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REGINALD HOLSTON v. NEW HAVEN

POLICE DEPARTMENT ET AL.

(SC 19631)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued September 13—officially released November 22, 2016

Jason M. Dodge, for the appellants (defendants).

James F. Aspell, for the appellee (plaintiff).
Opinion

EVELEIGH, J. The named defendant, the New Haven

Police Department,1 appeals2

from the decision of the

Workers’ Compensation Review Board (board), which

affirmed the decision of the Workers’ Compensation

Commissioner for the Third District (commissioner),

awarding heart disease benefits to the plaintiff, Reginald Holston, pursuant to General Statutes § 7-433c (a).3

On appeal, the defendant asserts that the board improperly determined that the plaintiff’s heart disease claim

was timely. Specifically, the defendant claims that the

board improperly affirmed the decision of the commissionerthat the plaintiff’s hypertension and heart disease

were separate diseases, each with its own one year

limitation period for filing a claim for benefits. We disagree with the defendant and, accordingly, affirm the

decision of the board.4

The record reveals the following undisputed facts

and procedural history. The plaintiff was hired by the

defendant as a police officer in 1996 and remained a

regular member of that paid municipal police department at all points relevant to the present case. When

he was hired, the plaintiff passed a preemployment

physical examination that did not reveal any evidence

of hypertension or heart disease.

On March 10, 2011, the plaintiff suffered a myocardial

infarction. The plaintiff underwent an angioplasty and

stent implantation following a diagnosis of heart disease. He remained hospitalized for approximately four

days after the procedure and was out of work for three

or four months. The plaintiff was prescribed several

medications for his heart disease. On March 14, 2011,

the plaintiff filed a claim for benefits under § 7-433c for

hypertension and heart disease. The plaintiff listed the

date of injury as March 10, 2011.

At the hearing before the commissioner, Roy Kellerman, the plaintiff’s physician, testified that he began

treating the plaintiff in 1995 for an ankle injury. The

commissioner found that Kellerman had diagnosed the

plaintiff with hypertension in October, 2009, and had

conveyed that diagnosis to him. The commissioner concluded, therefore, that the plaintiff’s claim for benefits

related to hypertension was untimely because it was

filed more than one year after he became aware of his

diagnosis of hypertension.

On the basis of the testimony of Kellerman and Martin

Krauthamer, a physician obtained by the defendant, the

commissioner determined that the plaintiff’s preexisting hypertension was a significant contributing factor

in the development of his heart disease. The commissioner further found, however, that there were additional significant contributing factors in the

development of the plaintiff’s heart disease, including

his high cholesterol and his gender.
Accordingly, the commissioner dismissed the plaintiff’s claim for benefits related to his hypertension as

untimely, but granted his claim for benefits related to

his heart disease and myocardial infarction. The defendant appealed to the board, and the board affirmed the

decision of the commissioner.5 This appeal followed.

‘‘As a threshold matter, we set forth the standard of

review applicable to workers’ compensation appeals.

The principles that govern our standard of review in

workers’ compensation appeals are well established.

The conclusions drawn by [the commissioner] from

the facts found must stand unless they result from an

incorrect application of the law to the subordinate facts

or from an inference illegally or unreasonably drawn

from them. . . . [Moreover, it] is well established that

[a]lthough not dispositive, we accord great weight to

the construction given to the workers’ compensation

statutes by the commissioner and [the] board. . . .

Cases that present pure questions of law, however,

invoke a broader standard of review than is ordinarily

involved in deciding whether, in light of the evidence,

the agency has acted unreasonably, arbitrarily, illegally

or in abuse of its discretion. . . . We have determined,

therefore, that the traditional deference accorded to an

agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not

previously been subjected to judicial scrutiny [or to]

. . . a governmental agency’s time-tested6

interpretation . . . .’’ (Footnote added; internal quotation marks

omitted.) Estate of Rock v. University of Connecticut,

323 Conn. 26, 30, 144 A.3d 420 (2016).

In the present case, the defendant’s claim raises an

issue of statutory construction. Specifically, the defendant asserts that the board improperly affirmed the

decision of the commissioner that the plaintiff’s claim

for benefits related to his heart disease and myocardial

infarction was timely filed because, under § 7-433c, it

was a separate disease from the earlier diagnosed

hypertension. ‘‘When interpreting the statutory provisions at issue in the present case, we are mindful of the

proposition that all workers’ compensation legislation,

because of its remedial nature, should be broadly construed in favor of disabled employees. . . . This proposition applies as well to the provisions of [§] 7-433c

. . . because the measurement of the benefits to which

a § 7-433c claimant is entitled is identical to the benefits

that may be awarded to a [claimant] under . . . [the

Workers’ Compensation Act]. . . . We also recognize,

however, that the filing of a timely notice of claim is

a condition precedent to liability and a jurisdictional

requirement that cannot be waived.’’ (Citation omitted;

internal quotation marks omitted.) Ciarlelli v. Hamden,

299 Conn. 265, 277–78, 8 A.3d 1093 (2010).

‘‘When construing a statute, [o]ur 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. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . When a statute is

not plain and unambiguous, we also look for interpretive 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 . . . .’’

