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Staurovsky v. City of Milford Police Dep't

Appellate Court of Connecticut

March 29, 2016

JAMES STAUROVSKY
v.
CITY OF MILFORD POLICE DEPARTMENT ET AL

         Argued January 4, 2016.

Page 1264

          Appeal from the decision of the Workers' Compensation Commissioner for the Fourth District awarding certain disability benefits to the plaintiff, brought to the Workers' Compensation Review Board, which affirmed the commissioner's decision, and the defendants appealed to this court.

          SYLLABUS

         The defendants, the city of Milford Police Department and its workers' compensation administrator, appealed to this court from the decision of the Workers' Compensation Review Board affirming the decision of the Workers' Compensation Commissioner awarding disability benefits to the plaintiff, a retired police officer, pursuant to the statute (§ 7-433c) that entitles a police officer to receive such benefits from his municipal employer if, while on or off duty, he suffers any medical condition caused by hypertension or heart disease that results in his disability. The plaintiff was employed by the department for approximately twenty-four years until he retired in February, 2012. One week later he suffered a heart attack while shoveling snow, and an angiogram performed at the hospital indicated that he had severe coronary artery disease. Thereafter, the plaintiff filed a claim for benefits pursuant to § 7-433c. At the hearing before the commissioner, the plaintiff testified that he had never suffered a disability due to hypertension or heart disease during his tenure with the department. In addition, in a deposition that was admitted as an exhibit, the plaintiff's cardiologist, M, testified that he had no knowledge that the plaintiff possessed any symptoms of coronary artery disease prior to the date that he suffered the heart attack, and that he had no evidence that the functioning of the plaintiff's heart was impaired in any manner prior to his retirement from the department. After determining that the plaintiff's claim was timely pursuant to the applicable statute (§ 31-294c [a]), the commissioner, crediting the testimony of the plaintiff and M, denied the plaintiff's claim for benefits, concluding that, because he had not suffered any disability from his heart condition while he was employed by the department, the plaintiff failed to meet the requirements of § 7-433c. The plaintiff filed a motion for reconsideration, asserting that § 7-433c did not require that the disability caused by his heart disease be suffered while he was employed by the department. The commissioner granted the plaintiff's motion for reconsideration and issued amended findings and orders, which incorporated the findings from her original decision. The commissioner concluded that the plaintiff had suffered a condition or impairment of health due to heart disease in January, 2012, and, therefore, he was entitled to benefits under § 7-433c. The defendants appealed to the board, which affirmed the commissioner's decision, and the defendants appealed to this court. Held :

         1. The defendants could not prevail on their claim that the board improperly determined that the plaintiff's claim for benefits was timely, the plaintiff having filed his claim within the one year limitation period of § 31-294c, which began to run when the plaintiff was informed by M that he had been diagnosed with heart disease; although the plaintiff had consulted with a cardiologist in 2003 due to his concerns regarding his family's history of coronary artery disease, the commissioner credited the plaintiff's testimony that the cardiologist had not diagnose him with heart disease but, instead, had recommended a diet and exercise program, and, therefore, the totality of the circumstances surrounding his 2003 consultation with the cardiologist did not support the conclusion that he had received a diagnosis of heart disease sufficient to trigger the limitation period; moreover, the record indicated that the plaintiff was first informed by M that he had heart disease after he had suffered a heart attack and an angiogram revealed that he had severe coronary artery disease, and it was undisputed that the plaintiff filed his claim less than one month later, which was well within the one year limitation period of § 31-294c.

         2. The board improperly affirmed the commissioner's conclusion that the plaintiff had established a compensable claim under § 7-433c, as the commissioner's determination that the plaintiff had suffered a condition or impairment of health due to heart disease in January, 2012, was not supported by the record and resulted from an incorrect application of the law to the facts: the record lacked any evidence indicating that the plaintiff had suffered a condition or impairment of health caused by his heart disease that resulted in a disability during his tenure as a police officer with the department, and, instead, the record indicated that the plaintiff first suffered an impairment of health when he suffered a heart attack while shoveling snow, and that the impairment arose after the plaintiff had retired from his employment as a police officer with the department; moreover, the commissioner's determination, insofar as it depended on the presumption that the existence of heart disease itself is sufficient to satisfy the requirement of § 7-433c that a claimant demonstrate that he has suffered a condition or impairment of health caused by hypertension or heart disease that resulted in disability while he was employed as a municipal police officer, was contrary to controlling precedent in Gorman v. Waterbury (4 Conn.App. 226, 493 A.2d 286), wherein this court held that the existence of hypertension or heart disease alone does not satisfy that requirement of § 7-433c.

