Brocuglio v. Thompsonville Fire Dist. #2
| Decision Date | 25 June 2019 |
| Docket Number | AC 41237 |
| Citation | 190 Conn.App. 718,212 A.3d 751 |
| Court | Connecticut Court of Appeals |
| Parties | Thomas J. BROCUGLIO, Sr. v. THOMPSONVILLE FIRE DISTRICT #2 |
Joseph W. McQuade, Hartford, for the appellant (defendant).
Eric W. Chester, for the appellee (plaintiff).
DiPentima, C.J., and Lavine and Harper, Js.
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 General Statutes § 7-433c, "commonly referred to as the Heart and Hypertension
Act."1 The defendant claims that the board improperly affirmed the commissioner's award because the plaintiff's heart disease claim was not timely filed pursuant to General Statutes § 31-294c (a), and § 7-433c (a) does not allow a claimant to file more than one claim for heart disease. We conclude that because the plaintiff failed to file a claim in 2000 when he was first informed by a medical professional that he had heart disease, the claim he filed for heart disease in 2013 is jurisdictionally barred. We, therefore, reverse the decision of the board.
The present appeal may be summarized as follows. The plaintiff, a qualified firefighter employed by the defendant, filed a claim for heart disease
under § 7-433c (a)2 following surgery for heart disease
that took place in 2013. Prior to the heart surgery that is the subject of the present appeal, in 2000, the plaintiff was hospitalized, treated, and informed that he suffered from heart disease in the form of pericarditis. The commissioner determined that the plaintiff did not file a § 7-433c claim for heart disease within one year of being informed that he had pericarditis. The defendant, therefore, argues that because the plaintiff did not file a claim for pericarditis within one year of being informed of the heart disease in 2000, the claim for heart disease he filed in 2013 is jurisdictionally barred by § 31-294c (a).3 On the basis of our plenary review, we conclude that because the plaintiff did not timely file a claim for heart disease
in 2000, he failed to meet the jurisdictional prerequisite entitling him to an award for his 2013 claim for heart disease.
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 mitral valve leaflet. He subsequently 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 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, 2013, the date the defendant first was notified of the plaintiff's heart disease
claim. The defendant filed two form 43s denying the plaintiff's claim.5 Although the plaintiff claimed that the defendant failed to timely file form 43, the commissioner found that the defendant had timely contested the plaintiff's 2013 claim.6
and treatment from Baron in September, 2001.8 Baron was still the plaintiff's cardiologist at the time of the formal hearing.
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 Provencher testified that he had searched the defendant's personnel and workers' compensation records, but that he could find no form 30C for pericarditis
filed by the plaintiff. The commissioner found that the 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 some 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 § 7-433c grants benefits for either hypertension
or heart disease. In 2000, the plaintiff suffered a distinct heart disease, pericarditis, for which he did not file a claim within one year of November, 2000. The plaintiff, therefore, cannot file a claim for another type of heart disease, in this case, mitral valve replacement and coronary artery disease, in 2013. The defendant argued that the plaintiff had one opportunity to make a claim for heart disease, which he failed to do in 2000, and, thus, the plaintiff's attempt to make a claim for a 2013 heart disease was jurisdictionally barred.
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 § 7-433c. The commissioner ultimately concluded that the plaintiff's claim for benefits due to his heart injury of June 19, 2013, is compensable pursuant to § 7-433c.
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 pericarditis in or around November, 2000. It also requested that the commissioner delete certain of her findings and substitute, "I find that the [plaintiff's] claim for workers' compensation benefits due to his injury of June 19, 2013, is time barred under § 31-294c because he did not file a claim for compensation within one year of being told that he had heart disease
in November, 2000. The [plaintiff's] claim is dismissed." The commissioner denied the motion to correct.
On June 10, 2016, the defendant filed a motion for articulation, seeking to have the commissioner articulate the authority for the proposition that §...
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