October 12, 2018
from the decision of the Workers' Compensation
Commissioner for the Third District ordering the defendants
to pay workers' compensation benefits to the plaintiff,
brought to the Compensation Review Board, which affirmed the
commissioner's decision, and the named defendant appealed
to this court. Affirmed.
W. Williams, with whom, on the brief, were James D. Moran,
Jr., and Maribeth M. McGloin, for the appellant (named
J. Morrissey, for the appellee (plaintiff).
Sheldon, Keller and Moll, Js.
principal issue in this appeal is whether the plaintiffs
claim for heart and hypertension benefits under General
Statutes § 7-433c is governed by the version of the
statute in effect on the date of the plaintiffs hire or the
date of his injury. The named defendant, the city of Milford
(defendant),  appeals from the decision of the
Compensation Review Board (board) affirming the finding and
award rendered by the Workers' Compensation Commissioner
for the Third District (commissioner) of the Workers'
Compensation Commission (commission), ordering the defendant
to pay to the plaintiff, Antonio Vitti, all benefits required
by the Workers' Compensation Act (act), General Statutes
§ 31-275 et seq. On appeal, the defendant claims that the
board erred, as a matter of law, by (1) applying to the
plaintiffs claim the version of § 7-433c that was in
effect on the date of the plaintiffs injury in 2010 (2010
version), rather than the version of § 7-433c
that was in effect on the date of the plaintiffs hire in 1993
(1993 version), and (2) affirming the commissioner's
finding that the plaintiffs giant cell myocarditis qualifies
as heart disease under § 7-433c. We disagree and,
accordingly, affirm the decision of the board.
following procedural history and facts, as found by the
commissioner in his finding and award, dated December 3,
2015, are relevant to our resolution of this appeal. On
February 12, 1993, the defendant hired the plaintiff as a
police officer after the plaintiff underwent a preemployment
physical examination and was deemed suitable for employment.
On August 17, 2010, the plaintiff consulted a doctor after
experiencing nausea, abdominal pain, and shortness of breath
for several days. At his wife's urging, the plaintiff
also consulted a cardiologist, who performed an
electrocardiogram that supported a differential diagnosis of
coronary artery disease or cardiomyopathy. The plaintiff was
later transferred to the Hospital of Saint Raphael, where he
underwent a cardiac catheterization that revealed that he had
mild coronary artery disease and severe systolic dysfunction.
On August 20, 2010, a magnetic resonance imaging scan
confirmed the electrocardiogram results and raised the
possibility that the plaintiff had myocarditis. On August 23,
2010, the plaintiff was put on an intra-aortic balloon pump
for cardiac support. Diagnostic tests indicated a progression
of heart failure. The plaintiff was prescribed prednisone, a
drug used as an immunosuppressive therapy. On August 24,
2010, he was admitted to Hartford Hospital with a diagnosis
of acute myocarditis and cardiogenic shock and began to
receive treatment from a cardiologist, Detlef Wencker. Dr.
Wencker performed a number of tests and determined that the
plaintiff needed a heart transplant. On September 29, 2010,
the plaintiff underwent successful heart transplant surgery.
A specimen of the plaintiffs heart that was harvested and
analyzed showed evidence of giant cell myocarditis; Dr.
Wencker, thus, determined that the plaintiff was suffering
from giant cell myocarditis. The plaintiff later returned to
employment with the defendant's police department.
on September 10, 2010, the plaintiff filed a timely notice of
claim with the commission, noting August 19, 2010, as the
date of his injury. On August 14, 2013, after holding formal
hearings on the matter, the commissioner, then acting for the
fourth district of the commission, issued a finding and award
in favor of the plaintiff. The commissioner found, inter
alia, that the plaintiffs giant cell myocarditis constituted
heart disease pursuant to the 1993 version of §
7-433c and that the defendant had failed to rebut
the statutory presumption that the plaintiffs health
condition or impairment caused by heart disease was causally
related to his employment with the defendant. Accordingly,
the commissioner ordered the defendant to pay all benefits
due to the plaintiff as required by the act. Thereafter, the
defendant filed a petition for review with the board.
September 16, 2014, the board rendered its decision,
concluding that (1) some of the commissioner's factual
findings were inconsistent with his other findings, and (2)
the commissioner had committed plain error by applying the
1993 version of § 7-433c rather than the 2010 version
that was in effect on the date of the plaintiffs injury.
Thereupon, the board vacated the commissioner's August
14, 2013 finding and award and remanded the matter for
December 3, 2015, after holding additional formal hearings on
the matter, the commissioner, acting for the third district
of the commission, issued a finding and award in favor of the
plaintiff. The commissioner found, inter alia, that
the plaintiffs giant cell myocarditis constituted heart
disease pursuant to the 2010 version of § 7-433c and
ordered the defendant to pay all benefits due to the
plaintiff under the act. Thereafter, the defendant filed a
petition for review with the board.
appeal before the board, the defendant claimed that the
commissioner's conclusion was legally inconsistent with
his factual findings and that the commissioner erred as a
matter of law by failing to apply the 1993 version of §
7-433c to his claim. On April 21, 2017, the board affirmed
the commissioner's December 3, 2015 finding and award.
This appeal followed.
outset, we set forth the standard of review and corresponding
legal principles applicable to the defendant's claims.
"[T]he principles [governing] our standard of review in
workers' compensation appeals are well established. . . .
The board sits as an appellate tribunal reviewing the
decision of the commissioner. . . . [T]he review ... of an
appeal from the commissioner is not a de novo hearing of the
facts. . . . [Rather, the] power and duty of determining the
facts rests on the commissioner [and] . . . [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. . . .
court's review of [the board's] decisions . . . 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.)
Melendez v. Fresh Start General Remodeling &
Contracting, LLC, 180 Conn.App. 355, 362, 183 A.3d 670
is well established that [although not dispositive, we accord
great weight to the construction given to the workers'
compensation statutes by the commissioner and [the] board.
... A state agency is not entitled, however, to special
deference when its determination of a question of law has not
previously been subject to judicial scrutiny. . . . Where ...
[a workers' compensation] appeal involves an issue of
statutory construction that has not yet been subjected to
judicial scrutiny, this court has plenary power to review the
administrative decision." (Citations omitted; internal
quotation marks omitted.) Lafayette v. General Dynamics
Corp., 255 Conn. 762, 770-71, 770 A.2d 1 (2001). Mindful
of the foregoing, we now address the defendant's claims.
defendant first claims that the board erred as a matter of
law by applying the 2010 version of § 7-433c to the
plaintiffs claim. Specifically, the defendant argues that the
board should have applied the 1993 version of § 7-433c,
containing a rebuttable presumption, in order to effectuate
the legislative purpose underlying such legislation, namely,
to provide financial relief to municipalities required to pay
heart and hypertension benefits to eligible police officers
and firefighters. The plaintiff argues, to the ...