CASE NO. 3791 CRB-04-98-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 27, 1999
STATE OF CONNECTICUT DEPARTMENT OF CORRECTIONS
The claimant was represented by Richard Gross, Esq., Cantor, Floman, Gross, Kelly, Amendola & Sacramone, P.C., 378 Boston Post Road, P. O. Drawer 966, Orange, CT 06477.
The respondent was represented by Matthew I. Levine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 18, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 18, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District. The claimant argues on appeal that the trier erred by failing to award him benefits under § 5-145a C.G.S., while the respondent has filed a Motion to Dismiss the claimant’s appeal on the ground that it was untimely filed. We deny the respondent’s motion, but affirm the trial commissioner’s decision on its merits.
Before discussing the facts that underlie this case, we shall first consider the Motion to Dismiss. The trial commissioner’s Finding and Dismissal is dated March 18, 1998. According to § 31-301(a), a party has ten days from the date notice of the decision is sent to appeal a commissioner’s ruling. See Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). Although dated March 24, 1998, the claimant’s petition for review was stamped “received” by the Fourth District office on Tuesday, March 31, 1998. On its face, therefore, the claimant’s appeal would appear to be one day late (as the tenth day fell on a Saturday, the appeal period would have run out the following Monday). See Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1 (1998); § 1-4 C.G.S.
First glances, however, often capture an incomplete image. The claimant filed a Motion for Extension of Time to File Reasons for Appeal on March 25, 1998, whose text refers to a Petition for Review that was filed the day before. All parties received a copy of this motion. The claimant has also filed an objection to the respondent’s Motion to Dismiss his appeal, demonstrating via certified mail receipts that a petition for review was sent by certified mail on Tuesday, March 24, 1998, and received by the respondent and this board within two days. Unfortunately, the petition for review that was sent to the Fourth District office was returned due to $.23 in insufficient postage.
In Algiere v. General Dynamics Corp./Electric Boat Division, 3466 CRB-8-96-11 (Jan. 27, 1998), the appellants’ petition for review was allegedly misplaced by the Eighth District office. The appellants offered an affidavit to show that their petition for review had been entered into this Commission’s computer system on the tenth (and last) day to appeal. We stated that we need not consider that affidavit, as “the record in this case does reflect that a Motion To Correct was filed by the appellants on November 8, 1997 as well as a Motion For Extension Of Time To File Reasons For Appeal. As these documents were filed within the 10 day period for the filing of an appeal, we conclude that the appellant[s] substantially complied with § 31-301(a) and evinced [their] intent to pursue an appeal from the trial commissioner’s October 29, 1996 decision.” Id.
Our elucidations in Algiere apply here as well by virtue of the filing of the claimant’s Motion for Extension of Time to File Reasons for Appeal, and by the fact that an appeal petition was timely filed with this board and with the respondent. See Bailey v. State of Connecticut/GHCC, 15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (Sept. 3, 1996) (petition for review filed in wrong district office not a ground for dismissal of appeal, as under current statutory framework, jurisdiction vests in Commission in general), appeal dismissed, A.C. 16397 (Dec. 5, 1996). Thus, we deny the respondent’s Motion to Dismiss, and reach the merits of the claimant’s appeal.
The trial commissioner found that the claimant began working at the Bridgeport Correctional Center on July 12, 1982, passing his pre-employment physical with no documented evidence of hypertension or heart disease. He testified that during his fourteen years as a corrections officer, his responsibilities remained fairly constant. He was assigned to monitor the mail and telephone calls of inmates beginning in December 1993. Despite a promise that his identity would remain a secret, the claimant believes that others were informed of his surveillance duties. When he uncovered information regarding illegal gang activity involving prison personnel and disclosed those crimes to his superiors, he claims that he was harassed, intimidated, and threatened both at home and on the job. Fellow officers gave him the cold shoulder and labeled him a “snitch.”
