Staurovsky v. Milford Police Dept. ( 2016 )

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JAMES STAUROVSKY v. CITY OF MILFORD POLICE
DEPARTMENT ET AL.
(AC 37670)
DiPentima, C. J., and Gruendel and Keller, Js.*
Argued January 4—officially released March 29, 2016
(Appeal from the Workers’ Compensation Review
Board.)
Michael V. Vocalina, for the appellants (defendants).
David J. Morrissey, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendants, the city of Milford
Police Department (department) and its workers’ com-
pensation administrator, PMA Management Corp. of
New England, appeal from the decision of the Workers’
Compensation Review Board (board) affirming the
decision of the Workers’ Compensation Commissioner
for the Fourth District (commissioner) awarding heart
and hypertension benefits to the plaintiff, James Stauro-
vsky, pursuant to General Statutes (Rev. to 2011) § 7-
433c. On appeal, the defendants claim that the board
improperly determined that (1) the plaintiff’s claim was
commenced in a timely manner and (2) the plaintiff
had established a compensable claim for heart and
hypertension benefits on the facts of this case.1 We
agree with the defendants’ second claim and, accord-
ingly, reverse the decision of the board.
Relevant to this appeal are the following facts found
by the commissioner, as recounted in the board’s deci-
sion. When the plaintiff was hired by the department,
he passed a physical examination that did not reveal any
evidence of heart disease or hypertension. The plaintiff
thereafter ‘‘was employed by the [department] from
October 5, 1987 to February 17, 2012, when he retired
under a years of service pension. [His] last day of work
was February 2, 2012, and he utilized unused vacation
time to extend his service until February 17, 2012. On
February 13, 2012, he started a new job as a campus
police officer for Sacred Heart University. On February
24, 2012, the [plaintiff] sustained a myocardial
infarction2 while shoveling snow in his driveway. He
was transported to St. Vincent’s Hospital and had a
stent inserted, and later underwent bypass surgery on
April 9, 2012. The angiogram performed the day of the
myocardial infarction indicated the [plaintiff] had
severe coronary artery disease that affected four major
arteries. The [plaintiff] testified that during his career
with the [department] he had never been told by a
physician that he had heart disease or hypertension and
was not aware he had heart disease in January of 2012.
. . . He also testified that he had never been disabled
from working during his career with the [department]
due to heart disease or hypertension.
‘‘The [plaintiff’s] cardiologist testified via a deposi-
tion. Dr. Victor Mejia testified that the [plaintiff’s] coro-
nary artery disease was a chronic disease that
developed over a period of years. The [plaintiff] suffered
from heart disease not only on the date of his myocar-
dial infarction but also on January 30, 2012, his claimed
date of injury. Dr. Mejia opined that it was reasonably
medically probable that the percentage of the [plain-
tiff’s] blockages had not changed dramatically after the
date the [plaintiff] left his employment with the [depart-
ment], as it was reasonable and probable the disease
developed over a period of years. The [plaintiff’s] heart
disease was a substantial factor in his myocardial
infarction, as was the stress of snow shoveling. Dr.
Mejia was unaware of any symptom of coronary artery
disease present in the [plaintiff] before February 24,
2012. Dr. Mejia opined, based on his diagnosis of the
[plaintiff], that the [plaintiff] qualified for a disability
rating to his heart as of January, 2012; but had no evi-
dence that the [plaintiff’s] heart functioning was
impaired at all in January, 2012.
‘‘The [plaintiff] testified that he had concerns as to
possibly having coronary artery disease in 2003, as it
runs in his family. After discussion with a primary care
doctor, the [plaintiff] was examined by Dr. Clifford
Kramer, a cardiologist, on July 28, 2003. Dr. Kramer
reported recommending a diet and exercise program
for the [plaintiff], finding his lipid profile acceptable,
and directed that the [plaintiff] undergo a stress test.
The [plaintiff] underwent a stress test on August 19,
2003, that Dr. Kramer read as ‘clinically and electrocar-
diographically negative.’ . . .
‘‘Based on these facts, the [commissioner] concluded
in the Findings and Orders issued January 6, 2014, that
the [plaintiff] was credible and persuasive. She found he
was neither diagnosed nor treated for coronary artery
disease until February 24, 2012, [and] therefore the
notice of claim for § 7-433c . . . was filed in a timely
manner. . . . The commissioner concluded [that] Dr.
Mejia was credible and persuasive except for his opin-
ion that the [plaintiff] qualified for a disability rating
for his heart in January, 2012. . . . In the January Find-
ings and Orders, in Conclusion, [paragraph] E, the [com-
missioner] concluded that in order to receive benefits
under § 7-433c . . . the [plaintiff’s] heart condition and
the resulting disability had to be suffered while he was
a member of the [department]. She concluded that while
the [plaintiff’s] disease was present while he was a
member of the [department], he did not sustain any
disability from that condition until he left [its] employ.
Since he had not been disabled while employed by the
[department], the commissioner concluded he did not
meet the statutory requirements for an award under
§ 7-433c . . . .
‘‘Both parties filed postjudgment motions subsequent
to the January 6, 2014 Findings and Orders. The [plain-
tiff] filed a motion for reconsideration on January 15,
2014, asserting that the [commissioner] had improperly
applied the law in the present case, and that, pursuant
to Arborio v. Windham Police Dept., [103 Conn. App.
172, 928 A.2d 616 (2007)] the [plaintiff] need not sustain
a disability while a police officer or firefighter to have
a viable claim for § 7-433c . . . benefits; rather that the
[plaintiff] need only sustain an injury and file a claim
within one year of that event. The [defendants] filed an
objection to the motion for reconsideration, but on April
7, 2014, the [commissioner] issued Amended Findings
and Orders incorporating the [plaintiff’s] bid for relief.
