Staurovsky v. City of Milford Police Dep't

164 Conn.App. 182

134 A.3d 1263

James STAUROVSKY

v.CITY OF MILFORD POLICE DEPARTMENT et al.

No. 37670.

Appellate Court of Connecticut.

Argued Jan. 4, 2016.

Decided March 29, 2016.

Michael V. Vocalina, for the appellants (defendants).

David J. Morrissey, Naugatuck, for the appellee (plaintiff).

DiPENTIMA, C.J., and GRUENDEL and KELLER, Js.^*

GRUENDEL, J.

The defendants, the city of Milford Police Department (department) and its workers' compensation 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 Staurovsky, 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, accordingly, reverse the decision of the board.

Relevant to this appeal are the following facts found by the commissioner, as recounted in the board's decision. 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 deposition. Dr. Victor Mejia testified that the [plaintiff's] coronary 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 myocardial 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 [plaintiff's] blockages had not changed dramatically after the date the [plaintiff] left his employment with the [department], 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 evidence 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 electrocardiographically 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 opinion that the [plaintiff] qualified for a disability rating for his heart in January, 2012.... In the January Findings and Orders, in Conclusion, [paragraph] E, the [commissioner] 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 [plaintiff] 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 February 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 September 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' compensation 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 commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses.... Where the subordinate facts allow for diverse inferences, the commissioner'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 similarly limited.... The conclusions 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.... [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 evidence 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, 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...