Brocuglio v. Thompsonville Fire District 2 ( 2019 )

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THOMAS J. BROCUGLIO, SR. v. THOMPSONVILLE
FIRE DISTRICT #2
(AC 41237)
DiPentima, C. J., and Lavine and Harper, Js.
Syllabus
The defendant employer appealed to this court from the decision of the
Compensation Review Board, which affirmed the decision of the Work-
ers’ Compensation Commissioner that the plaintiff employee’s claim for
benefits as a result of heart disease was compensable under the Heart
and Hypertension Act (§ 7-433c). The defendant claimed that the board
improperly affirmed the commissioner’s award because the plaintiff’s
notice of claim, which was for mitral valve replacement and coronary
artery disease, was not timely filed pursuant to statute (§ 31-294c [a])
and § 7-433c (a) does not allow a claimant to file more than one claim
for heart disease. The plaintiff had been informed by his cardiologist
almost thirteen years prior to the claim at issue that he suffered from
pericarditis, a form of heart disease. The plaintiff did not file a notice
of claim, as required by § 31-294c (a), within one year of when he was
informed that he had pericarditis. The commissioner determined, on
the basis of a report by a cardiologist who had examined the plaintiff, that
mitral valve replacement and coronary artery disease was a condition
separate and distinct from the plaintiff’s pericarditis. The commissioner,
thus, concluded that the mitral valve replacement and coronary artery
disease were new injuries, and that the plaintiff’s failure to file a timely
notice of claim relative to the pericarditis did not bar his subsequent
claim for mitral valve replacement and coronary artery disease. Held
that the board improperly affirmed the commissioner’s award, as the
commissioner lacked jurisdiction to consider the plaintiff’s claim for
benefits pursuant to § 7-433c because he failed to file the notice of claim
required by § 31-294c (a) within one year of when he was informed by
his cardiologist that he suffered from pericarditis; although a variety of
maladies may be diagnosed as heart disease, as the commissioner found
here, § 7-433c makes no provision for the filing of multiple claims for
different forms of heart disease, and a claimant who forgoes the filing
of a notice of 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 § 7-433c.
Argued March 6—officially released June 25, 2019
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the First District finding that
the plaintiff had sustained a compensable injury and
awarding, inter alia, temporary total disability benefits;
thereafter, the commissioner 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 com-
missioner’s decision, and the defendant appealed to this
court. Reversed; decision directed.
Joseph W. McQuade, for the appellant (defendant).
Eric W. Chester, for the appellee (plaintiff).
Opinion
LAVINE, J. The defendant, the Thompsonville Fire
District #2, appeals from the decision of the Compensa-
tion Review Board (board) affirming the finding and
award (award) of the Workers’ Compensation Commis-
sioner for the First District (commissioner) with respect
to the 2013 claim filed by the plaintiff, Thomas J. Bro-
cuglio, Sr., pursuant to General Statutes § 7-433c, ‘‘com-
monly referred to as the Heart and Hypertension Act.’’1
The defendant claims that the board improperly
affirmed the commissioner’s award because the plain-
tiff’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 com-
missioner 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, there-
fore, 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 com-
missioner’s award issued subsequent to a formal hear-
ing that she held on October 1 and 29, 2015. The plaintiff
has been a full-time firefighter employed by the defen-
dant since September 3, 1987. Prior to his employment
with the defendant, the plaintiff passed a preemploy-
ment 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 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 coro-
nary bypass procedure. The plaintiff was discharged
from Saint Francis Hospital and Medical Center in Hart-
ford 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 dis-
abled 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 com-
pleted 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 defen-
dant 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
The commissioner found that the plaintiff, in dis-
cussing his medical history at the formal hearing, testi-
fied 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 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 defen-
dant’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 peri-
carditis is most likely from a viral illness of some sort.
