Ciarlelli v. TOWN OF HAMDEN
Ciarlelli v. TOWN OF HAMDEN
Opinion of the Court
Opinion
This appeal requires us to determine when the one year limitation period of General Statutes § 31-294c (a)
The record reveals the following undisputed facts and procedural history. The plaintiff was hired by the named defendant, the town of Hamden,
The plaintiff filed a notice of claim for hypertension benefits on May 20, 2004. A hearing on his claim was
The defendant introduced into evidence the deposition testimony of Martin Krauthamer, a cardiologist whom the defendant had retained to review the plaintiffs medical file. Krauthamer testified that, in his medical opinion, the plaintiff had documented hypertensive blood pressure readings in December, 2000, January, 2001, March, 2002, and March, 2003. On the basis of Krauthamer’s testimony, the commissioner dismissed the plaintiffs claim as untimely because the plaintiff had failed to file a notice of claim for benefits within one year of the hypertensive blood pressure readings identified by Krauthamer.
In his motion for articulation, the plaintiff sought an explanation of whether, for purposes of applying the one year limitation period of § 31-294c, the commissioner had considered the plaintiffs hypertension to be an “accidental injury [that] may be definitely located in time and place” or a “repetitive trauma” injury.
In response to the plaintiffs motion for articulation, the commissioner made the following articulation: “The
“The repeated elevated blood pressure readings between December, 2000, and March, 2003, makes the notice of claim in May, 2004, untimely because it is more than one year after the claim should have been filed.
“[Krauthamer’s] expert opinion as a cardiologist was acknowledged to verify the finding that the multiple, elevated blood pressure readings by . . . Monaco should have alerted the [plaintiff] to file a potential claim for hypertension benefits.”
The plaintiff appealed from the decision of the commissioner to the board, which, in a split decision, affirmed the commissioner’s decision. In so doing, the board surveyed the relevant case law pertaining to when a notice of claim under § 7-433c must be filed. The board acknowledged that its perspective on the issue had changed over time and that, until several years ago, a claimant generally was required to file a notice of claim only when the disease became “disabling,” which was defined by the need for medical care, including prescription medication. The board noted, however, that, in Pearce v. New Haven, 76 Conn. App. 441, 450, 819 A.2d 878, cert. denied, 264 Conn. 913, 826 A.2d 1155
In reaching its decision, the board rejected the plaintiffs claim that, for purposes of applying the one year limitation period of § 31-294c, hypertension is more properly classified as a repetitive trauma rather than an accidental injury, even though, as the plaintiff maintained, medical evidence demonstrates that high blood pressure conditions tend to evolve over time, often due to the aging process. In addressing this claim, the board first noted that no decision of this court or the Appellate Court ever had treated a claim for heart and hypertension benefits under § 7-433c as a claim for a repetitive trauma injury. The board further noted that the pla.iut.iff had not alleged any facts or presented any evidence to support a finding that his hypertension constituted a repetitive trauma injury. The board then explained that an award under § 7-433c, unlike benefits awarded under the Workers’ Compensation Act, General Statutes § 31-275 et seq., does not require proof of a causal connection between a claimant’s heart or hypertension condition and his or her employment. In contrast, a repetitive
One of the three members of the board in the present case, Commissioner Donald H. Doyle, dissented from the board’s decision. In his view, the evidence did not support a finding that the claimant had sufficient information prior to May, 2004, to put him on notice that his elevated blood pressure readings were symptoms of hypertension. Doyle reasoned that, even if the commissioner properly had concluded that Monaco possessed sufficient information to have diagnosed the
On appeal, the plaintiff renews his claim that hypertension should be treated as a repetitive trauma injury for purposes of applying the one year limitation period of § 31-294c. In the alternative, the plaintiff contends that, even if hypertension properly is treated as an accidental injury definitely located in time and place for purposes of § 31-294c, the board improperly concluded that the one year limitation period applicable to such injuries started to run when the plaintiff knew or should have known that he had symptoms of hypertension. The plaintiff maintains, rather, that, although a notice of claim for benefits under § 7-433c may be filed when symptoms of hypertension first appear, the limitation period does not begin to run until the claimant has been informed by a medical professional that he suffers from hypertension. We conclude that the board properly applied the one year limitation period for accidental injury definitely located in time and place to the plaintiffs claim. We further conclude, however, that that period did not begin to run until Monaco indicated to the plaintiff that he suffered from hypertension in May, 2004.
