Vitti v. Milford , 190 Conn. App. 398 ( 2019 )

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ANTONIO VITTI v. CITY OF MILFORD ET AL.
(AC 40399)
Sheldon, Keller and Moll, Js.
Syllabus
The defendant city of Milford appealed to this court from the decision
of the Compensation Review Board affirming the finding and award
rendered by the Workers’ Compensation Commissioner ordering the
city to pay to the plaintiff, a police officer, all benefits required by the
Workers’ Compensation Act (§ 31-275 et seq.) pursuant to the statute
(§ 7-433c) that entitles a police officer or firefighter to receive such
benefits from a municipal employer if, while on or off duty, the officer
or firefighter suffers any medical condition caused by hypertension or
heart disease that results in a disability. In 1992, No. 92-81 of the 1992
Public Acts (P.A. 92-81) amended § 7-433c, and that amendment was
codified in the 1993 revision of § 7-433c, which was in effect on the
date of the plaintiff’s hire in 1993. Pursuant to that amendment, police
officers and firefighters who began their employment on or after July
1, 1992, would be ineligible to receive benefits pursuant to the statute
under certain circumstances, including if they completed two years of
service and their employer proved by a preponderance of the evidence
that their health condition or impairment caused by hypertension or
heart disease was not job related. In 1996, § 7-433c was again amended
pursuant to No. 96-230 of the 1996 Public Acts (P.A. 96-230), which
removed the eligibility restrictions under P.A. 92-81, eliminated the rebut-
table presumption and restored a conclusive presumption, and included
a provision that police officers or firefighters who began employment
on or after July 1, 1996, were not eligible for benefits under that section.
The 1996 amendments were codified in the 2009 revision of § 7-433c,
which was in effect on the date of the plaintiff’s injury in 2010. W, a
cardiologist, had determined that the plaintiff was suffering from giant
cell myocarditis. Subsequently, the plaintiff filed a timely notice of claim
with the Workers’ Compensation Commission. Following formal hear-
ings, the commissioner rendered his initial finding and award in favor
of the plaintiff. The commissioner had applied P.A. 92-81 contained in
the 1993 version of § 7-433c, which was in effect on the date of the
plaintiff’s hire, and found that the plaintiff’s giant cell myocarditis consti-
tuted heart disease and that the city had failed to rebut the statutory
presumption that the plaintiff’s health condition or impairment caused
by heart disease was causally related to his employment with the city.
On appeal, the board vacated the commissioner’s finding and award
and remanded the matter for additional proceedings, concluding that the
commissioner had committed plain error by applying the 1993 version
of § 7-433c rather than the 2010 version that was in effect at the date
of the plaintiff’s injury. After additional hearings, in December, 2015,
the commissioner issued a finding and award in favor of the plaintiff,
finding that the plaintiff’s giant cell myocarditis constituted heart disease
pursuant to the 2010 version of § 7-433c and ordering the city to pay
all benefits due to the plaintiff under the act, and the board affirmed
the commissioner’s finding and award. On the city’s appeal to this
court, held:
1. The board properly applied to the plaintiff’s claim the version of § 7-433c
that was in effect on the date of the plaintiff’s injury in 2010: the 2010
version of § 7-433c, by its express terms, makes clear that the benefits
provided by the statute are not available to those police officers and
firefighters who began employment on or after July 1, 1996, and contains
no language that makes any distinction among persons who began
employment prior to that date, and although the city relied on the
legislative purpose underlying the adoption of P.A. 92-81, which was to
provide municipalities with financial relief by replacing a conclusive
presumption of causation with a rebuttable presumption, the city cited
to no maxim of statutory interpretation or any other authority for the
proposition that, in the absence of statutory language permitting such
an exercise, this court could disregard the language of a statute in order
to advance the legislative purpose of repealed legislation; moreover,
even if the 2010 version of § 7-433c could be deemed ambiguous as
to the legislature’s intended treatment of those persons who began
employment prior to July 1, 1996, and the opportunity for municipal
employers to rebut the presumption in the context of claims made by
such claimants, the relevant legislative history supported the conclusion
that the 1993 revision of § 7-433c did not apply to the plaintiff’s claim,
as the legislative history underlying the General Assembly’s replacement
of the rebuttable presumption with a conclusive presumption in 1996
revealed that the General Assembly intended for all police officers and
firefighters hired prior to July 1, 1996, to be grandfathered in, in an
effort to balance the financial concerns of municipalities with the expec-
tations of those police officers and firefighters already employed, and
the legislative history was silent as to any legislative intent to have P.A.
