Brocuglio v. Thompsonville Fire District #2

          Argued March 6, 2019

         Procedural History

         Appeal from the decision of the Workers' Compensation Commissioner for the First District finding that the plaintiff had sustained a compensable injury and awarding, inter alia, temporary total disability benefits; thereafter, the commissioner denied the defendant's motion to correct and issued an articulation of her decision; subsequently, the defendant appealed to the Compensation Review Board, which affirmed the commissioner's decision, and the defendant appealed to this court. Reversed; decision directed.

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

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

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

          OPINION

          LAVINE, J.

         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 J. Bro-cuglio, 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 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.

         The present appeal may be summarized as follows. The plaintiff, a qualified firefighter employed by the defendant, filed a claim for heart disease under § 7433c (a)^[2] 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 § 7433c 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 § 31294c (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 preemploy-ment 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 subse- quently 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 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 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 3OC^[4] and delivered it to the defendant on September 10, 2013, the date the defendant first was notified of the plaintiffs heart disease claim. The defendant filed two form 43s denying the plaintiffs 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 plaintiffs 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 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 plaintiffs 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 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 heart in or about November, 2000.^[9] Acting Fire Chief William 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 congestive heart; postpericardiotomy syndrome, resolved; sternal wound pain, chronic; and coronary artery disease, among other heart issues.

         Tally also wrote: "The cause of [the plaintiffs] mitral valve deterioration is presumably on the basis of an inherent weakness in the mitral valve. It is somewhat spontaneous and unpredictable. The patient's single vessel moderate coronary artery disease has a causative [input] his hypertension, occasional smoking, obesity and lack of regular exercise. The distant history of pericarditis is most likely from a viral illness of some sort. This pericarditis represents a completely separate episode of heart disease." (Emphasis added.) On the basis of Tally's report, the commissioner found that the plaintiff "suffered a completely different type of heart disease in 2013. The mitral valve replacement and the coronary artery bypass are different medical problems from the distant and resolved pericarditis of 2000." (Internal quotation marks omitted.)

         At the hearing, the defendant's counsel argued that § 7-433c grants benefits for either hypertension or heart disease. In 2000, the plaintiff suffered a distinct heart disease, pericarditis, for which he did not file a claim within one year of November, 2000. The plaintiff, therefore, cannot file a claim for another type of heart disease, in this case, mitral valve replacement and coronary artery disease, in 2013. The defendant argued that the plaintiff had one opportunity to make a claim for heart disease, which he failed to do in 2000, and, thus, the plaintiffs attempt to make a claim for a 2013 heart disease was jurisdictionally barred.

         On the basis of her findings, the commissioner concluded that Tally's report of January 21, 2015, was persuasive, in particular his opinion that pericarditis was a completely separate episode of heart disease and that the plaintiff had not suffered from pericarditis in several years. Hypertension and heart disease are two separate and distinct conditions. According to Tally, pericarditis, and mitral valve replacement and coronary artery disease, are separate and distinct conditions. The commissioner found, therefore, that the plaintiff had suffered an injury to his heart and had made a claim for benefits pursuant to § 7-433c. The commissioner ultimately con- eluded that the plaintiffs claim for benefits due to his heart injury of June 19, 2013, is compensable pursuant to § 7-433c.

         The defendant filed a motion to correct, seeking to have the commissioner add a conclusion that the plaintiff was told by his cardiologist that he had heart disease in the form of pericarditis in or around November, 2000. It also requested that the commissioner delete certain of her findings and substitute, "I find that the [plaintiffs] claim for workers' compensation benefits due to his injury of June 19, 2013, is time barred under § 31-294c because he did not file a claim for compensation within one year of being told that he had heart disease in November, 2000. The [plaintiffs] claim is dismissed." The commissioner denied the motion to correct.

         On June 10, 2016, the defendant filed a motion for articulation, seeking to have the commissioner articulate the authority for the proposition that § 7-433c, as interpreted by the board and Connecticut courts, permits a claimant to recover for multiple diagnoses of heart disease. The defendant pointed out that the commissioner found that the plaintiff had suffered from pericarditis for which he was treated by two cardiologists, missed time from work, was required to take medication, and underwent a fitness for duty examination. In addition, the defendant noted that the commissioner credited Tally's opinion that pericarditis was an episode of heart disease that is separate from mitral valve replacement and coronary artery disease. The defendant further noted that a claimant may file separate claims for hypertension and for heart disease, but neither party cited any authority for the proposition that § 7-433c, as construed by the board or Connecticut courts, permits a claimant to recover for multiple instances or diagnoses of heart disease, even different kinds of heart disease. The defendant asserted that the commissioner's award failed to address the defendant's central argument that the plaintiffs failure to comply with § 31-294c (a) by filing a claim in or around 2000 precluded a heart disease claim in 2013.

         In her articulation, the commissioner stated in relevant part: "In McNerney v. New Haven, [15 Conn. Workers' Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996)], ^[10] the [board] affirmed the . . . commissioner's finding that [the plaintiff], having been cured of his hypertension diagnosed in 1975, was entitled to file a new claim for hypertension in 1991. The . . . commissioner had found [that] the claimant had cured his 1975 hypertension through diet and lifestyle changes. The . . . commissioner further found the 1991 hypertension to be a new injury and not a recurrence. . . .

         "[In the present case, the commissioner] found that [the plaintiffs] mitral valve replacement and coronary artery bypass were new injuries based on . . . Tally's report. Therefore, the fact that the [plaintiff] had not filed a timely claim for his distant and resolved and healed pericarditis did not bar a new claim for mitral ...