Opinion
CASE NO. 163 CRD-4-82
DECEMBER 31, 1987
The Claimant was represented by Charles Flynn, Esq.
The Respondent was represented by Vincent M. Zanella Jr., Esq., Zanella Gilardi.
This Petition for Review from the September 2, 1982 Finding and Award of Chairman John Arcudi, Acting for the Fourth District was argued June 24, 1983 before a Compensation Review Division panel consisting of Commissioners A. Paul Berte, Robin Waller and Rhoda Loeb.
OPINION
On September 2, 1982 the Chairman of the Workers' Compensation Commissioner (hereinafter, the Commissioner) entered a Finding and Award that the Respondent Town of Stratford (hereinafter, the Respondent) pay the Claimant's "medical expenses as a result of the hypertension and heart disease condition" and "weekly compensation for total disability for the period July 1, 1978 through September 27, 1979, subject to statutory limitations". The Claimant made his claim pursuant to Sec. 7-433c of the Connecticut General Statutes, known as the "heart and hypertension law".
Sec. 7-433c. Benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: 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 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 from the municipal of state retirement 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 of 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. As used in this section, the term "municipal employer" shall have the same meaning and shall be defined as said term is defined in section 7-467.
On September 7, 1982, the Respondent's appeal was timely received in the office of the Fourth Compensation District. On September 28, 1982, the Commissioner received the Respondent's Motion To Correct Finding, which was denied in all respects by the Commissioner on September 29, 1982. On October 7, 1982, the Respondent filed Reasons of Appeal, in ten (10) paragraphs, including: the conclusions of the Commissioner are legally inconsistent with the subordinate facts found; that the Commissioner erred in refusing to grant Respondent's Motion To Correct Finding; and that the Commissioner erred in refusing to find the facts contained in the Respondent's Motion To Correct Finding. In its brief, however, the Respondent addressed three issues, and those are the issues we consider in this appeal. They are as follows:
1. Did the Commissioner err in refusing to correct the Finding as requested by the Respondent and in issuing a Finding not in conformity with Sec. 31-301-3?
2. Is the Claimant barred from recovery under Sec. 7-433(c) (sic) of the Act because the pre-induction physical examination prior to his entry into the service of the Respondent Town as a regular member of the paid Police Department revealed evidence of hypertension?
3. Were the Commissioner's conclusions legally inconsistent with the subordinate facts found or which should have been found?
The relevant facts in this case are briefly as follows: On March 1, 1947, the Claimant, Robert Horkheimer, underwent a pre-induction physical examination for entry into the Police Department of the Town of Stratford. That examination showed that Claimant's blood pressure was elevated, and the doctor conducting the examination listed as a positive finding of the examination, "hypertension (probably emotional)" (Respondent's Exhibit 1). After the examination, Claimant was hired as a Stratford policeman in 1947. Claimant received no treatment for hypertension until 1965 when his doctor prescribed medication. Between 1947 and 1974 Claimant apparently lost no time from work as a result of hypertension. In the winter months of 1975-1976, Claimant experienced the first symptoms of angina. Claimant remained a Stratford policeman until May 6, 1977, when he began to receive a disability pension from the Town of Stratford. Subsequent to his disability retirement, Claimant worked as a guard in Jai Alai frontons in Florida and Milford, Connecticut, in 1977 and 1978. As of July 1, 1978, Claimant was totally disabled from work as a result of hypertension and heart disease. The claim for Sec. 7-433c benefits in this case was for total incapacity on and after July 1, 1978, and related medical expenses, as a result of hypertension and heart disease.
In order for Claimant to come within the group for which the protection provided in Sec. 7-433c is intended, certain requirements must be met: (1) the Claimant must be a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department; (2) whose pre-employment physical examination revealed no evidence of hypertension or heart disease; (3) who suffers a condition or impairment of health caused by hypertension or heart disease; (4) resulting in death or temporary or permanent total or partial disability; and (5) economic loss resulting therefrom. Stachelczyk v. Norwalk, 1 Conn. Workers' Comp. Rev. Op. 51 (1981).
The Commissioner issued a lengthy finding consisting of 31 paragraphs. The Respondent filed an extensive Motion To Correct requesting deletion of 13 paragraphs contending that the paragraphs are not in conformity with Administrative Regulations Sec. 31-301-3 in that the paragraphs contain evidential facts, opinions, beliefs and reasons for evidence, and are not in accordance with the subordinate facts. The Respondent also requested that 21 paragraphs be added to the finding.