The following legal principles guide our analysis of the plaintiffs claims. “It is well settled that the ‘special compensation,’ or the ‘outright bonus,’ of § 7-433c ‘is that the claimant is not required to prove that the heart disease is causally connected 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.’ . . . The benefits provided under § 7-433c are, however, payable and administered under the Workers’ Compensation Act . . . and ‘the type and
“Cases 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, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial 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). There has been no prior judicial scrutiny or time-tested interpretation of § 31-294c with regard to when the statute of limitations begins to run on a claim brought pursuant to § 7-433c. Indeed, as we subsequently explain, until recently, the board construed § 31-294c as requiring notice of a claim only when the disease became disabling, rather than when a person knew or should have known that he had symptoms of the disease. “Accordingly, our statutory analysis accords no deference to the board’s interpretation . . . .” (Internal quotation marks omitted.) Id.
When interpreting the statutory provisions at issue in the present case, we are mindful of “the proposition that all workers’ compensation legislation, because of its remedial nature, should be broadly construed in favor of disabled employees. . . . This proposition
“When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. General Statutes § l-2z.” (Internal quotation marks omitted.) Chambers v. Electric Boat Corp., supra, 283 Conn. 844-45.
It is settled that, because General Statutes § 7-433c (a) does not set forth a limitation period for filing a claim but provides for the administration of benefits “in the same amount and the same manner as that provided under [the Workers’ Compensation Act] if such death or disability was caused by a personal injury which arose out of and in the course of his employment,” the one year limitation period of § 31-294c (a) governs claims filed under § 7-433c. General Statutes § 31-294c provides in relevant part: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational dis
The plaintiff never has claimed that his hypertension constitutes an occupational disease. Therefore, even though it is undisputed that the plaintiff was required to file his claim within one year of the time of injury, it is not clear whether hypertension should be treated as a traditional accidental injury or as a repetitive trauma injury and, in either case, what constitutes the date of injury for purposes of triggering the commencement of that one year period.
I
The plaintiff first claims that the board incorrectly concluded that his hypertension is an accidental injury definitely located in time and place, rather than a repetitive trauma injury, for purposes of applying the one year limitation period of § 31-294c. As we previously observed; see footnote 10 of this opinion; whether an injury is classified as accidental or as a repetitive trauma can be determinative of whether a claim is timely under § 31-294c. In the present case, although the plaintiff does not dispute that he failed to present evidence of a causal link between his hypertension and his employment, he contends that Malchik v. Division of Criminal Justice, 266 Conn. 728, 744-45, 835 A.2d 940 (2003), supports the conclusion that hypertension presumptively should be treated as a repetitive trauma injury for purposes of computing the limitation period of § 7-433c. We disagree with the plaintiffs reading of Malchik. Indeed, as we explain more fully hereinafter, Malchik supports the board’s determination that hypertension cannot be treated as a repetitive trauma injury under § 7-433c because it would require the commissioner to presume jurisdictional facts not in evidence, in contravention of §§ 31-294c and 7-433c and this court’s decisional law interpreting those statutory provisions.
The primary issue in Malchik was whether the board properly had affirmed the determination of the workers’ compensation commissioner for the second district that
With respect to the first claim, we concluded that, although “§§ 5-145a and 5-145c provide that hypertension or heart disease ‘shall be presumed to have been suffered in the performance of [the inspector’s] duty’ id., 738; “[t]hese rebuttable presumptions apply only to the question of causation . . . and not to the jurisdictional question of whether a disease is an occupational disease subject to the three year limitation period set forth in § 31-294c.” Id. We therefore reasoned that, to invoke the longer limitation period applicable to occupational diseases, Malchik was required to demonstrate
