CARTER v. TOWN OF CLINTON ? POLICE DEPT., NO. 5185 CRB-3-07-1 (3-12-2008)

JOHN A. CARTER, CLAIMANT-APPELLANT v. TOWN OF CLINTON — POLICE DEPT., EMPLOYER, SELF-INSURED, RESPONDENT-APPELLEE.

CASE NO. 5185 CRB-3-07-1 CLAIM NO. 300044227CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
MARCH 12, 2008

This Petition for Review from the January 5, 2007 Finding and Dismissal of the Commissioner acting for the Third District was heard July 13, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

The claimant was represented by David Morrissey, Esq. Morrissey, Morrissey Mooney, LLC, 203 Church St., P.O. Box 31, Naugatuck, CT 06770.

The respondent employer was represented by Henry J. Zaccardi, Esq., Shipman Goodwin, LLP, One Constitution Plaza, Hartford, CT 06103-1919.

OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The claimant has petitioned for review from the January 5, 2007 Finding and Dismissal of the Commissioner acting for the Third District. He seeks reversal of the trier’s dismissal order on appeal, arguing that his 1996 notice of claim was sufficient to preserve a § 7-433c claim for heart-related disability benefits. We find no error, and affirm the trial commissioner’s decision.

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The claimant worked for the respondent Town of Clinton as a police officer from 1972 through 1998. He sustained a right shoulder injury on February 20, 1996 that required surgery, and returned to regular duty in July 1996. On October 2, 1996, during the line of duty, he was attempting to lift a heavy person when he felt a pop and sharp pain in his right shoulder that traversed his upper back. He also reported a sense of going into shock, with dizziness, shortness of breath, lightheadedness, and a crushing pain in the front and back. He completed an injury report for his employer, and went to the hospital for treatment, reporting increasing pain and discomfort in his shoulder.

The attending physician at the hospital opined that he had a labral tear. A CT scan of his scapula showed no abnormalities, and the claimant was referred to Dr. Daigneault for an orthopedic evaluation. After the claimant reported pain, clinking and grinding in the scapular area, Dr. Daigneault performed scapular reduction surgery in 1997, which was authorized by the respondent. In 1998, pain continued, beginning to radiate into the neck and jaw. A cervical spine MRI showed two herniated discs and degenerative changes, leading to fusion surgery in April 1998. The claimant then retired from the police force because of his injuries. Dr. Daigneault identified a 20% permanent partial impairment of the right shoulder from the October 1996 injury, and a 10% impairment from the February 1996 injury. Dr. Shafer rated the claimant with a 25% permanent impairment of the right arm on January 7, 1998, noting a great deal of pain, discomfort and sensitivity.

At the request of the claimant’s primary physician, Dr. Sheehan, the claimant underwent an EKG in September 1998 that showed no acute changes. According to the claimant, Dr. Sheehan had thought a stress test unnecessary despite the claimant’s spoken

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fear that something was wrong with his heart.[1] In March 2000, another EKG was described as normal by Dr. Sheehan. The claimant was given pills to provide relief from presumed acid build-up. Dr. Sheehan prescribed a stronger antacid on April 3, 2000, noting the continuation of severe shoulder pain. On April 5, 2000, the claimant suffered an acute myocardial infarction, and was transported to the hospital where he had an angioplasty, followed by four-vessel coronary artery bypass surgery on April 7, 2000.

The claimant filed a Form 30C on June 20, 2001, claiming that the right shoulder condition was misdiagnosed and that his October 2, 1996 symptoms were caused by a cardiac problem. The respondent contested this claim both on the basis of a lack of direct causal relation between the lifting incident and the myocardial infarction, and because the 2001 Form 30C was untimely for a 1996 injury. The claimant alleged that notice of the cardiac condition was timely because the October 2, 1996 orthopedic injuries were accepted, and he also had concurrent symptoms of angina.[2] Dr. Anthony, a cardiologist who evaluated the claimant on August 14, 2001 and August 2, 2004, stated that his pain

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on October 2, 1996 was both orthopedic and anginal.[3] Dr. Anthony also identified a 25% permanent partial impairment of the heart related to coronary heart disease.

