State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Del Toro v. City of Stamford

CASE NO. 3731 CRB-07-97-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 22, 1999

RICHARD DEL TORO

CLAIMANT-APPELLANT

v.

CITY OF STAMFORD

EMPLOYER

SELF-INSURED

and

CIRMA

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

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

The respondents were represented by James L. Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550. Notice also sent to City of Stamford, Risk Management, Attn.: Rick Quittell, 888 Washington Boulevard, Stamford, CT 06904.

This Petition for Review from the November 18, 1997 Finding and Denial of the Commissioner acting for the Seventh District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 18, 1997 Finding and Denial of the Commissioner acting for the Seventh District. He argues on appeal that the trial commissioner erred by denying his Motion to Preclude the respondents from contesting his repetitive trauma claim. We disagree with the claimant, and affirm the trial commissioner’s decision.

The claimant worked as a police officer for the city of Stamford between 1981 and 1996. On November 30, 1985, he was involved in an incident that resulted in the death of a civilian. He sought psychiatric treatment after that incident. In 1994, Dr. Rubinstein examined the claimant at the respondents’ request and opined that the claimant did not need psychiatric treatment or psychological counseling with respect to the 1985 incident. The claimant is presently treating with a different psychiatrist after being re-evaluated on several dates in July 1995.

The claimant filed a Form 30C on July 9, 1996 alleging repetitive trauma with a July 27, 1995 date of injury. The form describes the injury as “officer involved shooting on 11-30-85.” The respondents did not contest this claim within 28 days as required by § 31-294c(b), and the claimant filed a Motion to Preclude on August 28, 1996. The trier denied that motion, accepting the respondents’ argument that the July 27, 1995 injury alleged on the form is not a compensable injury under § 31-275(16)(B)(ii) (which excludes mental and emotional impairments from the definition of “personal injury” unless they arise from physical trauma or an occupational disease). He also stated that the allegation of an isolated incident did not give rise to a claim for repetitive trauma. The commissioner thus denied the Motion to Preclude, which ruling the claimant has appealed to this board.

As we begin our consideration of this matter we note our sympathies lie with the plight of the claimant as indicated in the stipulation of facts filed by the parties. However, despite whatever personal sympathies exist, our role in appellate review is limited by jurisdictional parameters set out by the legislature. Our analysis in this matter must focus on the issue presented, i.e., whether the trial commissioner’s denial of the claimant’s Motion To Preclude was proper. We conclude that in the instant matter, the trial commissioner’s ruling was proper.

Our Supreme Court’s ruling in Castro v. Viera, 207 Conn. 420 (1988), held that a Motion To Preclude a respondent from asserting defenses to a claim may not lie where the threshold elements of subject matter jurisdiction are not met. As this tribunal noted in Cunningham v. Stamford, 3112 CRB-7-95-7 (Dec. 16, 1996):

An administrative agency such as the Workers’ Compensation Commission is a tribunal of limited jurisdiction whose authority is completely dependent on the statutes creating its power. Figueroa v. C&S Ball Bearing, 237 Conn. 1, 4 (1996), citing Castro v. Viera, 207 Conn. 420, 428 (1988). . . . In order for a commissioner to exercise jurisdiction over a case, the claimant must adduce evidence sufficient for the commissioner to conclude that there is subject matter jurisdiction over the claim. Castro, supra, 434; In Re Veterans Memorial Medical Center, 3063 CRB-8-95-5 (decided May 20, 1996).

In Castro, supra, the Supreme Court held that the threshold jurisdictional element establishing an employer/employee relationship was not satisfied. Thus, the Court held that the Motion To Preclude could not lie. In 1993, our legislature enacted various amendments to our Workers’ Compensation Act. Among the amendments was Public Act 93-228, § 1, which provided in pertinent part that “personal injury” or “injury” shall not be construed to include . . .(ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” Most recently, our Supreme Court provided us with its decision in Biasetti v. Stamford, 250 Conn. 65 (1999), which is dispositive of the matter at hand.

In Biasetti, supra, the claimant was a police officer who was involved in a gun battle. Following this event, the claimant began to suffer from various physical symptoms, e.g., headaches, stomach cramps, light-headedness, etc. All of these symptoms were found to relate to post-traumatic stress disorder/combat fatigue syndrome [PTSD/CFS] that the claimant experienced as a result of the gun battle. Sometime after this emotionally traumatic event, the claimant was transporting a prisoner when he experienced a sensation of dizziness and lightheadedness and ultimately blacked out. Again these physical symptoms were found to result from the claimant’s PTSD/CFS.

