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Biasetti v. City of Stamford

CASE NO. 3632 CRB-07-97-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 8, 1998

WILLIAM BIASETTI

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

SELF-INSURED

and

KEMPER GROUP

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Gary J. Wilson, Esq., 4 Daniels Farm Road, Suite 168, Trumbull, CT 06611-3938.

The respondent was represented by Scott W. Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the June 25, 1997 Finding of Dismissal by the Commissioner acting for the Seventh District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 25, 1997 Finding of Dismissal by the Commissioner acting for the Seventh District. He argues on appeal that the trier erred by dismissing his post-traumatic stress disorder claim. We affirm the trial commissioner’s decision.

The trier found that the claimant was employed by the City of Stamford as a police officer on or about June 8, 1994. While working in that capacity on that date, he became involved in a high-speed chase that culminated in a gunfight. Although the claimant was not shot, he was instructed by his supervisor to go to Stamford Hospital for medical treatment for other injuries suffered in the gun battle. The claimant experienced headaches, an upset stomach, a pressure sensation in his right calf and upper leg, and post-traumatic stress disorder/combat fatigue syndrome (PTSD) as a result of the shootout. The claimant came under the care of several different physicians, and was still being treated for the headaches, stomach cramps, and psychological symptoms at the time of the formal hearing. The claimant also experienced dizziness that led to a blackout on March 7, 1996, which was considered a manifestation of his PTSD by Dr. LaBarre.

The parties have stipulated and the commissioner found that PTSD is compensable as an occupational disease under § 31-275(15) because it is peculiar to the occupation of police officer and is due to causes in excess of the ordinary hazards of employment. The employer has paid the claimant’s hospital and medical bills, but argues that the PTSD is not compensable pursuant to § 31-275(16)(b)(ii), which excludes mental or emotional impairments from the definition of personal injury unless such impairments arise from a physical injury or occupational disease. The trial commissioner agreed with the respondent’s argument, and dismissed the claim for PTSD. The claimant has appealed that decision to this board.1

We begin our analysis of this case by addressing our Supreme Court’s decision in Crochiere v. Board of Education, 227 Conn. 333 (1993). In Crochiere, a school music teacher who had been falsely accused of sexual harassment in a 1987 case that was given extensive media coverage claimed that he had suffered a nervous breakdown as a result of the accusations made against him and their aftermath. Among the many defenses offered by the town of Enfield was the argument that a mental injury is not compensable unless it is accompanied by a physical component. The Supreme Court was not so persuaded. Noting that § 31-275 then used the term “injury” without limitation (unlike other sections such as § 31-349), the Court declined to interpret the statute to preclude claims for “mental-mental” cases, i.e., cases involving mental stimuli that cause nervous injuries as opposed to physical injuries. Id., 359-60. “[W]e hold that mental disorders, even if not accompanied by physical trauma to the body, constitute an injury under the act. To hold otherwise would be to create an artificial distinction.” Id., 363.

The distinction that the Supreme Court was unwilling to draw in Crochiere was soon embraced by the legislature in P.A. 93-228, § 1 [now § 31-275(16)(B)(ii)], which excludes from the definition of ‘personal injury’ “a mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” Section 31-275(16)(A) includes accidental injuries, repetitive trauma injuries, and occupational diseases in the definition of “personal injury” under the Workers’ Compensation Act. Thus, as of July 1, 1993, a mental or emotional impairment that does not arise from an accidental injury, repetitive trauma, or an occupational disease cannot be a personal injury under Chapter 568.

