertension but the claimant’s recollection was that he was never provided this diagnosis until after his heart attack. Both the treating physician and the RME indicated that the claimant’s hypertension was a significant contributing factor in his coronary artery disease. However, the RME also testified that there are other significant factors, including his male gender and his high cholesterol reading that contributed to his heart attack. Further, the Trial Commissioner found that the claimant was barred from bringing a hypertension claim because he was on a notice pursuant to the Ciarlelli decision that he was suffering from hypertension as of October 2009. However, relying on the RME’s testimony, the Trial Commissioner found that there were additional substantial contributing factors in the development of the claimant’s coronary artery disease and myocardial infarction, including his male gender and high cholesterol, which entitled him to a claim for heart disease as opposed to hypertension. Essentially, the Trial Commissioner read the statute in its literal, disjunctive sense of heart disease “or” hypertension, finding that his heart disease was “a separate malady”. Although the respondent’s counsel argued as in the cases cited above that the claimant failed to establish a causal nexus between the job duties and his heart disease, the CRB noted that this argument was specious because under the date of injury rule, the relevant statute did not allow the municipality to rebut causality.
In Stackpole v. City of Stamford 6062 CRB-7-15-12 (November 17, 2016) the claimant, a police officer, had a pre-employment physical on two dates in February, 1995, the second of which showed that his pre-stress test reading was 140/90. The treating physician who conducted this test asserted that this was not an abnormally high blood pressure test that would have led to a conclusion or to a diagnosis of hypertension because the claimant had not been seated for five minutes prior to the blood pressure test being administered. Further, the doctor was impressed by the superior results of the blood pressure results during the stress test in which the bottom number, the diastolic reading, remained constant from the pre-stress test. The doctor testified that this was the better indicator of the fact that he did not have hypertension as of the date of the pre-employment physical. The Trial Commissioner found this testimony was more credible than that of the respondent’s as opposed to medical examiner, who opined that a reading of 140/90 was hypertensive.
The claimant had a series of several other borderline tests over the next several years and on January 16, 2001 had five separate readings, all of which were abnormal. At that point the claimant was formally diagnosed with hypertension and started on hypertensive medication. The Trial Commissioner therefore accepted the claimant’s assertion that the relevant date upon which the claimant was put on notice of his hypertensive condition was January 16, 2001. Further, the Commissioner concluded that under Ciarlelli v. Hamden, 299 Conn. 265 (2010) the statute of limitation clock only started ticking once the formal diagnosis of heart disease or hypertension was conveyed to the claimant.
The CRB thwarted the respondent’s attempt to apply the “rebuttable presumption” version of the 7-433c law that was in effect as of the initial date of hire, finding that pursuant to Vitti v. Milford, 5877 CRB-4-13-8 (September 16, 2004) the “date of injury” rule governed which version of the statute should be applied, in this case, the irrebuttable version. In addition, the CRB found that the determination of whether a physical examination reveals any evidence of hypertension or heart disease is a factual issue committed to the trier’s sound discretion. As a consequence, the CRB affirmed the Trial Commissioner’s award of heart and hypertension benefits.
Before leaving the discussion of Heart and Hypertension cases, it is worth mentioning
that the claimant must choose whether to pursue a claim under Chapter 568, in which case he has to prove the nexus between his heart condition and his job duties as in any other compensable claim where the “outright” bonus does not apply. The practitioner should be aware that benefits under § 7-433c are taxable, unlike regular workers’ compensation cases, and they are capped. Section 7-433b provides that the maximum cumulative benefit of a police officer or firefighter under the provision cannot exceed 100% of the weekly compensation being paid to members of the police or fire department for the same position held by the employee at the time of his death or injury. So, for example, an officer receiving PPD payments and either a retirement or a disability pension cannot receive more than 100% of the weekly compensation paid to similarly situated employees at the time of the injury.
Coming & Going Cases
Place of Abode
In Balloli v. The City of New Haven Police Dept., 342 Conn. 14 (2016) another case involving § 31-275(1)(A)(i) concerning the meaning of the phrase “place of abode”, the relevant statute provides that “for a police officer or fire fighter, ‘in the course of his employment’ encompasses such individual’s departure from such individual’s place of abode to duty …” In this case the claimant was a New Haven police officer who had moved his car from the driveway out into the public street so that he could allow his son to get his car out of the driveway. Approximately half an hour later after the claimant had gotten prepared for work inside his home, he walked back out to his car, dropped his keys and injured his back bending over to retrieve them. The trial Commissioner dismissed the plaintiff’s claim, finding that the claimant had not yet departed from his “place of abode” pursuant to the statute. The CRB affirmed this decision. The Supreme Court reversed, largely relying on the Appellate Court’s holding in Perun v. Danbury 143 Conn. App. 313 (2013) in which they defined the place of abode as “the inside of a residential structure, the garage, the common hallways, stairways, driveways, walkways and the yard …” The Appellate Court specifically determined that a police officer or firefighter does not begin his commute when he breaks the plane of his front door but that a place of abode does not extend to public property.
