THOMAS J. BROCUGLIO, SR. v. THOMPSONVILLE FIRE DISTRICT #2
AC 41237
Appellate Court of Connecticut
June 25, 2019
DiPentima, C. J., and Lavine and Harper, Js.
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Syllabus
The defendant employer appealed to this court from the decision of the Compensation Review Board, which affirmed the decision of the Workers’ Compensation Commissioner that the plaintiff employee‘s claim for benefits as a result of heart disease was compensable under the Heart and Hypertension Act (
Argued March 6—officially released June 25, 2019
Procedural History
Appeal from the decision of the Workers’ Compensation Commissioner for the First District finding that the plaintiff had sustained a compensable injury and awarding, inter alia, temporary total disability benefits; thereafter, the cоmmissioner denied the defendant‘s motion to correct and issued an articulation of her decision; subsequently, the defendant appealed to the Compensation Review Board, which affirmed the commissioner‘s decision, and the defendant appealed to this court. Reversed; decision directed.
Eric W. Chester, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendant, the Thompsonville Fire District #2, appeals from the decision of the Compensation Review Board (board) affirming the finding and award (award) of the Workers’ Compensation Commissioner for the First District (commissioner) with respect to the 2013 claim filed by the plaintiff, Thomas J. Brocuglio, Sr., pursuant to
The present appeal may be summarized as follows. The plaintiff, a qualified firefighter employed by the defendant, filed a claim for heart disease under
The following relevant facts were set out in the commissioner‘s award issued subsequent to a formal hearing that she held on October 1 and 29, 2015. The plaintiff has been a full-time firefighter employed by the defendant since September 3, 1987. Prior to his employment with the defendant, the plaintiff passed a preemployment physical examination that was a condition of his employment. On or about June 19, 2013, the plaintiff felt weak, tired, out of breath, and had difficulty walking up stairs. He consulted his primary care physician, Melissa A. Hession, who later issued a report stating that “[o]n June 11, 2013, [the plaintiff] presented to my office with a lingering cough and new heart murmur on exam. He was sent for an echocardiogram on June 19, 2013, which revealed severe mitral regurgitation with a flail posterior mitrаl valve leaflet. He subse-
quently underwent emergency surgery to repair the damaged heart valve.”
When William Martinez, a cardiothoracic surgeon, performed surgery on the plaintiff on July 3, 2013, he replaced the mitral valve and performed a single coronary bypass procedure. The plaintiff was discharged from Saint Francis Hospital and Medical Center in Hartford and next treated at the Hospital for Special Care in New Britain for postsurgical care from July 15 to 31, 2013. John I. Baron, the plaintiff‘s cardiologist, treated the plaintiff for postoperative complications related to the surgery and diagnosed the plaintiff as totally disabled until April 21, 2014, when he released the plaintiff to return to work. Despite Baron‘s having released the plaintiff to return to work, the defendant required the plaintiff to be seen by its own physician for a “‘fitness for duty examination.‘”
The commissioner also found that the plaintiff completed a form 30C4 and delivered it to the defendant on September 10,
The commissioner found that the plaintiff, in discussing his medical history at the formal hearing, testified that he had been diagnosed with “constrictive pericarditis”7 in November, 2000, for which he was treated by James B. Kirchhoffer, a cardiologist. According to the plaintiff, he was out of work for a few days, but he could not remember how many days. He was released to return to full-duty work, but before he was able to return to work, the defendant required that he undergo a fitness for duty examination. The plaintiff used his sick days to cover the time he was out of work. The plaintiff sought a second opinion about his pericarditis and treatment from Baron in September, 2001.8 Baron was still the plaintiff‘s cardiologist at the time of the formal heаring.
The plaintiff testified that he delivered a form 30C for the pericarditis to the defendant‘s then fire chief, but he could not recall the chief‘s name. He did not request a hearing on his alleged pericarditis claim. He further testified that he never discussed it again with the chief, and that he did not keep a copy of the form 30C for his records. The commissioner found that there is no record in the workers’ compensation system of a claim filed by the plaintiff for an injury to his heart in or about November, 2000.9 Acting Fire Chief William
plaintiff did not testify credibly or persuasively that he had filed a form 30C for pericarditis in 2000.
Kevin J. Tally, a cardiologist, examined the plaintiff on behalf of the commissioner on January 21, 2015, and submitted a report. Tally diagnosed the plaintiff with a distant history of pericarditis, with one recurrence, healed and of historical interest only as of 2013; acute posterior leaflet mitral valve prolapse with resultant pulmonary edema status postmitral valve replacement with bioprosthesis, July 3, 2013, currently with normal valve function; nonischemic cardiomyopathy postopen heart surgery, “LVEF of 45 percent,” currently out of congestive heart; postpericardiotomy syndrome, resolved; sternal wound pain, chronic; and coronary artery disease, among other heart issues.
