CASE NO. 1890 CRB-8-93-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 4, 1995
ROYAL INSURANCE CO.
The claimant was not represented at oral argument. At trial, the claimant was represented by Philip Steele, Esq., 5 Linden Place, Hartford, CT 06106.
The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review from the November 2, 1993 Finding and Award of Compensation of the Commissioner acting for the Eighth District was heard October 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the November 2, 1993 Finding and Award of Compensation of the Commissioner for the Eighth District. On appeal, the respondent argues that the commissioner improperly concluded that the claimant’s psychiatric condition arose out of and in the course of her employment. We reverse the decision of the trial commissioner.
The claimant began working in the respondent’s accounting department when she was eighteen years old. By 1990, she had been with the company for 32 years and was working as a regional accountant in Glastonbury supervising the respondent’s Massachusetts auto insurance business. Although the respondent had begun transferring many of the Glastonbury operations to Syracuse, New York in 1989, the claimant testified that she had been assured by supervisors that this process would not affect her. In July of 1990, the respondent announced that all accounting functions in Glastonbury would be eliminated, and that auto insurance would no longer be sold in Massachusetts. The claimant testified that she was confident at that time that the respondent would find her another position in the Glastonbury office.
As time progressed, however, it became apparent to the claimant that her younger and less experienced co-workers were being offered permanent positions within the Glastonbury branch, while she was not. She began to grow concerned. Further inquiries led only to a part-time assignment finishing up the Massachusetts auto insurance, and suggested to the claimant that in the eyes of her superiors, her skills were so specialized that she was only of marginal use to the company. On or about November 29, 1990, the claimant received a letter from her regional supervisor notifying her that all accounting functions had been transferred to Charlotte, North Carolina, and that there was no suitable position for her in the Glastonbury office.
The claimant testified that she became very upset when she found out that she was not going to be retained by the respondent beyond the completion of her temporary assignment. She tendered her resignation effective December 31, 1990. Although the claimant continued to work, she was unable to accomplish much because she spent most of her time in her office crying. She sought treatment with her family physician, who prescribed medication for her emotional condition. Her husband testified that she disintegrated emotionally and lost all interest in life and work after receiving the November 29, 1990 letter. The claimant notified the respondent that she was unable emotionally and mentally to continue work on the temporary assignment.
After leaving work on December 31, 1990, the claimant’s condition worsened to the point that she sought the services of a psychologist. The psychologist opined that the claimant was depressed, tearful and distressed, and that her depression had been caused by what the claimant interpreted as betrayal by her employer and a blow to her dignity and self-esteem. All of the claimant’s social relationships were built around her employment with the respondent, and her work was a great part of her life. In the psychologist’s opinion, the claimant currently was emotionally incapable of getting another job, and there had been little progress since the inception of treatment early in 1991. The claimant refused to heed his recommendation that she see a psychiatrist, who could prescribe antidepressant medication.
The commissioner found that the claimant suffered emotional and mental injuries caused by stress arising from the conditions occurring on the job between July 1990 and December 31, 1990. He found that the claimant was totally disabled as a result of this injury, and ordered the payment of compensation from January 1, 1991 to March 15, 1991. No payment was ordered beyond that date because the claimant had refused to seek reasonable medical treatment by visiting a psychiatrist, which refusal prolonged her disability. The respondent has appealed from that decision.
The respondent argues that the claimant’s injuries are not compensable under the holding in Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800 (1992), appeal dismissed, 226 Conn. 404 (1993). In Fulco, our Appellate Court held that a plaintiff’s civil claim of negligent infliction of emotional distress was not barred by the exclusivity provision of the Workers’ Compensation Act where the alleged emotional distress was caused by the defendant’s discharge of the plaintiff from his employment.
In order for the Workers’ Compensation Act to apply, a claimant’s injury must arise out of and in the course of his employment. Id., 27 Conn. App. 807; McNamara v. Hamden, 176 Conn. 547, 556 (1979). At the time of the claimant’s discharge in 1989, § 31-275(12) C.G.S. defined “in the course of his employment” to include injuries taking place within the employment period, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of his employment or doing something incidental to it. Fulco, supra, 808; Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 746, cert. dismissed, 220 Conn. 902 (1991). The Appellate Court held that the claimant in Fulco was not fulfilling the duties of his employment or doing something incidental to it when he sustained his alleged injury.
“The rule for determining whether the activity is incidental to the employment turns on whether the activity is regularly engaged in on the employer’s premises, within the period of employment, and with the employer’s approval or acquiescence.” Fulco, supra, 809, citing Pagani, supra. “By its nature, the process of being discharged normally occurs once in an employee’s tenure. It cannot be considered conduct regularly engaged in as an incident to employment.” Fulco, supra. The court concluded that the claimant’s alleged injury was not suffered in the course of his employment, and ruled that the Workers’ Compensation Act did not bar his civil complaint.
The claimant argues that Fulco is inapplicable to this case because she was never terminated from her employment with the respondent. Rather, her employer had offered to keep her in a position of indefinite duration in the hope that she would voluntarily leave. She argues that it was the pain and humiliation inflicted by this treatment that caused her depression, which in turn rendered her unable to continue working and led to her resignation. Although this is a clever argument, we do not believe that this distinction removes this case from the scope of Fulco.
Much like the termination proceedings in Fulco, the respondent’s elimination of the claimant’s position and its inability to arrange a suitable replacement job for the claimant did not constitute conduct regularly engaged in as an incident to the claimant’s employment. The commissioner’s finding that the claimant suffered emotional and mental injuries during the period of her employment, as opposed to after her employment had ended, makes no difference when one considers the reasoning behind the Fulco decision. Conduct relating to the actual or potential termination of employment is of a different nature than conduct relating to the duties of employment or incidental to that employment. Compare Crochiere v. Board of Education, 227 Conn. 333, 357-59 (1993). The conduct causing the claimant’s injury in this case is closer to the termination of the plaintiff in Fulco than it is to the accusations made against the teacher in Crochiere.
Moreover, in 1993 our legislature amended the definition of “personal injury” in § 31-275(16) to exclude “a mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.” P.A. 93-228 § 1, now codified at § 31-275(16)(B)(iii). Given the decision in Fulco, which predated yet was consistent with this amendment, it is arguable that § 31-275(16) was not substantively changed within the meaning of § 55-3 C.G.S. and cases such as Fulco, supra, 803-04, and Little v. Ives, 158 Conn. 452, 457 (1969). This amendment could be interpreted instead as a clarification of the existing definition of “personal injury,” which would be retroactively effective instead of prospectively effective. We need not reach a decision on that issue, however, as we hold that the Fulco decision encompasses the facts of this case.
The trial commissioner’s decision is reversed and the claimant’s case is dismissed.
Commissioners Angelo L. dos Santos and Michael S. Miles concur.