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JAMES STAUROVSKY v. CITY OF MILFORD POLICE

DEPARTMENT ET AL.

(AC 37670)

DiPentima, C. J., and Gruendel and Keller, Js.*

Argued January 4—officially released March 29, 2016

(Appeal from the Workers’ Compensation Review

Board.)

Michael V. Vocalina, for the appellants (defendants).

David J. Morrissey, for the appellee (plaintiff).
Opinion

GRUENDEL, J. The defendants, the city of Milford

Police Department (department) and its workers’ compensation administrator, PMA Management Corp. of

New England, appeal from the decision of the Workers’

Compensation Review Board (board) affirming the

decision of the Workers’ Compensation Commissioner

for the Fourth District (commissioner) awarding heart

and hypertension benefits to the plaintiff, James Staurovsky, pursuant to General Statutes (Rev. to 2011) § 7-

433c. On appeal, the defendants claim that the board

improperly determined that (1) the plaintiff’s claim was

commenced in a timely manner and (2) the plaintiff

had established a compensable claim for heart and

hypertension benefits on the facts of this case.1 We

agree with the defendants’ second claim and, accordingly, reverse the decision of the board.

Relevant to this appeal are the following facts found

by the commissioner, as recounted in the board’s decision. When the plaintiff was hired by the department,

he passed a physical examination that did notreveal any

evidence of heart disease or hypertension. The plaintiff

thereafter ‘‘was employed by the [department] from

October 5, 1987 to February 17, 2012, when he retired

under a years of service pension. [His] last day of work

was February 2, 2012, and he utilized unused vacation

time to extend his service until February 17, 2012. On

February 13, 2012, he started a new job as a campus

police officer for Sacred Heart University. On February

24, 2012, the [plaintiff] sustained a myocardial

infarction2 while shoveling snow in his driveway. He

was transported to St. Vincent’s Hospital and had a

stent inserted, and later underwent bypass surgery on

April 9, 2012. The angiogram performed the day of the

myocardial infarction indicated the [plaintiff] had

severe coronary artery disease that affected four major

arteries. The [plaintiff] testified that during his career

with the [department] he had never been told by a

physician that he had heart disease or hypertension and

was not aware he had heart disease in January of 2012.

. . . He also testified that he had never been disabled

from working during his career with the [department]

due to heart disease or hypertension.

‘‘The [plaintiff’s] cardiologist testified via a deposition. Dr. Victor Mejia testified that the [plaintiff’s] coronary artery disease was a chronic disease that

developed over a period of years. The [plaintiff] suffered

from heart disease not only on the date of his myocardial infarction but also on January 30, 2012, his claimed

date of injury. Dr. Mejia opined that it was reasonably

medically probable that the percentage of the [plaintiff’s] blockages had not changed dramatically after the

date the [plaintiff] left his employment with the [department], as it was reasonable and probable the disease

developed over a period of years. The [plaintiff’s] heart
disease was a substantial factor in his myocardial

infarction, as was the stress of snow shoveling. Dr.

Mejia was unaware of any symptom of coronary artery

disease present in the [plaintiff] before February 24,

2012. Dr. Mejia opined, based on his diagnosis of the

[plaintiff], that the [plaintiff] qualified for a disability

rating to his heart as of January, 2012; but had no evidence that the [plaintiff’s] heart functioning was

impaired at all in January, 2012.

‘‘The [plaintiff] testified that he had concerns as to

possibly having coronary artery disease in 2003, as it

runs in his family. After discussion with a primary care

doctor, the [plaintiff] was examined by Dr. Clifford

Kramer, a cardiologist, on July 28, 2003. Dr. Kramer

reported recommending a diet and exercise program

for the [plaintiff], finding his lipid profile acceptable,

and directed that the [plaintiff] undergo a stress test.

The [plaintiff] underwent a stress test on August 19,

2003, that Dr. Kramer read as ‘clinically and electrocardiographically negative.’ . . .

‘‘Based on these facts, the [commissioner] concluded

in the Findings and Orders issued January 6, 2014, that

the [plaintiff] was credible and persuasive. She found he

was neither diagnosed nor treated for coronary artery

disease until February 24, 2012, [and] therefore the

notice of claim for § 7-433c . . . was filed in a timely

manner. . . . The commissioner concluded [that] Dr.

Mejia was credible and persuasive except for his opinion that the [plaintiff] qualified for a disability rating

for his heart in January, 2012. . . . In the January Findings and Orders, in Conclusion, [paragraph] E, the [commissioner] concluded that in order to receive benefits

under § 7-433c . . . the [plaintiff’s] heart condition and

the resulting disability had to be suffered while he was

a member of the [department]. She concluded that while

the [plaintiff’s] disease was present while he was a

member of the [department], he did not sustain any

disability from that condition until he left [its] employ.

Since he had not been disabled while employed by the

[department], the commissioner concluded he did not

meet the statutory requirements for an award under

§ 7-433c . . . .

‘‘Both parties filed postjudgment motions subsequent

to the January 6, 2014 Findings and Orders. The [plaintiff] filed a motion for reconsideration on January 15,

2014, asserting that the [commissioner] had improperly

applied the law in the present case, and that, pursuant

to Arborio v. Windham Police Dept., [103 Conn. App.