Tally also wrote: “The cause of [the plaintiff‘s] mitral valve deterioration is presumably on the basis of an inherent weakness in the mitral valve. It is somewhat spontaneous and unpredictable. The patient‘s single vessel moderate coronary artery disease has a causative [input:] his hypertension, occasional smoking, obesity and lack of regular exercise. The distant history of pericarditis is most likely from a viral illness of sоme sort. This pericarditis represents a completely separate episode of heart disease.” (Emphasis added.) On the basis of Tally‘s report, the commissioner found that the plaintiff “suffered a completely different type of heart disease in 2013. The mitral valve replacement and the coronary artery bypass are different medical problems from the distant and resolved pericarditis of 2000.” (Internal quotation marks omitted.)
At the hearing, the defendant‘s counsel argued that
On the basis of her findings, the commissioner concluded that Tally‘s report of January 21, 2015, was persuasive, in particular his opinion that pericarditis was a completely separate episode of heart disease and that the plaintiff had not suffered from pericarditis in several years. Hypertension and heart disease are two separate and distinct conditions. According to Tally, pericarditis, and mitral valve replacement and coronary artery disease, are separate and distinct conditions. The commissioner found, therefore, that the plaintiff had suffered an injury to his heart and had made a claim for benefits pursuant to
cluded that the plaintiff‘s claim for benefits due to his heart injury of June 19, 2013, is compensable pursuant to
The defendant filed a motion to correct, seeking to have the commissioner add a conclusion that the plaintiff was told by his cardiologist that he had heart disease in the form of pericаrditis in or around November, 2000. It also requested that the commissioner delete certain of her findings
On June 10, 2016, the defendant filed a motion for articulation, seeking to have the commissioner articulate the authority for the proposition that
In her articulation, the commissioner stated in relevant part: “In McNerney v. New Haven, [15 Conn. Workers’ Comp. Rev. Op. 330, 2098 CRB-3-94-7 (June 25, 1996)],10 the [board] affirmed the . . . commissioner‘s finding that [the plaintiff], having been cured of his hypertension diagnosed in 1975, was entitled to file a new claim for hypertension in 1991. The . . . commissioner had found [that] the claimant had cured his 1975 hypertension through diet and lifestyle changes. The . . . commissioner further found the 1991 hypertension to be a new injury and not a recurrence. . . .
filed a timely claim for his distant and resolved and healed pericarditis did not bar a new claim for mitral valve prolapse and coronary artery disease.” (Internal quotation marks omitted.)
Thereafter, the defendant appealed to the board, which affirmed the commissioner‘s finding in a decision dated December 21, 2017. The board stated that the gravamen of the defendant‘s appeal was the commissioner‘s finding that the plaintiff‘s claim was timely pursuant to
The board recognized the defendant‘s claim that McNerney is no longer good law subsequent to our Supreme Court‘s decision in Ciarlelli v. Hamden, 299 Conn. 265, 296-98, 8 A.3d 1093 (2010). The board, however, concluded that Ciarlelli and Malchik v. Division of Criminal Justice, 266 Conn. 728, 733, 835 A.2d 940 (2003) (determining whether claimant presented sufficient evidence that his coronary artery disease was occupational disease), a case on which the plaintiff relied, were distinguishable from the present case. The board concluded that under Holston, the commissioner properly concluded that the plaintiff‘s 2013 claim for heart disease was timely filed because the mitral valve ailment was separate from and unrelated to the plaintiff‘s prior pericarditis heart disease. More specifically, the board stated that it is the role of the “commissioner to determine whether an ailment is or is not ‘heart disease.’ We extend this reasoning to the role of a trial commissioner in determining whether a ‘new’ heart disease is similar to or different from a prior heart disease. If the new heart disease can be distinguished from the prior disease, then the holding of Holston [v. New Haven Police Dept., supra, 323 Conn. 607], renders the subsequent claim jurisdictionally valid.” This is because, the board reasoned, the undisputed medical evidence supported the commissioner‘s determination that the mitral valve ailment was a new injury. The defendant appealed from the board‘s decision affirming the commissioner‘s finding that the plaintiff‘s
The question presented in the present case is whether the plaintiff failed to meet the jurisdictional prerequisite for his 2013 claim for heart disease because he failed to file a claim within one year of being told by a medical professional that he suffered from pericarditis in 2000,
which is unrelated to the mitral valve failure and coronary heart disease he suffered in 2013. Our research has not disclosed a case that has decided the question, and the parties have not brought any case concerning multiple instances or different forms of heart disease to our attention.11 ”
Our Supreme Court has stated that an “agency‘s reasonable interpretation of an ambiguous statute is entitled to deference only when that interpretation has been subjected to judicial review or the agency interpretation is both reasonable and time-tested.” Vincent v. New Haven, 285 Conn. 778, 784 n.8, 941 A.2d 932 (2008). “To satisfy the time-tested requirement of the rule according deference to an agency‘s interpretation of a statute, that interpretation must formally have been articulated and applied over a long period of time . . . .” (Internal quotation marks omitted.) Id. Our Supreme Court has concluded that ”
We, of course, are “mindful of the principles underlying Connecticut practice in [workers‘] compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose.” (Citation omitted; internal quotation marks omitted.) Suprenant v. New Britain, 28 Conn. App. 754, 759, 611 A.2d 941 (1992). Nonetheless, we also are aware that our construction of a statute is constrained by
“The statute concerning heart disease and hypertension was originally drafted as part of the Workers’ Compensation Act [act] [
. . . In 1969, this rebuttable presumption was made conclusive and the statute was soon declared unconstitutional . . . . In response to that problem,
“[Section] 7-433c gives a special compensation to those who qualify, in the sense that they have no burden of proof that the disease resulted from the employee‘s occupation or that it occurred in the course of employment. The mere fact that the employee has hypertension or heart disease
“Nevertheless, [our Supreme Court] has stated on many occasions that [t]he procedure for determining recovery under
“[A] claimant for workers’ compensation benefits must provide both notice of injury;
(overruled in part on other grounds by Ciarlelli v. Hamden, 299 Conn. 265, 265, 296, 8 A.3d 1093 [2010]), cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003). Our Supreme Court has explained “that the one year limitation period for claims under
“Thus,
“Giving notice of the claim and the time of filing are essential to maintaining a right of action against an employer. Where a statutory right of action sets a time within which that right must be carried out, a limitation on the action is created and must be strictly enforced. . . . Not being merely a procedural matter, the doctrine of waiver upon which the claimant relies, cannot avail, since jurisdiction cannot be waived, nor can it be conferred by agreement.” (Citatiоns omitted; footnote added; internal quotation marks omitted.) Cuccuro v. West Haven, 6 Conn. App. 265, 267-68, 505 A.2d 1, cert. denied, 199 Conn. 804, 508 A.2d 31 (1986).
