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Nanni v. Rhone-Poulenc, Basic Chemicals Co., Inc.

CASE NO. 1709 CRB-4-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 30, 1995

ANTHONY NANNI

CLAIMANT-APPELLEE

v.

RHONE-POULENC, BASIC CHEMICALS CO., INC.

EMPLOYER

and

GAB BUSINESS SERVICE, INC.

INSURER-RESPONDENTS

APPEARANCES:

The claimant was represented by Daniel E. Brennan, Jr., Brennan, McNamara and Baldwin, P.C., 2 Daniels Farm Road, Trumbull, CT 06611.

The respondents were represented by Brendan T. Canty and Anastasios T. Savvaides, of Reid, Cafero and Corsello, 191 East Avenue, P. O. Box 2108, Norwalk, CT 06852-2108.

This Petition for Review from the April 16, 1993 Finding and Award of the Commissioner acting for the Fourth District was heard April 8, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the April 16, 1993 Finding and Award as modified by the Reply to the Respondent’s Motion to Correct issued on April 29, 1993. The trial commissioner awarded workers’ compensation benefits to the claimant on the basis that the claimant suffered a psychiatric condition including panic disorder and major depression, which arose out of and in the course of his employment.

The trial commissioner specifically concluded that the claimant’s injuries constituted an occupational disease, and thus found that the claimant’s notice of claim was filed in a timely manner. In support of their appeal, the respondents contend that the claimant’s condition did not constitute an occupational disease pursuant to § 31-275(15) C.G.S., and thus contend that the claimant’s notice of claim was untimely filed.

The trial commissioner found the following facts. The claimant was employed as a senior transportation specialist with the employer/respondent from February 1, 1981 until March 16, 1989.1 On or about December 7, 1988, the claimant sought treatment with Dr. Vincent Scavo, an otolaryngist, with complaints of vertigo, hearing loss, and tinnitus. At that time, the claimant gave a history to Dr. Scavo that the symptoms became more severe and frequent following the relocation of the employer’s facility to Shelton, Connecticut in May, 1988. The claimant specifically described his office in the new work location in Shelton as a six by eight foot cubicle in a room with no windows. Dr. Scavo was of the opinion that the confined office space provoked the symptoms of claustrophobia in the claimant which had a direct effect on his inner ear condition. However, the claimant testified that his symptoms had started prior to May 1988. In November, 1988, the claimant experienced a severe panic attack at work and had to have someone take him home.

On January 21, 1989, the claimant began treating with Dr. Joseph D’Apice, a psychiatrist. Dr. D’Apice diagnosed the claimant as suffering from agoraphobia with panic attacks, compulsive personality disorder, and psychosocial stressors due to his daughter’s marriage, and due to his concern about his job and new job location. The claimant indicated that he often became so panicked while in his office that he would get dizzy, have palpitations, and have to sit by the window in his boss’s office in order to feel better. The claimant, by his attorney, filed a Formal Notice of Claim on August 15, 1990.

The respondents contend that the commissioner lacked jurisdiction over the workers’ compensation claim because the claimant failed to comply with the time limitations of § 31-294 C.G.S which was in effect at the time of the claimant’s injury. Section 31-294 C.G.S. imposes a one year limitation for filing personal injury claims, including repetitive trauma injuries, and imposes a three year limitation for filing occupational disease claims. See Crochiere v. Board of Education, 227 Conn. 333, 348 (1993). Section 31-275(15) C.G.S. defines an occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such....” Our Supreme Court recently interpreted the term occupational disease in Crochiere, supra, at 352-353, as follows:

[the disease] need not be unique to the occupation of the employee or to the work place; it need merely be ‘so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” Hansen v. Gordon, 221 Conn. 29, 35, 602 A.2d 560 (1992). Thus, an occupational disease “does not include a disease which results from the peculiar conditions surrounding the employment of the claimant in a kind of work which would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.” Madeo v. I. Dibner & Brother, Inc., 121 Conn. 664, 667, 186 A. 616 (1936).

In Crochiere, supra, the court found that the claimant’s mental injury, which resulted from the mental stress of allegations regarding sexual misconduct, did not constitute an occupational disease. The court reasoned that the claimant’s mental injury was “not so distinctively associated with his occupation as a music teacher that there is a direct causal connection between his occupational duties and his mental injury.... Such allegations of sexual misconduct could arise in numerous occupational settings. Therefore, the occupation of music teacher is not by its nature more likely to give rise to allegations of sexual misconduct than would other kinds of employment carried on under similar conditions.” Crochiere, supra, at 353. The court thus concluded that the claimant’s mental injury did not constitute an occupational disease. However, the court found that the claimant’s mental injury was the direct result of repetitive trauma incident to his occupation as a music teacher.

Similarly, in the instant case, we conclude that the claimant’s mental injury did not constitute an occupational disease. Specifically, the claimant’s panic attacks, claustrophobia, and other psychiatric symptoms were related to the claimant’s confined working conditions. The claimant has failed to demonstrate that the use of a cubicle for an office and the absence of windows are distinctively associated with the claimant’s profession as a transportation specialist. Many other professional and clerical positions have similar working conditions. Thus, although the trial commissioner found a causal connection between the claimant’s working conditions and his psychiatric symptoms, we nevertheless conclude that those working conditions could have arisen in numerous other occupational settings. We conclude that the occupation of transportation specialist is not by its nature more likely to have confined working spaces than other occupations. We thus conclude that the claimant’s mental injury did not constitute an occupational disease. See Crochiere, supra.

Accordingly, the trial commissioner’s determination that the claimant’s injury constituted an occupational disease is reversed. This matter is remanded to the trial commissioner in order to determine whether the claimant filed a timely notice of claim for compensation within one year as required by § 31-294 C.G.S.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 Apparently, the claimant was promoted on March 16, 1989. The claimant’s last day of employment is not stated in the Findings of the commissioner. BACK TO TEXT

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