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Beninato v. Specialty Framing, Inc.

CASE NO. 1306 CRD-8-91-9

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 24, 1993

ELIZABETH BENINATO

CLAIMANT-APPELLANT

v.

SPECIALTY FRAMING, INC.

EMPLOYER

and

AETNA LIFE AND CASUALTY CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Lawrence J. Cicchiello, Esq., 364 Franklin Avenue, Hartford, CT 06114.

The respondents were represented by James L. Pomeranz, Esq., Lucas Strunk, Esq., and Robert W. Murphy, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the September 17, 1991 Finding and Award of the Commissioner for the Eighth District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners James J. Metro and Roberta S. D’Oyen.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant petitioned for review from the September 17, 1991 Finding and Award of the Commissioner for the Eighth District. In that Finding and Award, the commissioner concluded that the claimant did sustain an accidental injury at work on September 5, 1989 when she was pushed by a co-worker and suffered a neck sprain, but concluded that the claimant’s psychiatric condition and resulting disability were unrelated to the September 5, 1989 incident. Consequently, the commissioner dismissed all claims related to the latter condition. On appeal, the claimant contends that the commissioner improperly (1) denied the claimant’s motion to correct and (2) concluded that the claimant’s psychiatric disability did not arise out of and in the course of her employment. We affirm.

The commissioner found the following facts. On September 5, 1989, the claimant and the respondent-employer had a contract of employment under which the claimant worked as a carpenter. On September 5, 1989, the claimant was assaulted by a fellow employee at the place. Although the claimant was considered to be a good, dependable worker by her superiors and co-workers, she experienced problems on the job since late 1988, which she described as harassment directed toward her because of her gender.

Following the September 5, 1989 incident, the claimant felt upset and eventually went to the emergency room of St. Francis Hospital where she was diagnosed as having a neck sprain. The following day, the claimant went to see her physician, Dr. James Patillo, who diagnosed the claimant as suffering from a cervical neck sprain. Dr. Patillo further noted that the claimant was exhibiting anxiety symptoms and encouraged her to obtain counseling. On that date, the claimant visited Patricia Duffy, a psychotherapist whom she had previously seen from the fall of 1986 or 1987 until early 1989. The claimant subsequently came under the care of Dr. Marvin Zelman, a psychiatrist, on September 13, 1989, and was hospitalized at Hartford Hospital from September 14, 1989 to October 26, 1989, for severe depression. Tests performed during her hospitalization led to a diagnosis of schizotypal personality with paranoid tendencies. She continued under the care of Dr. Zelman after her hospitalization. Dr. Zelman opined that the September 5, 1989 incident at work was responsible for the claimant’s psychiatric disability and for her inability to return to work.

The respondents presented the testimony of Dr. Walter Borden, a psychiatrist. At the respondents’ request, the claimant was examined by Dr. Borden, who saw her on three occasions and also performed psychological testing. Dr. Borden diagnosed the claimant as having “a mixed personality disorder with depressive, histrionic and gender identity disorder features,” concluding that her psychiatric problems predated and were unrelated to the incident of September, 1989. Dr. Borden’s conclusions were based on the claimant’s history of her mother having developed cancer when the claimant was ten years old, her conflicted feelings about her gay lifestyle and the sudden death of Herman Cody, her mentor at work, in June, 1989.

After noting that Dr. Zelman related the cause of the claimant’s psychological impairment to the September, 1989 incident while Dr. Borden ascribed the claimant’s condition to other, prior and unrelated causes, the commissioner found Dr. Borden’s testimony to be “more compelling” and concluded that “the claimant’s psychiatric condition and disability is unrelated to the September 5, 1989 incident.” See Finding and Award, Paragraph 21. Accordingly, the commissioner dismissed all claims related to the claimant’s psychiatric condition. This appeal followed.

The claimant first contends that the commissioner should have granted her Motion to Correct. In her motion, the claimant sought the addition of certain facts related to (1) the claimant’s positive work history and lack of any evident psychological abnormalities prior to the September, 1989 assault and (2) the claimant’s experience of verbal abuse, sexual harassment, threats of physical violence and general lack of support at the job site for approximately one year prior to the September, 1989 assault. We could conclude that the trial commissioner properly denied the claimant’s Motion to Correct.