The trial commissioner concluded that there was insufficient evidence to show that the April 6, 2000 myocardial infarction was causally related to the lifting incident. He also found that the 2001 Form 30C claiming a misdiagnosed heart condition subsequent to an October 2, 1996 lifting incident was untimely filed under § 31-294c‘s one-year statute of limitations. This led to the trier’s dismissal of the claim, and the appeal that is now before this board.

Our file contains one written notice of claim for compensation for the October 2, 1996 lifting injury: the Form 30C filed on June 20, 2001. No written claim was filed within one year of that accidental injury as required by § 31-294c(a). However, the statute does not bar the claimant’s October 2, 1996 injury claim, because the claimant’s employer furnished him with medical treatment immediately after the injury occurred, and the employer also authorized shoulder surgery in 1997. This satisfies the “medical or surgical care” exception of § 31-294c(c), insofar as such care was provided “for the injury with respect to which compensation is claimed.” The claimant also completed an injury report for his employer describing a right shoulder pull that he

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suffered while lifting a woman with multiple sclerosis, causing severe pain. Claimant’s Exhibit B. The body part affected was described as “right shoulder.”

Under the reasoning of Landrette v. Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (August 19, 1993), a claim is not barred where a written notice of claim for a workplace injury has been filed but fails to identify certain injured body parts, or the disability caused by the reported incident. This board has decided similarly in cases involving constructive notice based on the provision of medical treatment. See Scott v. Bridgeport, 4637 CRB-4-03-2 (February 24, 2004) (no additional notice of claim needed for head injury as long as link shown to compensable fall off ladder); Roman v. Eyelets forIndustry, 3040 CRB-5-95-4 (February 14, 1997), aff’d, 48 Conn. App. 357
(1998) (medical evidence showed L4-5 disc herniation was due to 1991 injury, which had been accepted by voluntary agreement as a left leg and ankle injury); Hebert v. New Departure Hyatt Bearings, 4 Conn. Workers’ Comp. Rev. Op. 94, 300 CRD-6-84 (June 12, 1987), no error, 14 Conn. App. 819
(1988) (claimant received medical care and entered into voluntary agreement for lower back impairment; later claim for cervical surgery not precluded, as it occurred in direct chain of causation from original injury). Notice of an accidental injury is usually event-specific (identifying time and place of injury), giving an employer an opportunity to verify the relationship between the incident and a claimant’s employment. These cases establish that where the nexus between an accidental event and one’s employment duties is not in dispute, the resulting physical injuries (and their sequelae) are compensable, even if some injuries only become apparent later. See also,Doe v. City of Stamford, 241 Conn. 692 (1997) (exposures to infectious

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diseases in incidents arising out of and in course of employment were compensable injuries, even though no disease symptoms had emerged).

In this case, the respondent accepted that the lifting incident arose out of and in the course of the claimant’s employment. Thus, an injury or disability attributable to the October 2, 1996 incident would be compensated under chapter 568, even if its symptoms did not emerge immediately, or were originally misdiagnosed by medical care providers. The first question, then, is whether the compensable lifting incident was responsible for the heart disease condition for which the claimant now seeks compensation — a condition that allegedly led to a 2000 heart attack, as well as symptoms that manifested on October 2, 1996. In order to establish this fact, it would have been necessary to find that (1) the lifting incident caused or contributed to some of the claimant’s heart disease symptoms as experienced on October 2, 1996, (2) that he received treatment for those symptoms, and (3) that the incident was also in the chain of causation for the heart attack.

The trial commissioner found differently. He concluded there was insufficient evidence to show that the claimant’s April 6, 2000 myocardial infarction was causally related to the October 2, 1996 lifting incident. There are subordinate findings to support this conclusion, such as the claimant’s description of the lifting injury as a “pop” in his right shoulder, a history of shoulder problems, herniated cervical discs, and neck and jaw pain that led to the claimant’s retirement in 1998, and EKGs that showed no acute changes in the claimant’s heart prior to April 2000. The trial commissioner also declined the claimant’s request to correct the findings to reflect that a misdiagnosis of heart problems had been involved in the treatment of the claimant’s shoulder injury. The existing findings are supported by medical evidence in the record. They also reflect the

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respondents’ arguments at the formal hearing that two distinct occurrences — the “pop” in the claimant’s shoulder and his experiencing of a “shocky” sensation — are alleged to have taken place at the time of the October 2, 1996 injury, with the town having only been notified of the shoulder injury. June 27, 2006 Transcript, pp. 3-4. Counsel stressed that there was no causal connection between the lifting incident and the coronary artery disease (or the later infarction), because the anginal pain felt by the claimant during the lifting incident would be merely a symptom (rather than, say, an exacerbation) of the preexisting, ongoing heart disease, a separate condition that, if compensable, would only be compensable under § 7-433c. June 27, 2006 Transcript, p. 6-8.