The claimant contends that his claim is not a “mental-mental” claim of the type addressed by § 31-275(16)(B)(ii), but a “mental-physical” claim, i.e., a claim that a mental stimulus has caused a physical injury. See Crochiere, supra, 360. He contends that mental-physical claims are, and have always been, allowed under Connecticut law. We agree with the argument of the respondent on this matter: the claimant has not alleged a physical injury in this case. The injury he seeks compensation for is PTSD, which is not traditionally identified as a physical or neurological impairment in our case law. See Bertalovitz v. Danbury, 15 Conn. Workers’ Comp. Rev. Op. 186, 188, 2204 CRB-7-94-11 (April 1, 1996); DeNicola v. State of Connecticut, 14 Conn. Workers’ Comp. Rev. Op. 356, 1983 CRB-3-94-2 (Sept. 22, 1995). The fact that the claimant has suffered some physical symptoms such as headaches, an upset stomach and a pressure sensation in his leg does not transform his claim into one alleging a physical injury such as a heart attack or exposure to a contagious disease. Compare Doe v. Stamford, 241 Conn. 692 (1997); Masko v. Board of Education, 48 Conn. App. 515 (1998). The commissioner made no finding of a physical injury in this case, and we will not treat this claim as a “mental-physical” claim for the purpose of review. See Cunningham v. Stamford, 3112 CRB-7-95-7 (Dec. 16, 1996) (no evidence to support finding that spasmodic dysphonia was a physical injury, which was a prerequisite to subject matter jurisdiction).

The claimant also argues that his PTSD meets the standards of an occupational disease, as it is distinctively associated with the occupation of police officer, and there was a direct causal connection between the claimant’s employment duties and his development of that condition. See Crochiere, supra, 352-53; Hansen v. Gordon, 221 Conn. 29, 35 (1992). This argument ignores the fact that § 31-275(16) encompasses occupational diseases within the definition of “personal injury,” and then goes on to exclude mental or emotional impairments from the definition of personal injury unless they are caused by physical injuries or occupational diseases. The clear meaning of this statute is that, as of July 1, 1993, a personal injury—including an occupational disease—cannot exist without a physical component. In order to constitute an occupational disease, the claimant’s PTSD must originate from a physical trauma, or some other occupational disease that was caused by a tangible physical stimulus. A contrary reading would allow the claimant to be compensated for a “mental-mental” claim simply because the nervous injury of PTSD is intrinsic to the occupation of police officer.

The legislative history of P.A. 93-228 supports our interpretation of § 31-275(16)(B)(ii). Rep. Lawlor stated in his comments that “[t]he only injury that would not be compensable that is purely a mental injury is that which was not caused by any type of a physical injury in the first place,” as opposed to a case where an employee is physically or sexually assaulted, and subsequently incurs a mental injury. 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6215. Rep. DeMarinis, who opposed the version of the bill that was passed, expressed concern that the language in the proposed statute would prevent people from being compensated for trauma or extreme stress caused by the witnessing of events such as the building collapse at L’Ambiance Plaza in Bridgeport or the bombing of the World Trade Center in New York. Id., p. 6308. Rep. Kyle explained his support of the bill by stating that he had personally pursued a dangerous avocation at which he had seen friends killed, but he continued pursuing that avocation nonetheless. “[I]t is a very subjective thing when we speak of and interject into our laws things as ill-defined . . . as is emotional stress. . . . If a person is physically injured and cannot work, then by all means they do deserve help, but for an emotional or stressful type things, there is stress in life and we need to accept that.” Id., 6312. Comments such as these indicate that the legislature believed that the language of § 31-275(16)(b)(ii) would not permit claims such as the one currently before us. We are not inclined to weaken the effect of the statute and the legislature’s judgment by manufacturing ways to define “mental-mental” claims as either occupational diseases or “mental-physical” claims.

The trial commissioner’s decision is hereby affirmed.

Commissioner Donald H. Doyle, Jr., concurs.

AMADO J. VARGAS, COMMISSIONER, DISSENTING. This state’s highest court has described the Workers’ Compensation Act as remedial legislation driven by the humanitarian purpose of providing compensation to workers injured during the course of their employment. See Green v. General Dynamics, 245 Conn. 66, 71 (1998); Herman v. Sherwood Industries, Inc., 244 Conn. 502, 511 (1998). The unmistakable social significance of fulfilling this statute’s benevolent intentions counsels strongly against an overly narrow construction of the Act that unduly limits eligibility for compensation. Herman, supra; Gil v. Courthouse One, 239 Conn. 676, 682 (1997). We must not forget that this Act provides the sole remedy for employees and their dependents for work-related injuries and fatalities. Green, supra, 71-72, citing § 31-284(a) C.G.S. We have a duty to interpret this legislation both responsibly and broadly to benefit the welfare of the Connecticut worker. Green, supra.