92-81 apply to those police officers or firefighters who were hired on
or after July 1, 1992, but prior to July 1, 1996; furthermore, the application
of the 2010 version of § 7-433c to the plaintiff’s claim was consistent
with the common-law date of injury rule, which requires courts to look
to the statute in effect on the date on which the claimant suffered his
or her injury to determine the substantive rights and obligations that
exist between the parties.
2. The city could not prevail on its claim that the board erred as a matter
of law by affirming the commissioner’s finding that the plaintiff’s giant
cell myocarditis constituted heart disease under § 7-433c, which was
based on the city’s claim that, regardless of which version of § 7-433c
applied to the plaintiff’s claim, it presented evidence to the commissioner
establishing that giant cell myocarditis was not heart disease but, rather,
was a systemic autoimmune disease involving an agent produced by
the body outside of the heart; there was sufficient evidence in the
record to support the commissioner’s finding that the plaintiff’s giant
cell myocarditis constituted heart disease under § 7-433c, as the commis-
sioner found credible and more persuasive the testimony of W that giant
cell myocarditis was a rare disease of inflammation of the heart, and
found that W credibly distinguished giant cell myocarditis from sarcoido-
sis, which is a systemic disease and presents as scar tissue that forms
in the lungs or other organs and is not confined to the heart, and it was
within the commissioner’s purview to credit W’s testimony.
Argued October 12, 2018—officially released June 4, 2019
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Third District ordering the
defendants to pay workers’ compensation benefits to
the plaintiff, brought to the Compensation Review
Board, which affirmed the commissioner’s decision,
and the named defendant appealed to this court.
Affirmed.
Scott W. Williams, with whom, on the brief, were
James D. Moran, Jr., and Maribeth M. McGloin, for
the appellant (named defendant).
David J. Morrissey, for the appellee (plaintiff).
Opinion
MOLL, J. The principal issue in this appeal is whether
the plaintiff’s claim for heart and hypertension benefits
under General Statutes § 7-433c is governed by the ver-
sion of the statute in effect on the date of the plaintiff’s
hire or the date of his injury. The named defendant, the
city of Milford (defendant),1 appeals from the decision
of the Compensation Review Board (board) affirming
the finding and award rendered by the Workers’ Com-
pensation Commissioner for the Third District (com-
missioner) of the Workers’ Compensation Commission
(commission), ordering the defendant to pay to the
plaintiff, Antonio Vitti, all benefits required by the Work-
ers’ Compensation Act (act), General Statutes § 31-275
et seq.2 On appeal, the defendant claims that the board
erred, as a matter of law, by (1) applying to the plaintiff’s
claim the version of § 7-433c that was in effect on the
date of the plaintiff’s injury in 2010 (2010 version),3
rather than the version of § 7-433c that was in effect
on the date of the plaintiff’s hire in 1993 (1993 version),4
and (2) affirming the commissioner’s finding that the
plaintiff’s giant cell myocarditis qualifies as heart dis-
ease under § 7-433c.5 We disagree and, accordingly,
affirm the decision of the board.
The following procedural history and facts, as found
by the commissioner in his finding and award, dated
December 3, 2015, are relevant to our resolution of this
appeal. On February 12, 1993, the defendant hired the
plaintiff as a police officer after the plaintiff underwent
a preemployment physical examination and was
deemed suitable for employment. On August 17, 2010,
the plaintiff consulted a doctor after experiencing nau-
sea, abdominal pain, and shortness of breath for several
days. At his wife’s urging, the plaintiff also consulted
a cardiologist, who performed an electrocardiogram
that supported a differential diagnosis of coronary
artery disease or cardiomyopathy. The plaintiff was
later transferred to the Hospital of Saint Raphael, where
he underwent a cardiac catheterization that revealed
that he had mild coronary artery disease and severe
systolic dysfunction. On August 20, 2010, a magnetic
resonance imaging scan confirmed the electrocardio-
gram results and raised the possibility that the plaintiff
had myocarditis. On August 23, 2010, the plaintiff was
put on an intra-aortic balloon pump for cardiac support.
Diagnostic tests indicated a progression of heart failure.
The plaintiff was prescribed prednisone, a drug used
as an immunosuppressive therapy. On August 24, 2010,
he was admitted to Hartford Hospital with a diagnosis
of acute myocarditis and cardiogenic shock and began
to receive treatment from a cardiologist, Detlef Wen-
cker. Dr. Wencker performed a number of tests and
determined that the plaintiff needed a heart transplant.
On September 29, 2010, the plaintiff underwent success-
ful heart transplant surgery. A specimen of the plaintiff’s
heart that was harvested and analyzed showed evidence
of giant cell myocarditis; Dr. Wencker, thus, determined
that the plaintiff was suffering from giant cell myocardi-
tis. The plaintiff later returned to employment with the
defendant’s police department.