This pericarditis represents a completely separate epi-
sode of heart disease.’’ (Emphasis added.) On the basis
of Tally’s report, the commissioner found that the plain-
tiff ‘‘suffered a completely different type of heart dis-
ease 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, there-
fore, cannot file a claim for another type of heart dis-
ease, 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 con-
cluded that Tally’s report of January 21, 2015, was per-
suasive, 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 dis-
ease, are separate and distinct conditions. The commis-
sioner 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 con-
cluded 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 plain-
tiff 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 articu-
late the authority for the proposition that § 7-433c, as
interpreted by the board and Connecticut courts, per-
mits a claimant to recover for multiple diagnoses of
heart disease. The defendant pointed out that the com-
missioner found that the plaintiff had suffered from
pericarditis for which he was treated by two cardiolo-
gists, missed time from work, was required to take
medication, and underwent a fitness for duty examina-
tion. In addition, the defendant noted that the commis-
sioner credited Tally’s opinion that pericarditis was an
episode of heart disease that is separate from mitral
valve replacement and coronary artery disease. The
defendant further noted that a claimant may file sepa-
rate claims for hypertension and for heart disease, but
neither party cited any authority for the proposition
that § 7-433c, as construed by the board or Connecticut
courts, permits a claimant to recover for multiple
instances or diagnoses of heart disease, even different
kinds of heart disease. The defendant asserted that the
commissioner’s award failed to address the defendant’s
central argument that the plaintiff’s failure to comply
with § 31-294c (a) by filing a claim in or around 2000
precluded a heart disease claim in 2013.
In her articulation, the commissioner stated in rele-
vant part: ‘‘In McNerney v. New Haven, [15 Conn. Work-
ers’ 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 . . . commis-
sioner 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. . . .
‘‘[In the present case, the commissioner] found that
[the plaintiff’s] mitral valve replacement and coronary
artery bypass were new injuries based on . . . Tally’s
report. Therefore, the fact that the [plaintiff] had not
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 commis-
sioner’s finding that the plaintiff’s claim was timely
pursuant to § 31-294c (a), as the plaintiff’s prior episode
of pericarditis mandated that he seek heart benefits at
that time and that his failure to do so rendered his
current claim of mitral valve failure jurisdictionally
invalid. The plaintiff responded that the commissioner’s
award is predicated on probative medical evidence and
is in accord with our Supreme Court’s decision in Hol-
ston v. New Haven Police Dept., 323 Conn. 607, 149
A.3d 165 (2016). The board found the plaintiff’s position
more persuasive and, therefore, affirmed the commis-
sioner’s award.
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, how-
ever, concluded that Ciarlelli and Malchik v. Division
of Criminal Justice, 266 Conn. 728, 733, 835 A.2d 940
(2003) (determining whether claimant presented suffi-
cient 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 plain-
tiff’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 dis-
ease 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, 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 find-
ing that the plaintiff’s § 7-433c (a) claim was timely filed
in 2013.
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 coro-
nary 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 ‘‘Where . . . [a workers’ compensa-
tion] appeal involves an issue of statutory construction
that has not yet been subjected to judicial scrutiny, this
court has plenary power to review the administrative
decision.’’ (Internal quotation marks omitted.) Dowling
v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, cert. denied
sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S.
Ct. 542, 142 L. Ed. 2d 451 (1998).
Our Supreme Court has stated that an ‘‘agency’s rea-
sonable interpretation of an ambiguous statute is enti-
tled 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 ‘‘§ 7-433c is not ambiguous, [and] the
board’s interpretation would not be entitled to defer-
ence in any event.’’ Holston v. New Haven Police Dept.,
supra, 323 Conn. 612 n.6. We, therefore, undertake a
plenary review of the defendant’s claim.
We, of course, are ‘‘mindful of the principles underly-
ing 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). Nonethe-
less, we also are aware that our construction of a statute
is constrained by General Statutes § 1-2z and that we
may not read language into a statute that is not there
to reach a particular result. See State v. George J., 280
Conn. 551, 570, 910 A.2d 931 (2006) (‘‘As a general
matter, this court does not read language into a statute.
. . . [W]e are bound to interpret legislative intent by
referring to what the legislative text contains, not by
what it might have contained.’’ [Citation omitted; inter-
nal quotation marks omitted.]), cert. denied, 549 U.S.
1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007). A review
of the historical underpinnings of § 7-433c, therefore,
is warranted.
‘‘The statute concerning heart disease and hyperten-
sion was originally drafted as part of the Workers’ Com-
pensation Act [act] [General Statutes § 31-275 et seq.]
and provided police officers and firefighters with a
rebuttable presumption that heart disease and hyper-
tension were causally connected to their occupations.
