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Forster v. Pitney Bowes

CASE NO. 3293 CRB-4-96-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 18, 1997

HANS FORSTER

CLAIMANT-APPELLANT

v.

PITNEY BOWES

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David J. Morrissey, Esq., 203 Church St., P. O. Box 31, Naugatuck, CT 06770.

The respondents were represented by Robert Cullen, Esq., Law Offices of Christine Harrigan, 185 Asylum Street, City Place, Hartford, CT 06103.

This Petition for Review from the March 6, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District was heard November 22, 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 claimant has petitioned for review from the March 6, 1996 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trier erroneously dismissed his psychiatric disability claim. We affirm the trial commissioner’s decision.

The claimant, who began working for Pitney Bowes in 1981, became very upset on June 19, 1991, after receiving a poor performance review. After visiting an employee assistance program, he talked about his workload and stress and pressure that he was feeling. He also followed the program’s suggestion that he see a psychiatrist. Several months later, his department underwent downsizing, and he was scheduled to be laid off on December 2, 1991. However, the claimant bolted from his supervisor’s office as soon as he heard the unit head start, “There’s no good way to say this.” He went straight to the office of his psychiatrist, Dr. D’Apice, where he was given medication and allowed to discuss the situation. The claimant’s immediate supervisor testified that the company was never able to tell him that his position had been eliminated by downsizing.

Dr. D’Apice diagnosed the claimant with an adjustment disorder and compulsive, hypervigilant personality traits, and noted that he had suffered panic attacks in the past. He was of the opinion that the two abovementioned incidents had caused the claimant’s major depression and resulting disability. Dr. Rubinstein, who examined the claimant at the respondents’ request, testified that the December 1991 event was not the precipitating factor that led to the disability, and said that the claimant had been fearful of losing his job for some time. He said that the claimant would have most likely ended up the way he did whether or not the aborted layoff attempt had occurred. After considering the evidence, the commissioner found that the claimant had failed to sustain his burden of proving that his mental disability arose out of and in the course of his employment. The claimant has appealed that decision.

We have stated many times that the burden is on the claimant to prove that he has sustained a compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). In a case like this, where the nature of a claimant’s condition and its relationship to his employment may be difficult to identify, the outcome often hinges on the testimony of doctors. Id., 152. It is the duty of the trier, and not this board, to determine the weight of the medical evidence and the credibility of the testimony, and to choose among conflicting opinions. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Moreover, a commissioner is not required to credit testimony even where it is uncontested, as he may still judge it to be unreliable or inconclusive. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Sylvia v. Victorian Salon, 14 Conn. Workers’ Comp. Rev. Op. 270, 272, 1976 CRB-2-94-2 (Sept. 6, 1995).

At the time of the events in question, the statutory definition of “personal injury” in § 31-275 C.G.S. had not yet been amended to exclude mental or emotional impairments that do not arise from a physical injury or occupational disease, nor had it been altered to exclude such conditions that arise from personnel actions such as layoffs. See P.A. 93-228; § 31-275(16)(B)(ii), (iii). However, our law still required proof within a reasonable degree of medical probability of an actual causal relationship between the mental impairment and the employment. See Crochiere v. Board of Education, 227 Conn. 333, 349-50 (1993); Struckman v. Burns, 205 Conn. 542, 554 (1987).

Despite the claimant’s arguments in his brief, the record shows that Dr. Rubinstein testified that he believed, with a reasonable degree of medical probability, that the claimant’s disability was not substantially caused by his work environment. (May 12, 1995 Transcript, p. 44). Although the December 2, 1991 incident could have been a significant contributing factor to the claimant’s major depression, Dr. Rubinstein felt that this was a “multifactorial causative situation,” and he thought it likely that the claimant would have “ended up the way he did” had the December incident not occurred. Id., 60. This testimony does not strongly favor the claimant’s case, and the trial commissioner was well within his discretion as the fact-finder to give more weight to Dr. Rubenstein’s opinion than that of Dr. D’Apice. In turn, it was reasonable for the commissioner to conclude from all of the evidence that the claimant had not met his burden of proof as to causation. We have no grounds to disturb that decision on review. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra, 71.

The trial commissioner’s decision is hereby affirmed.

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

Workers’ Compensation Commission

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