Meanwhile, on September 10, 2010, the plaintiff filed
a timely notice of claim with the commission, noting
August 19, 2010, as the date of his injury. On August
14, 2013, after holding formal hearings on the matter,
the commissioner, then acting for the fourth district of
the commission, issued a finding and award in favor of
the plaintiff. The commissioner found, inter alia, that
the plaintiff’s giant cell myocarditis constituted heart
disease pursuant to the 1993 version of § 7-433c6 and
that the defendant had failed to rebut the statutory
presumption that the plaintiff’s health condition or
impairment caused by heart disease was causally
related to his employment with the defendant. Accord-
ingly, the commissioner ordered the defendant to pay
all benefits due to the plaintiff as required by the act.
Thereafter, the defendant filed a petition for review
with the board.
On September 16, 2014, the board rendered its deci-
sion, concluding that (1) some of the commissioner’s
factual findings were inconsistent with his other find-
ings, and (2) the commissioner had committed plain
error by applying the 1993 version of § 7-433c rather
than the 2010 version that was in effect on the date of
the plaintiff’s injury. Thereupon, the board vacated the
commissioner’s August 14, 2013 finding and award and
remanded the matter for additional proceedings.
On December 3, 2015, after holding additional formal
hearings on the matter, the commissioner, acting for
the third district of the commission, issued a finding
and award in favor of the plaintiff.7 The commissioner
found, inter alia, that the plaintiff’s giant cell myocardi-
tis constituted heart disease pursuant to the 2010 ver-
sion of § 7-433c and ordered the defendant to pay all
benefits due to the plaintiff under the act. Thereafter,
the defendant filed a petition for review with the board.8
On appeal before the board, the defendant claimed
that the commissioner’s conclusion was legally incon-
sistent with his factual findings and that the commis-
sioner erred as a matter of law by failing to apply the
1993 version of § 7-433c to his claim. On April 21, 2017,
the board affirmed the commissioner’s December 3,
2015 finding and award. This appeal followed.
At the outset, we set forth the standard of review
and corresponding legal principles applicable to the
defendant’s claims. ‘‘[T]he principles [governing] our
standard of review in workers’ compensation appeals
are well established. . . . The board sits as an appel-
late tribunal reviewing the decision of the commis-
sioner. . . . [T]he review . . . of an appeal from the
commissioner is not a de novo hearing of the facts.
. . . [Rather, the] power and duty of determining the
facts rests on the commissioner [and] . . . [t]he com-
missioner is the sole arbiter of the weight of the evi-
dence 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 [the board’s] decisions . . .
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 inter-
pret [the commissioner’s finding] with the goal of sus-
taining 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.) Melendez v. Fresh Start Gen-
eral Remodeling & Contracting, LLC, 180 Conn. App.
355, 362, 183 A.3d 670 (2018).
‘‘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. . . . A state agency is not entitled,
however, to special deference when its determination
of a question of law has not previously been subject to
judicial scrutiny. . . . Where . . . [a workers’ com-
pensation] appeal involves an issue of statutory con-
struction that has not yet been subjected to judicial
scrutiny, this court has plenary power to review the
administrative decision.’’ (Citations omitted; internal
quotation marks omitted.) Lafayette v. General Dynam-
ics Corp., 255 Conn. 762, 770–71, 770 A.2d 1 (2001).
Mindful of the foregoing, we now address the defen-
dant’s claims.
I
The defendant first claims that the board erred as a
matter of law by applying the 2010 version of § 7-433c
to the plaintiff’s claim. Specifically, the defendant
argues that the board should have applied the 1993
version of § 7-433c, containing a rebuttable presump-
tion, in order to effectuate the legislative purpose under-
lying such legislation, namely, to provide financial relief
to municipalities required to pay heart and hypertension
benefits to eligible police officers and firefighters. The
plaintiff argues, to the contrary, that the board properly
applied the 2010 version of § 7-433c, which contains a
conclusive presumption. We agree with the plaintiff.
The threshold question of whether the 1993 version
or the 2010 version of § 7-433c applies to the plaintiff’s
claim for heart and hypertension benefits presents a
question of statutory interpretation. ‘‘When construing
a statute, our fundamental objective 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. . . . [Pur-
suant to] General Statutes § 1-2z, [t]he meaning of a
statute shall, in the first instance, be ascertained from
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 plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. The test to determine
ambiguity is whether the statute, when read in context,
is susceptible to more than one reasonable interpreta-
tion. . . .