172, 928 A.2d 616 (2007)] the [plaintiff] need not sustain

a disability while a police officer or firefighter to have

a viable claim for § 7-433c . . . benefits; rather that the

[plaintiff] need only sustain an injury and file a claim

within one year of that event. The [defendants] filed an

objection to the motion forreconsideration, but onApril

7, 2014, the [commissioner] issued Amended Findings
and Orders incorporating the [plaintiff’s] bid for relief.

In particular, the commissioner removed Conclusion,

[paragraph] E from the prior Findings and Orders and

replaced [it] with the following conclusions:

‘‘G. The [plaintiff] suffered a condition or impairment

of health due to heart disease on January 30, 2012. . . .

‘‘H. The [plaintiff’s] longstanding heart disease was

a significant contributing factor in causing his heart

attack.

‘‘I. Despite the fact thatthe [plaintiff] was not disabled

from his work as a police officer with the [department]

due to his coronary artery disease (or due to the February 24, 2012 myocardial infarction) in January, 2012, he

had developed a condition during his tenure as a police

officer with the [department] that could spawn a claim

for monetary benefits in the future.

‘‘J. While proof of a disability is a prerequisite to the

actual collection of benefits, one need not be disabled

before being required to notify one’s employer of an

accidental injury and to file a claim within one year of

that injury.

‘‘K. The [plaintiff] is entitled to all benefits under [§]

7-433c, subject to the lawful limitations of [General

Statutes §] 7-433b.

‘‘The [defendants] filed a motion to correct seeking

findings that the [plaintiff] had been advised in 2003 as

to coronary artery disease and had been directed to

make lifestyle changes. The [motion] also sought to add

a conclusion that since the [plaintiff] had a statutory

obligation to file a § 7-433c . . . claim in 2003 . . . the

present claim was jurisdictionally untimely and should

be dismissed. The [commissioner] denied this motion

in its entirety . . . .’’ (Citation omitted; footnotes

omitted.)

The defendants thereafter filed a petition for review

of the commissioner’s decision with the board. The

board conducted a hearing on that petition on September 26, 2014. In its subsequent decision, the board

affirmed the decision of the commissioner in all

respects, and this appeal followed.

As a preliminary matter, we note that ‘‘[t]he principles

that govern 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. . . . [T]he power and duty of determining the

facts rests on the commissioner . . . . [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 decisions of the board 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 orfrom 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.) Baron v. Genlyte Thomas Group, LLC,

132 Conn. App. 794, 799–800, 34 A.3d 423, cert. denied,

303 Conn. 939, 37 A.3d 155 (2012).

At the same time, ‘‘[c]ases that present pure questions

of law . . . 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 timetested interpretation . . . .’’ (Internal quotation marks

omitted.) Chambers v. Electric Boat Corp., 283 Conn.

840, 844, 930 A.2d 653 (2007). Our review in such

instances is plenary. Id.

I

Because it implicates the jurisdiction of the commissioner to entertain the plaintiff’s claim, we first address

the defendants’ contention that the board incorrectly

determined that the plaintiff commenced his claim for

heart disease and hypertension benefits in a timely manner. By contrast, the plaintiff submits that the board’s

determination properly adhered to the precedent of this

state’s appellate courts. We agree with the plaintiff.

Under Connecticut law, claims for heart disease and

hypertension benefits filed pursuant to § 7-433c3 are

subject to the one year limitation period set forth in

General Statutes § 31-294c (a). Ciarlelli v. Hamden, 299

Conn. 265, 278, 8 A.3d 1093 (2010). Section 31-294c (a)

provides in relevant part that ‘‘[n]o proceedings for

compensation under the provisions of this chapter shall

be maintained unless a written notice of claim for compensation is given within one year from the date of the

accident . . . which caused the personal injury

. . . .’’ Failure to comply therewith deprives the commissioner of subject matter jurisdiction over a claim.

See, e.g., Izikson v. Protein Science Corp., 156 Conn.

App. 700, 708, 115 A.3d 55 (2015); Wikander v. Asbury

Automotive Group/David McDavid Acura, 137 Conn.
App. 665, 670, 50 A.3d 901 (2012).

As this court recently observed, ‘‘[i]n Ciarlelli, our

Supreme Court clarified the standard for assessing

when the one year limitation period provided by § 31-

294c (a) begins to run for claims filed pursuant to § 7-

433c. . . . [O]ur Supreme Court held that this . . .

one year limitation period begins to run only when the

plaintiff is informed by a medical professional that he

or she has been diagnosed with hypertension. . . . Our

Supreme Court concluded by stating that, although the

issue of when the one year limitation period pursuant

to § 31-294c begins to run remains a question of fact

for the trial commissioner, evidence that an employee

merely knew of past elevated blood pressure readings,

or was advised by his or her physician to make certain

lifestyle changes in response thereto, is not sufficient

to trigger the limitation period in the absence of evidence that the employee formally had been diagnosed

with hypertension by a medical professional and

advised of that diagnosis. . . . Our Supreme Court

stated in a footnote that this standard is not so inflexible

as to require a finding in all cases that the medical

professional used the term hypertension in communicating the diagnosis to the employee. . . . Thus, in

essence, our Supreme Court adopted a totality of the

circumstances test that puts substance before form

when determining whether a plaintiff had been diagnosed with hypertension as opposed to having been

put on notice that he had high blood pressure readings.’’

