CASE NO. 3358 CRB-04-96-05
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 1, 1998
UNITED METHODIST HOMES
CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST
The claimant was represented by Frederick Trotta, Esq., Trotta, Trotta, & Trotta 195 Church St., Suite 815-818, New Haven, CT 06510-2009.
The respondents were represented by Neil Ambrose, Esq., Letizia & Ambrose, 1764 Litchfield Trnpk., Woodbridge, CT 06525.
This Petition for Review from the May 20, 1996 Finding and Award of the Commissioner acting for the Fourth District was heard March 14, 1997 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JAMES J. METRO, COMMISSIONER. The respondents have filed a petition for review from the May 20, 1996 Finding and Award of the trial commissioner acting for the Fourth District. In that decision, the trial commissioner found that the claimant’s depression and suicide attempt were causally related to a compensable back injury which had occurred on February 2, 1994. In support of their appeal, the respondents contend that the evidence does not support the requisite causation between the compensable injury and the claimant’s suicide attempt; that the claimant’s attempted suicide constituted willful misconduct; that the trial commissioner erred in allowing into evidence a portion of the claimant’s diary; and that the trial commissioner erred in denying in part the motion to correct.
The trial commissioner found the following relevant facts. The claimant sustained an injury to her back on July 22, 1992 which was accepted as compensable. Subsequently, the claimant returned to work and sustained a second injury to her lower back on February 2, 1994, which was also accepted by the respondents. On August 26, 1994 the claimant treated with Dr. Gerratana, an orthopedist, who found that the claimant was symptomatic from her work-related lumbar injury and that she was having difficulty coping with her chronic pain. The claimant continued to treat with Dr. Gerratana and continued to complain of low back pain.
In October of 1994 the claimant was referred to Dr. Brodey, a psychiatrist and pain management specialist. Both Dr. Gerratana and Dr. Brodey advised the claimant that she would have to learn to live with her pain. The claimant felt that her condition was deteriorating and refused to accept the chronicity of her disorder. On January 9, 1995, the claimant saw Dr. Gerratana, whose office notes indicate “chronic low back pain.” (Respondents’ Exh. 9). On January 13, 1995 the claimant had a few beers at a party and then went to her apartment. The claimant, who continued to suffer pain due to her compensable injury, left suicide notes and took thirty-five to forty soma tablets in an attempt to kill herself. The claimant was taken to the emergency room where she was treated by Dr. Sugarman. She was released from the hospital to continue treatment with Dr. Brodey, Dr. Gerratana, and Dr. Harrington, a neurosurgeon. Dr. Brodey opined that the claimant’s suicide attempt was causally related to her compensable injury of February 2, 1994.
The respondents argue on appeal that the trial commissioner’s conclusion regarding causation is not supported by the evidence. It has repeatedly been held that whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
The respondents rely on Wilder v. Russell Library Co., 107 Conn. 56 (1927) in support of their argument that in order to award benefits, the trial commissioner was required to find that the compensable injury was the direct cause of the suicide attempt rather than merely a significant cause. The respondents further argue that under Wilder the claimant is required to prove that “but for” the compensable injury, the suicide attempt would not have occurred. In Wilder, our Supreme Court affirmed a trial commissioner’s determination that the claimant’s insanity and resulting suicide were caused by her employment and thus constituted a compensable injury. The court explained that in order to award compensation, the trial commissioner must find that there is a “direct causal connection between the employment or the conditions under which it was required to be performed and that insanity.” Id. at 61.
We do not agree with the respondents’ argument that the claimant was required to prove that “but for” the employment, the suicide would not have been attempted. Such a holding would create an unreasonably stringent standard of proof, especially in light of the principle that the Workers’ Compensation Act should be “broadly construed to accomplish its humanitarian purpose.” Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 433 (1996). The court in Wilder recognized that the causes of a suicide should be carefully considered by the trial commissioner, including not only the conditions of the employment, but also those conditions “which have to do with any hereditary predisposition to mental disorder on the part of the employee, with his personal characteristics, and with his conditions of life outside the employment.” Id. at 62. These factors are clearly issues of fact for the trial commissioner to consider. In the instant case, the trial commissioner did consider these non-work related factors1 and determined that the claimant’s compensable back injury was a substantial cause of her depression and attempted suicide.
The trial commissioner’s conclusion is supported by the record, including the testimony of the claimant, the medical opinion of Dr. Brodey, and the contemporaneous medical records.2 The claimant testified that the continued pain in her lower back was the reason she attempted suicide. (9/22/95 TR. at p. 51-51). It was within the discretion of the trial commissioner, as the trier of fact, to assess the credibility of the evidence and the claimant’s testimony. Webb, supra. Where, as here, the commissioner’s determination is based upon the weight and credibility that he has accorded the evidence, we may not disturb such a determination. Dickey v. Harris Graphics, 12 Conn. Workers’ Comp. Rev. Op. 218, 1481 CRB-2-92-8 (March 22, 1994).