‘‘[S]tatutes must be construed, if possible, such that
no clause, sentence or word shall be superfluous, void
or insignificant . . . . When a statute is not plain and
unambiguous, we also look for interpretative guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Richard P., 179 Conn.
App. 676, 684, 181 A.3d 107, cert. denied, 328 Conn. 924,
181 A.3d 567 (2018).
We begin our analysis with a discussion of the rele-
vant statutory language of the 1993 and 2010 versions
of § 7-433c. In 1992, the General Assembly amended
§ 7-433c by virtue of the passage of No. 92-81 of the
1992 Public Acts (P.A. 92-81). The language of P.A. 92-
81 was codified in the 1993 revision of § 7-433c. Public
Act 92-81 provides: ‘‘Section 1. Section 7-433c of the
general statutes is repealed and the following is substi-
tuted in lieu thereof:
‘‘(a) In recognition of the peculiar problems of uni-
formed 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 induce-
ment in attracting and securing persons for such
employment, and in recognition, that the public interest
and welfare will be promoted by providing such protec-
tion for such fire department and police department
members, municipal employers shall provide compen-
sation 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 uni-
formed 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 his temporary or perma-
nent, 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 was suffered in the line of duty
and within the scope of his employment, and from the
municipal or 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 phys-
ical examination was, at the time of his employment,
required as a condition for such employment, no proof
or record of such examination shall be required as evi-
dence in the maintenance of a claim under this section
or under such municipal or state retirement systems.
The benefits provided by this section shall be in lieu
of any other benefits which such policeman or fireman
or his dependents may be entitled to receive from his
municipal employer under the provisions of chapter
568 or the municipal or state retirement system under
which he is covered, except as provided by this section,
as a result of 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. 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.
‘‘(b) Notwithstanding the provisions of subsection
(a) of this section, any uniformed member of a paid
municipal fire department or any regular member of
a paid municipal police department who begins such
employment on or after July 1, 1992 (1) shall not be
eligible for benefits pursuant to this section until such
member has completed two years of service from the
date of employment and (2) shall not be eligible for
benefits pursuant to this section after such member
has completed two years of service if the municipal
employer proves by a preponderance of evidence that
the member’s condition or impairment of health caused
by hypertension or heart disease is not job related.
‘‘Sec. 2. Section 7-433a of the general statutes is
repealed.
‘‘Sec. 3. This act shall take effect July 1, 1992.’’
We first note that the language set forth in subsection
(a) of § 1 of P.A. 92-81 remained unchanged from that
of its statutory predecessor, including the preamble
thereto, which provided that the benefits required to
be paid pursuant to the statute were to serve as an
inducement in attracting persons to serve as members
of paid fire departments and paid police departments
and in recognition of the unique challenges attendant
upon those occupations. Public Act 92-81 served to
amend § 7-433c significantly, however, by adding sub-
section (b), which provided that police officers and
firefighters who began their employment on or after
July 1, 1992, would be ineligible to receive benefits
pursuant to the statute under two circumstances: (1)
until they completed two years of service; and (2) after
they completed two years of service if their employer
proved by a preponderance of the evidence that their
health condition or impairment caused by hypertension
or heart disease was not job related. See General Stat-
utes (Rev. to 1993) § 7-433c (b). Thus, the 1993 version
of § 7-433c gave municipal employers the opportunity
to rebut the statutory presumption, i.e., that a claimant’s
health condition or impairment caused by hypertension
or heart disease was causally connected to his or her
employment, which, if successful, would render the
claimant ineligible for benefits under the statute.
In 1996, the General Assembly again enacted signifi-
cant amendments to § 7-433c. Specifically, the General
Assembly amended § 7-433c by (1) eliminating the pre-
amble, discussed previously, (2) removing the eligibility
restrictions enacted under P.A. 92-81 applicable to
police officers and firefighters who began their employ-
ment on or after July 1, 1992, (3) eliminating the rebutta-
ble presumption and restoring the conclusive
presumption, and (4) adding the provision that a police
officer or firefighter who began his or her employment
on or after July 1, 1996, i.e., the effective date of the
act, was not eligible to receive any benefits pursuant
to the section.9 General Statutes (Rev. to 1995) § 7-433c,
as amended by Public Acts 1996, No. 96-230, §§ 2 and 3.10
We pause to highlight that no other amendments to
§ 7-433c occurred between 1996 and 2010, and, thus,
the rebuttable presumption previously available to
municipal employers remained unavailable under the
2010 version of § 7-433c. Accordingly, General Statutes
(Rev. to 2009) § 7-433c—the 2010 version of § 7-433c
in effect on the date of the plaintiff’s injury—provides
in relevant part: ‘‘(a) Notwithstanding any provision of
chapter 568 or any other general statute, charter, special
act or ordinance to the contrary, in the event a uni-
formed 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 his temporary or perma-
nent, 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 was suffered in the line of duty
and within the scope of his employment, and from the
municipal or 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. . . .