(Footnote omitted; internal quotation marks omitted.)

Vincent v. New Haven, 285 Conn. 778, 784–85, 941 A.2d

932 (2008).

The parties do not dispute on appeal to this court

that the plaintiff’s physician diagnosed him with hypertension in 2009 and conveyed this diagnosis to the plaintiff at that time. It is also not disputed that the plaintiff’s

claim for benefits related to his hypertension was not

timely because it was filed in March, 2011, beyond one

year from his diagnosis of hypertension. See footnote

5 of this opinion. On appeal, the defendant asserts that

the board improperly concluded that the plaintiff’s

claim for benefits related to heart disease was timely

filed because the heart disease was significantly related

to the prior diagnosis for hypertension. Specifically,

the defendant claims that, because the commissioner

determined that the plaintiff’s hypertension was a ‘‘significant factor’’ in his heart disease and the plaintiff

never filed a timely claim for benefits related to hypertension, the plaintiff should be precluded from filing a

claim for benefits related to the heart disease.

We begin with the text of the statute. Section 7-433c

(a) provides in relevant part: ‘‘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 . . . .’’

‘‘It is settled that, because . . . § 7-433c (a) does not

set forth a limitation period for filing a claim but provides for the administration of benefits in the same

amount and the same manner as that provided under

[the Workers’ Compensation Act] if such death or disability was caused by a personal injury which arose out

of and in the course of his employment, the one year

limitation period of [General Statutes] § 31-294c (a) governs claims filed under § 7-433c.’’ (Internal quotation

marks omitted.) Ciarlelli v. Hamden, supra, 299

Conn. 278.

The defendant asserts that the one year limitation

period for all of the plaintiff’s claims began to run on

the date he was diagnosed with hypertension because

the hypertension and heart disease were related. The

plain language of § 7-433c belies that claim. Section 7-

433c uses the phrase ‘‘hypertension or heart disease’’

repeatedly. ‘‘We have held that the use of the word

‘or’ in a statute ‘indicates a clear legislative intent of

separability.’ ’’ Sams v. Dept. of Environmental Protection, 308 Conn. 359, 404, 63 A.3d 953 (2013). Thus,

because § 7-433c is written in the disjunctive, we conclude that a plaintiff can file a claim for benefits related

to either hypertension or heart disease. Furthermore,

the use of the disjunctive term ‘‘or’’ in § 7-433c indicates

that the legislature intended for hypertension and heart

disease to be treated as two separate diseases for the

purposes of § 7-433c. Accordingly, we conclude that

the plain language of the statute demonstrates that the

failure to file a timely claim for benefits related to hypertension does not bar a later timely claim for heart

disease.

Moreover, the medical evidence in the present case

supports the board’s conclusion that the plaintiff’s

hypertension and heart disease were separate medical

conditions. The plaintiff’s physician, Kellerman, testified that the hypertension and the myocardial infarction

were separate medical conditions. Furthermore, the

physician obtained by the defendant, Krauthamer, also

recognized that hypertension and heart disease are separate medical conditions. Krauthamer testified that,

although the plaintiff’s ‘‘hypertension is a significant

factor in the causation of his [heart disease],’’ other risk

factors—including age, and male gender—also played a

role in the plaintiff’s development of heart disease.

Nevertheless, the defendant asserts that § 7-433c bars

the plaintiff’s claim for benefits pursuant to § 7-433c in

the present case because the commissioner determined

that his hypertension was a significant factor in his

heart disease and therefore, the two are causally connected. We disagree.
The plain language of § 7-433c demonstrates that a

uniformed member of a paid municipal fire department

or a regular member of a paid municipal police department is entitled to benefits under the statute when the

officer meets the following requirements:(1) has passed

a preemployment physical; (2) the preemployment

physical failed to reveal any evidence of hypertension

or heart disease; (3) suffers either off duty or on duty

any condition or impairment of health; (4)the condition

or impairment of health was caused by hypertension

or heart disease; and (5) the condition or impairment

results in his death or his temporary or permanent,

total or partial disability. The statute contains no other

requirements to qualify for its benefits.

