McGinty v. Stamford Police Dept. ( 2019 )

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THOMAS MCGINTY v. STAMFORD POLICE
DEPARTMENT ET AL.
(AC 41943)
DiPentima, C. J., and Lavine and Prescott, Js.
Syllabus
The defendants, the Stamford Police Department and its workers’ compensa-
tion insurer, appealed to this court from the decision of the Compensa-
tion Review Board, which affirmed the decision of the Workers’
Compensation Commissioner that the plaintiff’s claim for benefits as a
result of heart disease was compensable under the Heart and Hyperten-
sion Act (§ 7-433c). The defendants claimed that the board improperly
affirmed the commissioner’s award because the plaintiff’s condition was
systemic and, therefore, not compensable heart disease pursuant to § 7-
433c. The plaintiff, a police officer, had retired in 2011 with a service
related disability pension due to injuries he sustained during the course
of his employment. In April, 2009, he had been diagnosed with coronary
artery disease and hypertension and, thereafter, filed a claim for benefits
pursuant to § 7-433c. On the basis of the evidence presented at the
hearing, the commissioner accepted the plaintiff’s claim and found his
testimony and that of his cardiologist to be credible and persuasive in
support of a heart disease and hypertension claim pursuant to § 7-433c.
She ordered the defendants to accept liability for the plaintiff’s claim
and all benefits under § 7-433c to which he was entitled. After the board
affirmed the commissioner’s decision, the defendants appealed to this
court. Held that the board properly affirmed the commissioner’s award,
as the defendants failed to demonstrate that the commissioner’s finding
that the plaintiff suffered from heart disease was unsupported by the
record; the commissioner heard testimony from two cardiologists and
found that the plaintiff presented the more credible and persuasive
evidence, and the role of this court was not to retry the facts, but to
determine whether the commissioner’s award could be sustained in
view of the factual record.
Argued May 20—officially released July 9, 2019
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Seventh District finding that
the plaintiff had sustained a compensable injury and
awarding, inter alia, disability benefits; thereafter, the
commissioner denied the defendants’ motion to correct;
subsequently, the defendants appealed to the Compen-
sation Review Board, which affirmed the commission-
er’s decision, and the defendants appealed to this
court. Affirmed.
Scott Wilson Williams, for the appellants
(defendants).
David J. Morrissey, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendants, the Stamford Police
Department (police department), and PMA Manage-
ment Corporation of New England, the workers’ com-
pensation liability insurer for the police department,
appeal from the decision of the Compensation Review
Board (board) affirming the finding and award (award)
of the Workers’ Compensation Commissioner for the
Seventh District (commissioner) with respect to the
claim filed by the plaintiff, Thomas McGinty, under
General Statutes § 7-433c,1 commonly referred to as the
Heart and Hypertension Act.2 On appeal, the defendants
principally claim that the board improperly affirmed
the commissioner’s award concluding that the plaintiff
had suffered from compensable heart disease. Before
the commissioner and on appeal, the defendants have
argued that the plaintiff’s condition, arterial sclerosis,
is not a disease unique to the heart, but a systemic
condition, and is, therefore, not compensable heart dis-
ease. We affirm the decision of the board.
In her May 24, 2017 award, the commissioner made
the following findings of fact, which are relevant to our
resolution of this appeal. The plaintiff was employed
as a police officer from January 8, 1990 through April
15, 2011, when he retired with a service related disability
pension due to injuries he sustained during the course of
his employment.3 The plaintiff passed a preemployment
physical that did not reveal evidence of hypertension
or heart disease. The plaintiff struggled to control his
weight and high cholesterol. In 2007, he experienced
left leg pain due to a blockage of his iliac artery, which
was treated twice by angioplasty. The plaintiff was diag-
nosed with peripheral vascular disease. An electrocar-
diogram and nuclear stress test were negative for heart
disease at that time.
In 2009, the plaintiff experienced shortness of breath
and chest pain. The results of a stress test performed
on April 2, 2009, were positive and, when compared
with the prior study, revealed a new ‘‘defect.’’ The plain-
tiff was diagnosed with coronary artery disease and
hypertension, and medication was prescribed for the
conditions. On April 24, 2009, the plaintiff underwent
cardiac catheterization that revealed two vessel coro-
nary artery disease. The plaintiff was diagnosed with
atrial fibrillation on November 19, 2009, and he under-
went an ablation on February 16, 2010. A cardiac cathe-
terization performed on September 14, 2011, showed
progression of the plaintiff’s coronary artery disease,
and he underwent bypass surgery in December, 2011.