Thereafter, the claimant in Biasetti, supra, put in a claim for Chapter 568 benefits. The respondent contested the claim. As his defense to the claim, the respondent argued that legislative changes brought about by Public Act 93-228, § 1 excluding certain conditions from the definition of personal injury, barred the claim under the Workers’ Compensation Act. In its consideration, the Supreme Court held that the claimant’s PTSD/CFS was an occupational disease as defined under § 31-275(15). The Court noted:

[I]n interpreting the phrase “occupational disease,” “ ‘the requirement that the disease be “peculiar to the occupation” and “in excess of the ordinary hazards of employment,” refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, [the disease] need not be unique to the occupation of the employee or to the work place; it need merely be “so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” ‘ Hansen v. Gordon, 221 Conn. 29, 35, 602 A.2d 560 (1992).’ Crochiere v. Board of Education, 227 Conn. 333, 352, 630 A.2d 1027 (1993).
In the present case, the workplace circumstances that caused the plaintiff’s PTSD/CFS reasonably can be said to be “peculiar to” his occupation as a police officer. A “gun battle,” the incident to which the parties stipulated, is not a common occurrence in most of the working world. Indeed, the plaintiff’s PTSD/CFS is “distinctively associated with” his particular occupation as a police officer. See Id. Thus, it can be said that the plaintiff’s PTSD/CFS was an occupational disease because his job and experiences as a police officer were more likely to cause this stress disorder “than would other kinds of employment carried on under the same conditions. “ Madeo v. I. Dibner & Bro., Inc., 121 Conn. 664, 667, 186 A. 616 (1936). . . . Therefore, because the plaintiff’s PTSD/CFS, which was caused by a gun battle, “occupied a definite relationship to the [plaintiff’s] occupation,” we conclude that it was an occupational disease.

Id. at 72-74.

However, the Court then reasoned that the legislature’s amendment codified at § 31-275(16)(B)(ii), which excludes a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease,” applied to the claimant’s PTSD/CFS. The Court noted that in the legislature’s codification of § 31-275(16)(B)(ii) “the clear intent of the legislature was to eliminate any occupational disease that does not have a physical component.” The Court then opined, “Section 31-275(16)(B)(ii) includes within the definition of ‘personal injury’ an emotional impairment that arises from or is caused by a physical injury or occupational disease”. It does not, however, extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed within the term ‘arises’.” Id. at 79. Thus, the Court held that in order for the PTSD/CFS to fall within the ambit of workers’ compensation coverage, the emotional impairment must arise from the occupational disease. We believe the instant matter is sufficiently factually analogous to Biasetti, and thus, the principles of stare decisis compel the same result as found by the Court in Biasetti. The appeal should be dismissed on the same basis as that in Biasetti, i.e., the post-traumatic stress disorder suffered by the claimant in the instant matter is an emotional or mental impairment which does not arise from an occupational disease. Thus, we conclude that we lack subject matter jurisdiction over the instant matter. We, therefore, affirm the trial commissioner on this basis. Our conclusion, of course, permits the claimant to pursue whatever other legal remedy may be available to him.

The trial commissioner’s decision is affirmed.

STEPHEN B. DELANEY, COMMISSIONER, CONCURRING. I concur with the result and the reasoning reached in the majority opinion but write separately to emphasize certain concerns. Firstly, I wish to underscore the majority’s expression of concern regarding the claimant’s plight. However, as the majority opinion notes, the rules of stare decisis compels the result reached. The Supreme Court’s opinion in Biasetti, supra, serves as binding precedent, and we are thus bound by the Court’s opinion.

Furthermore, the legislature is presumed to have knowledge of the overall purpose of workers’ compensation. I believe it is worthy of note that on at least two occasions of which I’m aware, there was legislation proposed which arguably would have provided workers’ compensation coverage in situations like the instant matter.1 But as my learned colleague notes in his dissent, I am troubled by a situation where a claimant sustains an occupational disease, and is unable to secure the remedy afforded under the Workers’ Compensation Act. However, I believe that any other conclusion than that reached in the majority opinion today, flies in the face of our obligation to follow the binding precedent of our Supreme Court.

