State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Harris v. UTC/Pratt & Whitney

CASE NO. 3143 CRB-5-95-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 26, 1996

RONEY HARRIS

CLAIMANT-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se on appeal and at the proceedings below.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the August 14, 1995 Finding and Dismissal of the Commissioner acting for the Fifth District was heard February 23, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The pro se claimant has petitioned for review from the August 14, 1995 Finding and Dismissal of the Commissioner acting for the Fifth District. The trial commissioner found that the claimant began working for the respondent Pratt & Whitney on August 17, 1979. He testified that he was happy and excited when he first took the job, and that he performed his duties well. However, he received performance ratings that were less positive than he had expected, and was frustrated when employees with less seniority were promoted over him in 1989. He felt that his employer was engaging in favoritism and nepotism, and he attempted to transfer to another department. The claimant was subsequently laid off (along with some other employees); his last day of work was July 19, 1991.

After suffering loss of appetite, insomnia, and other symptoms, the claimant visited his family physician, Dr. Cohen, on July 18, 1991. Dr. Cohen thought that the claimant was suffering from work-related emotional stress, and referred him that same day to Dr. Kuperminc, a psychologist. He, in turn, referred the claimant to Dr. Berkley, a psychiatrist. Dr. Berkley testified that he evaluated the claimant twice in the spring of 1992, and diagnosed depression after the claimant’s termination from work. No other medical evidence was cited by the commissioner in his findings. The commissioner did note that he had accepted into evidence (over the claimant’s objection) a decision of the Connecticut Commission for Human Rights and Opportunities dismissing the claimant’s complaint of September 16, 1991, which had alleged discrimination and termination without good cause based on the claimant’s race and color. He also noted that the claimant’s performance evaluations indicated discrepancies between the claimant’s self-evaluation and that of his supervisor.

The trial commissioner ultimately found that the claimant, who had a somewhat difficult job, was laid off by the respondent due to business conditions in the Connecticut aircraft and aerospace industry. He concluded that the claimant had produced no convincing expert testimony that his employment or termination had caused him emotional or psychiatric difficulty, and dismissed his claim. The claimant appealed that ruling to this board.

Although § 31-275(16) of the Workers’ Compensation Act has recently been amended to exclude mental and emotional impairments resulting from personnel actions along with mental and emotional impairments that do not arise from a physical injury or occupational disease, neither of these changes were in effect at the time of the claimant’s alleged injury. Thus, the claimant has stated an arguable claim by alleging work-related emotional and psychiatric distress. See Crochiere v. Board of Education, 227 Conn. 333 (1993); but see Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800 (1992); Senatro v. Royal Insurance Co., 14 Conn. Workers’ Comp. Rev. Op. 44, 1890 CRB-8-93-11 (May 4, 1995). Whether or not the claimant can prove facts sufficient to support such a claim is another matter, of course, and is dependent on the trial commissioner’s determination of the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

In this case, the claimant offered the opinions of three medical professionals in support of his claim. The trial commissioner accepted the report of Dr. Cohen into evidence, but granted the respondents’ objections to the reports of Dr. Kuperminc, the psychologist, and Dr. Berkley, the psychiatrist. Dr. Berkley’s report was excluded from evidence because the commissioner believed he was not a treating physician and because his report was prepared in contemplation of workers’ compensation proceedings. (March 16, 1994 Transcript, pp. 19, 96-97). However, Dr. Berkley was allowed to testify at a subsequent formal hearing, which testimony was cited in the Finding and Dismissal.

Our supreme court has stated that “the opinion of a physician which is based wholly or partly on statements and symptoms related to the physician by the patient on a personal examination is inadmissible where the examination was made for the purpose of qualifying the physician to testify as a medical expert.” Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 119 (1961). Dr. Berkley stated up front that his report was based on two interviews with the claimant, who came to him “for psychiatric evaluation for possible use in his Workmen’s Compensation claim, which is pending.” He also stated that he had never had a treatment relationship with the claimant. Given the trial commissioner’s authority to determine the credibility of medical evidence and testimony, we do not believe that it was improper for him to exclude Dr. Berkley’s reports. Nasinka v. Ansonia Copper and Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 1592 CRB-5-92-12 (April 27, 1995). Both § 52-174(b) C.G.S. and the commissioner’s evidentiary powers under § 31-298 C.G.S. countenance such a result.