Significantly, for purposes of the present case, we supported our conclusion in Malchik by observing that a claimant is not entitled to a presumption that his heart disease constitutes an occupational disease for purposes of computing the limitation period under § 7-433c. See id., 740. In particular, we explained that, “with respect to both § 7-433c and §§ 5-145a and 5-145c, the underlying legislative purpose was social rather than medical. More specifically, the legislature’s intent [in enacting all three statutes] was to afford the named occupations with . . . [special compensation] when, under the appropriate conditions, the employee suffered heart disease or hypertension. See, e.g., Carriero v. Naugatuck, 243 Conn. 747, 754, 707 A.2d 706 (1998) (payments pursuant to § 7-433c constitute special compensation, or even an outright bonus, to qualifying policemen and firemen). That does not mean, however
Notably, in Malchik, this court did not deem it relevant, for purposes of determining the applicable limitation period, whether coronary artery disease was more like an occupational disease, a repetitive trauma injury or an accidental injury. Rather, the court looked to the definitions of those terms under the Workers’ Compensation Act, and we see no reason to deviate from that
In light of our conclusion that the board correctly determined that the one year limitation period of § 31-294c for an accidental injury definitely located in time and place applies to the plaintiffs claim under § 7-433c, we now must decide when that limitation period began to run. The plaintiff asserts that the board incorrectly concluded that he was required to bring his claim within one year from the date that he knew or should have known that he was suffering from “symptoms” of hypertension. The plaintiff contends, rather, that the board’s interpretation of § 31-294c, as applied to claims under § 7-433c, is incompatible with the language and import of § 7-433c, and that the one year limitation period started to run on the date that his physician, Monaco, informed him that he had hypertension. The plaintiff further contends that the board’s unduly restrictive interpretation of § 31-294c vests far too much discretion in the commissioner to determine when a claimant is deemed to have hypertension and that the approach that the board adopted has resulted in standardless decision making. According to the plaintiff, the board’s construction also has resulted in an “overwhelming” number of claims under § 7-433c being dismissed as untimely,
Although this court previously has not had occasion to consider how the date of injury is to be determined for purposes of ascertaining when the one year limitation period of § 31-294c begins to run on hypertension claims under § 7-433c, the Appellate Court has considered that issue in two recent cases, namely, Pearce v. New Haven, supra, 76 Conn. App. 441, and Arborio
In Pearce, the plaintiff, Francis Pearce, began working for the New Haven fire department in 1978 after successfully passing a preemployment physical examination that revealed no evidence of hypertension. Pearce v. New Haven, supra, 76 Conn. App. 442. In August, 1988, he began seeing Mark Kasper, Pearce’s family physician. Id. On August 16,1988, Pearce’s blood pressure was recorded three times, with readings of 180/94, 178/104 and 156/94. Id. At that time, Kasper informed Pearce that he had elevated blood pressure. Id.
For the next two years, Pearce saw Kasper on a regular basis. Id. At nearly every visit, Pearce registered elevated blood pressure readings, and Kasper discussed those readings with Pearce. Id. Kasper advised Pearce to make certain lifestyle changes and to monitor his blood pressure at home. Id. In 1990, Pearce stopped seeing Kasper and did not return for eight years. Id., 443. During that intervening period, in 1993, Pearce registered a blood pressure reading of 172/100. Id. In 1995, Kasper wrote a letter to Pearce asking him to return to his office because he was concerned about his blood pressure. Id. On October 15, 1998, Pearce formally was diagnosed with hypertension and was prescribed antihypertensive medication. Id. Shortly thereafter, he filed a notice of claim for hypertension benefits under § 7-433c, claiming a date of injury of October 15, 1998. Id. After a formal hearing, the workers’ compensation commissioner for the third district dismissed the claim as untimely because Pearce had not filed his claim within one year of the multiple, elevated blood pressure readings that he had registered between 1988 and 1990. See id., 444, 446.
Pearce then appealed to the Appellate Court, which affirmed the board’s decision. Pearce v. New Haven, supra, 76 Conn. App. 450. In so doing, the Appellate Court observed that the purpose of § 31-294c “is to inform the employer of [the] possibility of a claim for benefits being filed at a later time. . . . The employee need not be disabled at the time he or she files a notice that symptoms are being experienced related to hypertension or heart disease; the notice is required to alert the employer to a potential claim.” (Citation omitted.) Id., 449. The Appellate Court then concluded that “[Pearce had] failed to file a notice of injury or claim until 1998, despite having been repeatedly informed by his physician that his blood pressure readings, during 1988, 1989 and 1990, were elevated. Accordingly, the commissioner’s conclusion that the . . . claim for benefits was untimely reflected] a proper application of the law to the facts of [the] case.” Id., 450.