On May 27, 2009, the plaintiff filed a form 30C4 claim-
ing that he was entitled to benefits under § 7-433c as
a result of hypertension and heart disease. On May
11, 2009, the police department timely filed a form 43
contesting the claim and also filed a supplemental form
43 on June 2, 2009.5
Joseph R. Anthony, a cardiologist, examined the
plaintiff on September 3, 2010. Anthony reported that
the plaintiff had both coronary heart disease and hyper-
tension. On July 15, 2014, Anthony gave the plaintiff a
24 percent disability impairment due to his hypertensive
cardiovascular disease and a 26 percent disability
impairment for his coronary heart disease. The com-
bined rating was 44 percent. Anthony also assigned an
11 to 13 percent disability impairment for the plaintiff’s
ventricular tachycardia, or arrhythmia.
Martin J. Krauthamer, a cardiologist, examined the
plaintiff on behalf of the defendants. Krauthamer found
no evidence of hypertension in the plaintiff more than
a year prior to April, 2009. He testified at the formal
hearing that in 2010, the plaintiff clearly had vascular
disease, but that it had not yet impacted his heart, and,
therefore, the plaintiff did not have cardiovascular dis-
ease at that time. Krauthamer opined that the disease
process that resulted in a blockage of the plaintiff’s
coronary artery was the same process that resulted
in a blockage of the peripheral arteries of his groin.
According to Krauthamer, the atherosclerotic process
occurs separately in different parts of the body as it is
a systemic disease. He assigned the plaintiff a disability
rating of 8 percent due to hypertension and an 11 per-
cent disability rating due to his premature ventricular
contractions.
On the basis of the evidence presented at the formal
hearing, the commissioner accepted the plaintiff’s
claim. She found his testimony and medical evidence
to be credible and persuasive in support of a heart
disease and hypertension claim pursuant to § 7-433c.
The commissioner found Anthony’s opinion and reports
to be more credible than Krauthamer’s.6 The commis-
sioner concluded that the plaintiff had reached maxi-
mum medical improvement on September 3, 2010, and
had disability ratings of 24 percent due to hypertension,
26 percent due to coronary artery disease, and 11 per-
cent due to arrhythmia. She ordered the defendants
to accept liability for the plaintiff’s heart disease and
hypertension claim and all benefits under § 7-433c to
which he may be entitled.
The defendants filed a motion to correct, which the
commissioner denied. The defendants appealed to the
board, claiming that the plaintiff’s claimed heart condi-
tion was systemic and, therefore, did not constitute
compensable heart disease.7 To support their position
that atherosclerosis is a systemic disease and not a
distinct heart disease, the defendants relied on Estate
of Patrick L. Brooks v. West Hartford, No. 4907, CRB
6-05-1 (January 24, 2006).8 The board issued its decision
on July 17, 2018, affirming the commissioner’s award.
The board rejected the defendants’ argument that the
peripheral artery disease, atherosclerosis, from which
the plaintiff suffered in 2007, was not heart disease
and that it was the proximate cause of his subsequent
coronary ailments in 2009. The defendants argued that
the plaintiff’s systemic atherosclerosis was indistin-
guishable from the systemic sarcoidosis, which in
Estate of Patrick L. Brooks, was deemed not to be
heart disease. The board did not undertake a medical
or factual analysis of atherosclerosis and sarcoidosis.
Rather, it relied on ‘‘one of the primary tenets of [its]
standard of appellate review . . . that the trial com-
missioner has the right and the duty to decide how
much of the medical evidence presented to [her] is
persuasive and reliable. . . . A commissioner may
choose to credit all, part or none of an expert’s testi-
mony. . . . On review, this board may not second-
guess a commissioner’s inferences of evidentiary credi-
bility, and we may reverse factual findings only if they
are unsupported by the evidence or if they fail to include
undisputed material facts.’’ (Citations omitted.) Id.; see
also Sanchez v. Edson Manufacturing, 175 Conn. App.