We next address the respondents’ contention that the claimant’s suicide attempt constituted willful misconduct. Section 31-284(a) provides that “compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication.” Willful and serious misconduct is an affirmative defense, and the respondents had the burden of proving those allegations. Crochiere v. Board of Education, 227 Conn. 333, 356 (1993); Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 239, 1030 CRD-5-90-6 (Oct. 31, 1991). “By willful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp. Rev. Op. 224, 229, 1362 CRD-7-91-12 (Nov. 4, 1993), appeal dismissed, A.C. 13041 (Jan. 5, 1994), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921).
Moreover, our Supreme Court has stated, “No misconduct which is thoughtless, heedless, inadvertent or of the moment, and none which arises from an error in judgment, can be ‘willful and serious misconduct.’” Gonier, supra, at 56 (citations omitted). The trial commissioner’s rejection of the respondents’ defense of willful misconduct indicates that he did not accept as a factual matter that the claimant’s conduct constituted willful misconduct. It was within the discretion of the trial commissioner to determine as a factual issue whether the claimant’s conduct constituted willful misconduct; he was certainly not required to find as a matter of law that such actions amounted to willful and serious misconduct under § 31-284(a).
We next address the respondents’ contention that it was error for the trial commissioner to allow one page of the claimant’s diary to be entered into evidence without the entire diary being offered. We find no error. Workers’ compensation commissioners are not bound by statutory or common law rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” § 31-298. The trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion. Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 123, 952 CRD-2-89-11 (May 1, 1991), citing Dunham v. Dunham, 204 Conn. 303, 324 (1987).
Here, the commissioner’s Finding and Award was amply supported by the testimony of the claimant and by the medical evidence. We thus conclude that even if the page from the diary was improperly admitted into evidence, the admission would constitute harmless error. Given the discretion that § 31-298 provides to the commissioner, however, we are unconvinced that the commissioner overstepped his bounds in admitting the diary page.
Finally, we find no error in the trial commissioner’s partial denial of the claimant’s Motion to Correct. On review of the denial of a Motion to Correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).
The trial commissioner’s decision is affirmed.
Commissioner John A. Mastropietro concurs.
JESSE M. FRANKL, CHAIRMAN, DISSENTING. Section 31-284(a) provides that “compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication.” We have stated that willful misconduct includes “either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp. Rev. Op. 224, 229, 1362 CRD-7-91-12 (Nov. 4, 1993), appeal dismissed, A.C. 13041 (Jan. 5, 1994), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921).
The record in the instant case strongly indicates that the claimant’s attempted suicide was an intentional and willful act. Accordingly, the injury resulting from her intentional act should not have been found to be compensable. I therefore dissent, as I would reverse the trial commissioner’s award of benefits.
It is significant that the trial commissioner specifically found that the claimant “intended to take the overdose” of medication and that she understood that doing so could kill her. (Paragraph 1 of Respondents’ Motion to Correct, granted 6/7/96). Moreover, the record indicates that the claimant’s decision to attempt to take her own life was largely the result of numerous personal issues which were unrelated to her back condition. Specifically, the claimant had sought treatment for depression in 1991 due to personal problems. These problems included, among others, the claimant’s decision to give up custody of her children to her ex-husband who had been physically and mentally abusive while she was married to him. (Findings No. 22-25).
On January 13, 1995, the claimant went to a party and had “a few” beers. (Finding No. 26). She then returned to her apartment and took thirty-five to forty soma tablets. The claimant wrote suicide notes to her family. (Finding No. 29). The fact that the claimant wrote these suicide notes demonstrates that the claimant intentionally and willfully decided to take her own life. Under the facts as found by the trial commissioner, the claimant’s attempted suicide constituted willful and serious misconduct. Thus, pursuant to § 31-284(a) it was an abuse of discretion for the trial commissioner to hold the employer liable for the consequences of such conduct.
Accordingly, I dissent.
1 The trial commissioner found that the claimant had personal problems which preceded the initial 1992 injury, including the claimant’s decision to give up custody of her children to her ex-husband who had been physically and mentally abusive during their marriage, and a childhood which involved an abusive father. Due to these personal problems, the claimant had sought treatment for depression in 1991. (Findings No. 22-25). BACK TO TEXT
2 A medical report dated January 14, 1995 states in relevant part: “Suicide attempt tonight because depressed because loss of job, chronic back pain, lost kids to ex-husband.” A subsequent medical report dated January 17, 1995 regarding the attempted suicide states an initial diagnosis of “depression, lower back pain....” (Respondents’ Exh. 7). BACK TO TEXT