Sec. 31-301-3. Finding. The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.
The Respondent's Motion to Correct Finding fails to refer specifically to the evidence the Respondent relies upon in support of its Motion. It is not the responsibility of the Commissioner to cull out of the transcript the evidence relating to the corrections desired. This is the responsibility of counsel seeking corrections, and the failure to refer specifically to the evidence relied upon could support the Commissioner's denial of the Motion To Correct Finding. See Sorrentino v. Cersosimo, 103 Conn. 426 (1925). Since the Respondent has not given specific reference to the evidence claimed supporting corrections sought, in order for us to consider the Respondent's first issue we would have to retry the facts, which is not our function. Battey v. Osborne, 96 Conn. 633, 634 (1921). And, some of the corrections requested relate to questions of fact that were clearly the subject of conflicting testimony; as to those, the finding of the Commissioner cannot be changed by this tribunal. Battey v. Osborne, Supra.
The Respondent's Motion To Correct particularly attacks the Commissioner's finding in paragraph 22 of his Finding and Award which is set out here in full:
2. It is found that the doctor's note concerning labile hypertension probably due to nervousness on the 1947 examination report is not evidence of hypertension or heart disease at the time of claimant's entry into service as a Stratford policeman.
The conclusions of a Commissioner must stand unless the Commissioner has incorrectly applied the law to the subordinate facts. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). In the instant case, the Commissioner found in paragraph 5 of his Finding and Award the following:
5. That examination showed that claimant's blood pressure was 165/90, and the doctor recorded the following comments on the examination report: "Hypertension (probably emotional)" "Labile . . . indicative of nervousness".
The Commissioner then went on to find in paragraph 22 quoted above that ". . . the doctor's note concerning [labile hypertension] probably due to nervousness on the 1947 examination report is [not evidence of hypertension]fn__ or heart disease at the time of the Claimant's entry into service as a Stratford policeman". We disagree.
We have reviewed the entire record certified to us, and we find no support for the Commissioner's finding in paragraph 22 that the Claimant's pre-employment physical examination revealed no evidence of hypertension or heart disease, as required for the application of Sec. 7-433c.
In construing the terminology of a statute, the intent of a statute is to be sought first in the language used, and if that is unambiguous, we need not resort to other aides of interpretation. Klapproth v. Turner, 156 Conn. 276, 280 (1968). "Evidence" is not defined in Sec. 7-433c so it is necessary to look to other sources for its definition. There have been no reported Workers' Compensation Commission or judicial decisions interpreting the meaning of "evidence" as used in Sec. 7-433c. Webster's Seventh New Collegiate Dictionary (1972) defines evidence as:
1a: an outward sign: INDICATION b: something that furnishes proof: TESTIMONY; specific: something legally submitted to a tribunal to ascertain the truth of a matter 2: one who bears witness; esp: one who voluntarily confesses a crime and testifies for the prosecution against his accomplices — in evidence: to be seen: CONSPICUOUS
We have reviewed the cases cited under the listing for "evidence" in the WORDS AND PHRASES section of Dowling's Digest of Decisions, Vol. 10 (1983), and found the definitions of "evidence" to be consistent with the definition quoted above. Sec. 7-433c is clear and unambiguous that the physical examination on entry into service must fail "to reveal [any evidence of hypertension or heart disease]fn__ . . ." That means the physical examination must reveal [no evidence of hypertension or heart disease]fn__ in order for the Claimant to be eligible for the application of Sec. 7-433c. The Commissioner's finding must be supported by the underlying facts, and if a finding rests upon an element that does not support it, it must fail. Adzima v. UAC/Norden Division, Supra.
Claimant's uncontradicted testimony at the hearing was clear that at the time of his pre-employment physical examination he was told by the examining doctor that his blood pressure was high. And concerning whether the blood pressure readings taken at Claimant's pre-induction physical examination constituted evidence of hypertension, Dr. Rene Langou, Associate Professor of Medicine at Yale University School of Medicine, and Director of the Cardiac Catheterization Laboratory at Yale New Haven Hospital reviewed the blood pressure readings taken at the pre-induction physical and in response to a hypothetical question incorporating those readings and the facts in evidence, presented uncontradicted evidence that Claimant was hypertensive at the time of his pre-induction physical examination.
