Vitti v. City of Milford

         Argued October 12, 2018

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          Scott W. Williams, Fairfield, with whom, on the brief, were James D. Moran, Jr., and Maribeth M. McGloin, Fairfield, for the appellant (named defendant).

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

         Sheldon, Keller and Moll, Js.^[*]

          OPINION

         MOLL, J.

         [190 Conn.App. 401] The principal issue in this appeal is whether the plaintiff’s 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 plaintiff’s hire or the date of his injury. The named defendant, the city of Milford (defendant),^[1] 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.^[2] On appeal, the defendant claims

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that the board [190 Conn.App. 402] erred, as a matter of law, by (1) applying to the plaintiff’s claim the version of § 7-433c that was in effect on the date of the plaintiff’s injury in 2010 (2010 version),^[3] rather than the version of § 7-433c that was in effect on the date of the plaintiff’s hire in 1993 (1993 version),^[4] and (2) affirming the commissioner’s finding that the plaintiff’s giant cell myocarditis qualifies as heart disease under § 7-433c.^[5] We disagree and, accordingly, affirm the decision of the board.

         The 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 [190 Conn.App. 403] 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

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plaintiff’s 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.

         Meanwhile, 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 plaintiff’s giant cell myocarditis constituted heart disease pursuant to the 1993 version of § 7-433c^[6] and that the defendant had failed to rebut the statutory presumption [190 Conn.App. 404] that the plaintiff’s 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.

         On 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 plaintiff’s injury. Thereupon, the board vacated the commissioner’s August 14, 2013 finding and award and remanded the matter for additional proceedings.

         On 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.^[7] The commissioner found, inter alia, that the plaintiff’s 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.^[8]

         On 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 [190 Conn.App. 405] 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.

          At the 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

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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 ...