. . . In 1969, this rebuttable presumption was made
conclusive and the statute was soon declared unconsti-
tutional . . . . In response to that problem, § 7-433c
was enacted in its present form in 1977 as legislation
separate and distinct from the [act].
‘‘[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 employ-
ment. The mere fact that the employee has hypertension
or heart disease and dies or is disabled because of it
is all that is necessary. The employee does not need to
prove that his heart disease is causally connected to
his employment. . . . In order to collect the benefits
provided by § 7-433c, a claimant need show only that
he or she is a uniformed member of a paid fire depart-
ment or a regular member of a paid police department,
whose preemployment physical examination revealed
no evidence of hypertension or heart disease, who now
suffers a condition or an impairment of health caused
by hypertension or heart disease that has resulted in
death or disability, and has suffered a resultant eco-
nomic loss. . . . [O]nce the conditions of § 7-433c are
met, benefits must be paid by the municipality in accor-
dance with the [act]. . . .
‘‘Nevertheless, [our Supreme Court] has stated on
many occasions that [t]he procedure for determining
recovery under § 7-433c is the same as that outlined
in chapter 568 [of the act], presumably because the
legislature saw fit to limit the procedural avenue for
bringing claims under § 7-433c to that already existing
under chapter 568 rather than require the duplication
of the administrative machinery available [under the
act] and further burden the courts and the municipali-
ties [with additional litigation from claims by (firefight-
ers) and (police officers) pursuant to this legislation].
‘‘[A] claimant for workers’ compensation benefits
must provide both notice of injury; General Statutes
§ 31-294b . . . and notice of a claim. General Statutes
§ 31-294c . . . . Funaioli v. New London, 52 Conn.
App. 194, 195, 726 A.2d 626 (1999) (first report of injury
together with letter from claimant’s lawyer stating that
claimant not requesting hearing at this time sufficient
to satisfy notice of claim requirement of § 31-294c).
[T]he written notice intended is one which will reason-
ably inform the employer that the employee is claiming
or proposes to claim compensation under the [act].
. . . The purpose of § 31-29412 [notice of injury and of
claim for compensation], in particular, is to alert the
employer to the fact that a person has sustained an
injury that may be compensable . . . and that such
person is claiming or proposes to claim compensation
under the [a]ct.’’ (Citations omitted; footnotes added
and footnotes omitted; internal quotation marks omit-
ted.) Pearce v. New Haven, 76 Conn. App. 441, 446–49,
819 A.2d 878 (overruled in part on other grounds by
Ciarlelli v. Hamden, 299 Conn. 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 § 7-433c begins
to run only when an employee is informed by a medical
professional that he or she has been diagnosed with
hypertension [or heart disease]. In many respects, this
simply represents a return to the standard that the board
applied prior to Pearce, which, in our view, more faith-
fully adhered to the statutory definition of accidental
injury in view of the fact that, as a general matter, a
formal diagnosis of hypertension [or heart disease] can
be definitely located in time and place.’’ Ciarlelli v.
Hamden, supra, 299 Conn. 300–301.
‘‘Thus, § 7-433c directs claimants to the provisions
of the [act] to determine how to proceed with a claim
for benefits. Since § 31-29413 states that [n]o proceed-
ings for compensation . . . shall be maintained unless
a written notice of claim for compensation is given
within one year from the date of the accident . . . we
conclude that compliance with this section is also a
prerequisite to entitlement to benefits under § 7-433c.
. . .
‘‘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 con-
ferred by agreement.’’ (Citations 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 § 7-433c, he
must prove that he satisfies the jurisdictional threshold
set forth in § 31-294c (a), which requires that a claimant
provide his employer a written notice of claim for com-
pensation . . . within one year from the date of the
accident . . . which caused the personal injury
. . . .’’ (Internal quotation marks omitted.) Carter v.
Clinton, 304 Conn. 571, 578–79, 41 A.3d 296 (2012).