On cross examination, Claimant testified as follows: Q. There is also a note here listed under positive findings. There was some evidence of hypertension. Are you aware that diagnosis was made at the time of your examination? A. No. I was told, I think. If I recall, at the particular time it was elevated, abnormal, and I came back. Q. Were you advised at the time of the physical exam what the readings were that were taken to determine your blood pressure? A. I was advised they were high by Dr. Roberge. Q. Did he give you that examination? A. I don't know whether it was him or Dr. Dinan. I'm not sure. COMMISSIONER: I render a guess from the signature, it's Dr. Roberge's. Q. In any event, you were advised that your blood pressure was high at the time? A. That particular time, yes. (Record, Transcript of Testimony of Robert Horkheimer before Hon. John Arcudi, Chairman, December 20, 1978, pp. 34-5).
On direct examination. Dr. Rene Langou testified as follows; in response to Respondent's hypothetical question asking ". . . whether or not these readings in 1947, these blood pressure readings, constitute any evidence of hypertension at that time?" (Record, Transcript of Testimony of Dr. Langou before Hon. John Arcudi, Chairman, January 6, 1981, p. 91). A. Yes, I do have part in mind, I guess. I have to say that he was hypertensive in 1947 at the time of the examination if those figures were in fact true, and there were several measurements. I'm doing that considering the age of the patient, the weight, and I'm using specially for comparison, Nomenclature Criteria of Disease of Heart and Great Vessel, recorded by the New York Heart Association Chapter. This is the last issue, 1979. The eighth edition. The first edition was in 1928 and this presents a table with the blood pressure for adults in the United States. The population that was measured was 17,796 patients and was broken down according to the age. The age group that we have is between 18 and 24 for white males. The mean blood pressure is 123. We assess that as hypertension, 10, or at the most if you are very conservative 15 more than the means in that age group. In this case it would be 134, if we take 10, 139 if we take 15. The patient did have consistently elevated blood pressure over those numbers with measurement up to 190. If we take diastolic blood pressure the same way was done, and the mean was 76, with 10 we would go 86 and with 15 would be 91. That means we have consistently elevated blood pressure in 1947 over the mean for the population understudy. (Record, Transcript of Testimony or Dr. Langou before Hon. John Arcudi, Chairman, January 6, 1981, pp. 92-4). And on cross examination by Claimant's counsel, Dr. Langou testified as follows: Q. It is your opinion then, that Mr. Horkheimer at the time of the work-up in 1947 manifested symptoms of labile hypertension? A. I would say signs of labile hypertension. Q. Signs? A. Symptoms is what the patient relates to you. Signs is what you find in the patient. And at that point, there was no doubt there was systolic hypertension, and I have to bet that in my opinion was diastolic hypertension. However, the diastolic hypertension was labile, was not fixed. (Record, Transcript of Testimony of Dr. Langou before Hon. John Arcudi, Chairman, January 6, 1981, pp. 101-2).
We conclude that the finding by the Commissioner in paragraph 5 as quoted above is evidence of hypertension, and as a matter of law the facts as found do not support the Commissioner's conclusion that the Claimant has satisfied the statutory requirements for the application of Sec. 7-433c.
For the foregoing reasons, the appeal of the Town of Stratford is sustained, and the Commissioner's order contained in paragraphs A and B of his Finding and Award is vacated. The Finding and Award of the Commissioner is remanded to the Commissioner with direction to Correct the Finding by deleting the word "not" in the third line of paragraph 22 of the Finding and to dismiss the claim in conformity with this decision.
In this opinion Commissioner Loeb concurs.
I agree with the other members of the Review Division that Paragraphs A and B of Respondents' Motion To Correct The Finding cannot be granted. Those portions of the Motion request deletion of 13 paragraphs of the Finding And Award and the addition of 21 others, but the Motion fails to give the specific references to the evidence which they claim support the corrections sought. However, I disagree that the corrections sought in paragraph C.1. should be granted and that the Commissioner's Order be vacated and that the Finding and Award be remanded.
Respondents contend that the Findings of the physician who examined claimant at the time of the initial physical exam on March 1, 1947 contain evidence of hypertension. The Commissioner's Finding in Paragraph 22 of the Award: "It is found that the doctor's note concerning labile hypertension probably due to nervousness or heart disease at the time of claimant's entry into service as a Stratford policeman.", is specifically contradicted by the subordinate facts previously found in Paragraph 5 of the Finding: "that the examination showed that claimant's blood pressure was 165/90, and the doctor recorded the following comments on the examination report: hypertension (probably emotional) Labile . . . indicative of nervousness."