The issue then becomes whether a claim for § 7-433c[4] benefits has been preserved by virtue of the October 2, 1996 medical treatment, or the June 20, 2001 notice. The trier confirmed that the claimant was eligible for § 7-433c benefits while employed as a Clinton

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police officer, with any claim submitted for heart disease being subject to a one-year statute of limitations under § 31-294c(a). The trier then found that the notice of claim filed on June 20, 2001 was untimely filed pursuant to § 31-294c, as the allegation that the heart condition was misdiagnosed did not toll the statute of limitations. The trier subsequently denied the claimant’s request to correct the findings to state that “the claimant suffered pain on October 2, 1996 which was reported to his employer and for which medical treatment was provided. It was discovered that this pain was both orthopedic and anginal in nature on April 6, 2000.”

Although April 6, 2000 is listed as the discovery date of the anginal pain in the Motion to Correct, the claimant did not file a notice of claim until June 20, 2001.[5] The claimant had testified that Dr. Dewer, the surgeon who performed his open heart surgery on April 7, 2000, was the first to tell him that he had advanced stage coronary artery disease. June 27, 2006 Transcript, p. 18. This proposed finding and the evidence both indicate that the claimant knew or should have known that his pain may have been related to coronary artery disease over one year prior to June 20, 2001, which would make that notice untimely on its face even if we were to use the date of acquired or attributed knowledge as the claimant’s operative date of injury. Also, there is no finding that the claimant’s disability or retirement was wholly or partly caused by coronary artery disease. The question of timely notice aside, claims for § 7-433c benefits are not recognized unless

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the condition of hypertension or heart disease and the death or disability resulting from such condition are suffered while the claimant is a regular member of the police or fire department. Gorman v.Waterbury, 4 Conn. App. 226, 231-32 (1985). As there is neither timely written notice nor a recognized disability related to a § 7-433c
condition present here, it would be premature for us to consider this question of first impression: whether delayed knowledge that prior symptoms of pain were related to heart disease would be sufficient to toll the statute of limitations for a § 7-433c claim, where a claimant is no longer a member of the police force at the time said knowledge is acquired.

We now ask whether medical care was provided for the claimant’s symptoms of coronary artery disease on October 2, 1996, within the meaning of the medical care exception in § 31-294c(c). If so, the claimant’s § 7-433c claim would be preserved (and the cause of disability would need to be addressed), much as the claim was preserved in Pernacchio v. New Haven, 3911 CRB-3-98-10 (September 27, 1999) aff’d, 63 Conn. App. 570 (2001). In Pernacchio, a uniformed firefighter had an on-duty episode in which he experienced dizziness and nausea, and his blood pressure reading was very high. He was transported to the hospital via the town’s ambulance service, and his medical tests were paid for by the town, which also completed an accident report. Further, the claimant filed a first report of injury for high blood pressure when he returned to work. The court found that the town had notice of the blood pressure incident, and that it had furnished medical care immediately after the accident, satisfying the exception in §31-294c(c). It was observed that the employer’s notice of the high blood pressure incident also put it on notice that the claimant could file a hypertension claim under § 7-433c.

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Here, in contrast, it is not established that medical care was actually provided for symptoms of heart disease. The respondent had no reason to suspect that a § 7-433c claim might be forthcoming, as there was no mention of heart disease during the process of treating the accepted shoulder injury. After considering Dr. Anthony’s opinion that the claimant’s October 2, 1996 symptoms were both orthopedic and anginal, the trier did not say whether or not he found it credible. He merely made note of it in ¶ 49 of his findings. Later, the trier declined to correct those findings to reflect that coronary artery disease caused some of the 1996 pain symptoms for which medical treatment was provided. This indicates that the claimant did not persuade the trier of fact that the injury for which he was treated on October 2, 1996 included symptoms of coronary artery disease. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003) (denial of corrections implies trier not persuaded by underlying testimony). We cannot reverse that determination on appeal. Id. Without that factual foundation, this board has no ground to conclude that the claimant received treatment for symptoms of heart disease in 1996, potentially tolling the statute of limitations for filing a claim under § 7-433c.