MICHAEL S. MILES, COMMISSIONER, DISSENTING. I begin my dissent with an expression of my concern as to the claimant’s plight as well. However, unlike the majority, I am compelled to disagree with the majority’s conclusion, and would reverse the trier’s denial of the claimant’s Motion To Preclude. I note at the outset that I fundamentally disagree with the Supreme Court’s reasoning and conclusion reached in Biasetti, supra. I believe the Court’s conclusion Public Act 93-228, § 1 bars claimants from bringing a claim for a mental injury unless that injury arises from a physical injury or occupational disease, disserves the humanitarian purpose which underpins our act. I fear that the Supreme Court’s analysis and reading of Public Act 93-228, § 1 is far too narrow. Specifically, I refer to the following which is also referred to in the majority’s opinion. The Biasetti Court stated:

Section 31-275(16)(B)(ii) includes within the definition of “personal injury” an emotional impairment that arises from or is caused by a physical injury or occupational disease. It does not, however, extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed within the term “arises.”

Id at 79.

Unlike the Supreme Court, I cannot imagine that the legislators intended to deny coverage for an injury which satisfies the very definition of occupational disease. I cannot abide the tortured reasoning of the Supreme Court which draws the opposite conclusion. I fully agree with the sentiment expressed by my fellow dissenting Commissioner in the Compensation Review Board’s opinion in Biasetti v. Stamford, 3632 CRB-07-97-06, (decided September 8, 1998). Commissioner Vargas’s dissenting opinion in Biasetti, as well as Justice McDonald’s dissenting opinion in the Supreme Court’s opinion2 capture many of my concerns in the instant matter:

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. (emphasis mine)

Biasetti v. Stamford, 3632 CRB-07-97-06, (decided September 8, 1998) at 5-6.(Vargas, C. dissenting).

Moreover, I disagree with my fellow panel members’ belief that stare decisis compels the result they have reached today. In my opinion, the Biasetti decision—notwithstanding the fact that it frustrates the broad humanitarian purpose of the Workers’ Compensation Act—is not even controlling in the instant situation. ,I therefore, respectfully dissent. To wit: the exclusionary logic of Biasetti applies to cases in which the “mental or emotional impairment” does not arise from the occupational disease, but rather constitutes the injury itself. The Motion to Preclude in this case was based on a notice of claim that listed the date of injury as July 27, 1995, the injured body part as “stress,” and the injury itself as “officer involved shooting on 11-30-85.” This neither confirms nor denies that the alleged stress arose from a physical injury or occupational disease; instead, it is ambiguous. On its face, a commissioner could reasonably construe this notice to mean that the alleged July 27, 1995 date of injury was the last day of the claimant’s exposure to repetitive psychological trauma that began with a physical injury at the time of a 1985 shooting incident.

The respondents’ failure to contest this claim within 28 days precludes us from considering the fact that the merits of this case fail to establish a 1985 physical injury. Instead, the question before this board is, “did this Form 30C by itself give the employer sufficient notice of the alleged claim to enable it to make a timely investigation, thereby triggering its obligation to file a timely disclaimer?” Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994). This is a question of law, not one of fact. The trial commissioner must look only at the four corners of the notice of claim in making his decision, and § 31-294c(b) “in no way authorizes a retrospective review of the merits of the claim in order to address the question of preclusion.” Chase v. State, 45 Conn. App. 499, 507 (1997). This restriction is fully consistent with the purpose of the preclusion statute. Id., 503.

In construing a Form 30C, we have been admonished not to ignore the humanitarian spirit of the Act, and we have been instructed not to apply a rule of “strict compliance” in relation to Forms 30C. Pereira, supra. Given those boundaries, it would be improper for a commissioner to read the notice of claim in the present case as not stating a cognizable workers’ compensation action, as the description of the injury is susceptible to a construction which states a valid claim—i.e., repetitive mental stress following a physical injury in 1985. As such, the employer was required to file a disclaimer under § 31-294c(b). It failed to do so, and may no longer contest the compensability of the claimant’s injury by bootstrapping onto this case subsequently revealed facts that establish the claimant’s injury as an uncompensable strain of psychological stress.

Accordingly, I dissent on both those grounds.

1 See 1999 House Bill 5108 and 1998 House Bill 5077. Obviously, as the Supreme Court’s opinion in Biasetti, supra, was issued August 3, 1999 the legislature did not have the benefit of the Supreme Court’s reasoning and holding. However, prior to the last legislative session the Compensation Review Board issued its opinion in Biasetti v. Stamford, 3632 CRB-07-97-06 (decided September 8, 1998). Thus, the legislature was put on notice that there were jurisdictional questions as to whether a police officer was covered under the Workers’ Compensation Act for emotional trauma and the related sequelae. BACK TO TEXT

2 See, Biasetti v. Stamford, 250 Conn. 65, 82 (1999) (McDonald, J., dissenting). BACK TO TEXT

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