While agreeing that the two paragraphs appear inconsistent, when the evidence is viewed as a whole, they are not. The hearing Commissioner made a series of findings upon which conclusions were drawn. He found in Paragraph 21 that the claimant had successfully passed a pre-employment physical exam in 1947; in Paragraph 7 he found that the claimant received no treatment for hypertension until 1965; in Paragraph 8 he found that claimant was never told he had hypertension prior to the mid 1960's. The Commissioner further found that claimant suffered no disability from hypertension until 17 years after the physical exam as found in Paragraph 7 of the Finding. The record is replete with evidence that on exams subsequent to March 1, 1947 and prior to 1965 that there was no record of hypertension.
The Review Division's role in detecting error in the Commissioner's Finding is similar to that of an appellate court. And like the appellate court it is not our duty to review all of the evidence to see if the Commissioner would have concluded other than he did, "moreover on review of the Commission's findings, the trial court does not try the facts nor hear the evidence. . .,". Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). Since it is not our role to substitute our judgment for that of the Commissioner, his conclusions must stand.
Part of respondents' argument recited in Paragraph C.1. of the Motion To Correct, states that the Commissioner's conclusion recited in Paragraph 22 of the Award, that the doctor's note is not evidence of hypertension, is not supported by subordinate facts found in Paragraph 5 already noted. This factual inconsistency, they contend, precludes an Award for benefits because the requirements of Section 7-433c C.G.S. state, "which examination fail to reveal any evidence of hypertension or heart disease. . .". However, that which respondents fail to consider, and which the Commissioner did, is the context within which the word hypertension is used and its medical definition. It is commonly accepted medically that occasional readings of elevated blood pressure does not constitute a diagnosis of hypertension. The Sloan-Dorland Annotated Medical-Legal Dictionary (1987) defines hypertension as follows: "persistently high arterial blood pressure. . .". Perhaps the best description of what constitutes evidence of hypertension is to be found in the manual referred to by physicians as well as commissioners concerning evaluations of physical impairments. It is "Guides To The Evaluation Of Permanent Impairment", Second Edition published by the American Medical Association. The role of consistently elevated blood pressure readings as evidence of hypertension set forth on Page 119:
"Elevated pressure within the systemic arterial system is known as hypertension. A transient elevation of arterial pressure is the normal physiological response to exercise and excitement, but a sustained elevation of pressure is not normal and can lead to damage of arterial walls and of the organs supplied by these vessels especially the brain and the kidneys . . ."
The need for more than one transient reading of elevated blood pressure is stated further on Page 120:
Before classifying a patient as having hypertensive cardiovascular disease, the physician should make several determinations of the arterial pressure. Hypertensive cardiovascular disease is not necessarily present when a patient exihibits [exhibits] transient or irregular episodes of elevated arterial pressure, these could be associated with emotional or environmental stimulus or with signs or symptoms of cardiovascular system hyperactivity. Most authorities agree that hypertensive cardiovascular disease is present when the diastolic pressure is repeatedly in excess of 90 mm Hg".
The facts as found by the Commissioner reveal that claimant had a number of physical exams between 1947 and 1965 and that on only one occasion, in 1947, was he found to have elevated blood pressure. The Commissioner apparently considered this Finding in 1947 not to conform to a consistent pattern of elevated blood pressure readings. This conclusion is easily supported by the notations of the examining physician found in paragraph 5, "hypertension (probably emotional) Labile indicative of nervousness ".
The Commissioner's duty was to evaluate all the evidence, not just that recited in Paragraph 5 in reaching his conclusions. When the weight of that evidence is vital to the findings which support the Commission's conclusions we cannot "review the conclusions of the Commissioner when these depend upon the weight of the evidence and the credibility of the witnesses", Balkus v. Terry Steam Turbine Company, et al, 167 Conn. 170, 174 (1974). And where the evidence is conflicting, "it is within the province of the Commissioner also to determine, on conflicting and confusing evidence, what the facts are, and neither appellate court will change his find unless it appears that he has found facts without evidence, that he could not reasonably reach the conclusions he has stated", Battey v. Osborne, 96 Conn. 633, 634 (1921).
Based on these principles, it cannot be said that his conclusion in Paragraph 22 is not correct and therefore his Finding and Award should be affirmed.