The other set of medical reports that the commissioner declined to admit into evidence was that of Dr. Kuperminc. The commissioner’s position at the March 1994 formal hearing was that psychologists are not authorized to treat under the Workers’ Compensation Act, and that their reports are therefore inadmissible. (Transcript, pp. 13-14, 97-98). Shortly thereafter, our legislature enacted P.A. 94-158, amending § 52-174(b) to allow a party offering into evidence a psychologist’s signed report and bill for treatment to have those documents admitted as business entries. The claimant then attempted to introduce Dr. Kuperminc’s reports via a Motion to Submit Additional Evidence dated August 21, 1995, which was denied by the trial commissioner.

This board recently ruled that a commissioner had the discretion under § 31-298 to admit the medical reports of a claimant’s treating neuropsychologist, even though at the time of the commissioner’s decision, § 52-174(b) did not yet refer to psychologists in its creation of a business exception to the hearsay rule for medical records. We reasoned that § 31-298 gives the commissioner leeway to go beyond the ordinary common law or statutory rules of evidence in making inquiry in workers’ compensation cases. Yablonski v. Danbury Hospital, 14 Conn. Workers’ Comp. Rev. Op. 212, 213, 1968 CRB-7-94-2 (July 27, 1995). Now, with the expansion of the definition in § 52-174(b) to include psychologists’ reports, it would seem that a commissioner’s authority to admit such reports has been strengthened, if anything.

The respondents argue, however, that the failure of § 31-275(9) [now § 31-275(17)] and § 20-1 C.G.S. to include psychologists should be interpreted as an intent to exclude their opinions from workers’ compensation proceedings. Section 31-275 defines “physician” to include any person authorized and licensed to practice a healing art as defined in § 20-1; § 20-1, in turn, defines the practice of the healing arts as “the practice of medicine, osteopathy, podiatry, natureopathy, and . . . optometry [conditionally].” No mention is made of psychology. The respondents contend that the omission was intentional, and that psychologists, from the standpoint of workers’ compensation claims, are not qualified to render an expert opinion regarding causation or disability.

We see two problems with that argument. First, it overlooks the general authority of the trial commissioner under § 31-298 to go beyond the scope of statutory and common law rules of evidence, as we discussed in Yablonski, supra. The Workers’ Compensation Act should be broadly construed to promote its remedial purpose. See Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 433 (1996) (Workers’ Compensation Act should be broadly construed to accomplish its humanitarian purpose).

Second, there is no rationale propounded by the respondents to explain why the legislature would want psychologists’ reports and testimony (see § 52-174(c)) to be included in personal injury suits while excluding the same evidence from workers’ compensation proceedings. Issues such as causation and the extent of a plaintiff’s injury are common to both forums; if anything, there is often more money at stake in civil proceedings than in workers’ compensation cases (e.g. loss of consortium claims, emotional distress, punitive damages, etc.) We know of no good reason to interpret the General Statutes to create such a dichotomy. Therefore, we hold that the Workers’ Compensation Act allows the inclusion of psychologists’ reports into evidence. Any question of a psychologist’s competence to determine causation, for example, would be directed at the weight of that evidence rather than its initial admissibility.

Because the transcript shows that the trial commissioner never truly considered allowing Dr. Kuperminc’s reports to be admitted into evidence, the commissioner was unable to evaluate the credibility of those reports. Whatever the strength of the claimant’s case, it is clear that Dr. Kuperminc’s reports are an instrumental part of it. Thus, we must reverse the commissioner’s dismissal of the instant claim, and remand it to the Fifth District for a trial de novo.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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