‘‘(b) Notwithstanding the provisions of subsection
(a) of this section, those persons who began employ-
ment on or after July 1, 1996, shall not be eligible for
any benefits pursuant to this section.’’
We observe at the outset that, by its express terms,
the 2010 version of § 7-433c makes clear that the bene-
fits provided by the statute are not available to those
persons who began employment on or after July 1,
1996. General Statutes (Rev. to 2009) § 7-433c (b). By
implication, and in the absence of any other language
addressing dates of employment, the statute can only
be reasonably read to provide benefits to all otherwise
eligible persons who began employment before July 1,
1996. That is, the statute contains no language that
makes any distinction among persons who began
employment prior to July 1, 1996.
The defendant argues that the board erred in applying
the 2010 version of § 7-433c, rather than the 1993 ver-
sion. Notably, the defendant points to no statutory lan-
guage in the 2010 version to suggest that it does not
provide protection to an individual, like the plaintiff,
who began his or her employment prior to July 1, 1996.
Rather, the defendant relies exclusively on the legisla-
tive purpose underlying the adoption of P.A. 92-81,
which was to provide municipalities with financial relief
by replacing a conclusive presumption of causation
with a rebuttable presumption. In doing so, the defen-
dant cites no maxim of statutory interpretation or any
other authority for the proposition that, in the absence
of statutory language permitting such an exercise, this
court can disregard the language of a statute in order
to advance the legislative purpose of repealed legisla-
tion. We find such a novel proposition to be without
merit. Bakelaar v. West Haven, 193 Conn. 59, 69, 475
A.2d 283 (1984) (‘‘[w]here there is no ambiguity in the
legislative commandment, this court cannot, in the
interest of public policy, engraft amendments onto the
statutory language’’ [internal quotation marks
omitted]).
Even if the 2010 version of § 7-433c could be deemed
ambiguous as to the legislature’s intended treatment of
those persons who began employment prior to July 1,
1996, and the opportunity for municipal employers to
rebut the presumption in the context of claims made by
such claimants, the relevant legislative history supports
this court’s conclusion that the 1993 version does not
apply to the plaintiff’s claim. That is, the legislative
history underlying the General Assembly’s replacement
of the rebuttable presumption with a conclusive pre-
sumption in 1996 reveals that the General Assembly
intended for all police officers and firefighters hired
prior to July 1, 1996, to be ‘‘grandfathered in,’’ in an
effort to balance the financial concerns of municipali-
ties with the expectations of those police officers and
firefighters already employed. See 39 S. Proc., Pt. 8,
1996 Sess., pp. 2570–71, remarks of Senator Louis C.
DeLuca;11 see also id., pp. 2579–81, remarks of Senator
John A. Kissel.12 The legislative history is silent as to
any legislative intent to have P.A. 92-81 apply to those
police officers or firefighters who were hired on or after
July 1, 1992, but prior to July 1, 1996.
Finally, we note that the application of the 2010 ver-
sion of § 7-433c to the plaintiff’s claim is consistent
with the common-law date of injury rule. Since 1916,
Connecticut courts have looked to the statute in effect
on the date on which the claimant suffered his or her
injury to determine the substantive rights and obliga-
tions that exist between the parties in workers’ compen-
sation cases. See, e.g., Civardi v. Norwich, 231 Conn.
287, 293 n.8, 649 A.2d 523 (1994) (‘‘[the date of injury]
rule dates back to 1916 and has been applied consis-
tently to all nonprocedural aspects of a case’’); see also
Schmidt v. O. K. Baking Co., 90 Conn. 217, 220, 96 A.
963 (1916) (applying version of statute in effect at time
claimant suffered injury). Notably, the date of injury
rule provides that ‘‘new workers’ compensation legisla-
tion affecting rights and obligations as between the
parties, and not specifying otherwise, applie[s] only to
those persons who received injuries after the legislation
became effective, and not to those injured previously.’’
Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d
640 (1988). Because the present appeal does not involve
whether certain legislation should be applied prospec-
tively versus retroactively, the cases on which the
defendant cursorily relies in arguing that we should
reject the application of the date of injury rule—Hall
v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 695 A.2d
1051 (1997), Gil v. Courthouse One, 239 Conn. 676, 687
A.2d 146 (1997), and Rice v. Vermilyn Brown, Inc., 232
Conn. 780, 657 A.2d 616 (1995)—are inapposite. In Hall
and Gil, our Supreme Court considered the applicability
of legislation that went into effect after the claimant
was injured. Hall v. Gilbert & Bennett Mfg. Co., supra,
284–86, 301–306; Gil v. Courthouse One, supra, 677–78,
685–87. In Rice, our Supreme Court concluded that
‘‘the date of injury rule has no applicability when the
claimant’s rights have already expired under the terms
of the act that governed the employment relationship.’’
Rice v. Vermilyn Brown, Inc., supra, 788. Neither sce-
nario applies in the present case. Here, the defendant’s
claim on appeal requires this court to choose between
two sets of amendments to § 7-433c, both of which
went into effect before the plaintiff’s date of injury.
Accordingly, while the date of injury rule does little to
illuminate our analysis, we note that our conclusion is
consistent with its application.
In sum, we conclude that the board properly applied
the 2010 version of § 7-433c to the plaintiff’s claim.
II
The defendant next claims that the board erred as a
matter of law by affirming the commissioner’s finding
that the plaintiff’s giant cell myocarditis constitutes
heart disease under § 7-433c. Specifically, the defendant
argues that, regardless of which version of § 7-433c
applies to the plaintiff’s claim, it presented evidence to
the commissioner establishing that giant cell myocardi-
tis is not heart disease but, rather, is a systemic autoim-
mune disease involving an agent produced by the body
outside of the heart. The plaintiff argues, to the con-
trary, that there is sufficient evidence in the record to
support the commissioner’s finding that the plaintiff’s
giant cell myocarditis constitutes heart disease under
§ 7-433c. We agree with the plaintiff.
We begin by setting forth the commissioner’s findings
and the procedural history relevant to the defendant’s
claim. During formal hearings, prior to issuing the
August 14, 2013 finding and award, the commissioner
heard testimony from two expert witnesses and admit-
ted into evidence multiple exhibits, including various
scientific articles concerning giant cell myocarditis. Dr.
Wencker, who was serving as the director of the Center
for Advanced Heart Failure and Transplant at Hartford
Hospital, testified on behalf of the plaintiff. Martin Krau-
thamer, a consulting cardiologist and former chief of
cardiology at Norwalk Hospital, testified on behalf of
the defendant.
Dr. Wencker testified that giant cell myocarditis is a
rare disease of inflammation of the heart. As far as he
knows, it is not possible for giant cell myocarditis to
spread to the heart from another part of the body, and
a patient with giant cell myocarditis who dies, dies from
heart failure, not from any other cause. The treatment
of choice for giant cell myocarditis is a heart transplant.
If a patient has a disease involving multiple organs,
such as sarcoidosis, he or she would not be a candidate
for a heart transplant. During a heart transplant proce-
dure, the old, native heart is not completely removed,
and there remains a small portion of the old heart to
which the new heart is attached. After a heart trans-
plant, all patients are given immunosuppressive therapy
because a foreign body has been implanted, which stim-
ulates autoimmune processes and could lead to the
rejection of the heart. With respect to the plaintiff’s
treatment and diagnosis, Dr. Wencker testified, among
other things, that the plaintiff’s treatment team har-
vested a specimen from his heart and determined that
it showed evidence of giant cell myocarditis. They did
not find any evidence of autoimmune disease or any
other diseases or medical conditions, the lack of which
finding supported the plaintiff’s diagnosis of ‘‘a primary
cardiac condition that [was] explained by giant cell
myocarditis . . . .’’ Knowing that the plaintiff had giant
cell myocarditis and had failed to respond to predni-
sone, i.e., immunosuppressive therapy, the plaintiff’s
treatment team inserted the intra-aortic pump into the
plaintiff’s heart to keep him alive. The plaintiff under-
went a heart transplant, and he has not subsequently
experienced a recurrence of giant cell myocarditis.
In contrast, Dr. Krauthamer testified that giant cell
myocarditis is a disease of the immune system that
is mediated by CD4 T cells, which attack the heart.
According to Dr. Krauthamer, in some cases, immuno-
suppressive therapy is effective in suppressing the
development of giant cell myocarditis, which means
that the disease must be one of the immune system.
Additionally, Dr. Krauthamer testified that there is a
body of medical literature showing that approximately
20 percent of patients with giant cell myocarditis have
giant cells and/or granulomas in other organs in addition
to those located in the heart, which suggests to him
that giant cell myocarditis is an autoimmune disease
affecting the heart and other organs. Moreover,
according to Dr. Krauthamer, the fact that, after under-
going successful heart transplant surgery, patients with
giant cell myocarditis have a 20 to 25 percent chance
of developing the disease in the transplanted heart is
‘‘evidence that the immune system is still attacking the
heart, and that this is not heart disease but a disease
of the immune system, in that the immune system is
still seeing heart cells or some substance in the heart
as a pathogen and attacking it.’’