         Michael V. Vocalina, for the appellants (defendants).

         David J. Morrissey, for the appellee (plaintiff).

         DiPentima, C. J., and Gruendel and Keller, Js.[*] GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

Page 1265

          [164 Conn.App. 184] GRUENDEL, J.

          The defendants, the city of Milford Police Department (department) and its workers' compensation administrator, PMA Management Corp. of New England, appeal from the decision of the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner for the Fourth District (commissioner) awarding heart and hypertension benefits to the plaintiff, James Staurovsky, pursuant to General Statutes (Rev. to 2011) § 7-433c. On appeal, the defendants claim that the board improperly determined that (1) the plaintiff's claim was commenced in a timely manner and (2) the plaintiff had established a compensable claim for heart and hypertension benefits on the facts of this case.[1] We [164 Conn.App. 185] agree with the defendants' second claim and, accordingly, reverse the decision of the board.

         Relevant to this appeal are the following facts found by the commissioner, as recounted in the board's decision. When the plaintiff was hired by the department, he passed a physical examination that did not reveal any evidence of heart disease or hypertension. The plaintiff thereafter " was employed by the [department] from October 5, 1987 to February 17, 2012, when he retired under a years of service pension. [His] last day of work was February 2, 2012, and he utilized unused vacation time to extend his service until February 17, 2012. On February 13, 2012, he started a new job as a campus police officer for Sacred Heart University. On February 24, 2012, the [plaintiff] sustained a myocardial infarction[2] while shoveling snow in his driveway. He was transported to St. Vincent's Hospital and had a stent inserted, and later underwent bypass surgery on April 9, 2012. The angiogram performed the day of the myocardial infarction indicated the [plaintiff] had severe coronary artery disease that affected four major arteries. The [plaintiff] testified that during his career with the [department] he had never been told by a physician that he had heart disease or hypertension and was not aware he had heart disease in January of 2012. . . . He also testified that he had never been disabled from working during his career with the [department] due to heart disease or hypertension.

         " The [plaintiff's] cardiologist testified via a deposition. Dr. Victor Mejia testified that the [plaintiff's] coronary artery disease was a chronic disease that developed over a period of years. The [plaintiff] suffered from heart disease not only on the date of his myocardial infarction but also on January 30, 2012, his claimed [164 Conn.App. 186] date of injury. Dr. Mejia opined that it was reasonably medically probable that the percentage of the [plaintiff's] blockages had not changed dramatically after the date the [plaintiff] left his employment with the [department], as it was reasonable and probable the disease developed over a period of years. The [plaintiff's] heart disease was a substantial factor in his myocardial infarction, as was the stress of snow shoveling. Dr. Mejia was unaware of

Page 1266

any symptom of coronary artery disease present in the [plaintiff] before February 24, 2012. Dr. Mejia opined, based on his diagnosis of the [plaintiff], that the [plaintiff] qualified for a disability rating to his heart as of January, 2012; but had no evidence that the [plaintiff's] heart functioning was impaired at all in January, 2012.

         " The [plaintiff] testified that he had concerns as to possibly having coronary artery disease in 2003, as it runs in his family. After discussion with a primary care doctor, the [plaintiff] was examined by Dr. Clifford Kramer, a cardiologist, on July 28, 2003. Dr. Kramer reported recommending a diet and exercise program for the [plaintiff], finding his lipid profile acceptable, and directed that the [plaintiff] undergo a stress test. The [plaintiff] underwent a stress test on August 19, 2003, that Dr. Kramer read as 'clinically and electrocardiographically negative.' . . .