In particular, the commissioner removed Conclusion,
[paragraph] E from the prior Findings and Orders and
replaced [it] with the following conclusions:
‘‘G. The [plaintiff] suffered a condition or impairment
of health due to heart disease on January 30, 2012. . . .
‘‘H. The [plaintiff’s] longstanding heart disease was
a significant contributing factor in causing his heart
attack.
‘‘I. Despite the fact that the [plaintiff] was not disabled
from his work as a police officer with the [department]
due to his coronary artery disease (or due to the Febru-
ary 24, 2012 myocardial infarction) in January, 2012, he
had developed a condition during his tenure as a police
officer with the [department] that could spawn a claim
for monetary benefits in the future.
‘‘J. While proof of a disability is a prerequisite to the
actual collection of benefits, one need not be disabled
before being required to notify one’s employer of an
accidental injury and to file a claim within one year of
that injury.
‘‘K. The [plaintiff] is entitled to all benefits under [§]
7-433c, subject to the lawful limitations of [General
Statutes §] 7-433b.
‘‘The [defendants] filed a motion to correct seeking
findings that the [plaintiff] had been advised in 2003 as
to coronary artery disease and had been directed to
make lifestyle changes. The [motion] also sought to add
a conclusion that since the [plaintiff] had a statutory
obligation to file a § 7-433c . . . claim in 2003 . . . the
present claim was jurisdictionally untimely and should
be dismissed. The [commissioner] denied this motion
in its entirety . . . .’’ (Citation omitted; footnotes
omitted.)
The defendants thereafter filed a petition for review
of the commissioner’s decision with the board. The
board conducted a hearing on that petition on Septem-
ber 26, 2014. In its subsequent decision, the board
affirmed the decision of the commissioner in all
respects, and this appeal followed.
As a preliminary matter, we note that ‘‘[t]he principles
that govern our standard of review in workers’ compen-
sation appeals are well established. . . . The board sits
as an appellate tribunal reviewing the decision of the
commissioner. . . . [T]he review . . . of an appeal
from the commissioner is not a de novo hearing of the
facts. . . . [T]he power and duty of determining the
facts rests on the commissioner . . . . [T]he commis-
sioner is the sole arbiter of the weight of the evidence
and the credibility of witnesses. . . . Where the subor-
dinate facts allow for diverse inferences, the commis-
sioner’s selection of the inference to be drawn must
stand unless it is based on an incorrect application of
the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . .
‘‘This court’s review of decisions of the board is simi-
larly limited. . . . The conclusions drawn by [the com-
missioner] from the facts found must stand unless they
result from an incorrect application of the law to the
subordinate facts or from an inference illegally or unrea-
sonably drawn from them. . . . [W]e must interpret
[the commissioner’s finding] with the goal of sustaining
that conclusion in light of all of the other supporting
evidence. . . . Once the commissioner makes a factual
finding, [we are] bound by that finding if there is evi-
dence in the record to support it.’’ (Internal quotation
marks omitted.) Baron v. Genlyte Thomas Group, LLC,
132 Conn. App. 794, 799–800, 34 A.3d 423, cert. denied,
303 Conn. 939, 37 A.3d 155 (2012).
At the same time, ‘‘[c]ases that present pure questions
of law . . . invoke a broader standard of review than
is ordinarily involved in deciding whether, in light of
the evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion. . . . We
have determined, therefore, that the traditional defer-
ence accorded to an agency’s interpretation of a statu-
tory term is unwarranted when the construction of a
statute . . . has not previously been subjected to judi-
cial scrutiny [or to] . . . a governmental agency’s time-
tested interpretation . . . .’’ (Internal quotation marks
omitted.) Chambers v. Electric Boat Corp., 283 Conn.
840, 844, 930 A.2d 653 (2007). Our review in such
instances is plenary. Id.I
Because it implicates the jurisdiction of the commis-
sioner to entertain the plaintiff’s claim, we first address
the defendants’ contention that the board incorrectly
determined that the plaintiff commenced his claim for
heart disease and hypertension benefits in a timely man-
ner. By contrast, the plaintiff submits that the board’s
determination properly adhered to the precedent of this
state’s appellate courts. We agree with the plaintiff.
Under Connecticut law, claims for heart disease and
hypertension benefits filed pursuant to § 7-433c3 are
subject to the one year limitation period set forth in
General Statutes § 31-294c (a). Ciarlelli v. Hamden, 299
Conn. 265, 278, 8 A.3d 1093 (2010). Section 31-294c (a)
provides in relevant part that ‘‘[n]o proceedings for
compensation under the provisions of this chapter shall
be maintained unless a written notice of claim for com-
pensation is given within one year from the date of the
accident . . . which caused the personal injury
. . . .’’ Failure to comply therewith deprives the com-
missioner of subject matter jurisdiction over a claim.
See, e.g., Izikson v. Protein Science Corp., 156 Conn.
App. 700, 708, 115 A.3d 55 (2015); Wikander v. Asbury
Automotive Group/David McDavid Acura, 137 Conn.
App. 665, 670, 50 A.3d 901 (2012).
