Thomas J. BROCUGLIO, Sr.
THOMPSONVILLE FIRE DISTRICT #2
March 6, 2019.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
W. McQuade, Hartford, for the appellant (defendant).
Chester, for the appellee (plaintiff).
C.J., and Lavine and Harper, Js.
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." The defendant claims that the board
improperly affirmed the commissioners award because the
plaintiffs 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.
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)
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). 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.
following relevant facts were set out in the commissioners
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."
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 plaintiffs 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 Barons having released the plaintiff to work, the
defendant required the plaintiff to be seen by its own
physician for a " fitness for duty examination. "
commissioner also found that the plaintiff completed a form
30C and delivered it to the defendant on
2013, the date the defendant first was notified of the
plaintiffs heart disease claim. The defendant filed two form
43s denying the plaintiffs claim. Although the plaintiff
claimed that the defendant failed to timely file form 43, the
commissioner found that the defendant had timely contested
the plaintiffs 2013 claim.
commissioner found that the plaintiff, in discussing his
medical history at the formal hearing, testified that he had
been diagnosed with "constrictive
pericarditis" 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. Baron was still the
plaintiffs cardiologist at the time of the formal hearing.
plaintiff testified that he delivered a form 30C for the
pericarditis to the defendants then fire chief, but he could
not recall the chiefs 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. Acting Fire Chief William
Provencher testified that he had searched the defendants
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.
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 ...