(Citations omitted; footnotes omitted; internal quotation marks omitted.) Conroy v. Stamford, 161 Conn.

App. 691, 703–704, 129 A.3d 137 (2015), cert. denied,

320 Conn. 917, A3d (2016).

In cases subsequent to Ciarlelli, our appellate courts

have applied that interpretation of § 31-294c (a). For

example, in Roohr v. Cromwell, 302 Conn. 767, 771,

31 A.3d 360 (2011), the Supreme Court affirmed the

dismissal of a plaintiff’s claim for § 7-433c benefits

because the record substantiated the commissioner’s

finding that ‘‘the plaintiff was, in fact, diagnosed with

hypertension and informed of that diagnosis more than

one year before he filed his claim . . . .’’

Particularly pertinent to the present appeal is Conroy

v. Stamford, supra, 161 Conn. App. 691. In that case, the

commissioner determined that ‘‘because the [plaintiff]

was not formally diagnosed with hypertension until January 6, 2012 . . . [his] notice of claim for benefits pursuant to § 7-433c . . . dated April 9, 2012, was

therefore timely.’’ (Internal quotation marks omitted.)

Id., 700. On appeal, the defendant argued that the commissioner ‘‘should have concluded that the one year

limitation period for filing a claim under § 7-433c began

to run on January 30, 2008, when [his primary care

physician] gave the plaintiffthe option of taking medication for his high blood pressure.’’ Id., 701. This court
disagreed with that contention, stating in relevant part

that the primary care physician ‘‘testified in his deposition . . . that he did not diagnose the plaintiff with

hypertension during the January 30, 2008 visit. . . .

Although the defendant argues that the mere fact that

[the primary care physician] offered the plaintiff the

option of going on medication during his January 30,

2008 visit strongly suggests that the plaintiff received

a diagnosis of hypertension, we conclude that [the primary care physician’s] offer of the medication option

to the plaintiff was not tantamount to a diagnosis of

hypertension for purposes of §§ 31-294c (a) and 7-433c.

. . . [O]ur review of the totality of the circumstances

surrounding the plaintiff’s January 30, 2008 visit does

not support the conclusion that he received a formal

diagnosis of hypertension during that visit. The plaintiff

was merely offered the option of going on medication

as opposed to being prescribed medication during that

visit. When this evidence is coupled with evidence that

(1) [the primary care physician] told the plaintiff that

he was ‘in pretty good shape’ during that same visit,

(2) the plaintiff lowered his blood pressure readings to

normal levels through diet and exercise shortly after

that visit, (3) the plaintiff’s March 21, 2008 echocardiogram results were not indicative of hypertension, and

(4) no other medical professional diagnosed the plaintiff

with hypertension prior to January 6, 2012, we are left

with the firm conviction that the board’s affirmance of

the trial commissioner’s finding that the plaintiff was

not formally diagnosed with hypertension until January

6, 2012, was proper.’’(Citations omitted; emphasis omitted.) Id., 706–708.

That precedentis dispositive of the defendants’ claim.

Although the plaintiff in the present case consulted with

a cardiologist in 2003, due to concerns about his family’s

history of coronary artery disease, that cardiologist did

not inform him of a heart disease or hypertension diagnosis. See Ciarlelli v. Hamden, supra, 299 Conn. 300.

To the contrary, the cardiologist informed the plaintiff

that his lipid profile was acceptable and that the results

of a stress test were ‘‘clinically and electrocardiographically negative.’’ Although it is undisputed that the

cardiologist at that time recommended a diet and exercise program for the plaintiff, our Supreme Court in

Ciarlelli emphasized that ‘‘evidence that an employee

merely knew of past elevated blood pressure readings,

or was advised by his or her physician to make certain

lifestyle changes in response thereto, is not sufficient

to trigger the limitation period in the absence of evidence that the employee formally had been diagnosed

with hypertension by a medical professional and

advised of that diagnosis.’’ Ciarlelli v. Hamden, supra,

301. In the present case, the plaintiff testified that the

cardiologist never diagnosed him with any heart related

ailment. The commissioner expressly credited that testimony, as was her exclusive prerogative as the trier
of fact. See Ayna v. Graebel/CT Movers, Inc., 133 Conn.

App. 65, 71, 33 A.3d 832 (commissioner possesses sole

discretion to determine credibility of witnesses), cert.

denied, 304 Conn. 905, 38 A.3d 1201 (2012); Mele v.

Hartford, 118 Conn. App. 104, 107, 983 A.2d 277 (2009)

(commissioner is sole arbiter of weight of evidence and

credibility of witnesses). Furthermore, unlike Roohr v.

Cromwell, supra, 302 Conn. 770, there is no testimonial

or documentary evidence in the record indicating that

the cardiologist apprised the plaintiff of such a diagnosis. Accordingly, we conclude that the totality of the

circumstances surrounding his 2003 consultation with

that cardiologist does not support the conclusion that

the plaintiff received a heart disease or hypertension

diagnosis at that time.