         " Based on these facts, the [commissioner] concluded in the Findings and Orders issued January 6, 2014, that the [plaintiff] was credible and persuasive. She found he was neither diagnosed nor treated for coronary artery disease until February 24, 2012, [and] therefore the notice of claim for § 7-433c . . . was filed in a timely manner. . . . The commissioner concluded [that] Dr. Mejia was credible and persuasive except for his opinion that the [plaintiff] qualified for a disability rating [164 Conn.App. 187] for his heart in January, 2012. . . . In the January Findings and Orders, in Conclusion, [paragraph] E, the [commissioner] concluded that in order to receive benefits under § 7-433c . . . the [plaintiff's] heart condition and the resulting disability had to be suffered while he was a member of the [department]. She concluded that while the [plaintiff's] disease was present while he was a member of the [department], he did not sustain any disability from that condition until he left [its] employ. Since he had not been disabled while employed by the [department], the commissioner concluded he did not meet the statutory requirements for an award under § 7-433c . . . .

         " Both parties filed postjudgment motions subsequent to the January 6, 2014 Findings and Orders. The [plaintiff] filed a motion for reconsideration on January 15, 2014, asserting that the [commissioner] had improperly applied the law in the present case, and that, pursuant to Arborio v. Windham Police Dep't, [103 Conn.App. 172, 928 A.2d 616 (2007)] the [plaintiff] need not sustain a disability while a police officer or firefighter to have a viable claim for § 7-433c . . . benefits; rather that the [plaintiff] need only sustain an injury and file a claim within one year of that event. The [defendants] filed an objection to the motion for reconsideration, but on April 7, 2014, the [commissioner] issued Amended Findings and Orders incorporating the [plaintiff's] bid for relief. In particular, the commissioner removed Conclusion, [paragraph] E from the prior Findings and Orders and replaced [it] with the following conclusions:

" G. The [plaintiff] suffered a condition or impairment of health due to heart disease on January 30, 2012. . . .

" H. The [plaintiff's] longstanding heart disease was a significant contributing factor in causing his heart attack.

[164 Conn.App. 188] " I. Despite the fact that the [plaintiff] was not disabled from his work as a police officer with the [department] due to his coronary artery disease (or due to the February 24, 2012 myocardial infarction) in January, 2012, he had developed a condition during his tenure as a police officer with the [department] that could spawn a claim for monetary benefits in the future.

Page 1267

" J. While proof of a disability is a prerequisite to the actual collection of benefits, one need not be disabled before being required to notify one's employer of an accidental injury and to file a claim within one year of that injury.

" K. The [plaintiff] is entitled to all benefits under [§ ] 7-433c, subject to the lawful limitations of [General Statutes § ] 7-433b.

         " The [defendants] filed a motion to correct seeking findings that the [plaintiff] had been advised in 2003 as to coronary artery disease and had been directed to make lifestyle changes. The [motion] also sought to add a conclusion that since the [plaintiff] had a statutory obligation to file a § 7-433c . . . claim in 2003 . . . the present claim was jurisdictionally untimely and should be dismissed. The [commissioner] denied this motion in its entirety . . . ." (Citation omitted; footnotes omitted.)

         The defendants thereafter filed a petition for review of the commissioner's decision with the board. The board conducted a hearing on that petition on September 26, 2014. In its subsequent decision, the board affirmed the decision of the commissioner in all respects, and this appeal followed.

         As a preliminary matter, we note that " [t]he principles that govern our standard of review in workers' compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the [164 Conn.App. 189] commissioner. . . . [T]he review . . . of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner . . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses. . . . Where the subordinate facts allow for diverse inferences, the commissioner's selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

         " This court's review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner's finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it." (Internal quotation marks omitted.) Baron v. Genlyte Thomas Group, LLC, 132 Conn.App. 794, 799-800, 34 A.3d 423, cert. denied, 303 Conn. 939, 37 A.3d 155 (2012).

         At the same time, " [c]ases that present pure questions of law . . . invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . . ." (Internal quotation marks omitted.) Chambers v. Electric Boat Corp., 283 Conn. 840, 844, 930 A.2d 653 (2007). [164 Conn.App. 190] Our review in such instances is plenary. Id.

         I

         Because it implicates the jurisdiction of the commissioner to entertain the plaintiff's claim, we first address the ...


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