105, 124-26, 166 A.3d 49 (2017); Barron v. City Printing
Co., 55 Conn. App. 85, 94, 737 A.2d 978 (1999). On the
basis of its review of the record, the board concluded
that there was an adequate basis for the commissioner’s
finding that the plaintiff suffered from heart disease in
2009 and that his heart disease was separate and distinct
from the peripheral artery disease he experienced in
2007.
Our review of the record and the briefs and arguments
of the parties persuades us that the board properly
affirmed the commissioner’s award. On appeal, the
defendants have failed to demonstrate that the commis-
sioner’s finding that the plaintiff suffered from heart
disease is unsupported by the record. The commis-
sioner heard testimony from two cardiologists and
found that the plaintiff presented the more credible and
persuasive evidence. It is not the role of this court to
retry the facts, but to determine whether the commis-
sioner’s award could be sustained in view of the factual
record. See Estate of Haburey v. Winchester, 150 Conn.
App. 699, 719, 92 A.3d 265, cert. denied, 312 Conn. 922,
94 A.3d 1201 (2014). We, therefore, affirm the decision
of the board.9
The decision of the Compensation Review Board is
affirmed.
1
General Statutes § 7-433c (a) provides in relevant part: ‘‘Notwithstanding
any provision of chapter 568 or any other general statute . . . in the event
. . . a regular member of a paid municipal police department who success-
fully passed a physical examination on entry into such service, which exami-
nation failed to reveal any evidence of hypertension or heart disease, suffers
either off duty or on duty any condition or impairment of heath caused by
hypertension or heart disease resulting in his death or his temporary or
permanent, total or partial disability, he . . . shall receive from his municipal
employer compensation and medical care in the same amount and the same
manner as that provided under chapter 568 . . . .’’
2
See Pearce v. New Haven, 76 Conn. App. 441, 443–44, 819 A.2d 878
(overruled in part by Ciarelli v. Hamden, 299 Conn. 265, 296, 8 A.3d 1093
[2017], cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003).
3
During the course of his employment with the police department, the
plaintiff suffered injuries to his lower back, both knees, left shoulder, left
hip, and both hands.
4
A form 30C is the document prescribed by the Workers’ Compensation
Commission to be used when filing a notice of claim pursuant to the Workers’
Compensation Act, General Statutes § 31-275 et seq.
5
Form 43 is titled: ‘‘Notice to Compensation Commissioner and Employee
of Intention to Contest Employee’s Right to Compensation Benefits.’’ It is
a disclaimer form used by an employer to contest liability to pay compensa-
tion to an employee for a claimed injury. Dubrosky v. Boehringer Intelheim
Corp., 145 Conn. App. 261, 265 n.6, 76 A.3d 657, cert. denied, 310 Conn. 935,
78 A.3d 859 (2013).
6
The defendants claimed that the plaintiff had refused reasonable and
necessary medical treatment, but the commissioner found that not to be
the case.
7
The defendants did not contest the awards for the plaintiff’s hypertension
and arrhythmia.
8
In Estate of Patrick L. Brooks, the deceased firefighter died on November
12, 2002, due to myocardial sarcoidosis. A cardiologist ‘‘testified that the
decedent did not have ‘heart disease,’ but systemic sarcoidosis that involved
multiple organs, one of which happened to be the heart. Sarcoidosis is a
collagen vascular illness that affects multiple parts of the body. As a result
of a secondary complication of sarcoidosis, nodules created electrical con-
duction problems in the decedent’s heart tissue, causing the organ to stop
functioning. [The cardiologist] explained that the analysis as similar to the
progress of metastasized cancer. Although the heart was the final common
pathway, as is often the case, the systemic illness of sarcoidosis caused the
decedent’s death.’’ Estate of Patrick L. Brooks v. West Hartford, supra, 4907
CRB-6-05-1.
9
In the conclusion of his brief on appeal, the plaintiff stated: ‘‘the commis-
sioner’s decision should be upheld in its entirety with statutory interest as
prescribed by statute.’’ The defendants responded in their reply brief, stating
that the plaintiff did not file a motion pursuant to General Statutes § 31-301
(f), the issue was not addressed by the commissioner, and was raised for
the first time on appeal. We decline to address the issue. See, e.g., Hummel
v. Marten Transportation, Ltd., 114 Conn. App. 822, 826, 970 A.2d 834
(commissioner entered § 31-301 [f] order), cert. denied, 293 Conn. 907, 978
A.2d 1109 (2009).