A commissioner’s finding “cannot be changed unless the record discloses that the finding. . . fails to include material facts which are admitted or undisputed.” Grady v. St. Mary’s Hospital, 179 Conn. 662, 669 (1980). While the suggested factual corrections sought by the claimant may not have been directly disputed by the respondents, the significance of these proposed findings was disputed by the respondents through their expert medical witness.

In extensive testimony found to be “compelling” by the commissioner, Dr. Borden noted the claimant’s “emotional turmoil” arising out of “problems in her psychosocial development,” “poor self-image” and a “series of losses.” Dr. Borden then opined that “[a]s to the issue of the work, I think in a way that’s where she projects all the problems . . . . [I]t’s a defense. That’s a way of getting away from the inside problems and finding an explanation that’s outside of herself and that somebody else can correct.” See Transcript of October 5, 1990, p. 28. Dr. Borden further testified that the death of Herman Cody, the claimant’s job site mentor until his death in June, 1989, was perhaps the single most important event leading to the claimant’s hospitalization: “I think if Mr. Cody had lived, we probably wouldn’t be here. I think that she would still be depressed because of the other situations, the turmoil in her life. The gender [identity problems] as well as the other loses, depressive losses. But, as long as she had that kind of support, she had some connection with him as a protector, one to give her a sense of acceptance that she was a good person, a good worker, special. Although she, I think, has needed the treatment long ago and needed it then, I think if he had still been alive, this situation that happened at work. . . would have been one more amongst the incidences. I don't think she would have been hospitalized. . . I'm not saying that she wouldn’t have needed it . . . . I think she’s needed intensive treatment right along . . . . His death, I think, is really what put her over the edge.” See Transcript of October 5, 1990, p. 34.

Dr. Borden’s testimony, then, directly disputes the significance of the claimant’s proposed findings as they bear on the ultimate issue, namely, whether the claimant’s psychiatric condition arose out of and in the course of her employment. The factual findings of a trial commissioner will not be altered, even if the correction sought was not in dispute, if the requested correction would not alter the legal conclusion. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). This is not a case where the commissioner failed to make a finding regarding the medical opinions as to causality; compare Calvanese v. Springfield Sugar, 6 Conn. Workers’ Comp. Rev. Op. 52, 549 CRD-1-87 (1988); rather, the commissioner’s ultimate factual and legal conclusions in that regard necessarily undermined the legal significance of the additional findings of fact contained in the claimant’s Motion to Correct. Therefore, the commissioner properly denied the Motion to Correct.

The claimant next challenges the factual and legal basis of the commissioner’s determination that the claimant’s psychiatric condition did not arise out of the conditions at work. “A claimant must prove a causal connection between the injury claimed and the employment . . . . Proof of proximate causation is required as in tort to determine whether the work related events were a substantial factor in producing the resultant disability.” (Citations omitted.) Pereira v. State, 10 Conn. Workers’ Comp. Rev. Op. 229, 230, 1209 CRD-7-91-4 (1993). Moreover, the determination of whether the September 5, 1989 assault and the workplace conditions which preceded it were a substantial factor in causing the claimant’s disability is a factual determination which must be made by the trial commissioner. Kroczewski v. Old Fox Chemical, Inc., 8 Conn. Workers’ Comp. Rev. Op. 13, 730 CRD-1-88-5 (1990); Parandes v. Hartford, 4 Conn. Workers’ Comp. Rev. Op. 56, 222 CRD-1-83 (1987). “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.” Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).

The commissioner’s findings adequately support his conclusion that this injury did not arise out of and in the course of the claimant’s employment. The evidence supported the conclusion with a reasonable medical certainty that the events at work were not a substantial factor in precipitating the claimant’s disabling condition.

Accordingly, we affirm the Eighth District’s Finding and Award and dismiss the claimant’s appeal.

Commissioners James J. Metro and Roberta S. D’Oyen concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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