After Pearce, the board consistently applied the Appellate Court’s holding in that case for two propositions: (1) “[a] claimant with hypertensive symptoms is required to file a notice of claim when he is told [that] he has high blood pressure readings, even if he has not been placed on medication, lost time from work or
Thereafter, however, in Arborio, the Appellate Court implicitly called into question the continued viability of the standard that the board had applied in Pearce. In Arborio, the Appellate Court reversed the board’s decision upholding the dismissal of a claim for benefits under § 7-433c as untimely notwithstanding the finding of the commissioner that the plaintiff, Rick E. Arborio, had not filed a notice of claim within one year of the date that he became aware that he had symptoms of hypertension. Arborio v. Windham Police Dept., supra, 103 Conn. App. 183-88. The Appellate Court concluded
The facts of Arborio, which are very similar to the facts of the present case, are set forth in the opinion of the Appellate Court. “After passing a preemployment physical examination that disclosed no signs of hypertension or heart disease, [Arborio] began his employment with the . . . Windham police department on July 27, 1987. [Arborio] had an office visit with Edward S. Sawicki, his treating physician, on December 23, 1997, at which he had a blood pressure reading of [150/ 86], which Sawicki indicated was not alarming. When [Arborio] next visited Sawicki on April 17, 2000, his blood pressure readings were [146/90] and [140/94], and Sawicki noted the words ‘labile hypertension’ on [Arborio’s] chart. During a deposition related to [the] case, Sawicki testified that at the time of the April 17, 2000 office visit, [Arborio] was age fifty-one, two blood pressure checks done in the office had been ‘above 90,’ [Arborio’s] cholesterol was high in 1998 and, because of the increasing risk to his health, consideration was given to the ‘potential need to address the blood pressure readings with medication, and [Arborio] was told to obtain a blood pressure monitor to check his blood pressure at home.’ On May 17, 2001, [Arborio] had a blood pressure reading of [140/100] at another office visit with Sawicki, who made another chart notation of ‘labile hypertension’ and also noted that [Arborio] had an outside reading of [130/90]. Sawicki, at [that] time, became more serious about the possibility of having to treat [Arborio’s] blood pressure. Sawicki ordered
Thereafter, Arborio’s employer, the Windham police department, sought to have Arborio’s claim dismissed as untimely. On the basis of the foregoing facts, the commissioner dismissed the claim, finding in relevant part as follows: “As a result of the office visits of April 17, 2000, and May 17, 2001, which resulted in the scheduling of a stress test, [Arborio] was aware [that] he had elevated blood pressure and that he had a potential hypertension problem that may require medication. . . . [Arborio] did not file a notice of injury until April 21, 2003, despite having been informed by his physician that he had elevated blood pressure readings and had a potential problem [that could] require medication to control. . . . [Arborio’s] claim for benefits pursuant to § 7-433c . . . [was] untimely, and the workers’ compensation commission lack[ed] subject matter jurisdiction to consider [it].” (Internal quotation marks omitted.) Id., 184.
After the board upheld the dismissal of Arborio’s claim, Arborio appealed to the Appellate Court, which reversed the board’s decision on the ground that the commissioner’s factual findings, although supported by the record, did not support the legal conclusion that Arborio’s claim was untimely. Id., 187-88. The Appellate Court, however, first addressed Arborio’s contention that Pearce improperly had changed the law governing heart disease and hypertension claims by requiring employees to file a notice of claim before their hyperten
The Appellate Court then turned to Arborio’s contention that his claim improperly had been dismissed as untimely. The Appellate Court agreed with Arborio and explained: “Two office visits showing high blood pressure readings, a stress test and an employee’s awareness of those elevated readings and awareness that ‘he had a potential hypertension problem that may require medication’ simply are not sufficient to support the conclusion that [the employee] had an accidental injury that required him to notify his employer and to file a claim for benefits. The commissioner did not find that [Arborio] had hypertension but only that he had a potential hypertension problem. When an employee has an accidental injury, he is obligated to notify his employer and to file a claim for benefits within one year of that accidental injury. See General Statutes §§ 31-294b and 31-294c. This is true even when the employee is not seeking immediate benefits but simply is seeking to preserve his right to future benefits. . . . The employee, however, must have had some type of accidental injury (not necessarily an immediately disabling injury) before being required to file a claim. . . .
In both Pearce and Arborio, the board applied a standard that essentially authorizes workers’ compensation commissioners to accept a post hoc diagnosis of hypertension based on a claimant’s symptoms and then impute knowledge of that diagnosis retroactively to the claimant. We believe that such a standard is inconsistent with the meaning of accidental injury and our case law applying that principle, which “requires proof of an accidental injury which can be definitely located both as to time and place.” (Emphasis added.) Stier v. Derby, supra, 119 Conn. 49. Indeed, in the present case, Monaco, the plaintiffs physician, deemed the plaintiffs blood pressure readings prior to May, 2004, to be too inconsistent to render a definitive diagnosis of hypertension. The evidence presented to the commissioner also established that, prior to 2004, the majority of the plaintiffs blood pressure readings were either normal or borderline hypertensive. The commissioner concluded, nevertheless, on the basis of the testimony of Krauthamer, the defendant’s expert witness, that the plaintiffs claim was untimely because the plaintiffs medical records revealed “documented, elevated hypertensive blood pressure readings in 2000, 2001, 2002 and 2003.” Neither the commissioner nor Krauthamer, however, identified a date of injury, that is, a relatively discrete point in time at which the plaintiffs hypertension actually became manifest.
