Brocuglio v. Thompsonville Fire District #2

         Argued March 6, 2019.

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          Joseph W. McQuade, Hartford, for the appellant (defendant).

         Eric W. Chester, for the appellee (plaintiff).

         DiPentima, C.J., and Lavine and Harper, Js.

          OPINION

         LAVINE, J.

         [190 Conn.App. 719] The defendant, the Thompsonville Fire District #2, appeals from the decision of the Compensation Review Board (board) affirming the finding and award (award) of the Workers’ Compensation Commissioner for the First District (commissioner) with respect to the 2013 claim filed by the plaintiff, Thomas [190 Conn.App. 720] J. Brocuglio, Sr., pursuant to General Statutes § 7-433c, "commonly referred to as the Heart and Hypertension Act."^[1] The defendant claims that the board improperly affirmed the commissioner’s award because the plaintiff’s heart disease claim was not timely filed pursuant to General Statutes § 31-294c (a), and § 7-433c (a) does not allow a claimant to file more than one claim for heart disease. We conclude that because the plaintiff failed to file a claim in 2000 when he was first informed by a medical professional that he had heart disease, the claim he filed for heart disease in 2013 is jurisdictionally barred. We, therefore, reverse the decision of the board.

         The present appeal may be summarized as follows. The plaintiff, a qualified firefighter employed by the defendant, filed a claim for heart disease under § 7-433c (a)^[2]

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following surgery for heart disease that took place in 2013. Prior to the heart surgery that is the subject of the present appeal, in 2000, the plaintiff was hospitalized, treated, and informed that he suffered from heart disease in the form of pericarditis. The commissioner determined that the plaintiff did not file a § 7-433c claim for heart disease within one year of being informed that he had pericarditis. The defendant, therefore, argues that because the plaintiff did not file a claim for pericarditis within one year of being informed of the heart disease in 2000, the claim for heart disease he filed in 2013 is jurisdictionally barred by [190 Conn.App. 721] § 31-294c (a).^[3] On the basis of our plenary review, we conclude that because the plaintiff did not timely file a claim for heart disease in 2000, he failed to meet the jurisdictional prerequisite entitling him to an award for his 2013 claim for heart disease.

         The following relevant facts were set out in the commissioner’s award issued subsequent to a formal hearing that she held on October 1 and 29, 2015. The plaintiff has been a full-time firefighter employed by the defendant since September 3, 1987. Prior to his employment with the defendant, the plaintiff passed a preemployment physical examination that was a condition of his employment. On or about June 19, 2013, the plaintiff felt weak, tired, out of breath, and had difficulty walking up stairs. He consulted his primary care physician, Melissa A. Hession, who later issued a report stating that "[o]n June 11, 2013, [the plaintiff] presented to my office with a lingering cough and new heart murmur on exam. He was sent for an echocardiogram on June 19, 2013, which revealed severe mitral regurgitation with a flail posterior mitral valve leaflet. He subsequently underwent emergency surgery to repair the damaged heart valve."

         When William Martinez, a cardiothoracic surgeon, performed surgery on the plaintiff on July 3, 2013, he replaced the mitral valve and performed a single coronary bypass procedure. The plaintiff was discharged from Saint Francis Hospital and Medical Center in Hartford and next treated at the Hospital for Special Care [190 Conn.App. 722] in New Britain for postsurgical care from July 15 to 31, 2013. John I. Baron, the plaintiff’s cardiologist, treated the plaintiff for postoperative complications related to the surgery and diagnosed the plaintiff as totally disabled until April 21, 2014, when he released the plaintiff to return to work. Despite Baron’s having released the plaintiff to work, the defendant required the plaintiff to be seen by its own physician for a " ‘fitness for duty examination.’ "

         The commissioner also found that the plaintiff completed a form 30C^[4] and delivered it to the defendant on September 10,

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2013, the date the defendant first was notified of the plaintiff’s heart disease claim. The defendant filed two form 43s denying the plaintiff’s claim.^[5] Although the plaintiff claimed that the defendant failed to timely file form 43, the commissioner found that the defendant had timely contested the plaintiff’s 2013 claim.^[6]

         The commissioner found that the plaintiff, in discussing his medical history at the formal hearing, testified that he had been diagnosed with "constrictive pericarditis"^[7] in November, 2000, for which he was treated by [190 Conn.App. 723] James B. Kirchhoffer, a cardiologist. According to the plaintiff, he was out of work for a few days, but he could not remember how many days. He was released to return to full-duty work, but before he was able to return to work, the defendant required that he undergo a fitness for duty examination. The plaintiff used his sick days to cover the time he was out of work. The plaintiff sought a second opinion about his pericarditis and treatment from Baron in September, 2001.^[8] Baron was still the plaintiff’s cardiologist at the time of the formal hearing.

         The plaintiff testified that he delivered a form 30C for the pericarditis to the defendant’s then fire chief, but he could not recall the chief’s name. He did not request a hearing on his alleged pericarditis claim. He further testified that he never discussed it again with the chief, and that he did not keep a copy of the form 30C for his records. The commissioner found that there is no record in the workers’ compensation system of a claim filed by the plaintiff for an injury to his [190 Conn.App. 724] heart in or about November, 2000.^[9] Acting Fire Chief William

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Provencher testified that he had searched the defendant’s personnel and workers’ compensation records, but that he could find no form 30C for pericarditis filed by the plaintiff. The commissioner found that the plaintiff did not testify credibly or persuasively that he had filed a form 30C for pericarditis in 2000.

         Kevin J. Tally, a cardiologist, examined the plaintiff on behalf of the commissioner on January 21, 2015, and submitted a report. Tally diagnosed the plaintiff with a distant history of pericarditis, with one recurrence, healed and of historical interest only as of 2013; acute posterior leaflet mitral valve prolapse with resultant pulmonary edema status postmitral valve replacement with bioprosthesis, July 3, 2013, currently with normal valve function; nonischemic cardiomyopathy postopen-heart surgery, "LVEF of 45 percent," currently out of ...