As this court recently observed, ‘‘[i]n Ciarlelli, our
Supreme Court clarified the standard for assessing
when the one year limitation period provided by § 31-
294c (a) begins to run for claims filed pursuant to § 7-
433c. . . . [O]ur Supreme Court held that this . . .
one year limitation period begins to run only when the
plaintiff is informed by a medical professional that he
or she has been diagnosed with hypertension. . . . Our
Supreme Court concluded by stating that, although the
issue of when the one year limitation period pursuant
to § 31-294c begins to run remains a question of fact
for the trial commissioner, evidence that an employee
merely knew of past elevated blood pressure readings,
or was advised by his or her physician to make certain
lifestyle changes in response thereto, is not sufficient
to trigger the limitation period in the absence of evi-
dence that the employee formally had been diagnosed
with hypertension by a medical professional and
advised of that diagnosis. . . . Our Supreme Court
stated in a footnote that this standard is not so inflexible
as to require a finding in all cases that the medical
professional used the term hypertension in communi-
cating the diagnosis to the employee. . . . Thus, in
essence, our Supreme Court adopted a totality of the
circumstances test that puts substance before form
when determining whether a plaintiff had been diag-
nosed with hypertension as opposed to having been
put on notice that he had high blood pressure readings.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) Conroy v. Stamford, 161 Conn.
App. 691, 703–704, 129 A.3d 137 (2015), cert. denied,
320 Conn. 917, A3d (2016).
In cases subsequent to Ciarlelli, our appellate courts
have applied that interpretation of § 31-294c (a). For
example, in Roohr v. Cromwell, 302 Conn. 767, 771,
31 A.3d 360 (2011), the Supreme Court affirmed the
dismissal of a plaintiff’s claim for § 7-433c benefits
because the record substantiated the commissioner’s
finding that ‘‘the plaintiff was, in fact, diagnosed with
hypertension and informed of that diagnosis more than
one year before he filed his claim . . . .’’
Particularly pertinent to the present appeal is Conroy
v. Stamford, supra, 161 Conn. App. 691. In that case, the
commissioner determined that ‘‘because the [plaintiff]
was not formally diagnosed with hypertension until Jan-
uary 6, 2012 . . . [his] notice of claim for benefits pur-
suant to § 7-433c . . . dated April 9, 2012, was
therefore timely.’’ (Internal quotation marks omitted.)
Id., 700. On appeal, the defendant argued that the com-
missioner ‘‘should have concluded that the one year
limitation period for filing a claim under § 7-433c began
to run on January 30, 2008, when [his primary care
physician] gave the plaintiff the option of taking medica-
tion for his high blood pressure.’’ Id., 701. This court
disagreed with that contention, stating in relevant part
that the primary care physician ‘‘testified in his deposi-
tion . . . that he did not diagnose the plaintiff with
hypertension during the January 30, 2008 visit. . . .
Although the defendant argues that the mere fact that
[the primary care physician] offered the plaintiff the
option of going on medication during his January 30,
2008 visit strongly suggests that the plaintiff received
a diagnosis of hypertension, we conclude that [the pri-
mary care physician’s] offer of the medication option
to the plaintiff was not tantamount to a diagnosis of
hypertension for purposes of §§ 31-294c (a) and 7-433c.
. . . [O]ur review of the totality of the circumstances
surrounding the plaintiff’s January 30, 2008 visit does
not support the conclusion that he received a formal
diagnosis of hypertension during that visit. The plaintiff
was merely offered the option of going on medication
as opposed to being prescribed medication during that
visit. When this evidence is coupled with evidence that
(1) [the primary care physician] told the plaintiff that
he was ‘in pretty good shape’ during that same visit,
(2) the plaintiff lowered his blood pressure readings to
normal levels through diet and exercise shortly after
that visit, (3) the plaintiff’s March 21, 2008 echocardio-
gram results were not indicative of hypertension, and
(4) no other medical professional diagnosed the plaintiff
with hypertension prior to January 6, 2012, we are left
with the firm conviction that the board’s affirmance of
the trial commissioner’s finding that the plaintiff was
not formally diagnosed with hypertension until January
6, 2012, was proper.’’ (Citations omitted; emphasis omit-
ted.) Id., 706–708.
That precedent is dispositive of the defendants’ claim.
Although the plaintiff in the present case consulted with
a cardiologist in 2003, due to concerns about his family’s
history of coronary artery disease, that cardiologist did
not inform him of a heart disease or hypertension diag-
nosis. See Ciarlelli v. Hamden, supra, 299 Conn. 300.
To the contrary, the cardiologist informed the plaintiff
that his lipid profile was acceptable and that the results
of a stress test were ‘‘clinically and electrocardiographi-
cally negative.’’ Although it is undisputed that the
cardiologist at that time recommended a diet and exer-
cise program for the plaintiff, our Supreme Court in
Ciarlelli emphasized that ‘‘evidence that an employee
merely knew of past elevated blood pressure readings,
or was advised by his or her physician to make certain
lifestyle changes in response thereto, is not sufficient
to trigger the limitation period in the absence of evi-
dence that the employee formally had been diagnosed
with hypertension by a medical professional and
advised of that diagnosis.’’ Ciarlelli v. Hamden, supra,
301. In the present case, the plaintiff testified that the
cardiologist never diagnosed him with any heart related
ailment. The commissioner expressly credited that tes-
timony, as was her exclusive prerogative as the trier
of fact. See Ayna v. Graebel/CT Movers, Inc., 133 Conn.
App. 65, 71, 33 A.3d 832 (commissioner possesses sole
discretion to determine credibility of witnesses), cert.
denied, 304 Conn. 905, 38 A.3d 1201 (2012); Mele v.
Hartford, 118 Conn. App. 104, 107, 983 A.2d 277 (2009)
(commissioner is sole arbiter of weight of evidence and
credibility of witnesses). Furthermore, unlike Roohr v.