Rather, the relevant findings of the commissioner,

which are substantiated by the evidentiary record

before us, indicate that the plaintiff first was informed

of such a diagnosis on February 24, 2012. On that date,

the plaintiff suffered a myocardial infarction and had

an angiogram performed, which confirmed that he had

severe coronary artery disease affecting four major

arteries. Because the plaintiff filed his form 30C4

less

than one month later, it was timely under § 31-294c.

The defendants’ jurisdictional challenge, therefore,

fails.

II

The defendants also claim that the board improperly

affirmed the commissioner’s conclusion that the plaintiff had established a compensable claim under § 7-

433c. Specifically, they maintain that the plaintiff is

ineligible for heart disease and hypertension benefits

because he did not suffer ‘‘any condition or impairment

of [his] health caused by hypertension or heart disease,’’

as that language is used in § 7-433c, during the course

of his employment with the department. Our analysis

of the defendants’ claim is twofold in nature. We first

review the relevant law regarding compensability under

§ 7-433c. We then apply that law to the commissioner’s

ultimate conclusion, expressed in her April 7, 2014

Amended Findings and Orders, that the plaintiff ‘‘suffered a condition or impairment of health due to heart

disease’’ while employed as a police officer with the

department.

A

In claiming that the plaintiff has not established a

compensable claim under § 7-433c, the defendants submit that the plaintiff is ineligible for heart disease and

hypertension benefits because he did not suffer ‘‘any

condition orimpairment of [his] health caused by hypertension or heart disease’’ while employed by the department. The defendants thus contend that this case is

controlled by Gorman v. Waterbury, 4 Conn. App. 226,

231–33, 493 A.2d 286 (1985), which held that the exis-
tence of heart disease or hypertension alone does not

satisfy the statutory requirements of § 7-433c. In

response, the plaintiff argues that this court has overruled that precedent sub silentio.

Before considering the vitality of Gorman, some additional context is necessary. ‘‘The statute concerning

heart disease and hypertension was originally drafted

as part of the Workers’ Compensation Act [General

Statutes § 31-275 et seq.] and provided police officers

and firefighters with a rebuttable presumption that

heart disease and hypertension were causally connected to their occupations. . . . In 1969, this rebuttable presumption was made conclusive and the statute

was soon declared unconstitutional [by our Supreme

Court]. . . . In response to that problem, § 7-433c was

enacted in its present form in 1977 as legislation separate and distinct from the Workers’ Compensation Act.’’

(Citations omitted.) Zaleta v. Fairfield, 38 Conn. App.

1, 7, 658 A.2d 166, cert. denied, 234 Conn. 917, 661 A.2d

98 (1995).

Section § 7-433c (a) provides in relevant part that ‘‘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 . . . .’’ (Emphasis

added.)

As our Supreme Court has explained, § 7-433c provides ‘‘special compensation to qualifying policemen

and firemen who die or become disabled as a result

of hypertension or heart disease.’’ (Internal quotation

marks omitted.) Chambers v. Electric Boat Corp.,

supra, 283 Conn. 858 n.11. The statute ‘‘was enacted

for the purpose of placing policemen who die or are

disabled as a result of hypertension or heart disease in

the same position vis-a-vis compensation benefits as

policemen who die or are disabled as a result of service

related injuries.’’ (Internal quotation marks omitted.)

Lambert v. Bridgeport, 204 Conn. 563, 566–67, 529 A.2d

184 (1987). The statute thus permits ‘‘firefighters and

police officers . . . who suffer from heart disease or

hypertension outside the line of duty to collect benefits

in the same manner as those who are injured in the

line of duty.’’ Zaleta v. Fairfield, supra, 38 Conn. App.

5–6. Accordingly, under § 7-433c, ‘‘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.) Carter v. Clinton,

304 Conn. 571, 578, 41 A.3d 296 (2012); see also Bakelaar

v. West Haven, 193 Conn. 59, 68–69, 475 A.2d 283 (1984)

(§ 7-433c ‘‘confers benefits to qualifying claimants for

impairments sustained ‘either off duty or on duty,’ without proof that the condition arose out of and in the

course of employment’’). Rather, ‘‘[i]n order to collect

the benefits provided by § 7-433c, a claimant [must

establish] that he or she is a uniformed member of a

paid fire department or a regular member of a paid

police department, whose preemployment physical

examination revealed no evidence of hypertension or

heart disease, who now suffers a condition or an impairment of health caused by hypertension or heart disease

that has resulted in death or disability, and has suffered

a resultant economic loss.’’ Zaleta v. Fairfield, supra, 5.

1

This case concerns the applicability of that special

compensation statute to a claimant who does not suffer

any impairment caused by hypertension or heart disease while employed as a police officer that results

in death or disability, but rather first suffers such an

impairment following his retirement from the police

department. Although numerous are the appellate decisions addressing § 7-433c, almost all involve claimants

who suffered an injury or impairment attributable to

heart disease or hypertension during the course of their

employment as police officers or firefighters. See, e.g.,

Ciarlelli v. Hamden, supra, 299 Conn. 269–70 (claimant

placed on ‘‘prescription antihypertensive medication’’

due to ‘‘abnormally high’’ blood pressure months prior

to retirement); Marone v. Waterbury, 244 Conn. 1, 4,

707 A.2d 725 (1998) (claimant received hypertension

diagnosis and ‘‘10 percent disability [rating] of his cardiovascular system’’ prior to retirement); Hyatt v. Milford, 224 Conn. 441, 443 n.2, 619 A.2d 450 (1993)

(claimant ‘‘was a uniformed fire fighter for the city

of Milford at the time he incurred his disability’’ who

‘‘subsequently retired’’); Lambert v. Bridgeport, supra,

204 Conn. 565 (claimant ‘‘suffered a heart attack, which

disabled him from performing his duties as a patrol

officer’’ months prior to retirement). Those decisions,

therefore, are inapposite to the present case.