On August 14, 2013, in consideration of the record
before him, the commissioner rendered his initial find-
ing and award, finding the testimony of Dr. Wencker
to be more persuasive than that of Dr. Krauthamer on
the subject of giant cell myocarditis. On December 3,
2015, on remand from the board, and in consideration
of the same testimony and evidence, the commissioner
expressly stated that Dr. Wencker’s opinion should be
accorded ‘‘great weight’’ and that he was ‘‘credible and
persuasive’’ on the subject of giant cell myocarditis.
Additionally, the commissioner found that sarcoidosis
is different from giant cell myocarditis in that sarcoido-
sis affects several organs, while giant cell myocarditis
is a disease ‘‘solely of the heart . . . .’’
We conclude that there is support in the record for
the commissioner’s December 3, 2015 finding that the
plaintiff’s giant cell myocarditis is heart disease. Despite
Dr. Krauthamer’s contrasting opinions, the commis-
sioner chose to credit heavily Dr. Wencker’s testimony,
which supports the commissioner’s finding that the
plaintiff’s giant cell myocarditis is heart disease under
§ 7-433c. We do not disturb that determination on
appeal.
In support of its argument that giant cell myocarditis
is not heart disease, the defendant relies on Estate of
Brooks v. West Hartford, No. 4907, CRB 6-05-1, 2006
WL 658887 (January 24, 2006), in which the board
affirmed the commissioner’s finding that the claimant’s
sarcoidosis was not heart disease. Id., *3. In so conclud-
ing, the board stated: ‘‘We recognize that there is an
element of ‘line-drawing’ that must take place in defin-
ing heart disease. The body is a holistic machine, involv-
ing many interdependent parts. Yet, the ingestion of
poison, the metastasizing of cancer, or the sudden
impact of a bullet or a knife may all cause the heart to
stop functioning by the introduction of an external
agent, in contrast to coronary artery disease and vascu-
lar disease, which affect the structure of the heart itself.
Sarcoidosis . . . clearly involves the element of an out-
side agent (tissue granules), even though that agent is
one produced by the body itself.’’ Id.
The defendant’s reliance on the evidentiary record
and findings in Estate of Brooks is misplaced. In the
present case, the commissioner found that Dr. Wencker
credibly distinguished giant cell myocarditis from sar-
coidosis. Dr. Wencker testified that, unlike giant cell
myocarditis, sarcoidosis is a systemic disease and pre-
sents as granulomatous disease or scar tissue that forms
in the lungs or other organs, which leads to the destruc-
tion of cells. He testified that sarcoidosis granulomas
are not confined to the heart; rather, they can be seen
in the lungs, liver, or other organs, whereas giant cell
myocarditis is ‘‘[found] nowhere [other] than in the
heart . . . .’’ He testified that he has not heard of a
case where granulomatous disease is found with giant
cell myocarditis. Furthermore, although Dr. Wencker
testified that there is evidence that giant cell myocardi-
tis is an autoimmune disease because T cells seem to
play a significant role in developing the disease, he
testified that giant cell myocarditis due to autoimmune
disease is believed to be ‘‘reacted against the heart,
exclusively the heart.’’ Moreover, he testified that ‘‘an
autoimmune process does not need to be systemic,’’
and one cannot conclude that giant cell myocarditis is
not a primary disease of the heart simply because an
autoimmune process may be present. It was within the
commissioner’s purview to credit this testimony as
he did.
In sum, because there is support in the record for
the commissioner’s finding that the plaintiff’s giant cell
myocarditis is heart disease under § 7-433c, we leave
that finding undisturbed.
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
PMA Management Corporation of New England, Inc. (PMA Manage-
ment), the workers’ compensation liability insurer for the named defendant,
was also a defendant in the plaintiff’s case before the Workers’ Compensation
Commissioner for the Third District and the Compensation Review Board.
PMA Management is not participating in this appeal, however. We refer,
therefore, to the city of Milford as the defendant in this opinion.
2
The plaintiff filed a cross appeal from the board’s denial of his motion
to dismiss the defendant’s appeal from the commissioner’s December 3,
2015 finding and award. See footnote 8 of this opinion. The plaintiff did not
address this claim in his brief to this court, however, and expressly aban-
doned his cross appeal during oral argument. We, therefore, have no occasion
to review this claim.