Cromwell, supra, 302 Conn. 770, there is no testimonial
or documentary evidence in the record indicating that
the cardiologist apprised the plaintiff of such a diagno-
sis. Accordingly, we conclude that the totality of the
circumstances surrounding his 2003 consultation with
that cardiologist does not support the conclusion that
the plaintiff received a heart disease or hypertension
diagnosis at that time.
Rather, the relevant findings of the commissioner,
which are substantiated by the evidentiary record
before us, indicate that the plaintiff first was informed
of such a diagnosis on February 24, 2012. On that date,
the plaintiff suffered a myocardial infarction and had
an angiogram performed, which confirmed that he had
severe coronary artery disease affecting four major
arteries. Because the plaintiff filed his form 30C4 less
than one month later, it was timely under § 31-294c.
The defendants’ jurisdictional challenge, therefore,
fails.
II
The defendants also claim that the board improperly
affirmed the commissioner’s conclusion that the plain-
tiff had established a compensable claim under § 7-
433c. Specifically, they maintain that the plaintiff is
ineligible for heart disease and hypertension benefits
because he did not suffer ‘‘any condition or impairment
of [his] health caused by hypertension or heart disease,’’
as that language is used in § 7-433c, during the course
of his employment with the department. Our analysis
of the defendants’ claim is twofold in nature. We first
review the relevant law regarding compensability under
§ 7-433c. We then apply that law to the commissioner’s
ultimate conclusion, expressed in her April 7, 2014
Amended Findings and Orders, that the plaintiff ‘‘suf-
fered a condition or impairment of health due to heart
disease’’ while employed as a police officer with the
department.
A
In claiming that the plaintiff has not established a
compensable claim under § 7-433c, the defendants sub-
mit that the plaintiff is ineligible for heart disease and
hypertension benefits because he did not suffer ‘‘any
condition or impairment of [his] health caused by hyper-
tension or heart disease’’ while employed by the depart-
ment. The defendants thus contend that this case is
controlled by Gorman v. Waterbury, 4 Conn. App. 226,
231–33, 493 A.2d 286 (1985), which held that the exis-
tence of heart disease or hypertension alone does not
satisfy the statutory requirements of § 7-433c. In
response, the plaintiff argues that this court has over-
ruled that precedent sub silentio.
Before considering the vitality of Gorman, some addi-
tional context is necessary. ‘‘The statute concerning
heart disease and hypertension was originally drafted
as part of the Workers’ Compensation Act [General
Statutes § 31-275 et seq.] and provided police officers
and firefighters with a rebuttable presumption that
heart disease and hypertension were causally con-
nected to their occupations. . . . In 1969, this rebutta-
ble presumption was made conclusive and the statute
was soon declared unconstitutional [by our Supreme
Court]. . . . In response to that problem, § 7-433c was
enacted in its present form in 1977 as legislation sepa-
rate and distinct from the Workers’ Compensation Act.’’
(Citations omitted.) Zaleta v. Fairfield, 38 Conn. App.
1, 7, 658 A.2d 166, cert. denied, 234 Conn. 917, 661 A.2d
98 (1995).
Section § 7-433c (a) provides in relevant part that ‘‘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 examina-
tion 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 hyperten-
sion 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 medi-
cal care in the same amount and the same manner as
that provided under chapter 568 . . . .’’ (Emphasis
added.)
As our Supreme Court has explained, § 7-433c pro-
vides ‘‘special compensation to qualifying policemen
and firemen who die or become disabled as a result
of hypertension or heart disease.’’ (Internal quotation
marks omitted.) Chambers v. Electric Boat Corp.,
supra, 283 Conn. 858 n.11. The statute ‘‘was enacted
for the purpose of placing policemen who die or are
disabled as a result of hypertension or heart disease in
the same position vis-a-vis compensation benefits as
policemen who die or are disabled as a result of service
related injuries.’’ (Internal quotation marks omitted.)
Lambert v. Bridgeport, 204 Conn. 563, 566–67, 529 A.2d
184 (1987). The statute thus permits ‘‘firefighters and
police officers . . . who suffer from heart disease or
hypertension outside the line of duty to collect benefits
in the same manner as those who are injured in the
line of duty.’’ Zaleta v. Fairfield, supra, 38 Conn. App.
5–6. Accordingly, under § 7-433c, ‘‘the claimant is not
required to prove that the heart disease is causally con-
nected to [his or her] employment, which he [or she]
would ordinarily have to establish in order to receive
benefits pursuant to the Workers’ Compensation Act.’’
(Internal quotation marks omitted.) Carter v. Clinton,
304 Conn. 571, 578, 41 A.3d 296 (2012); see also Bakelaar
v. West Haven, 193 Conn. 59, 68–69, 475 A.2d 283 (1984)
(§ 7-433c ‘‘confers benefits to qualifying claimants for
impairments sustained ‘either off duty or on duty,’ with-
out proof that the condition arose out of and in the
course of employment’’). Rather, ‘‘[i]n order to collect
the benefits provided by § 7-433c, a claimant [must
establish] that he or she is a uniformed member of a
paid fire department or a regular member of a paid
police department, whose preemployment physical
examination revealed no evidence of hypertension or
heart disease, who now suffers a condition or an impair-
ment of health caused by hypertension or heart disease
that has resulted in death or disability, and has suffered
a resultant economic loss.’’ Zaleta v. Fairfield, supra, 5.