The trial commissioner’s decision is hereby affirmed.

Commissioner Scott A. Barton concurs.

[1] The claimant stated that he had felt or heard a popping sensation or noise in his shoulder joint on October 2, 1996, which his doctors thought significant, leading to their continued focus on the shoulder. The claimant stated that he had been trying to shift their attention to a different, deeper sensation of pain, a “massive pain that . . . most generally . . . would go from the center of my back to my right shoulder, or from my right shoulder to the center of my back, and each time I would talk to them they would have their idea of what they thought was going on.” Respondent’s Exhibit 1, April 14, 2005 Deposition, pp. 41-42. However, he had no personal reason to believe his problem was not rooted in the neck, shoulder, or back, and he followed the doctors’ advice because he wanted to return to work. Id., p. 42. He described the deeper pain as taking his breath away, and contrasted it in nature from the severe pain he continues to feel when someone touches the right scapular area of his shoulder where surgery was performed. Id., p. 47.

[2] Stedman’s Medical Dictionary defines “angina” as “a severe constricting pain, especially angina pectoris,” and “angina pectoris” as “severe constricting chest pain, often radiating from the precordium to the left shoulder and down the arm, due to insufficient blood supply to the heart that is usually caused by coronary disease.”

[3] The claimant argues that the various surgeries he had on his shoulder and neck did not help alleviate his pain. June 27, 2006 Transcript, pp. 2-3. Dr. Anthony had related in an August 2, 2004 report that the claimant’s sharp aching pain and severe back pain since 1996 had appeared with physical exertion, and were invariably relieved by rest. The pain became worse over the years, with cold sweats and shortness of breath often accompanying the discomfort. When an acute myocardial infarction was identified in 2000, the claimant underwent an unsuccessful angioplasty, followed by a successful quadruple bypass. Since the surgery he had denied having any further back pain or anginal-type symptoms (though in the claimant’s April 14, 2005 Deposition; Respondent’s Exhibit 1, p. 72; he refers to having had another angina attack the prior weekend). Dr. Anthony explained in an August 14, 2001 report that a portion of the radiating back, arm and jaw pain was anginal in nature and “may have been the early symptoms of his coronary artery disease,” which ultimately manifested itself as an acute myocardial infarction that affected the inferior surface of the claimant’s heart. Claimant’s Exhibit A.

[4] Sec. 7-433c provides, “(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467.

(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section.”

[5] In the claimant’s April 14, 2005 deposition, he testified that he sent notice on that date because the town had just informed him that it was going to terminate benefits that had been promised to him at the time he retired from service with the town of Clinton. Respondent’s Exhibit 1, p. 70. He also explained that he had filed the Form 30C after reflecting that he had described shortness of breath and increased pain upon exertion to various doctors over the years, all of whom had failed to consider the possibility of a heart condition. Id., pp. 72-76. The claimant acknowledged that he had used the phrase “misdiagnosis” himself, rather than having a doctor tell him such an error had occurred. June 27, 2006 Transcript, p. 19.

AMADO J. VARGAS, COMMISSIONER, DISSENTING.

The claimant was treated on October 2, 1996 for symptoms that he experienced after attempting to lift a heavy person out of a reclining chair. The trial commissioner acknowledged Dr. Anthony’s opinion that the claimant was suffering from orthopedic and anginal symptoms in response to that incident, both causing pain that led the claimant to seek medical

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treatment. I would hold that the respondent provided medical treatment for a heart-related injury within the meaning of § 31-294d, § 31-294c(c) because the claimant’s symptoms included anginal pain, even if a heart condition and its effects were not recognized until years later. Also, I would hold that the misdiagnosis of the claimant’s condition tolled the statute of limitations for filing a claim under § 7-433c, and would allow the claimant to pursue compensation. Therefore, I dissent.

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