‘‘[C]ompliance with [§ 31-294c] is essential to main-
taining a claim for compensation under chapter 568 and
therefore under . . . § 7-433c . . . because timely
notice is a jurisdictional requirement that cannot be
waived . . . .’’ (Internal quotation marks omitted.)
Id., 579.
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 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. . . .
[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 stan-
dard 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 dis-
cretion. . . . We have determined, therefore, that the
traditional deference accorded to an agency’s interpre-
tation of a statutory term is unwarranted when the
construction of a statute . . . has not previously been
subjected to judicial scrutiny [or to] . . . a governmen-
tal agency’s time-tested interpretation . . . .’’ (Foot-
note 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 charged with the duty of
initially selecting the inference which seems most rea-
sonable and his choice, if otherwise sustainable, may
not be disturbed by a reviewing court.’’ (Internal quota-
tion marks omitted.) Id., 445–46.
The defendant’s claim raises a question of statutory
construction. ‘‘When interpreting the statutory provi-
sions 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 con-
strued in favor of disabled employees. . . . This propo-
sition applies as well to the provisions of [§] 7-433c
. . . because the measurement of the benefits to which
a § 7-433c claimant is entitled is identical to the benefits
that may be awarded to a [claimant] under . . . [the
act]. . . . We also recognize, however, that the filing
of a timely notice of claim is a condition precedent to
liability and a jurisdictional requirement that cannot be
waived.’’ (Citation omitted; internal quotation marks
omitted.) Ciarlelli v. Hamden, supra, 299 Conn. 277–78.
‘‘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,
General Statutes § 1-2z directs us first to consider 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 plan and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Footnote omitted; internal quotation marks omitted.)
Vincent v. New Haven, supra, 285 Conn. 784–85.
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 § 7-433c claim
for pericarditis in 2000, when he was first told by a
medical professional that he had heart disease. See
Ciarlelli v. Hamden, supra, 299 Conn. 298–99. The prin-
cipal facts are not in dispute: the plaintiff suffered peri-
carditis in 2000; pericarditis is a form of heart disease;
the plaintiff was informed by his cardiologist that he
had pericarditis in 2000; the plaintiff continued to be
under the care of a cardiologist until he underwent
heart surgery in 2013; in 2013 the plaintiff was informed
that he had a mitral valve failure and coronary artery
disease; mitral valve failure and coronary artery disease
are diseases of the heart; pericarditis, mitral valve fail-
ure, and coronary artery disease are distinct forms of
heart disease; there is no record that the plaintiff filed
a claim for heart disease in 2000; he did file a claim for
heart disease in 2013.
The defendant’s claim is controlled by § 7-433c (a),
which provides in relevant part that ‘‘in the event a
uniformed member of a paid municipal fire department
. . . who . . . 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 . . . shall receive from his
municipal employer compensation and medical care in
the same amount and the same manner as that provided
under chapter 568 . . . .’’
The plain language of § 7-433c (a); see footnote 2 of
this opinion; ‘‘demonstrates that a uniformed member
of a paid municipal fire department . . . is entitled to
benefits under the statute when the officer meets the
following requirements: (1) has passed a preemploy-
ment 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 con-
tains no other requirements to qualify for its benefits.’’
Holston v. New Haven Police Dept., supra, 323 Conn.
616–17.
‘‘[B]ecause . . . § 7-433c (a) does not set forth a limi-
tation 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 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) gov-
erns claims filed under § 7-433c.’’ (Internal quotation
marks omitted.) Ciarlelli v. Hamden, supra, 299
Conn. 278.
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 § 7-433c (a) ‘‘provides for an
award of benefits to an otherwise eligible claimant who
suffers . . . any condition or impairment of health
caused by hypertension or heart disease resulting in
his death or his . . . disability, it stands to reason that
a formal diagnosis of hypertension or heart disease,
communicated to an employee by his or her physician
constitutes the injury that triggers the running of the
limitation period of § 31-294c. Indeed, under § 7-433c,
a claimant may recover benefits for hypertension only
if he suffers from that condition; a claimant is not enti-
tled to benefits merely because he exhibits symptoms
consistent with hypertension, such as elevated blood
pressure, from time to time. Furthermore, requiring that
an employee file a notice of claim for hypertension
benefits only after he has been informed by a medical
professional that he is suffering from that condition,
and not merely from its symptoms, is consistent with
the principle that, as a remedial statute . . . § 7-433c
must be liberally construed in favor of the claimant.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Id., 298–99. We conclude that, given
our Supreme Court’s construction of the statute, includ-
ing the phrase ‘‘hypertension or heart disease,’’ the
notice provision pertains to a diagnosis of heart disease
as well as to a diagnosis of hypertension.