1
This case concerns the applicability of that special
compensation statute to a claimant who does not suffer
any impairment caused by hypertension or heart dis-
ease while employed as a police officer that results
in death or disability, but rather first suffers such an
impairment following his retirement from the police
department. Although numerous are the appellate deci-
sions addressing § 7-433c, almost all involve claimants
who suffered an injury or impairment attributable to
heart disease or hypertension during the course of their
employment as police officers or firefighters. See, e.g.,
Ciarlelli v. Hamden, supra, 299 Conn. 269–70 (claimant
placed on ‘‘prescription antihypertensive medication’’
due to ‘‘abnormally high’’ blood pressure months prior
to retirement); Marone v. Waterbury, 244 Conn. 1, 4,
707 A.2d 725 (1998) (claimant received hypertension
diagnosis and ‘‘10 percent disability [rating] of his car-
diovascular system’’ prior to retirement); Hyatt v. Mil-
ford, 224 Conn. 441, 443 n.2, 619 A.2d 450 (1993)
(claimant ‘‘was a uniformed fire fighter for the city
of Milford at the time he incurred his disability’’ who
‘‘subsequently retired’’); Lambert v. Bridgeport, supra,
204 Conn. 565 (claimant ‘‘suffered a heart attack, which
disabled him from performing his duties as a patrol
officer’’ months prior to retirement). Those decisions,
therefore, are inapposite to the present case.
Our research reveals only one instance in which the
distinct issue before us has been presented to, and
decided by, an appellate court of this state.5 In Gorman
v. Waterbury, supra, 4 Conn. App. 230, the plaintiff’s
husband ‘‘was employed for many years as a regular
uniformed member of the Waterbury police depart-
ment. He passed a pre-employment physical examina-
tion which revealed no evidence of heart disease or
hypertension. He retired on October 30, 1971, primarily
due to his failing vision. He suffered from a hypertensive
condition from 1967 until his death, which occurred on
September 7, 1972, due to heart disease.’’ Significantly,
‘‘[t]he hypertension did not have any disabling effects
on [the plaintiff’s husband] during his tenure as a police
officer.’’ Id. For that reason, when the plaintiff sought
benefits under § 7-433c following his passing, the com-
missioner denied that request ‘‘because the death of
her husband due to heart disease, which was the basis
of the claim, occurred when he was no longer a police
officer.’’ Id.
On appeal to this court, the plaintiff argued that ‘‘to
qualify for benefits under [§ 7-433c], only the condition
of hypertension or heart disease need be suffered while
on duty or off duty by a regular member of a police
department.’’ Id., 231. Put differently, the plaintiff’s posi-
tion was that the statute required only the existence
of hypertension or heart disease during her husband’s
employment as a police officer, and not the manifesta-
tion of a condition or impairment caused by hyperten-
sion or heart disease that resulted in death or disability
during that time. This court rejected that argument,
stating: ‘‘Under this argument, the employee’s death or
disability resulting from hypertension or heart disease
need not occur while he is employed as a regular police
officer, but can occur after termination of that employ-
ment. A fair reading of the statute, however, reveals
that both the condition of hypertension or heart disease
and the death or disability resulting from such a condi-
tion must be suffered while the individual was on or
off duty as a regular member of a police or fire depart-
ment. . . . [Section § 7-433c] provides benefits to qual-
ified police and fire department members because these
individuals are more susceptible to the types of ailments
denoted. . . . It is intended to place these employees
in the same compensation position as those who are
injured in the line of duty. . . . Unlike a police officer
on active status, the plaintiff’s husband could not have
been injured in the line of duty because he was retired,
and the statute could not have intended to grant benefits
to him as if he had been so injured. The statute contem-
plates that a recipient of its benefits be an active, not
retired, member of a paid municipal police or fire
department or the dependent of such an active mem-
ber.’’ (Citations omitted; emphasis in original.) Id.,
231–32.
For that reason, this court concluded that ‘‘[t]he plain-
tiff’s husband did not meet the eligibility requirements
of the statute. He suffered hypertension while he was a
regular member of a paid municipal police department,
fulfilling part of the statutory requirements. He did not,
however, die or suffer any disability from the hyperten-
sive condition while so employed, as the statute further
requires. Under these facts, the plaintiff’s husband was
not entitled to benefits under [§] 7-433c . . . .’’ (Foot-
note omitted.) Id., 233.
Gorman thus instructs that proof of heart disease or
hypertension during a claimant’s period of employment
as a police officer or firefighter alone is insufficient to
satisfy the statutory criteria of § 7-433c. Rather, to qual-
ify for benefits pursuant to § 7-433c, the claimant must
establish the existence of a ‘‘condition or impairment of
health caused by hypertension or heart disease’’ during
that time period, which results in the claimant’s death
or disability, as the plain language of § 7-433c requires.6
As our Supreme Court has noted, ‘‘case law dictates
that we should be especially wary of overturning a
decision that involves the construction of a statute.
. . . When we construe a statute, we act not as plenary
lawgivers but as surrogates for another policy maker,
[that is] the legislature. In our role as surrogates, our
only responsibility is to determine what the legislature,
within constitutional limits, intended to do. Sometimes,
when we have made such a determination, the legisla-
ture instructs us that we have misconstrued its inten-
tions. We are bound by the instructions so provided.