Our research reveals only one instance in which the

distinct issue before us has been presented to, and

decided by, an appellate court of this state.5

In Gorman

v. Waterbury, supra, 4 Conn. App. 230, the plaintiff’s

husband ‘‘was employed for many years as a regular

uniformed member of the Waterbury police department. He passed a pre-employment physical examination which revealed no evidence of heart disease or

hypertension. He retired on October 30, 1971, primarily

due to his failing vision. He suffered from a hypertensive
condition from 1967 until his death, which occurred on

September 7, 1972, due to heart disease.’’ Significantly,

‘‘[t]he hypertension did not have any disabling effects

on [the plaintiff’s husband] during his tenure as a police

officer.’’ Id. For that reason, when the plaintiff sought

benefits under § 7-433c following his passing, the commissioner denied that request ‘‘because the death of

her husband due to heart disease, which was the basis

of the claim, occurred when he was no longer a police

officer.’’ Id.

On appeal to this court, the plaintiff argued that ‘‘to

qualify for benefits under [§ 7-433c], only the condition

of hypertension or heart disease need be suffered while

on duty or off duty by a regular member of a police

department.’’ Id., 231. Put differently, the plaintiff’s position was that the statute required only the existence

of hypertension or heart disease during her husband’s

employment as a police officer, and not the manifestation of a condition or impairment caused by hypertension or heart disease that resulted in death or disability

during that time. This court rejected that argument,

stating: ‘‘Under this argument, the employee’s death or

disability resulting from hypertension or heart disease

need not occur while he is employed as a regular police

officer, but can occur after termination of that employment. A fair reading of the statute, however, reveals

that both the condition of hypertension or heart disease

and the death or disability resulting from such a condition must be suffered while the individual was on or

off duty as a regular member of a police or fire department. . . . [Section § 7-433c] provides benefits to qualified police and fire department members because these

individuals are more susceptible to the types of ailments

denoted. . . . It is intended to place these employees

in the same compensation position as those who are

injured in the line of duty. . . . Unlike a police officer

on active status, the plaintiff’s husband could not have

been injured in the line of duty because he was retired,

and the statute could not have intended to grant benefits

to him as if he had been so injured. The statute contemplates that a recipient of its benefits be an active, not

retired, member of a paid municipal police or fire

department or the dependent of such an active member.’’ (Citations omitted; emphasis in original.) Id.,

231–32.

Forthatreason, this court concluded that ‘‘[t]he plaintiff’s husband did not meet the eligibility requirements

of the statute. He suffered hypertension while he was a

regular member of a paid municipal police department,

fulfilling part of the statutory requirements. He did not,

however, die or suffer any disability from the hypertensive condition while so employed, as the statute further

requires. Under these facts, the plaintiff’s husband was

not entitled to benefits under [§] 7-433c . . . .’’ (Footnote omitted.) Id., 233.
Gorman thus instructs that proof of heart disease or

hypertension during a claimant’s period of employment

as a police officer or firefighter alone is insufficient to

satisfy the statutory criteria of § 7-433c. Rather, to qualify for benefits pursuant to § 7-433c, the claimant must

establish the existence of a ‘‘condition or impairment of

health caused by hypertension or heart disease’’ during

that time period, which results in the claimant’s death

or disability, as the plain language of § 7-433c requires.6

As our Supreme Court has noted, ‘‘case law dictates

that we should be especially wary of overturning a

decision that involves the construction of a statute.

. . . When we construe a statute, we act not as plenary

lawgivers but as surrogates for another policy maker,

[that is] the legislature. In our role as surrogates, our

only responsibility is to determine what the legislature,

within constitutional limits, intended to do. Sometimes,

when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided.

. . . More often, however, the legislature takes no further action to clarify its intentions. Time and again, we

have characterized the failure of the legislature to take

corrective action as manifesting the legislature’s acquiescence in our construction of a statute. . . . Once an

appropriate interval to permit legislative reconsideration has passed without corrective legislative action,

the inference oflegislative acquiescence places a significant jurisprudential limitation on our own authority to

reconsider the merits of our earlier decision.’’ (Internal

quotation marks omitted.) Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494–95, 923 A.2d 657 (2007);

see also McDonough v. Connecticut Bank & Trust Co.,

204 Conn. 104, 119, 527 A.2d 664 (1987) (‘‘[w]e presume

that the legislature is aware of our interpretation of

a statute, and that its subsequent nonaction may be

understood as a validation of that interpretation’’).

That maxim informs our analysis in the present case.

Gorman was decided by this court more than thirty

years ago. Although our General Assembly has since

amended § 7-433c on multiple occasions; see, e.g., Public Acts 2014, No. 14-122, § 72; Public Acts 1996, No.