“Although a claimant need not prove that his heart disease is causally connected to his employment in order to qualify for benefits pursuant to
First, we set forth the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensa-
tion appeals are well established. The conclusiоns drawn by [the commissioner] 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 unreasonably drawn from them. . . . [Moreover, it] is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. . . . Cases that present pure questions of law, however, 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 . . . .” (Footnote omitted; internal quotation marks omitted.) Holston v. New Haven Police Dept., supra, 323 Conn. 611-13.
“[Our Supreme Court has] stated: [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him 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 unreasonably drawn from them.” (Internal quotation marks omitted.) Pearce v. New Haven, supra, 76 Conn. App. 445.
“It matters not that the basic facts from which the [commissioner] draws this inference are undisputed rather than controverted. . . . It is likewise immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is
The defendant‘s claim raises a question of statutory construction. “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 applies as well to the provisions of [§]
“When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning,
On appeal, the defendant claims that the plaintiff is jurisdictionally barred from submitting a claim for heart disease in 2013 because he failed to file a
The defendant‘s claim is controlled by
The plain language of
of a paid municipal fire department . . . is entitled to benefits under the statute when the officer meets the following requirements: (1) has passed a preemployment physical; (2) the preemployment physical failed to reveal any evidence of . . . heart disease; (3) suffers either off duty or on duty any condition or impairment of health; (4) the condition or impairment of health was caused by . . . heart disease; and (5) the condition or impairment results in his death or his temporary or permanent, total or partial disability. The statute contains no other requirements to qualify for its benefits.” Holston v. New Haven Police Dept., supra, 323 Conn. 616-17.
“[B]ecause . . .
In Ciarlelli, our Supreme Court defined the rule to determine when a uniformed municipal firefighter‘s timely claim for hypertension or heart disease must be filed. Id., 265. Because
In the present case, the defendant claims that because the plaintiff was diagnosed with pericarditis in 2000 and did not file a form 30C at that time when his cardiol-
ogist told him that he had heart disease, his 2013 form 30C filing for heart disease was untimеly and the commissioner lacked jurisdiction to consider the claim. The plaintiff does not dispute that he was informed by a cardiologist in 2000 that he suffered from pericarditis, that he was unable to work for a period of time, was required to take medicine for the condition,
The defendant also argues that the language of
“The prоcess of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply.” (Citation omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997). “Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction or a review of the legislative history.” (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 223, 640 A.2d 89 (1994). Our Supreme Court has determined that
Tally‘s report states that pericarditis, and mitral valve failure and coronary artery disease, are separate and distinct forms of heart disease. The defendant does not dispute his expert opinion. It argues that a claimant seeking heart disease benefits is required to file a claim for the first
Our Supreme Court has stated that “the plain language of
The plaintiff argues on the basis of Holston v. New Haven Police Dept., supra, 323 Conn. 615, that because our Supreme Court has determined that hypertension and heart disease are separate and distinct forms of disease, the separate and distinct language analysis should apply to all forms of heart disease, as well as to the difference between hypertension and heart disease. We disagree. In Holston, a municipal police department appealed from the award of heart disease benefits, claiming that the commissioner had improperly determined that the police officer‘s “hypertension and heart disease were separate diseases, each with its own one
year limitation period for filing a claim for benefits.” Id., 610. In construing the statute, our Supreme Court stated that
In conclusion, a claimant who forgoes filing a claim within one year of being informed by a medical professional that he or she has a heart disease and who later files a claim for a different heart disease is precluded from receiving benefits under
The decision of the Compensation Review Board is reversed and the case is remanded to the board with direction to remand the case to the Workers’ Compensation Commissioner with direction to dismiss the plaintiff‘s claim.
In this opinion the other judges concurred.