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 untimely and the com-
missioner 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, and was
required to undergo a physical examination to deter-
mine whether he was fit to return to work. He also
acknowledges that he had a recurrence of pericarditis
in 2001 and continued to take 800 milligrams of ibupro-
fen for a number of years. The plaintiff’s argument is
not that he did not suffer from heart disease in 2000,
but rather that because Tally testified, and the commis-
sioner found, that his pericarditis had healed, and that
pericarditis and mitral valve failure and coronary artery
disease are separate and distinct heart diseases, he
should be permitted to file a claim for the heart disease
with which he was diagnosed in 2013. We agree with
the defendant. Pursuant to Ciarlelli, the plaintiff was
required to file a form 30c notice of claim under § 7-
433c within one year of being advised by his cardiologist
that he suffered from pericarditis.
The defendant also argues that the language of § 7-
433c is clear and permits a municipal firefighter to file
only one claim for heart disease and only one claim
for hypertension, if any.14 Although the commissioner
found, on the basis of Tally’s testimony, that pericarditis
and mitral valve failure and coronary artery disease are
separate and distinct forms of heart disease, a fact the
defendant does not dispute, the defendant argues that
in order for the plaintiff to receive benefits for heart
disease, he was required to file a notice of claim within
one year of first being told he had heart disease, i.e.,
pericarditis. There is no dispute that the plaintiff was
informed that he had pericarditis in 2000 and was under
the care of a cardiologist thereafter. Although the plain-
tiff testified that he filed a form 30C in 2000, the commis-
sioner found that the testimony was not credible.15
‘‘The process of statutory interpretation involves a
reasoned search for the intention of the legislature.
. . . In other words, we seek to determine, in a rea-
soned 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 lan-
guage 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 § 7-433c (a) is not ambigu-
ous. This court, therefore, is not free to consider extra-
textual evidence of the meaning of the statute. See
General Statutes § 1-2z. ‘‘Where statutory language is
clearly expressed, as here, courts must apply the legisla-
tive enactment according to the plain terms and cannot
read into the terms of a statute something which mani-
festly is not there in order to reach what the court
thinks would be a just result.’’ (Internal quotation marks
omitted.) Hammond v. Commissioner of Correction,
54 Conn. App. 11, 17–18, 734 A.2d 571 (1999), aff’d, 259
Conn. 855, 792 A.2d 774 (2002).
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 diagnosis of heart disease. We acknowledge
that there are a variety of maladies that may be diag-
nosed as heart disease, but the statute does not take
that fact into account and makes no provision for the
filing of multiple claims for different forms of heart
disease a firefighter may suffer during his or her term
of employment.
Our Supreme Court has stated that ‘‘[t]he plain lan-
guage of § 7-433c demonstrates that a uniformed mem-
ber of a paid municipal fire department . . . is entitled
to benefits under the statute when the officer meets
the following requirements: (1) has passed a preemploy-
ment physical; (2) the preemployment physical failed
to reveal any evidence of hypertension or 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 hypertension or heart disease;
and (5) the condition or impairment results in his death
or his temporary or permanent, total or partial disabil-
ity. The statute contains no other requirements to qual-
ify for its benefits.’’ Holston v. New Haven Police Dept.,
supra, 323 Conn. 616–17. Requirements (3) and (4) are
controlling of the defendant’s claim. The condition or
impairment of health is written in the singular, not the
plural. It contains no modifier of heart disease such as
first instance of or second form of heart disease. The
statute does not include language or suggest that the
firefighter may file multiple claims for heart disease or
claims for different forms of heart disease.
