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Johnson v. UTC/Pratt & Whitney

CASE NO. 3312 CRB-5-96-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 19, 1997

SHIRLEY JOHNSON

CLAIMANT-APPELLEE

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

CIGNA INSURANCE CO.

INSURER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Gurrie Fandozzi, Esq., 99 West Main Street, Suite 203, New Britain, CT 06051.

The respondent employer and Cigna were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondent employer and Liberty Mutual were represented by Ellen Aspell, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

These Petitions for Review from the March 28, 1996 Finding and Award of the Commissioner acting for the Fifth District were heard December 13, 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

GEORGE A. WALDRON, COMMISSIONER. Each of the respondent insurers has petitioned for review from the March 28, 1996 Finding and Award of the Commissioner acting for the Fifth District. They both argue1 that the commissioner’s award was fatally defective because it failed to adopt a medical opinion on causation that supports his conclusion. We affirm the trial commissioner’s decision.

The claimant sought benefits for psychological stress and hypertension due to workplace pressures. She filed a notice of claim for stress-related depression on August 11, 1987, with a January 28, 1987 date of injury. She had sought medical assistance that June, and came under the care of Drs. Nissanka and Pinter, psychiatrists who practiced together at that time. Dr. Pinter found the claimant able to work effective August 12, 1987, and last saw the claimant on September 8, 1987. He then left Dr. Nissanka’s practice, and the claimant began treating with Dr. Nissanka. He found the claimant to be 40-50% disabled due to stress and depression. Doctors’ notes from and after July 1987 reflect that the claimant had anxieties about personal and family matters as well as work.

Dr. Borden, also a psychiatrist, examined the claimant three times over the span of 27 months. He opined that she had complicated psychiatric problems with a chronic underlying depression traceable to her childhood. She had a tendency toward paranoia that she projected toward her workplace. She moved to California in 1990, and while working there had a replay of the same problems she had at Pratt & Whitney. Although Dr. Borden thought her work during 1985-87 played a part in her problem at that time, she had recovered with no permanent partial disability attributable toward that job. The commissioner noted that no medical evidence was presented regarding hypertension.

Based on the testimony, the commissioner found that the claimant’s work load was increased between 1985 and 1987, which made her feel overworked, diminishing her work capacity and leading to her depression. She returned to work on August 13, 1987 with no permanent partial disability. The commissioner awarded medical expenses and compensation for lost time for the claimant’s period of depression between June and August 1987. The commissioner found the reports of Dr. Nissanka not to be credible, and found that no loss of earning capacity was proven. Therefore, he dismissed her claims for permanent partial disability, diminished earning capacity, and hypertension. The respondents have appealed that decision.

The respondents argue on appeal that the commissioner should not only have dismissed the permanent partial disability and hypertension claims: he should have denied the occurrence of a compensable psychiatric injury in the first place. They allege that there was no evidence establishing causation based on a reasonable degree of medical probability, as the trier expressly disregarded Dr. Nissanka’s opinion, and Dr. Borden did not offer an opinion that could have sufficiently supported a causal connection between the claimant’s psychological problems and her job at Pratt & Whitney.

No one disputes that it is the duty of the trial commissioner to determine the credibility of any medical opinions offered in support or defense of a claim. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (decided Jan. 6, 1997). The question in this case is whether the commissioner found enough facts from those opinions to justify his conclusion that the claimant’s initial depression was compensable. If not, this board could intervene by reversing the trier’s decision. Jaworski, supra.

Although the findings are somewhat scant regarding medical evidence of causation, the commissioner did make three statements that would support his decision that the claimant’s initial depression was compensable. In ¶ 14, he stated that Dr. Pinter found the claimant able to return to work effective August 12, 1987. In ¶ 24, he noted that Dr. Borden opined that the claimant’s work between 1985 and 1987 played a part in her problem at that time. And in his conclusions, the trial commissioner noted in ¶¶ b) through d) that the increase in the claimant’s work load caused the claimant to feel unfairly overworked, diminishing her earning capacity and leading to her depression.

Dr. Borden clearly states that the claimant’s basic emotional problems are not employment-related and that she has the capacity to work. February 27, 1996 Deposition, p. 32. The respondents are correct in stating that his testimony could not be used to establish a compensable injury. However, Dr. Borden first examined the claimant on December 27, 1988. Dr. Pinter, who examined the claimant during and immediately after the period she was found to be disabled, stated that the cause of the claimant’s major depressive episode when he saw her was the stress on her job. June 23, 1994 Deposition, pp. 11-12, 42. The commissioner did not discuss Dr. Pinter’s testimony in any detail, but did refer to it in his findings with apparent approval.

Unlike the opinion of Dr. Nissanka, Dr. Pinter’s opinion was not disregarded by the trier. The respondents’ suggest in their brief that the commissioner could not possibly have ignored Dr. Nissanka’s opinion, but credited that of Dr. Pinter. We believe that such a result was indeed possible, especially since the two doctors treated the claimant consecutively, not concurrently. The testimony of Dr. Pinter may not have been elaborated upon in the findings, but it does provide support for the existence of a causal connection between the claimant’s employment and her depression. The commissioner was thus acting within his discretion in crediting Dr. Pinter’s testimony and finding the injury compensable. Therefore, we must affirm his decision.

Commissioner Robin L. Wilson concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. Although Dr. Pinter said that the claimant’s depressive episode was work-related, he also stated that he could not say within a reasonable degree of medical probability that she was incapable of gainful employment when he saw her. Deposition, p. 27. Instead, he indicated that his feeling was that she needed “to get away from that particular job for a while.” Id., 26. The commissioner does not address that problem in his findings, however, because he did not discuss Dr. Pinter’s testimony in any detail. The respondents correctly maintain that the rest of the evidence is insufficient to establish a disability. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972) (claimant has burden of proof, and expert testimony is necessary to prove causation in many cases). I am not confident that these findings provide adequate support for an award, and I would reverse this decision.

1 Liberty Mutual adopted the brief of Cigna, and concurred with the statements of Cigna’s counsel at oral argument. BACK TO TEXT

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