. . . More often, however, the legislature takes no fur-
ther action to clarify its intentions. Time and again, we
have characterized the failure of the legislature to take
corrective action as manifesting the legislature’s acqui-
escence in our construction of a statute. . . . Once an
appropriate interval to permit legislative reconsidera-
tion has passed without corrective legislative action,
the inference of legislative acquiescence places a signifi-
cant jurisprudential limitation on our own authority to
reconsider the merits of our earlier decision.’’ (Internal
quotation marks omitted.) Hummel v. Marten Trans-
port, Ltd., 282 Conn. 477, 494–95, 923 A.2d 657 (2007);
see also McDonough v. Connecticut Bank & Trust Co.,
204 Conn. 104, 119, 527 A.2d 664 (1987) (‘‘[w]e presume
that the legislature is aware of our interpretation of
a statute, and that its subsequent nonaction may be
understood as a validation of that interpretation’’).
That maxim informs our analysis in the present case.
Gorman was decided by this court more than thirty
years ago. Although our General Assembly has since
amended § 7-433c on multiple occasions; see, e.g., Pub-
lic Acts 2014, No. 14-122, § 72; Public Acts 1996, No.
96-230, § 2; Public Acts 1992, No. 92-81, § 1; it nonethe-
less has not taken any corrective action in response to
this court’s construction of the requirements of § 7-
433c in Gorman. We, therefore, must presume that the
legislature concurs with that construction. See Ciarlelli
v. Hamden, supra, 299 Conn. 284–85 n.12.
Furthermore, ‘‘it is axiomatic that one panel of this
court cannot overrule the precedent established by a
previous panel’s holding.’’ (Internal quotation marks
omitted.) Samuel v. Hartford, 154 Conn. App. 138, 144,
105 A.3d 333 (2014). As we often have stated, ‘‘this
court’s policy dictates that one panel should not, on its
own, reverse the ruling of a previous panel. The reversal
may be accomplished only if the appeal is heard en
banc.’’ (Internal quotation marks omitted.) Boccanfuso
v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208,
cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). ‘‘Pru-
dence, then, dictates that this panel decline to revisit’’
such requests. First Connecticut Capital, LLC v.
Homes of Westport, LLC, 112 Conn. App. 750, 759, 966
A.2d 239 (2009). We therefore refuse to disturb the
statutory construction set forth in Gorman.
2
The plaintiff nevertheless suggests that this court did
exactly that in Arborio v. Windham Police Dept., supra,103 Conn. App. 172.7 Before both the commissioner and
the board, the plaintiff successfully argued that Arborio
effectively overruled the construction of § 7-433c enun-
ciated in Gorman. That position, however, is predicated
on a faulty premise.
Whereas Gorman concerned an issue of compensa-
bility under § 7-433c, Arborio involved a jurisdictional
question under § 31-294c (a)—how to properly measure
its one year time limitation in the context of a claim
for benefits under § 7-433c. In an earlier decision, this
court had held that the limitation period began to run
when the claimant learned of his elevated blood pres-
sure readings, rather than when he was diagnosed with
hypertension. Pearce v. New Haven, 76 Conn. App. 441,
449–50, 819 A.2d 878, cert. denied, 264 Conn. 913, 826
A.2d 1155 (2003). In Arborio, this court adhered to that
holding while concluding that the plaintiff’s knowledge
of high blood pressure readings and results of a stress
test at several office visits was insufficient to support
the conclusion that he had sustained an accidental
injury that required him to notify his employer and
to file a claim for benefits under § 7-433c. Arborio v.
Windham Police Dept., supra, 103 Conn. App. 186–88.
In our analysis, this court noted that ‘‘[c]ertainly, proof
of a disability is a prerequisite to the actual collection
of benefits, but one need not be disabled before being
required to notify one’s employer of an accidental injury
and to file a claim within one year of that injury.’’ Id.,
177. At the same time, this court also recognized that
a claimant ‘‘must have had some type of accidental
injury (not necessarily an immediately disabling injury)
before being required to file a claim.’’ (Emphasis
added.) Id., 187. As this court emphasized, ‘‘pursuant
to § 31-294c (a), the employee not only must notify his
employer of the accident, but he also must file a claim
for benefits within one year of the date of the accident.’’
Id., 178–79.
Arborio thus is consonant with Gorman, insofar as
those opinions both recognize that claimants must suf-
fer some impairment or injury during the course of their
employment as police officers or firefighters that result
from their hypertension or heart disease. Arborio
merely indicates that if a claimant suffers such impair-
ment, that injury need not ripen into a final disability
rating or death prior to the commencement of a claim
with the commissioner pursuant to § 31-294c. Accord
Hunt v. Naugatuck, 273 Conn. 97, 99, 105, 868 A.2d 54(2005) (although plaintiff sustained impairment during
course of employment as police officer in that he was
‘‘placed . . . on a prescription medication to control
his hypertension’’ following ‘‘abnormally high’’ blood
pressure readings, ‘‘the plaintiff was not seeking an
award of specific monetary benefits when he filed his
[notice of claim pursuant to § 31-294c] because his
hypertension had not ripened into a partial or total
disability’’); Black v. London & Egazarian Associates,
Inc., 30 Conn. App. 295, 303, 620 A.2d 176 (‘‘[t]he pur-
pose of § 31-294 . . . is to alert the employer to the
fact that a person has sustained an injury that may be
compensable . . . and that such person is claiming or
proposes to claim compensation’’ [citation omitted;
emphasis altered; internal quotation marks omitted]),
cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993).
Arborio did not resolve an issue of compensability
under § 7-433c; it simply determined, as a jurisdictional
matter, that ‘‘the commissioner’s determination that the
plaintiff’s claim was untimely is not supported by the
commissioner’s factual findings’’; Arborio v. Windham
Police Dept., supra, 103 Conn. App. 185; and therefore
remanded the matter to the board ‘‘with direction to
reverse the determination of the commissioner and to
remand the case to the commissioner for further pro-
ceedings in accordance with law.’’8 Id., 188.