It is noteworthy that the board, in several of its earlier decisions, had concluded that the limitation period of § 31-294c begins to run on hypertension claims under § 7-433c only when the claimant’s hypertension becomes disabling, which, as we previously indicated,
We also agree with the plaintiff that the standard presently applied by the board places the intended beneficiaries of § 7-433c in the untenable position of having to diagnose themselves with hypertension, on the basis of their symptoms, or having to run the risk of losing benefits under that statute. Periodic, elevated blood pressure readings “may or may not be indicative of hypertension, depending on the circumstances.” (Internal quotation marks omitted.) Arborio v. Windham Police Dept., supra, 103 Conn. App. 187. Indeed, in the present case, the plaintiffs two highest blood pressure readings were recorded when he was sprayed with pepper spray at work and when he discovered a lump in his groin. Thus, this court’s recent observation concerning a claim for benefits for an occupational disease applies with equal force in the present case: “Most symptoms of disease are not peculiar to one disease alone and their recognition is [a] matter largely within the field of expert medical knowledge; when an
In light of the foregoing, we conclude that the one year limitation period for claims under § 7-433c begins to run only when an employee is informed by a medical professional that he or she has been diagnosed with hypertension. In many respects, this simply represents a return to the standard that the board applied prior to Pearce, which, in our view, more faithfully adhered to
The decision of the compensation review board is reversed and the case is remanded with direction to reverse the decision of the commissioner and to remand the case to the commissioner for further proceedings according to law.
In this opinion ROGERS, C. J., and NORCOTT and KATZ, Js., concurred.
General Statutes § 31-294c provides in relevant part: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . . .”
General Statutes § 7-433c provides in relevant part: “(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,
Chapter 568 of the General Statutes contains the Workers’ Compensation Act, General Statutes § 31-275 et seq. Thus, in accordance with § 7-433c, claims filed thereunder are governed by the procedures outlined in the Workers’ Compensation Act.
The plaintiff appealed to the Appellate Court from the decision of the compensation review board, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Connecticut Interlocal Risk Management Agency, the heart and hypertension administrator for the town of Hamden at all relevant times, also is a defendant. In the interest of simplicity, we hereinafter refer to the town of Hamden as the defendant.
According to the Mayo Foundation for Medical Education and Research, the latest blood pressure guidelines divide blood pressure measurements into four general categories: normal blood pressure, prehypertension, stage 1 hypertension and stage 2 hypertension. Blood pressure is normal if it is below 120/80 millimeters of mercury, where the first number is the systolic pressure, or the pressure in a person’s arteries when the heart beats, and where the second number is the diastolic pressure, or the pressure in a person’s arteries in between heartbeats. Prehypertension is a systolic pressure between 120 and 139 millimeters of mercury or a diastolic pressure between 80 and 89 millimeters of mercury. Stage 1 hypertension is a systolic pressure between 140 and 159 millimeters of mercury or a diastolic pressure between 90 and 99 millimeters of mercury. The most severe hypertension,
According to the record, the plaintiff registered the following additional blood pressure readings between November, 1996, and May, 2004, at various appointments with Monaco: 140/90 and 128/88 on November 6, 1996; 138/ 80 on February 25, 1998; 130/88 on February 15, 1999; 150/96 and 148/92 on December 11, 2000; 128/80 and 132/84 on December 18, 2000; 144/92 and 144/88 on January 22, 2001; 132/88 on March 26, 2001; 140/92 on March 25, 2002; 148/90 on September 25,2002; and 154/82 and 150/82 on March 24,2003.
Section 7-433c is commonly referred to as the Heart and Hypertension Act.
We note that, for purposes of the Workers’ Compensation Act, the term “personal injury” or the term “injury” “includes, in addition to accidental iiyury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” General Statutes § 31-275 (16) (A).
“[Section] 7-433c, as amended, was enacted in 1971 in response to Ducharme v. Putnam, [supra, 161 Conn. 135, in which] this court held that the conclusive presumption prescribed by General Statutes [Sup. 1969] § 7-433a was in contravention of the due process clauses of both the state and federal constitutions. Thereafter, the validity of § 7-433c was sustained in Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975).” Bakelaar v. West Haven, 193 Conn. 59, 67-68, 475 A.2d 283 (1984).
“In workers’ compensation cases the distinction between an accidental injury and one caused by repetitive trauma could be very important to the timeliness of a claim for benefits. Accidental injuries, not the result of repetitive trauma, are those injuries that may be definitely located as to the time when and the place where the accident occurred .... Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 613, 748 A.2d 278 (2000). By contrast, the process of injury from a repetitive trauma is ongoing until [the last date of exposure] . . . and, in many cases . . . the very nature of the injury will make it impossible to demarcate a specific date of injury. . . . Id.” (Internal quotation marks omitted.) Arborio v. Windham Police Dept., supra, 103 Conn. App. 173-74 n.2. As a consequence, the date of injury in a repetitive trauma case is deemed to be the last date of exposure to the circumstances causing the injury, which “often coincides with” the claimant’s last date of employment. Malchik. v. Division of Criminal Justice, 266 Conn. 728, 745, 835 A.2d 940 (2003).