3
General Statutes (Rev. to 2009) § 7-433c was in effect on the date of the
plaintiff’s injury. For convenience, our references to the 2010 version are
to that revision of the statute. The parties’ principal dispute involves the
applicability of statutory amendments to § 7-433c that went into effect in
1996. As we explain in part I of this opinion, those amendments are codified
in the 2009 revision of the statute, which was in effect in 2010. Because the
parties have generally adhered to the usage of the phrase ‘‘2010 version,’’
we do the same throughout this opinion.
4
General Statutes (Rev. to 1993) § 7-433c was in effect on the date of the
plaintiff’s hire on February 12, 1993. For convenience, our references to the
1993 version are to that revision of the statute. Although the parties, the
commissioner, and the board referred to the 1992 version of § 7-433c, the
1993 revision, which codified certain 1992 amendments to the statute, was
in effect on the date of the plaintiff’s hire, and, therefore, we refer to the
1993 version in this opinion.
5
Additionally, the defendant claims that the board erred as a matter of law
by concluding that the defendant failed to rebut the presumption afforded
by the 1993 version of § 7-433c, i.e., the presumption that a causal relationship
exists between the claimant’s alleged health condition or impairment caused
by hypertension or heart disease and the claimant’s employment. See Mal-
chik v. Division of Criminal Justice, 266 Conn. 728, 740, 835 A.2d 940
(2003). We need not address this claim, however, because we conclude that
the 2010 version of § 7-433c, which contains a conclusive presumption,
applies in the present case.
6
The parties originally stipulated that the 1993 version of § 7-433c, rather
than the 2010 version, applied to the plaintiff’s claim.
7
The August 14, 2013 and December 3, 2015 findings and awards were
both issued by Commissioner Jack R. Goldberg.
8
On December 18, 2015, the plaintiff filed a motion to dismiss the defen-
dant’s appeal on the ground that it was untimely because the defendant
failed to appeal from the board’s September 16, 2014 decision, arguing that
the commissioner’s December 3, 2015 finding and award was not a final,
appealable decision but, rather, was a ‘‘ministerial act.’’ On January 4, 2016,
the defendant filed an objection to the motion to dismiss. On April 21,
2017, the board denied the plaintiff’s motion to dismiss, concluding that the
December 3, 2015 finding and award was not a ‘‘ministerial act’’ because
the commissioner ‘‘evaluated the relative merits of the evidence presented
in reaching his conclusions,’’ which ‘‘required deliberation on his part . . . .’’
9
See Public Acts 1996, No. 96-231, § 1 (providing in part that ‘‘only those
persons employed on the effective date of this act shall be eligible for any
benefits provided by this section’’ [emphasis added]); Public Acts 1996, No.
96-230, § 2 (adopted on same day as No. 96-231, § 1, of the 1996 Public Acts,
to correct error therein, thereby providing in part that ‘‘those persons who
began employment on or after the effective date of this act shall not be
eligible for any benefits pursuant to this section’’ [emphasis added]).
10
General Statutes (Rev. to 1995) § 7-433c, as amended by Public Acts
1996, No. 96-230, §§ 2 and 3, provides in relevant part: ‘‘(a) 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 hyper-
tension 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 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 was suffered in the line of duty and within the scope of his employment,
and from the municipal or 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. . . .
‘‘(b) Notwithstanding the provisions of subsection (a) of this section,
those persons who began employment on or after July 1, 1996, shall not be
eligible for any benefits pursuant to this section.’’
11
During debate on the Senate floor, Senator DeLuca remarked in pertinent
part: ‘‘This amendment would become the bill if it were to pass. This is the
so-called grandfather bill on heart and hypertension whereby all new hires
after July 1, 1996 would not be under the heart and hypertension law, but
all those now currently employed as paid firemen, police in the [s]tate of
Connecticut in municipal departments, would still be under the heart and
hypertension law.
‘‘So therefore, it would not take anything away from existing police and
firemen, but anyone who was hired after July 1st would know that they
would not be under such law because it would be discontinued for any new
hires, so we would not be taking anything away from anyone, but we
would also be under the understanding that anyone being hired would know
that they would not be under that.’’ (Emphasis added.) 39 S. Proc., supra,
pp. 2570–71.
12
During debate on the Senate floor, Senator Kissel stated in relevant
part: ‘‘[I]t is fundamentally fair to the firefighters and the police officers
that are serving our municipalities and our cities at this time. . . . I feel
that it is far better to establish grandfathering in a bright line test that says,
you know what the rules of the game are going to be if you get hired after
this date.’’ 39 S. Proc., supra, pp. 2580–81.