The majority argues that § 31-275(16)(B)(ii) must be read to forbid “mental-mental” claims from constituting occupational diseases under the definition of “personal injury” in § 31-275(16)(A). I disagree, as another reading is clearly possible. Neither § 31-275(15), which defines “occupational disease” to include “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such,” nor § 31-275(16) specifically states that occupational diseases must be accompanied by physical indicia of trauma or exposure to a foreign substance. Instead, § 31-275(16)(B)(ii) merely says that a mental or emotional impairment is not a personal injury “unless such impairment arises from a physical injury or occupational disease.” (Emphasis added.)

Rather than defining “occupational disease” in terms of the absence of a mental impairment claim, the Act does the opposite: it permits a mental impairment to be recognized as a personal injury if the impairment arises from an occupational disease. We should not take it upon ourselves to adopt a more exclusionary definition in light of the humanitarian purpose of the Act discussed above. The trial commissioner found in ¶ 12 of his findings, pursuant to a stipulation of the parties, that post-traumatic stress disorder/combat fatigue syndrome is a disease peculiar to the occupation of a police officer, and due to causes in excess of the hazards of ordinary employment as such. This should be enough to justify the payment of compensation in this case, irrespective of § 31-275(16)(B)(ii).

I also disagree with the majority’s conclusion that the claimant has not alleged a physical injury in this case. The parties agree that the claimant has experienced headaches, an upset stomach, and a pressure sensation in his right leg since the June 8, 1994 incident, as well as a 1996 fainting spell that is admittedly related to his PTSD. These symptoms are not merely psychological, even if they are direct results of the claimant’s mental condition. Once physical symptoms are manifested by a claimant, the case is no longer a “mental-mental” claim: it is a “mental-physical” claim, and is not excluded by § 31-275(16)(B)(ii).

Our Supreme Court recently discussed the breadth of the definition of “physical injury” in Doe v. Stamford, 241 Conn. 692 (1997), where it stated that the Workers’ Compensation Act should not be read “to include limitations of eligibility for compensation for which there is no statutory basis.” Id., 698. The Court explained that accidental exposure to a contagious disease, even though it had not yet been contracted by the claimant, constituted an “injury” within the meaning of § 31-275(16)(A). Id., 698-99. The Court stated that the incident giving rise to the claimant’s exposures did not need to leave a mark, abrasion, or other outward sign in order to constitute an “injury” within the meaning of the statute, and declined the respondent’s invitation “to exalt the form of the claimant’s contact with the infected suspects over the substance of the claimed injury.” Id., 700. The message of our Supreme Court was clear: the definition of “injury” under the Act should not be read any more restrictively than is necessary under the language of the statute. By drawing a distinction between mere physical “symptoms” and actual physical “injuries,” that is exactly what the majority is doing here. Let us not forget that the law-enforcement officer in question was shot at, and could have been killed had the bullet gone through his person.

I would reverse the trial commissioner’s decision, as I do not believe the factual findings he made in accordance with the parties’ signed stipulation of facts legally support the dismissal of this claim. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). Accordingly, I dissent.

1 The claimant has also requested to submit as additional evidence a letter from his treating physician, Dr. Albert, that states that the claimant’s injury is an occupational disease. The claimant’s counsel explains in his December 18, 1997 motion that he believed that this January 12, 1997 letter was part of the original evidence, but discovered that it had been left out during his preparation of his appellate brief. Admin. Reg. § 31-301-9 allows this board to consider additional evidence if it is material and if there were good reasons why it was not introduced at the formal hearing. The failure of a party’s attorney to realize that a document has been omitted from evidence would not constitute a “good reason” within the meaning of the regulation. Coupled with the fact that the claimant indicated on his petition for review that he would not be filing a Motion to Submit Additional Evidence, these circumstances justify the denial of the claimant’s motion. Furthermore, our own review of the file discloses that the two-paragraph note offered by the claimant as evidence is in fact marked as page 3 of Exhibit B in the record. Thus, it appears that the claimant’s motion may have been unnecessary. The claimant’s request to submit additional evidence is hereby denied. BACK TO TEXT

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