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 deter-
mined 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 § 7-433c ‘‘uses the phrase hypertension or
heart disease repeatedly. We have held that the use of
the word or in a statute indicates a clear legislative
intent of separability. . . . Thus because § 7-433c is
written in the disjunctive, we conclude that a plaintiff
can file a claim for benefits related to either hyperten-
sion or heart disease. Furthermore, the use of the dis-
junctive term or in § 7-433c indicates that the legislature
intended for hypertension and heart disease to be
treated as two separate diseases for the purposes of
§ 7-433c.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Id., 615-16. There is no lan-
guage in §7-433c or Holston or Ciarlelli that permits a
paid municipal firefighter to file more than one claim
for heart disease.
In conclusion, a claimant who forgoes filing a claim
within one year of being informed by a medical profes-
sional 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 § 7-433c. We, therefore,
reverse the decision of the board and remand the case
to the board with direction to remand the case to the
commissioner with direction to dismiss the plaintiff’s
claim. We recognize the seeming harshness of our deci-
sion and the humanitarian purpose of the statute, but
we are constrained by the language of the statute, the
dictates of § 1-2z, and the decisions of our Supreme
Court.16
For the foregoing reasons, we conclude that the com-
missioner lacked jurisdiction to consider the plaintiff’s
2013 claim for § 7-433c benefits for heart disease. We
also conclude that the board improperly affirmed the
commissioner’s award.
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’ Compensa-
tion Commissioner with direction to dismiss the plain-
tiff’s claim.
In this opinion the other judges concurred.
1
See Pearce v. New Haven, 76 Conn. App. 441, 443–44, 819 A.2d 878
(overruled in part by Ciarlelli v. Hamden, 299 Conn. 265, 296, 8 A.3d 1093
[2010]), cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003).
2
General Statutes § 7-433c (a) provides in relevant part: ‘‘Notwithstanding
any provision of chapter 568 [the Workers’ Compensation Act, General
Statutes § 31-275 et seq.] or any other general statute . . . in the event a
uniformed member of a paid municipal fire department . . . who success-
fully passed a physical examination on entry to such service, which examina-
tion 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 . . . shall receive from his munici-
pal employer compensation and medical care in the same amount and the
same manner as provided under chapter 568 . . . .’’
Section 7-433c (a) was the subject of technical amendments in 2014. See
Public Acts 2014, No. 14-122, § 72. Those amendments have no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
3
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 . . . .’’
(Emphasis added.)
4
A form 30C is the document prescribed by the Workers’ Compensation
Commission to be used when filing a notice of claim pursuant to the Workers’
Compensation Act, General Statutes § 31-275 et seq.
The commissioner found that form 30C contains the following instruc-
tions: ‘‘This notice must be served upon the commissioner and [e]mployer
by personal presentation or by registered or certified mail. For the protection
of both parties, the employer should note the date when this notice was
received and the claimant should keep a copy of this notice with the date
it was served.’’ (Internal quotation marks omitted.)
5
Form 43 is titled: ‘‘Notice to Compensation Commissioner and Employee
of Intention to Contest Employee’s Right to Compensation Benefits.’’ It is
used by an employer to contest liability to pay compensation to an employee
for a claimed injury. Dubrosky v. Boehringer Ingelheim Corp., 145 Conn.
App. 261, 265 n.6, 76 A.3d 657, cert. denied, 310 Conn. 935, 78 A.3d 859 (2013).
6
The timeliness of the defendant’s filing of form 43 is not an issue on
appeal.
7
The pericardium is the ‘‘fibroserous membrane . . . covering the heart
and beginning of the great vessels.’’ Stedman’s Medical Dictionary (28th Ed.
2006) p. 1457. ‘‘Constrictive pericarditis’’ is ‘‘postinflammatory thickening
and scarring of the membrane producing constriction of the cardiac cham-
bers . . . .’’ Id.
8
At the formal hearing, the plaintiff testified in part on cross-examination
that he was admitted to the hospital on November 8, 2000, where he remained
for a few days and was told that he had constrictive pericarditis; that upon
discharge he was not to work until cleared by Kirchhoffer. He was readmitted
on June 22, 2001, and discharged with a diagnosis of recurrent pericarditis.
He was permitted to return to work after one week. The plaintiff’s wife
encouraged him to seek a second opinion, and the plaintiff consulted Baron.