The dissent indicated that although the majority’s determination was artificially alluring because it seems to present a bright line test that once the employee leaves the boundaries of his own property line he has begun his commute, that line is “unmoored to the realities of the employees’ varied circumstances.” Specifically, employees may live in one place and park their cars on a regular basis somewhere else unattached to their property such as in a common interest community or an unassigned parking space in an apartment complex or in a neighbor’s driveway.
Clements v. Aramark Corporation 6034 CRB-2-15-10 (July 18, 2016)
The claimant had parked her car in the parking lot on the way to work, got out, and was beginning to walk towards the kitchen where she worked when she became dizzy, fainted, and fell to the concrete sidewalk, striking her head and suffering a serious concussion. She was taken to the emergency room where she was determined to have suffered a cardiac syncope. The trier concluded that the claimant’s fall was due to a cardiac syncope and dismissed the claim on the basis that the claimant’s injury did not arise out of her employment with the Respondent employer. The question boiled down to whether there was a sufficient causal connection existing between the employment and the injury, which was ultimately a question of fact for the Commissioner. The CRB cited the Sapco v. State of Connecticut, 305 Conn. 360, 385 (2012) that there must be a proximate cause between the employment the claimant was engaged in and the injury that she sustained. The CRB also relied on Daubert v. Nogatalk, 267 Conn. 583, 588-89 (2004) which provides that a claimant has a burden of demonstrating the injury occurred in the course of employment by showing that it occurred: a, within the period of employment; b, at a place the employee may reasonably be; and c, while the employee is reasonably fulfilling the duties of employment or doing something incidental to it. In this case there is no question that the first two criteria were met, but there was a significant question about whether the injured claimant was doing something incidental to her employment.
Claimant’s counsel argued that “a possible fall was an incidental risk associated with the beginning of her workday, and the employment brought the claimant to the place of injury. Further, counsel argued that the cement upon which the claimant struck her head was a condition of employment that contributed to her head injury. The claimant further argued that this case was analogous to the factual scenario in Savage v. St. Aeden’s Church, 122 Conn. 343 (1937) in which a painter fainted while on a ladder and was fatally injured similarly; the claimant pointed to the decision in Gonnier v. Chase Companies, Inc, 97 Conn. 46 (1921) where the Supreme Court affirmed an award of benefits to a claimant who fell from a scaffold after an attack of indigestion rendered him unconscious. The CRB indicated that in both of those cases the claimant’s employment brought him to a heightened risk of serious injury insofar as the claimant was subject to the danger of falling as a result of a risk arising out of the conditions of his employment. The CRB found that “given that the incident claimant sustained her injury merely while walking across some sort of cement surface, we do not find the court’s reasoning in the Gonnier applicable to the facts of the matter at bar”.
In another case involving the arising out of and in the course of employment burden of proof, the CRB found in Magistri v. New England Fitness Distributors 6089 CRV-2-16-4 (May 10, 2017) that where a claimant was involved in a motor vehicle accident because of a bout of <6:30 UNCLEAR> the act of driving a motor vehicle on behalf of the employer constituted a heightened risk of injury inherent in providing this service. The CRB reiterated that the question of approximate causation belongs to the trier of facts because causation is essentially a factual issue. In the present case, the respondents provided the claimant with the company car and the claimant was clearly providing “mutual benefit” to his employer at the time of his injury, citing Kolomiets v. Syncor International Corp., 252 Conn. 261 (2000). As such, the Magistri case was distinguishable from the Clements case.
Finally, an older case worth reading is Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 497 A2d 435 (1985) in which the trial Commissioner found compensable an injury in which a claims adjuster drove to New London after hours to meet with an insured in connection with a settlement check. The insured asked her if she would drop him off in Hartford to get transportation to his home back in Massachusetts. She agreed but first drove to the dog track in Plainfield, then were in route to her house to grab a snack and take a shower when they were involved in a car accident at 3:00 am. The CRB and the appellate court held that the injury did not arise during the course of her employment. Specifically, the claimant was not doing anything incidental to her employment; rather this was a frolic and detour.
