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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 rebuttable 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 hearings, 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 constituted 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 expectations 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 commissioner 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 sarcoidosis, 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’ Compensation 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 version 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’ Compensation Commissioner for the Third District (commissioner) of the Workers’ Compensation Commission

(commission), ordering the defendant to pay to the

plaintiff, Antonio Vitti, all benefits required by the Workers’ 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 disease 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 nausea, 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 electrocardiogram 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 Wencker. Dr. Wencker performed a number of tests and

determined that the plaintiff needed a heart transplant.

On September 29, 2010, the plaintiff underwent successful 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 myocarditis. 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. Accordingly, 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 decision, concluding that (1) some of the commissioner’s

factual findings were inconsistent with his other findings, 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 myocarditis constituted heart disease pursuant to the 2010 version 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 inconsistent with his factual findings and that the commissioner 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 appellate tribunal reviewing the decision of the commissioner. . . . [T]he review . . . of an appeal from the
commissioner is not a de novo hearing of the facts.

. . . [Rather, the] power and duty of determining the

facts rests on the commissioner [and] . . . [t]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . . Where

the subordinate facts allow for diverse inferences, the

commissioner’s selection of the inference to be drawn

must stand unless it is based on an incorrect application

of the law to the subordinate facts or from an inference

illegally or unreasonably drawn from them. . . .

‘‘This court’s review of [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 interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other

supporting evidence. . . . Once the commissioner

makes a factual finding, [we are] bound by that finding

if there is evidence in the record to support it.’’ (Internal

quotation marks omitted.) Melendez v. Fresh Start General 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’ compensation] 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.’’ (Citations omitted; internal

quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 770–71, 770 A.2d 1 (2001).

Mindful of the foregoing, we now address the defendant’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 presumption, in order to effectuate the legislative purpose underlying 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. . . . [Pursuant 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 interpretation. . . .

‘‘[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 quotation 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 relevant 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 substituted in lieu thereof:

‘‘(a) In recognition of the peculiar problems of uniformed members of paid fire departments and regular

members of paid police departments, and in recognition

of the unusual risks attendant upon these occupations,

including an unusual high degree of susceptibility to

heart disease and hypertension, and in recognition that

the enactment of a statute which protects such fire

department and police department members against

economic loss resulting from disability or death caused

by hypertension or heart disease would act as an inducement in attracting and securing persons for such

employment, and in recognition, that the public interest

and welfare will be promoted by providing such protection for such fire department and police department

members, municipal employers shall provide 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 uniformed member of a paid municipal fire department or

a regular member of a paid municipal police department

who successfully passed a physical examination on

entry into such service, which examination failed to

reveal any evidence of hypertension or heart disease,

suffers either off duty or on duty any condition or

impairment of health caused by hypertension or heart

disease resulting in his death or 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. If successful passage of such a physical 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 evidence 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 subsection (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 Statutes (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 significant amendments to § 7-433c. Specifically, the General

Assembly amended § 7-433c by (1) eliminating the preamble, discussed previously, (2) removing the eligibility

restrictions enacted under P.A. 92-81 applicable to

police officers and firefighters who began their employment on or after July 1, 1992, (3) eliminating the rebuttable 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 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.’’

We observe at the outset that, by its express terms,

the 2010 version of § 7-433c makes clear that the benefits 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 version. Notably, the defendant points to no statutory language 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 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. In doing so, the defendant 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 legislation. 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 presumption 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 municipalities 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 version 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 obligations that exist between the parties in workers’ compensation 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 consistently 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 legislation 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 prospectively 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 scenario 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 myocarditis is not heart disease but, rather, is a systemic autoimmune disease involving an agent produced by the body

outside of the heart. The plaintiff argues, to the contrary, 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 admitted 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 Krauthamer, 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 procedure, 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 transplant, all patients are given immunosuppressive therapy

because a foreign body has been implanted, which stimulates 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 harvested 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 prednisone, 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 underwent 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, immunosuppressive 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 undergoing 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 finding 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 sarcoidosis 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 commissioner 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 concluding, the board stated: ‘‘We recognize that there is an

element of ‘line-drawing’ that must take place in defining heart disease. The body is a holistic machine, involving 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 vascular disease, which affect the structure of the heart itself.

Sarcoidosis . . . clearly involves the element of an outside 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 sarcoidosis. Dr. Wencker testified that, unlike giant cell

myocarditis, sarcoidosis is a systemic disease and presents as granulomatous disease or scar tissue that forms

in the lungs or other organs, which leads to the destruction 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 myocarditis 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 Management), 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 abandoned 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 Malchik 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 defendant’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 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 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.