The claimant alleges that on three work occasions in 1994 contemporaneous with these threats, he experienced lightheadedness, dizziness, chest pains and numbness on the left side of his body. Dr. Molloy reportedly diagnosed him with hypertension on December 1, 1994, and prescribed medication. He asserts that Dr. Molloy told him not to work, which warning he has heeded since September 10, 1995. On January 21, 1996, the claimant said that he received two menacing phone calls, one of which originated from the maximum security cell block in Bridgeport. He was admitted to St. Vincent’s Medical Center the next day with severe chest pains and high blood pressure, where he remained for 48 hours.
The attending physician, Dr. Berman, noted hypertension but not cardiac disease, and told the claimant to see Dr. Molloy once he came home. Dr. Molloy referred the claimant to Dr. D’Apice, a psychiatrist, in March 1996. Dr. D’Apice initially diagnosed post-traumatic stress disorder (PTSD), depression, and anxiety, and prescribed Zoloft for the claimant. He continued to document the claimant’s fears of returning to work, and his belief that his life was in danger. His records also noted the claimant’s preoccupation with his workers’ compensation claim. The trier cited a July 1, 1996 letter in which Dr. D’Apice opined that the claimant’s PTSD was accompanied by serious complications.
The claimant also testified that Dr. Molloy kept him out of work through June 30, 1996, and that he continues to be totally disabled because of elevated blood pressure readings (160/90 in December 1996, and 170/95 in January 1997) and side effects of his medication. Dr. Molloy reported that he has been treating the claimant for hypertension since December 1, 1994, which is well-controlled with hypertensive medication. He reported on February 19, 1997 that he had last seen the claimant over a month earlier with complaints of chest pain, and that the claimant “continues to be totally disabled with hypertension, which he believes will persist permanently.” Findings, ¶ 15.
The respondent argued that the statutory presumption of compensability in § 5-145a C.G.S.1 was rebutted in this case, because the claimant’s pre-employment examination did not specifically address the issue of hypertension, and no evidence was introduced that the claimant’s hypertensive condition disabled him from work in 1985. They offered the testimony of Dr. Silverstein, who measured the claimant’s blood pressure at 144/84, and concluded that this single reading did not constitute hypertension per se. He testified that the cause of the claimant’s mild hypertensive condition was a combination of factors such as high salt intake, diet, weight, and alcohol use, and that workplace stress is not a documented risk factor for the development of hypertension. In his opinion, the claimant was probably not totally disabled as of January 23, 1996 (the day after his hospitalization), and his high blood pressure was not related to his job.
The trier concluded that the claimant was diagnosed with mild hypertension on December 1, 1994, and that he removed himself from employment in September 1995. He failed to present medical reports documenting that condition as the cause of his decision to leave employment. Dr. D’Apice’s PTSD diagnosis came after the claimant left his employer, and after he filed a notice of claim for hypertension. As for Dr. Molloy, he opined as of April 17, 1996 that the claimant’s hypertension was very well controlled with medication. The trier felt that the claimant was afraid to return to the workplace because he was afraid that he would be the victim of retaliation.
The commissioner further concluded that the claimant’s allegation of total disability from September 11, 1995 forward due to hypertension and psychiatric injury was unsupported. She accepted Dr. Silverstein’s opinion that the hypertension condition was not the direct result of the claimant’s employment, and noted that § 31-275(16)(B) makes a stress claim noncompensable as of July 1, 1993 unless it results from a physical injury. She did not believe that the claimant had sustained his burden of persuasion that the workplace incidents he reported caused increased stress, in turn causing the “quantum leap” to a psychiatric diagnosis of totally disabling PTSD. She also found that the claimant’s testimony regarding threats to his family was not credible, and she did not accept the medical opinions of Drs. Molloy and D’Apice regarding a causal relationship between the PTSD and the claimant’s hypertension. Thus, she dismissed the claimant’s claim. He has appealed that decision.