Indeed, as this court has previously explained, unlike

traditional workers’ compensation, § 7-433c does not

require that the claimant prove that the injury was

caused by his or her employment. Instead, as this court

has recognized, ‘‘the underlying legislative purpose [of

§ 7-433c] was social rather than medical. More specifically, the legislature’s intent was to afford the named

occupations with a bonus by way of a rebuttable presumption of compensability when, under the appropriate conditions, the employee suffered heart disease

or hypertension.’’ Malchik v. Division of Criminal Justice, 266 Conn. 728, 740, 835 A.2d 940 (2003). This court

has further explained that ‘‘§ 7-433c payments constitute special compensation, or even an outright bonus,

to qualifying policemen and firemen. . . . [T]he outright bonus provided by the statute is that the claimant

is notrequired to prove that the heart disease is causally

connected to his employment, which he would ordinarily have to establish in order to receive benefits

pursuant to the Workers’ Compensation Act. . . .

Thus, although [the Workers’ Compensation Act] is

used . . . as a procedural avenue for administration

of the benefits under § 7-433c . . . an award under § 7-

433c is not a workers’ compensation award.’’ (Citations

omitted; internal quotation marks omitted.) Carriero v.

Naugatuck, 243 Conn. 747, 754–55, 707 A.2d 706 (1998).

Accordingly, the statute does not require the plaintiff

to prove causation in order to make a claim for benefits.

The defendant asserts that ourresolution of the plaintiff’s claim should be guided by Suprenant v. New Britain, 28Conn. App. 754, 611A.2d 941 (1992). Specifically,

the defendant asserts that, in Suprenant, the Appellate

Court recognized that the legislature considered heart

disease and hypertension interrelated. We disagree. In

Suprenant, the Appellate Court affirmed a workers’

compensation decision denying benefits related to heart

disease pursuantto § 7-433c when the claimant’s preemployment physical revealed evidence of hypertension,

but not heart disease. Id., 754–56. In doing so, the Appellate Court explained that, in order to qualify for any

benefits under § 7-433c, a claimant must pass a preem-
ployment physical that does not reveal evidence of

either hypertension or heart disease. Id., 758–59.

Suprenant is distinguishable from the present case.

In Suprenant, the Appellate Court explained that § 7-

433c requires the claimant to pass a preemployment

physical with no evidence of either hypertension or

heart disease. Id. The claim in Suprenant failed because

the claimant did not satisfy that condition precedent

to filing a claim for benefits pursuant to § 7-433c. In

the present case, there is no claim that the plaintiff did

not pass his preemployment physical or that it revealed

evidence of hypertension or heart disease. Instead, the

plaintiff was diagnosed with hypertension after he was

employed by the defendant. Nothing in Suprenant indicates that a prior diagnosis of hypertension while

employed will bar a later claim for benefits related

to hypertension.7

In the present case, the facts demonstrate that the

plaintiff clearly met the requirements for benefits

related to heart disease pursuant to § 7-433c. Specifically, it is undisputed that his preemployment physical

revealed no evidence of hypertension or heart disease.

It is further undisputed that he suffered a myocardial

infarction that was caused by heart disease and resulted

in a surgical procedure, hospitalization and continuing

disability. He filed his claim for benefits related to the

heart disease within four days of its manifestation.

Accordingly, we conclude that the board properly

affirmed the commissioner’s decision granting the

plaintiff benefits pursuant to § 7-433c related to heart

disease.

The defendant also claims on appeal that the commissioner improperly denied its motion to correct in which

the defendant sought to correct errors that it claimed

were inconsistent with the commissioner’s rules on

proximate causation. The commissioner denied the

motion to correct on the ground that § 7-433c does not

require a claimant to prove a causal connection between

heart disease and hypertension and his employment.

As explained previously in this opinion, this court has

long recognized that ‘‘the special compensation, or the

outright bonus, of § 7-433c is that the claimant is not

required to prove that the heart disease is causally connected to [his or her] employment, which he [or she]

would ordinarily have to establish in order to receive

benefits pursuant to the Workers’ Compensation Act.’’

(Internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 752, 945 A.2d 936 (2008). Accordingly, any alleged error in the commissioner’s decision

relating to the rules of proximate causation was not

relevant to the issues on appeal to the board and, therefore, the board properly affirmed the commissioner’s

denial of the motion to correct.

The decision of the Workers’ Compensation Review

Board is affirmed.
In this opinion the other justices concurred.

1 We note that Connecticut Interlocal Risk Management Agency, the heart

and hypertension claims administratorforthe New Haven Police Department

is a defendant in the present case and joined in this appeal. In the interest

of clarity, we refer to the New Haven Police Department as the defendant

throughout this opinion.