What distinguishes Gorman from Arborio—and
other cases in which claimants were deemed eligible
for heart disease and hypertension benefits under § 7-
433c—is the undisputed fact that, during his period of
employment as a police officer, Gorman did not experi-
ence any impairment of health attributable to his hyper-
tension. See Gorman v. Waterbury, supra, 4 Conn. App.
230. That is precisely the situation presented in the case
before us.
B
We therefore turn our attention to the commissioner’s
ultimate determination that the plaintiff ‘‘suffered a con-
dition or impairment of health due to heart disease on
January 30, 2012.’’ We conclude that this determination
lacks evidentiary support in the administrative record
and results from an incorrect application of the law
to the subordinate facts found. See Baron v. Genlyte
Thomas Group, LLC, supra, 132 Conn. App. 799–800.
In her original findings and orders dated January 6,
2014, the commissioner credited the plaintiff’s testi-
mony that ‘‘he was never disabled from working for the
city of Milford during his time with the [department]
due to heart disease or hypertension.’’ The commis-
sioner also credited Mejia’s testimony that the plaintiff
‘‘suffered from heart disease not only on the date of
his myocardial infarction, February 24, 2012, but also
on January 30, 2012, his claimed date of injury’’; that
he ‘‘is not aware of any symptom of coronary artery
disease present in the [plaintiff] before February 24,
2012’’; and that he ‘‘has no evidence that the [plaintiff’s]
heart functioning was impaired at all in January, 2012.’’
The commissioner thus concluded that although the
plaintiff ‘‘suffered coronary artery disease while he was
a regular member of the [department],’’ he ‘‘did not
suffer any disability from that condition while so
employed, as [§ 7-433c] requires.’’
Following the filing of the plaintiff’s motion for recon-
sideration, in which the plaintiff relied principally on
this court’s decision in Arborio, the commissioner on
April 7, 2014, entered her Amended Findings and
Orders. Those amended findings incorporated by refer-
ence her previous findings (1) that the plaintiff was
never disabled from working for the city of Milford
during his time with the department due to heart disease
or hypertension; (2) that Mejia was not aware of any
symptom of heart disease present in the plaintiff prior
to February 24, 2012; and (3) that Mejia had no evidence
that the plaintiff’s heart functioning was impaired at all
in January, 2012. Those findings all are substantiated by
the administrative record before us. The commissioner
nevertheless vacated her earlier finding that the plaintiff
did not suffer any impairment caused by his heart dis-
ease while employed by the department. Instead, she
concluded that the plaintiff ‘‘suffered a condition or
impairment of health due to heart disease on January
30, 2012.’’
For two reasons, we conclude that this finding cannot
stand. First, it lacks evidential support in the administra-
tive record before us. Although Mejia testified, and the
commissioner so found, that the plaintiff had heart dis-
ease in January, 2012, prior to his February 17, 2012
retirement, there simply is no evidence in the record
indicating that the plaintiff suffered ‘‘any condition or
impairment of health caused by’’ his heart disease that
has resulted in death or disability while employed as a
police officer, as § 7-433c plainly requires. The plaintiff
testified at the March 20, 2013 hearing before the com-
missioner that he never suffered any disability and
never had any heart issues or complaints during his
tenure with the department. Mejia, the plaintiff’s
cardiologist, likewise testified at his June 19, 2013 depo-
sition, which was admitted as an exhibit before the
commissioner, that he had no knowledge that the plain-
tiff possessed any symptoms of coronary artery disease
prior to February 24, 2012, and further that he did not
have any evidence that the functioning of the plaintiff’s
heart was impaired in any manner prior to his retire-
ment from the department. For those reasons, the com-
missioner found, in both her January 6, 2014 and April
7, 2014 decisions, that neither the plaintiff nor Mejia
was aware of any impairment of the plaintiff’s heart
prior to his February 24, 2012 heart attack. Those find-
ings directly contradict the commissioner’s ultimate
conclusion that the plaintiff ‘‘suffered a condition or
impairment of health’’ on January 30, 2012, that was
caused by his heart disease. The administrative record
in this case is bereft of evidence to substantiate that
determination.
Second, the commissioner’s ultimate conclusion, and
the board’s subsequent affirmance thereof, suffers the
same infirmity as the position advanced by the plaintiff
widow in Gorman, insofar as it presumes that the exis-
tence of heart disease itself is sufficient to satisfy the
statutory imperative of § 7-433c that a claimant demon-
strate that he or she suffered a ‘‘condition or impairment
of health caused by hypertension or heart disease’’ that
resulted in death or disability while employed as a
municipal firefighter or police officer. That presump-
tion is contrary to Connecticut law, as established in
Gorman, which held that the existence of heart disease
or hypertension alone does not satisfy the statutory
requirements of § 7-433c. Gorman v. Waterbury, supra,
4 Conn. App. 231–33.
In neither the proceedings before the commissioner
nor this appeal has the plaintiff claimed that he suffered
any condition or impairment of health caused by his
heart disease that has resulted in death or disability
during his tenure as a police officer with the depart-
ment.9 Furthermore, the administrative record before
us lacks any evidence so indicating. That record instead
indicates that the plaintiff first suffered an impairment
of health caused by his heart disease on February 24,
2012, when he suffered a heart attack while shoveling
snow. That impairment arose after the plaintiff had
retired from his employment as a police officer with
the department. Bound by the precedent set in Gorman,
we therefore conclude that the board improperly
affirmed the commissioner’s determination that the
plaintiff had established a compensable claim for heart
disease and hypertension benefits pursuant to §7-433c.