Baron’s records, which were admitted into evidence, state in part: ‘‘[The
plaintiff], a [forty-two] year old gentleman . . . is seen today in an initial
evaluation of chest pain. . . . [C]hest discomfort which . . . [w]as similar
to his earlier symptoms related to pericarditis. He has an extensive history
dealing with pericarditis, starting in November 2000, for which he was
evaluated at Baystate [Medical Center in Springfield, Massachusetts] and
treated with nonsteroidals. He had a second flare of the symptoms in the
summer [of] 2001 and was treated with Prednisone, Pulse therapy with
improvement. He has been treated with a brief course of nonsteroidals
after his Pulse treatment.’’ The plaintiff continued to take 800 milligrams
of ibuprofen for a number of years.
9
The commissioner, however, found that the plaintiff filed a form 30C
for a work-related knee injury he suffered in 1999, a claim for hypertension
on July 14, 2007, and a claim for a back injury on August 11, 2008.
10
The issue in McNerney was whether the claimant timely filed a notice
of claim for hypertension. Although the claimant previously had suffered
from hypertension, the commissioner found that the claimant’s March, 1991
hypertension was a new injury and that his notice of claim filed on May 27,
1993, was timely. In its decision, the board addressed § 31-294c (a), which
requires a claimant to file a written notice of claim ‘‘within one year from
the date of the accident or within three years from the first manifestation
of a symptom of the occupational disease . . . .’’ The board noted that this
court had held that a claim for hypertension pursuant to § 7-433c is not
presumed to be an occupational disease. See Zaleta v. Fairfield, 38 Conn.
App. 1, 7, 658 A.2d 166, cert. denied, 234 Conn. 917, 661 A.2d 98 (1995).
‘‘Without evidence establishing that the claimant’s injury is a result of an
occupational disease, the one year statute of limitations applies.’’ Id., 6. The
board stated that there was no evidence that the claimant’s hypertension
constituted an occupational disease and remanded the case to the commis-
sioner solely for the purpose of determining whether the claimant’s hyperten-
sion constituted an occupational disease. See McNerney v. New Haven,
supra, 15 Conn. Workers’ Comp. Rev. Op. 333.
McNerney was not appealed to this court or otherwise subjected to judicial
scrutiny. We, therefore, accord it no precedential value. See Holston v. New
Haven Police Dept., 323 Conn. 607, 612, 149 A.3d 165 (2016) (traditional
deference accorded agency’s interpretation of statute unwarranted when
construction of statute has not previously been subject to judicial scrutiny).
Moreover, McNerney is procedurally and factually distinct from the pre-
sent appeal.
11
Throughout the litigation, the parties have cited cases concerning when
a claimant with a history of periodic high blood pressure readings should
know that he or she has hypertension and must file a claim. See, e.g., Arborio
v. Windham Police Dept., 103 Conn. App. 172, 928 A.2d 616 (2007), overruled
in part on other grounds by Ciarlelli v. Hamden, 299 Conn. 265, 296, 8 A.3d
1093 (2010); Pearce v. New Haven, 76 Conn. App. 441, 819 A.2d 878 (overruled
in part on other grounds by Ciarlelli v. Hamden, 299 Conn. 265, 296, 8 A.3d
1093 [2010]), cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003). Our Supreme
Court has held that the legislature intended for hypertension and heart
disease to be treated as two separate diseases for the purposes of § 7-433c.
See Holston v. New Haven Police Dept., supra, 323 Conn. 616.
12
We note that § 31-294 was repealed by No. 91-32 of the 1991 Public Acts
and that its subject matter was transferred to General Statutes §§ 31-294b
and 31-294c.
13
See footnote 12 of this opinion.
14
In fact, the plaintiff filed a § 7-433c claim for hypertension in 2007. See
footnote 9 of this opinion.
15
The plaintiff does not dispute the commissioner’s finding on appeal.
16
As the facts of this case demonstrate, there are multiple forms of heart
disease. Whether a firefighter or police officer may file a claim for each
instance of a distinct and separate heart disease is a public policy question
to be determined by the legislature, not this court. It is also for the legislature
to determine whether a firefighter may forgo filing a claim for one form of
heart disease and later file a claim for a different and perhaps more serious
form of heart disease.