October 12, 2018
W. Williams, Fairfield, with whom, on the brief, were James
D. Moran, Jr., and Maribeth M. McGloin, Fairfield, for the
appellant (named defendant).
J. Morrissey, Naugatuck, for the appellee (plaintiff).
Keller and Moll, Js.[*]
Conn.App. 401] The 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 [190 Conn.App. 402] 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
commissioners 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 [190 Conn.App. 403] days. At his wifes 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 defendants 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 [190 Conn.App. 404] 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 commissioners 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 commissioners August 14,
2013 finding and award and remanded the matter for additional
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
commissioners 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 commissioners December 3, 2015 finding
and award. This appeal followed.
outset, we set forth the standard of review and corresponding
legal principles applicable to the defendants 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 commissioners selection of the inference to
be drawn must stand unless it is based on ...