96-230, § 2; Public Acts 1992, No. 92-81, § 1; it nonetheless has not taken any corrective action in response to

this court’s construction of the requirements of § 7-

433c in Gorman. We, therefore, must presume that the

legislature concurs with that construction. See Ciarlelli

v. Hamden, supra, 299 Conn. 284–85 n.12.

Furthermore, ‘‘it is axiomatic that one panel of this

court cannot overrule the precedent established by a

previous panel’s holding.’’ (Internal quotation marks

omitted.) Samuel v. Hartford, 154 Conn. App. 138, 144,

105 A.3d 333 (2014). As we often have stated, ‘‘this

court’s policy dictates that one panel should not, on its

own,reverse the ruling of a previous panel. The reversal
may be accomplished only if the appeal is heard en

banc.’’ (Internal quotation marks omitted.) Boccanfuso

v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208,

cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). ‘‘Prudence, then, dictates that this panel decline to revisit’’

such requests. First Connecticut Capital, LLC v.

Homes of Westport, LLC, 112 Conn. App. 750, 759, 966

A.2d 239 (2009). We therefore refuse to disturb the

statutory construction set forth in Gorman.

2

The plaintiff nevertheless suggests that this court did

exactly that in Arborio v. Windham Police Dept., supra,

103 Conn. App. 172.7 Before both the commissioner and

the board, the plaintiff successfully argued that Arborio

effectively overruled the construction of § 7-433c enunciated in Gorman. That position, however, is predicated

on a faulty premise.

Whereas Gorman concerned an issue of compensability under § 7-433c, Arborio involved a jurisdictional

question under § 31-294c (a)—how to properly measure

its one year time limitation in the context of a claim

for benefits under § 7-433c. In an earlier decision, this

court had held that the limitation period began to run

when the claimant learned of his elevated blood pressure readings, rather than when he was diagnosed with

hypertension. Pearce v. New Haven, 76 Conn. App. 441,

449–50, 819 A.2d 878, cert. denied, 264 Conn. 913, 826

A.2d 1155 (2003). In Arborio, this court adhered to that

holding while concluding that the plaintiff’s knowledge

of high blood pressure readings and results of a stress

test at several office visits was insufficient to support

the conclusion that he had sustained an accidental

injury that required him to notify his employer and

to file a claim for benefits under § 7-433c. Arborio v.

Windham Police Dept., supra, 103 Conn. App. 186–88.

In our analysis, this court noted that ‘‘[c]ertainly, proof

of a disability is a prerequisite to the actual collection

of benefits, but one need not be disabled before being

required to notify one’s employer of an accidental injury

and to file a claim within one year of that injury.’’ Id.,

177. At the same time, this court also recognized that

a claimant ‘‘must have had some type of accidental

injury (not necessarily an immediately disabling injury)

before being required to file a claim.’’ (Emphasis

added.) Id., 187. As this court emphasized, ‘‘pursuant

to § 31-294c (a), the employee not only must notify his

employer of the accident, but he also must file a claim

for benefits within one year of the date of the accident.’’

Id., 178–79.

Arborio thus is consonant with Gorman, insofar as

those opinions both recognize that claimants must suffer some impairment or injury during the course of their

employment as police officers or firefighters that result

from their hypertension or heart disease. Arborio

merely indicates that if a claimant suffers such impair-
ment, that injury need not ripen into a final disability

rating or death prior to the commencement of a claim

with the commissioner pursuant to § 31-294c. Accord

Hunt v. Naugatuck, 273 Conn. 97, 99, 105, 868 A.2d 54

(2005) (although plaintiff sustained impairment during

course of employment as police officer in that he was

‘‘placed . . . on a prescription medication to control

his hypertension’’ following ‘‘abnormally high’’ blood

pressure readings, ‘‘the plaintiff was not seeking an

award of specific monetary benefits when he filed his

[notice of claim pursuant to § 31-294c] because his

hypertension had not ripened into a partial or total

disability’’); Black v. London & Egazarian Associates,

Inc., 30 Conn. App. 295, 303, 620 A.2d 176 (‘‘[t]he purpose of § 31-294 . . . is to alert the employer to the

fact that a person has sustained an injury that may be

compensable . . . and that such person is claiming or

proposes to claim compensation’’ [citation omitted;

emphasis altered; internal quotation marks omitted]),

cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993).

Arborio did not resolve an issue of compensability

under § 7-433c; it simply determined, as a jurisdictional

matter, that ‘‘the commissioner’s determination that the

plaintiff’s claim was untimely is not supported by the

commissioner’s factual findings’’; Arborio v. Windham

Police Dept., supra, 103 Conn. App. 185; and therefore

remanded the matter to the board ‘‘with direction to

reverse the determination of the commissioner and to

remand the case to the commissioner for further proceedings in accordance with law.’’8

Id., 188.

What distinguishes Gorman from Arborio—and

other cases in which claimants were deemed eligible

for heart disease and hypertension benefits under § 7-

433c—is the undisputed fact that, during his period of

employment as a police officer, Gorman did not experience any impairment of health attributable to his hypertension. See Gorman v. Waterbury, supra, 4 Conn. App.

230. That is precisely the situation presented in the case

before us.