Along the same lines, see the summary of the Australian High Court’s decision attached in which a federal government employee was on a business trip, and was injured while having sex with a co-employee when the overhead light fixture fell on her. The High Court rejected the lower court’s reasoning that this situation was no different than if the woman had been injured playing cards in the room, finding instead that the claimant was no longer in the course of her employment.
PRECLUSION AND POTTED PLANTS
In Wilson v. Capitol Garage, Inc.,. 6109 CRB-2-16-6 (May 16, 2017) the CRB determined that a Trial Commissioner who had granted preclusion had the right to test the claimant’s prima facie case if he found it to be initially unpersuasive by ordering a Commissioner’s examination sua sponte. The legacy of the murkiness kicked up in the water by the decisions in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) continues to cause difficulties for litigants in all matters of preclusion the CRB noted in this case. Specifically, the two treating physicians had noted that the claimant was suffering from Chronic Obstructive Pulmonary Disorder (COPD) which were aggravated and worsened by the claimant’s longstanding occupational exposure to workplace pollutants. Both doctors said that the exposure to the workplace pollutants were a significant contributing factor to the COPD. One doctor is opining that it was 80% non-occupational i.e. smoking, and 20% occupational in etiology, and the other doctor did not provide a percentage of each of the two causes.
The Commissioner indicated that he had a question about whether the claimant had reached maximum medical improvement or not and the claimant’s counsel reasonably inferred that the reason for the Commissioner’s examination was to make that determination. There was further evidence in the transcript supporting this inference as the Commissioner stated on the record “I found they’ve been precluded. I think the compensability of this is presumptive, I mean, it’s done.”
The claimant argued that once he had proffered a prima facie case, the Commissioner could not then order a Commissioner’s exam. The respondent argued that because the Commissioner apparently had doubts, the claimant had not made a prima facie offering and therefore should have dismissed the case. Ultimately, the CRB remanded the case back to the Trial Commissioner so as to provide the claimant with an opportunity to respond through the Commissioner’s examination, either through one of the treating physician’s responses to this Commissioner’s examination or, presumably through a deposition of the Commissioner’s examiner. The CRB believe that the claimant’s counsel may have enrolled into a reasonable belief that the scope of the examination is going to be limited to the issue of whether or not the claimant had reached maximum medical improvement. As such, the claimant was denied due process in his ability to confront the Commissioner’s examiner’s opinion. “We believe due process in this case should permit additional latitude to the claimant to enable him to challenge the evidence that the Commissioner relied upon to discuss this claim.”
In Laverne Johnson v. State of Connecticut, 6132 CRB-4-16-9 (August 21, 2017) the CRB described the claimant’s status in an appeal of a utilization review denial to a Workers’ Compensation Commissioner as equivalent to that of a respondent in a preclusion case: namely, a potted plant. However, if the respondent has both of her hands tied behind her back in a preclusion case, the claimant has both of his hands and feet tied, his eyes blindfolded, and his mouth gagged. Even in a preclusion case, as we saw in Wilson v. Capitol Garage above, the Commissioner was free to make inquiries beyond the original record to satisfy herself that the plaintiff or the claimant’s burden of proof, a prima facie case, has been established. In the case of a utilization review hearing, the Commissioner can only look at one document, namely the record created by the utilization review process. Therefore, while in a preclusion situation the claimant still has the burden of proof and the Commissioner can test that burden of proof with, for example, the Commissioner’s examination, in a utilization review hearing, the burden is still with the claimant, not the respondent, and the Commissioner’s hands are tied as well.
In this case, the claimant’s counsel wanted to introduce evidence outside of the four corners of the utilization review record which might have proven that the requested surgery of the claimant’s left shoulder was “unreasonable, arbitrary or capricious”, the standard of reversal in these cases. However, at the formal, the claimant refused to enter into evidence the relevant utilization review decision or any other supporting medical documentation on the grounds that the decision favored only the respondent’s position. The claimant attempted to introduce additional evidence supportive of her claim which was outside of the utilization review procedure and the respondent filed an objection that was sustained. The respondent chose not to enter the utilization review decision either and the Commissioner therefore dismissed the claim. The CRB determined that “the burden of persuasion and the burden of presenting the record of such proceedings in a case under § 31-279 CGS rests with the claimant.” The CRB further held that since the only means of presenting a prima facie case that the respondent was to present the record, and since the claimant chose not to present the record, the Commissioner had no choice but to dismiss the claim.