The decision of the Workers’ Compensation Review
Board is reversed and the case is remanded to the board
with direction to sustain the defendants’ appeal.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendants also claim that the board improperly affirmed the com-
missioner’s denial of their February 14, 2014 and April 21, 2014 motions to
correct. We need not address that contention in light of our resolution of
the defendants’ second claim.
2
‘‘Myocardial infarction is a synonym for heart attack . . . .’’ Doyle v.
Kamm, 133 Conn. App. 25, 37 n.8, 35 A.3d 308 (2012).
3
Titled ‘‘Benefits for policemen or firemen disabled or dead as a result
of hypertension or heart disease,’’ General Statutes (Rev. to 2011) § 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 retire-
ment 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 as provided 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.’’
In 2014, our General Assembly amended the last sentence of subsection
(a) of § 7-433c, which now provides: ‘‘As used in this section, ‘municipal
employer’ has the same meaning as provided in section 7-467.’’ That technical
revision has no bearing on the issues presented in this appeal.
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.].’’ (Internal quotation
marks omitted.) Lamar v. Boehringer Ingelheim Corp., 138 Conn. App. 826,
828 n.3, 54 A.3d 1040, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).
5
The plaintiff has provided this court with no authority in which a claimant
has been deemed eligible for heart disease and hypertension benefits pursu-
ant to § 7-433c when the ‘‘condition or impairment of health caused by
hypertension or heart disease’’ first arose subsequent to the claimant’s retire-
ment from the police or fire department.
6
Had the court in Gorman accepted the plaintiff’s contention that the
existence of hypertension or heart disease itself constituted the impairment
required under § 7-433c, it would have contravened the ‘‘basic tenet of
statutory construction that the legislature [does] not intend to enact mean-
ingless provisions. . . . [I]n construing statutes, we presume that there is
a purpose behind every sentence, clause, or phrase used in an act and that
no part of a statute is superfluous. . . . Because [e]very word and phrase [of
a statute] is presumed to have meaning . . . [a statute] must be construed, if
possible, such that no clause, sentence or word shall be superfluous, void
or insignificant.’’ (Internal quotation marks omitted.) Fairchild Heights,
Inc. v. Dickal, 305 Conn. 488, 500, 45 A.3d 627 (2012). The General Assembly,
in establishing the criteria for heart disease and hypertension benefits in
§ 7-433c, did not simply state that police officers or firefighters who suffer
from hypertension or heart disease qualify for such benefits. Rather, our
legislature specifically provided that a police officer or firefighter must
suffer ‘‘either off duty or on duty any condition or impairment of health
caused by hypertension or heart disease resulting in his death or his tempo-
rary or permanent, total or partial disability . . . .’’ (Emphasis added.) Gen-
eral Statutes § 7-433c; cf. Malchik v. Division of Criminal Justice, 266
Conn. 728, 740, 835 A.2d 940 (2003) (in enacting § 7-433c, legislature intended
‘‘to afford the named occupations with a bonus . . . when, under the appro-
priate conditions, the employee suffered heart disease or hypertension’’
[emphasis added]). In rejecting the plaintiff’s contention, the court in Gor-
man thus gave effect to every word in that statutory provision.
7
The plaintiff also suggests that our Supreme Court ratified Arborio’s
alleged disavowal of Gorman in Ciarlelli v. Hamden, supra, 299 Conn. 278.
That assertion is untenable. The distinct question presented in Ciarlelli was
‘‘when the one year limitation period of [§] 31-294c (a) begins to run on a
claim for hypertension benefits under [§] 7-433c.’’ (Footnote omitted.) Id.,
267. In answering that question, our Supreme Court expressly abrogated
the standards set forth in Arborio and Pearce v. New Haven, 76 Conn. App.
441, 449, 819 A.2d 878, cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003),
and instead held that ‘‘a formal diagnosis of hypertension or heart disease,
communicated to an employee by his or her physician, constitutes the ‘injury’
that triggers the running of the limitation period of § 31-294c.’’ Ciarlelli v.
Hamden, supra, 299. Although the court acknowledged that this court in
Arborio opined that a claimant need only demonstrate an injury or manifesta-
tion resulting from heart disease or hypertension during the course of his
or her employment, and not proof of disability at that time; id., 293–94; our
Supreme Court did not weigh in on that particular issue. Indeed, no such
issue was raised in Ciarlelli. Put simply, Ciarlelli concerned reviewability
under § 31-294c, and not compensability under § 7-433c.
8
‘‘It is axiomatic that an appellate decision stands only for those issues
presented to, and considered by, the court in that particular appeal.’’ Dept.
of Public Safety v. Freedom of Information Commission, 103 Conn. App.
571, 582 n.10, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007);
see also Valeriano v. Bronson, 209 Conn. 75, 91, 546 A.2d 1380 (1988)
(‘‘discussion in a judicial opinion that goes beyond the facts involved in the
issues is mere dictum and does not have the force of precedent’’). The
distinct issue of whether a claimant, who suffers no condition or impairment
of health caused by hypertension or heart disease until after retiring from
the fire or police department, may recover benefits under § 7-433c was
neither raised by the parties nor decided by the court in Arborio, Ciarlelli,
or any other appellate decision of this state other than Gorman.
9
At oral argument before this court, the plaintiff’s counsel conceded that
the plaintiff ‘‘never had any indication of any kind of coronary problems’’
while he was employed as a police officer with the department. Instead, he
stated that the plaintiff’s heart disease ‘‘did not manifest itself’’ until after
he retired.