General Statutes § 31-275 (15) defines “occupational disease” as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
We readily acknowledge that even an accidental injury definitely located in time and place requires some proof of a causal connection to employment because the injury must “arise out of and in the course of the claimant’s employment.” Birnie v. Electric Boat Corp., 288 Conn. 392, 407, 953 A.2d 28 (2008). Because, however, such an injury requires the least causal proof under the Workers’ Compensation Act, by necessity, it has come to serve as the default category for § 7-433c claims, which, as we previously explained, require no proof of causation. When the legislature enacted § 7-433c in 1971, it directed that benefits under the provision be awarded in the same amount and in the same manner as those awarded under the Workers’ Compensation Act. See Public Acts 1971, No. 524, § 1. The legislature did not specify, however, what limitation period set forth in the Workers’ Compensation Act — that is, the limitation period for occupational disease, for repetitive trauma injury or for accidental injury definitely located in time and place— applies to claims under § 7-433c. Of course, if the legislature disagrees with our conclusion concerning the applicability of the limitation period governing accidental injuries definitely located in time and place, it is perfectly free to clarify its intent in that regard.
We note that Justice Zarella, in his concurrence, contends that we should overrule our long-standing precedent interpreting § 7-433c as containing a notice requirement; see, e.g., Collins v. West Haven, 210 Conn. 423, 430, 555 A.2d 981 (1989); because (1) “nothing in ... § 7-433c requires that notice of hypertension or heart disease be given to the municipal employer within a specified period of time in order for a claimant to receive compensation,” and (2) “the notion that hypertension or heart disease is an ‘accidental injury’ is absurd and contrary to common medical knowledge . . . .” Although we might agree with Justice Zarella if we were writing on a clean slate, we are not. Indeed, neither party has claimed that we should overrule the prior precedent of this court with which Justice Zarella disagrees, and in the absence of such a request, fundamental fairness to the parties dictates that we not do so sua sponte. See, e.g., Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (2007) (“We long have held that, in the absence of a question relating to subject matter jurisdiction, [an] [ajppellate [c]ourt may not reach out and decide a case before it on a basis that the parties never have raised or briefed. ... To do otherwise would deprive the parties of an opportunity to present arguments regarding those issues.” [Citations omitted.]). Even if a party had requested that we overrule that prior precedent, however, we disagree that § 7-433c is not reasonably susceptible of the interpretation that this court previously has adopted. As we previously indicated, General Statutes § 7-433c provides that compensation shall be provided thereunder “in the same amount and the same manner as that provided under [the Workers’ Compensation Act] ...” In light of this language, it is not unreasonable to conclude that the legislature intended
The plaintiff nevertheless contends that “[ijnherent” in our analysis in Malchik is “the recognition that application of the repetitive trauma analysis is appropriate in heart and hypertension claim[s]” brought pursuant to §§ 5-145a and 5-145c and, therefore, by extension, to claims brought pursuant to § 7-433c. We never have suggested, however, that a repetitive trauma
In several cases, the board upheld the dismissal of claims under § 7-433c as untimely because the claimant in each case failed to file a claim within one year of having a series of elevated blood pressure readings or other symptoms associated with hypertension even though the claimant’s physician never diagnosed the claimant with or discussed hypertension, or there was at least a factual dispute about whether the claimant’s physician informed the claimant that he had hypertension. See Wabno v. Derby, No. 5283 CRB-4-07-20 (September 12, 2008); Thompson v. New Canaan, No.
It is true, of course, that the workers’ compensation statutes are remedial in nature and, therefore, should be construed generously to accomplish their humanitarian purpose. E.g., Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 265, 927 A.2d 811 (2007). “Although an award of benefits under § 7-433c is a workfers’] compensation award in the sense that its benefits are payable and proeedurally administered under the Workfers’] Compensation Act. . . [it] is not a workfers’] compensation award because it requires no proof of eligibility or liability under the Workfers’] Compensation Act.” (Emphasis in original; internal quotation marks omitted.) Bergeson v. New London, 269 Conn. 763, 772, 850 A.2d 184 (2004). Nevertheless, even though an award under § 7-433c does not constitute an award under the Workers’ Compensation Act, this court previously has characterized § 7-433c as remedial in nature. See, e.g., Costello v. Fairfield, 214 Conn. 189, 194, 571 A.2d 93 (1990); cf. Szudora v. Fairfield, supra, 214 Conn. 557-58.