2 The defendant appealed from the decision of the board to the Appellate

Court and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.

3 General Statutes § 7-433c (a) provides: ‘‘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, shallreceive 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, ‘municipal employer’ has the same meaning as

provided in section 7-467.’’

Although § 7-433c (a) was the subject of technical amendments in 2014;

see Public Acts 2014, No. 14-122, § 72; those amendments have no bearing

on the merits of this appeal. In the interest of simplicity, we refer to the

current revision of the statute.

4 We note at the outset that § 7-433c (b) provides that ‘‘those persons who

began employment on or after July 1, 1996, shall not be eligible for any

benefits pursuant to this section.’’ Therefore, the applicability of § 7-433c

(a) is limited to those who began employment before July 1, 1996. In the

present case, it is undisputed that the plaintiff was hired on June 3, 1996.

5 The plaintiff cross appealed to the board from the decision of the commissioner denying his claim for benefits related to hypertension. The board

affirmed the decision of the commissioner denying the plaintiff’s claim for

benefits related to hypertension as untimely, and the plaintiff has not

appealed from that decision of the board. Accordingly, the plaintiff’s claim

for benefits related to hypertension is not at issue in this appeal.

6 We note that both parties cite to previous decisions of the board in

support of their positions. In particular, the plaintiff asserts that the board’s

interpretation of § 7-433c as treating hypertension and heart disease as

separate medical conditions is a time-tested approach. ‘‘This courtrepeatedly

has observed that an agency’s reasonable interpretation of an ambiguous

statute is entitled to deference only when that interpretation has been subjected to judicial review or the agency interpretation is both reasonable and

time-tested.’’ Vincent v. New Haven, 285 Conn. 778, 784 n.8, 941 A.2d 932

(2008); see also Longley v. State Employees Retirement Commission, 284

Conn. 149, 163–66, 931 A.2d 890 (2007). It is undisputed that whether a

claim for benefits under § 7-433c related to heart disease is barred because

a claimant failed to file a timely claim for benefits for previously diagnosed

hypertension has not been the subject of judicial review. Although it is true

that, since its decision in Mayer v. East Haven, No. 4620, CRB-3-03-2 (March
3, 2004), the board has interpreted § 7-433c as treating hypertension and

heart disease as separate medical conditions, Mayer was not decided until

2004. ‘‘To satisfy the time-tested requirement of the rule according deference

to an agency’s interpretation of a statute, that interpretation must formally

have been articulated and applied ‘over a long period of time . . . .’ State

Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 719,

546 A.2d 830 (1988); see also Hartford v. Hartford Municipal Employees

Assn., 259 Conn. 251, 262, 788 A.2d 60 (2002) (deference accorded agency’s

reasonable interpretation of statute only when agency has followed that

interpretation ‘for an extended period of time’).’’ Vincent v. New Haven,

supra, 784 n.8. Because Mayer is a relatively recent decision, we cannot

say that the board’s interpretation of § 7-433c is sufficiently long-standing

to warrant judicial deference, especially in view of the fact that the board

has applied this interpretation only in two previous cases. See Christopher

R. v. Commissioner of Mental Retardation, 277 Conn. 594, 603 n.9, 893

A.2d 431 (2006) (two ‘‘isolated’’ agency decisions over twenty-three year

period was not ‘‘a [time-tested] interpretation’’); cf. Connecticut Assn. of

Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn.

378, 390 n.18, 709 A.2d 1116 (1998) (observing that agency interpretation

of ‘‘[f]our years hardly constitutes a ‘time-tested’ agency interpretation’’).

Moreover, because we conclude that § 7-433c is not ambiguous, the board’s

interpretation would not be entitled to deference in any event. See State

Medical Society v. Board of Examiners in Podiatry, supra, 719 (rule of

deference applies only when agency ‘‘has consistently followed its construction over a long period of time, the statutory language is ambiguous, and

the agency’s interpretation is reasonable’’); see also Vincent v. New Haven,

supra, 784 n.8.

7 The defendant also cites to Marandino v. Prometheus Pharmacy, 294

Conn. 564, 591–92, 986 A.2d 1023 (2010), and Hernandez v. Gerber Group,

222 Conn. 78, 86, 608 A.2d 87 (1992), for the proposition that if there is a

causal relationship between one injury and another, they are considered to

be one event for the purposes of compensation pursuant to the Workers’

Compensation Act. As we have explained previously in this opinion, § 7-

433c is different from the Workers’ Compensation Act because it does not

require any proof of causation. Accordingly, we conclude that Marandino

and Hernandez are inapplicable to our resolution of the plaintiff’s claim

under § 7-433c.