B

We therefore turn our attention to the commissioner’s

ultimate determination that the plaintiff ‘‘suffered a condition or impairment of health due to heart disease on

January 30, 2012.’’ We conclude that this determination

lacks evidentiary support in the administrative record

and results from an incorrect application of the law

to the subordinate facts found. See Baron v. Genlyte

Thomas Group, LLC, supra, 132 Conn. App. 799–800.

In her original findings and orders dated January 6,

2014, the commissioner credited the plaintiff’s testimony that ‘‘he was never disabled from working for the

city of Milford during his time with the [department]

due to heart disease or hypertension.’’ The commissioner also credited Mejia’s testimony that the plaintiff

‘‘suffered from heart disease not only on the date of
his myocardial infarction, February 24, 2012, but also

on January 30, 2012, his claimed date of injury’’; that

he ‘‘is not aware of any symptom of coronary artery

disease present in the [plaintiff] before February 24,

2012’’; and that he ‘‘has no evidence that the [plaintiff’s]

heart functioning was impaired at all in January, 2012.’’

The commissioner thus concluded that although the

plaintiff ‘‘suffered coronary artery disease while he was

a regular member of the [department],’’ he ‘‘did not

suffer any disability from that condition while so

employed, as [§ 7-433c] requires.’’

Following the filing of the plaintiff’s motion forreconsideration, in which the plaintiff relied principally on

this court’s decision in Arborio, the commissioner on

April 7, 2014, entered her Amended Findings and

Orders. Those amended findings incorporated by reference her previous findings (1) that the plaintiff was

never disabled from working for the city of Milford

during his time with the department due to heart disease

or hypertension; (2) that Mejia was not aware of any

symptom of heart disease present in the plaintiff prior

to February 24, 2012; and (3) that Mejia had no evidence

that the plaintiff’s heart functioning was impaired at all

in January, 2012. Those findings all are substantiated by

the administrative record before us. The commissioner

nevertheless vacated her earlierfinding that the plaintiff

did not suffer any impairment caused by his heart disease while employed by the department. Instead, she

concluded that the plaintiff ‘‘suffered a condition or

impairment of health due to heart disease on January

30, 2012.’’

Fortwo reasons, we conclude that this finding cannot

stand. First, itlacks evidential supportin the administrative record before us. Although Mejia testified, and the

commissioner so found, that the plaintiff had heart disease in January, 2012, prior to his February 17, 2012

retirement, there simply is no evidence in the record

indicating that the plaintiff suffered ‘‘any condition or

impairment of health caused by’’ his heart disease that

has resulted in death or disability while employed as a

police officer, as § 7-433c plainly requires. The plaintiff

testified at the March 20, 2013 hearing before the commissioner that he never suffered any disability and

never had any heart issues or complaints during his

tenure with the department. Mejia, the plaintiff’s

cardiologist, likewise testified at his June 19, 2013 deposition, which was admitted as an exhibit before the

commissioner, that he had no knowledge that the plaintiff possessed any symptoms of coronary artery disease

prior to February 24, 2012, and further that he did not

have any evidence that the functioning of the plaintiff’s

heart was impaired in any manner prior to his retirement from the department. For those reasons, the commissioner found, in both her January 6, 2014 and April

7, 2014 decisions, that neither the plaintiff nor Mejia

was aware of any impairment of the plaintiff’s heart
prior to his February 24, 2012 heart attack. Those findings directly contradict the commissioner’s ultimate

conclusion that the plaintiff ‘‘suffered a condition or

impairment of health’’ on January 30, 2012, that was

caused by his heart disease. The administrative record

in this case is bereft of evidence to substantiate that

determination.

Second, the commissioner’s ultimate conclusion, and

the board’s subsequent affirmance thereof, suffers the

same infirmity as the position advanced by the plaintiff

widow in Gorman, insofar as it presumes that the existence of heart disease itself is sufficient to satisfy the

statutory imperative of § 7-433c that a claimant demonstrate that he or she suffered a ‘‘condition orimpairment

of health caused by hypertension or heart disease’’ that

resulted in death or disability while employed as a

municipal firefighter or police officer. That presumption is contrary to Connecticut law, as established in

Gorman, which held that the existence of heart disease

or hypertension alone does not satisfy the statutory

requirements of § 7-433c. Gorman v. Waterbury, supra,

4 Conn. App. 231–33.

In neither the proceedings before the commissioner

nor this appeal has the plaintiff claimed that he suffered

any condition or impairment of health caused by his

heart disease that has resulted in death or disability

during his tenure as a police officer with the department.9 Furthermore, the administrative record before

us lacks any evidence so indicating. That record instead

indicates that the plaintiff first suffered an impairment

of health caused by his heart disease on February 24,

2012, when he suffered a heart attack while shoveling

snow. That impairment arose after the plaintiff had

retired from his employment as a police officer with

the department. Bound by the precedent set in Gorman,

we therefore conclude that the board improperly

affirmed the commissioner’s determination that the

plaintiff had established a compensable claim for heart

disease and hypertension benefits pursuant to §7-433c.

The decision of the Workers’ Compensation Review

Board is reversed and the case is remanded to the board

with direction to sustain the defendants’ appeal.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The defendants also claim that the board improperly affirmed the commissioner’s denial of their February 14, 2014 and April 21, 2014 motions to

correct. We need not address that contention in light of our resolution of

the defendants’ second claim.