The Appellate Court also defended Pearce against Arborio’s claim that Pearce had “confused occupational disease and repetitive trauma-accidental injury by requiring a repetitive trauma-accidental injury claimant to file a claim for benefits at the first manifestation of a symptom of high blood pressure.” (Internal quotation marks omitted.) Arborio v. Windham Police Dept., supra, 103 Conn. App. 175. The Appellate Court explained that the
Indeed, in Pearce, the board affirmed the decision of the workers’ compensation commissioner for the third district even though, as the board explained, the commissioner had applied an incorrect legal standard in concluding that Pearce’s claim was untimely. Pearce v. New Haven, supra, No. 4385 CRB-03-01-5. Specifically, the board explained that, in determining whether Pearce had satisfied the jurisdictional requirements of § 31-294c, the commissioner mistakenly had applied the standard pertaining to a commissioner’s determination of whether a preemployment physical examination has revealed “any evidence” of heart disease or hypertension. As we previously indicated, and as the board explained in Leary v. Stamford, No. 3280 CRB-7-96-3 (September 17, 1997), “[§] 7-433c allows uniformed members of municipal fire and police departments who suffer health impairments due to hypertension or heart disease to collect compensation identical to that provided by [the Workers’ Compensation Act], provided that upon entry into service, they have passed a physical examination that failed to reveal any evidence of hypertension or heart disease. The meaning of [§ 7-433c] is clear and unambiguous. . . . [T]he physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of § 7-433c. ... A claimant not only has to pass a pre-employment physical to invoke this [so-called] bonus compen
“The determination of whether a physical examination revealed any evidence of hypertension or heart disease is a factual issue committed to the trier’s sound discretion.” (Citations omitted; internal quotation marks omitted.) In Pearce, however, the commissioner applied the standard discussed in Leary as the standard for determining when the limitation period had begun to run on Pearce’s claim. See Pearce v. New Haven, supra, No. 4385 CRB-03-01-5. Thus, the commissioner in Pearce examined Pearce’s medical record for “any evidence of hypertension”; (internal quotation marks omitted) id.; and concluded that Pearce’s earliest, elevated blood pressure readings between 1988 and 1990 constituted such evidence, thus triggering the commencement of the limitation period on his claim under § 7-433c.
Notwithstanding the commissioner’s error, the board affirmed the commissioner’s dismissal of Pearce’s claim as untimely, thereby placing its imprimatur on the commissioner’s conclusion that the determination of when a claimant’s hypertension constitutes an injury, like the determination of whether a preemployment examination had revealed any evidence of hypertension, is a factual question committed to the broad discretion of the fact finder. In support of its conclusion, the board in Pearce cited Elumba v. Stamford, No. 4084 CRB-7-99-07 (August 10, 2000), and Zalot v. Bristol, No. 4256 CRB-6-00-6 (March 16, 2001). In each of those cases, however, as the board in Pearce noted, the workers’ compensation commissioner had refused to dismiss a hypertension claim under § 7-433c in light of § 31-294c even though the claimant’s medical file indicated that he previously had been prescribed antihypertensive medication more than one year before the filing of a notice of claim. In declining to dismiss the claims, the commissioner in each case had found that previous, isolated elevated blood pressure readings in combination with numerous normal readings did not indicate that the claimant was suffering from hypertension. See Zalot v. Bristol, supra, No. 4256 CRB-6-00-6; Elumba v. Stamford, supra, No. 4084 CRB-7-99-07; see also Pearce v. New Haven, supra, No. 4385 CRB-03-01-5. The board in Pearce reasoned, nevertheless, that, if the workers’ compensation commissioners in Elumba and Zalot had discretion to ignore the fact that the physicians in those cases previously had prescribed the claimants antihy-pertensive medication in finding that their claims fell within the one year limitation period applicable to § 7-433c, then, logically, the commissioner in Pearce had discretion to ignore the fact that Pearce previously had not been diagnosed with hypertension in determining when that limitation period began to run on his claim. Pearce v. New Haven, supra, No. 4385 CRB-03-01-5.
Of course, this standard is not so inflexible as to require a finding in all cases that the medical professional used the term “hypertension” in communicating the diagnosis to the employee. For example, evidence that an employee was prescribed antihypertensive medication for the treatment of high blood pressure related to hypertension, and not some other illness, likely would support a finding that the employee formally had been diagnosed with hypertension and knew, or should have known, of that diagnosis.
Concurring Opinion
concurring. I agree with the result reached by the majority. I write separately, however, because, in my view, nothing in General Statutes § 7-433c
Section 7-433c (a) provides in relevant part: “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
In my view, the plain meaning of § 7-433c unequivocally directs municipal employers to pay compensation and to provide medical care to qualified claimants whenever such claimants suffer “any condition or impairment of health caused by hypertension or heart disease resulting in . . . death or . . . temporary or permanent, total or partial disability . . . .” Indeed, we have previously stated that “[t]he mere fact that a fireman or policeman has hypertension or heart disease and dies or is disabled as a result thereof qualifies him or his dependents for benefits under this section.” Plainville v. Travelers Indemnity Co., 178 Conn. 664,
It appears that ora case law in this area was first led astray in Janco v. Fairfield, 39 Conn. Sup. 403, 404-405, 466 A.2d 1 (1983), in which the plaintiff police officer filed a notice of claim with the workers’ compensation commissioner (commissioner) for benefits under § 7-433c nearly three years after he became disabled due to heart disease. After a hearing, the commissioner awarded the plaintiff compensation. Id., 405. The town of Fairfield appealed to the compensation review board which affirmed the award. Id. The town then appealed the board’s decision to the Appellate Session of the Superior Court claiming that the plaintiff was barred from recovering benefits under § 7-433c because he did not comply with the notice provisions contained in General Statutes § 31-294, which is now codified at § 31-294c. Id. The plaintiff responded that although § 7-433c provides that municipal employers must pay eligible firemen and policemen “ ‘compensation and medical care in the same amount and the same manner as that provided under [the act],’ ” the term “manner,” as used in that statute, modifies “compensation and medical care” and, therefore, “refers solely to the types of benefits applicable to a given claim and the method of payment.” (Emphasis in original.) Id. Accordingly, the plaintiff claimed that entitlement to compensation under § 7-433c was not conditioned on compliance with the notice requirements of the act. The court disagreed and concluded that the reference to chapter 568 contained in § 7-433c required that claims brought pursuant to § 7-433c comply with the procedural mandates of the act, including the notice provisions contained in § 31-294. Id., 405^06.
In my view, the court in Janeo misinterpreted § 7-433c. I agree with the plaintiff in that case that the term “same manner,” as used in § 7-433c, modifies “compen
See footnote 2 of the majority opinion for the full text of the relevant portions of § 7-433c.
General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury .... Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident . . . and the name and address of the employee and of the person in whose interest compensation is claimed. ...”
Pursuant to General Statutes § 31-275 (16) (A), an accidental injury is an “injury that may be definitely located as to the time when and the place where the accident occurred . . . .”
The majority misconstrues § 7-433c in the same manner as the court in Janeo did. According to the majority, it is not unreasonable to conclude that the legislature intended for § 7-433c to comply with the act’s notice provisions on the basis of language in the statute mandating that compensation shall be paid “in the same amount and the same manner as that provided under [the act] . ...” I disagree for several reasons.
First, as set forth in this concurring opinion, there is no express directive in § 7-433c requiring claimants to comply with the notice provisions under the act. Rather, the legislature has provided that claims for compensation under § 7-433c (a) shall be paid “[notwithstanding any provision of chapter 568 ... to the contrary . . . .”
Second, “when a statute includes no express statute of limitations, [this court] should not simply assume that there is no limitation period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon.” Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007); see also 51 Am. Jur. 2d 533, Limitation of Actions § 129 (2000) (“When a statute includes no express statute of limitations, the court does not assume that there are no time limits; instead, it borrows the most suitable statute or other rule of timeliness .... The nature of the cause of action or of the right sued upon is the test by which to determine which statute of limitations applies and whether the action is barred by the running of the limitation period. Thus, for an action under a state statute that lacks an express limitations period, the courts look to analogous causes of action for which express limitations periods are available, either by statute or by case law.”). This means that claims under § 7-433c are subject to a statute of limitations determined by reference to other provisions for disability benefits under title 7 of the General Statutes, such as General Statutes § 7-432, which
Finally, it is unclear why the majority thinks that the legislature intended to place claims under § 7-433c on the same footing as claims under the act in light of this court’s repeated statements that “an award of benefits under § 7-433c is not a workers’ compensation award . . . .” (Emphasis added.) Genesky v. East Lyme, 275 Conn. 246, 252 n.9, 881 A.2d 114 (2005). Indeed, the benefits at issue are not included in the act, but, rather, are contained in part II of title 7 of the General Statutes, which concerns the retirement benefits of municipal employees. Accordingly, there is no reason for this court to assume that the legislature intended to place claims brought pursuant to § 7-433c on equal footing with claims brought pursuant to the act because, had the legislature intended to do so, it would have included such benefits expressly within the act. See Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 729, 6 A.3d 763 (2010) (legislature knows how to convey its intent expressly).
Reference
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