2

‘‘Myocardial infarction is a synonym for heart attack . . . .’’ Doyle v.

Kamm, 133 Conn. App. 25, 37 n.8, 35 A.3d 308 (2012).

3 Titled ‘‘Benefits for policemen or firemen disabled or dead as a result

of hypertension or heart disease,’’ General Statutes (Rev. to 2011) § 7-433c

provides: ‘‘(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.

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 as provided in section 7-467.

‘‘(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.’’

In 2014, our General Assembly amended the last sentence of subsection

(a) of § 7-433c, which now provides: ‘‘As used in this section, ‘municipal

employer’ has the same meaning as provided in section 7-467.’’ That technical

revision has no bearing on the issues presented in this appeal.

4

‘‘A form 30C is the document prescribed by the workers’ compensation

commission to be used when filing a notice of claim pursuantto the [Workers’

Compensation Act, General Statutes § 31-275 et seq.].’’ (Internal quotation

marks omitted.) Lamar v. Boehringer Ingelheim Corp., 138 Conn. App. 826,

828 n.3, 54 A.3d 1040, cert. denied, 307 Conn. 943, 56 A.3d 951 (2012).

5 The plaintiff has provided this court with no authority in which a claimant

has been deemed eligible for heart disease and hypertension benefits pursuant to § 7-433c when the ‘‘condition or impairment of health caused by

hypertension or heart disease’’ first arose subsequent to the claimant’s retirement from the police or fire department.

6 Had the court in Gorman accepted the plaintiff’s contention that the

existence of hypertension or heart disease itself constituted the impairment

required under § 7-433c, it would have contravened the ‘‘basic tenet of

statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is

a purpose behind every sentence, clause, or phrase used in an act and that

no part of a statute is superfluous. . . . Because [e]very word and phrase [of

a statute] is presumed to have meaning . . . [a statute] must be construed, if

possible, such that no clause, sentence or word shall be superfluous, void

or insignificant.’’ (Internal quotation marks omitted.) Fairchild Heights,

Inc. v. Dickal, 305 Conn. 488, 500, 45 A.3d 627 (2012). The General Assembly,

in establishing the criteria for heart disease and hypertension benefits in

§ 7-433c, did not simply state that police officers or firefighters who suffer

from hypertension or heart disease qualify for such benefits. Rather, our

legislature specifically provided that a police officer or firefighter must

suffer ‘‘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 . . . .’’ (Emphasis added.) General Statutes § 7-433c; cf. Malchik v. Division of Criminal Justice, 266

Conn. 728, 740, 835 A.2d 940 (2003)(in enacting § 7-433c, legislature intended

‘‘to afford the named occupations with a bonus . . . when, under the appropriate conditions, the employee suffered heart disease or hypertension’’

[emphasis added]). In rejecting the plaintiff’s contention, the court in Gorman thus gave effect to every word in that statutory provision.

7 The plaintiff also suggests that our Supreme Court ratified Arborio’s

alleged disavowal of Gorman in Ciarlelli v. Hamden, supra, 299 Conn. 278.
That assertion is untenable. The distinct question presented in Ciarlelli was

‘‘when the one year limitation period of [§] 31-294c (a) begins to run on a

claim for hypertension benefits under [§] 7-433c.’’ (Footnote omitted.) Id.,

267. In answering that question, our Supreme Court expressly abrogated

the standards set forth in Arborio and Pearce v. New Haven, 76 Conn. App.

441, 449, 819 A.2d 878, cert. denied, 264 Conn. 913, 826 A.2d 1155 (2003),

and instead held that ‘‘a formal diagnosis of hypertension or heart disease,

communicated to an employee by his or her physician, constitutes the ‘injury’

that triggers the running of the limitation period of § 31-294c.’’ Ciarlelli v.

Hamden, supra, 299. Although the court acknowledged that this court in

Arborio opined that a claimant need only demonstrate an injury or manifestation resulting from heart disease or hypertension during the course of his

or her employment, and not proof of disability at that time; id., 293–94; our

Supreme Court did not weigh in on that particular issue. Indeed, no such

issue was raised in Ciarlelli. Put simply, Ciarlelli concerned reviewability

under § 31-294c, and not compensability under § 7-433c.

8

‘‘It is axiomatic that an appellate decision stands only for those issues

presented to, and considered by, the court in that particular appeal.’’ Dept.

of Public Safety v. Freedom of Information Commission, 103 Conn. App.

571, 582 n.10, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007);

see also Valeriano v. Bronson, 209 Conn. 75, 91, 546 A.2d 1380 (1988)

(‘‘discussion in a judicial opinion that goes beyond the facts involved in the

issues is mere dictum and does not have the force of precedent’’). The

distinct issue of whether a claimant, who suffers no condition or impairment

of health caused by hypertension or heart disease until after retiring from

the fire or police department, may recover benefits under § 7-433c was

neither raised by the parties nor decided by the court in Arborio, Ciarlelli,

or any other appellate decision of this state other than Gorman.

9 At oral argument before this court, the plaintiff’s counsel conceded that

the plaintiff ‘‘never had any indication of any kind of coronary problems’’

while he was employed as a police officer with the department. Instead, he

stated that the plaintiff’s heart disease ‘‘did not manifest itself’’ until after

he retired.