In order to maintain a workers’ compensation claim under Chapter 568, a claimant must demonstrate that he has suffered a personal injury that arose out of and in the course of his employment. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505-506 (1998); § 31-284 C.G.S. The burden upon a claimant who meets the prerequisites of § 5-145a is somewhat less, as that statute grants to qualifying individuals “a rebuttable presumption of compensability if they suffer disability or death due to hypertension or heart disease.” Dibenedetto v. State of Connecticut/University of Connecticut Health Center, 9 Conn. Workers’ Comp. Rev. Op. 1, 3, 862 CRD-6-89-5 (Jan. 3, 1991). This statutory inference shifts the initial burden of persuasion, but once the employer presents evidence to contest compensability, the presumption ceases to have an effect. Grant v. State of Connecticut/Department of Corrections, 11 Conn. Workers’ Comp. Rev. Op. 93, 95, 1265 CRD-5-91-8 (May 14, 1993).
Here, the trial commissioner found that the respondent offered evidence to contest compensability, thereby overriding the statutory presumption. Findings, ¶ J, M. The claimant argues that Dr. Silverstein’s testimony, which is the primary factor weighing against him in this case, does not constitute competent evidence for two reasons. First, the claimant contends that Dr. Silverstein’s deposition should not have been admitted into evidence because his remarks were not elicited via hypothetical questions, which resulted in the opinion’s reliance on hearsay information given by the claimant to the examiner. Under Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961), and Brown v. Blauvelt, 152 Conn. 172 (1964), the claimant argues that such an opinion is inadmissible.
Interpreted in a vacuum, Zawisza and Brown (which is not a workers’ compensation case) could conceivably be wielded as prohibitions against any patient-doctor communication during a medical examination conducted while a workers’ compensation case is pending. After all, any statement made by a claimant at such an evaluation would have been made “when the temptation to exaggerate, and even to utter untruths, would be pretty strong,” and a doctor would run the risk of consciously or subconsciously relying on that claimant’s representations and demeanor in diagnosing his condition. Zawisza, supra, 119 (citation omitted). Of course, such a situation would curtail the effectiveness of the medical care offered, and that is not our practice.
Our statutes clearly allow all parties, including the trial commissioner, to obtain medical examinations during the pendency of a case. Doctors are provided with existing medical records before conducting their examinations. The parties have the opportunity to cross-examine the doctors and obtain opinions regarding alternative scenarios posited as hypothetical questions. The trier of fact has all the evidence before her, and possesses the expertise to appreciate when the relevance of a medical opinion may have been tainted by the introduction of spurious or misleading information. See Gibbs v. New England Home Care, 3291 CRB-3-96-2 (Feb. 2, 1998). These considerations support a less sweeping application of Zawisza and Brown where it appears that safeguards are present that prevent significant weight being given to a claimant’s hearsay.
There are other factors in this case that weigh in favor of the admissibility of Dr. Silverstein’s report. In Zawisza and Brown, the doctors in question testified on behalf of the claimant. The problem in those cases was the reliance of a doctor on a claimant’s self-serving declarations. However, Dr. Silverstein did not testify on the claimant’s behalf here. Thus, there is little reason to suspect that the claimant fabricated a more favorable history to obtain a sympathetic diagnosis. Also, insofar as the claimant’s history was incorporated into the doctor’s opinion, it could not have played a large part. Dr. Silverstein’s opinion that the claimant did not suffer from compensable hypertension was based far more on the claimant’s outside medical reports, his physical symptoms, and the doctor’s general opinion regarding hypertension and its causes than it was on any specific information related by the claimant. Simply put, the doctor did not feel that workplace stress was a risk factor for hypertension.
Contrary to the claimant 92’s assertion, there is no legal requirement that a diagnosis be obtained in the form of a hypothetical question. It is advisable to do so where the etiology of an injury is in question, and the patient history is in dispute, because the trier may decide later that the version of the facts obtained by the doctor from the claimant was inaccurate. Hypothetical questions also clarify the assumptions underlying the inquiry for the purpose of obtaining alternative, speculative opinions from the doctor on the stand, and may help to strengthen the validity of his diagnosis. However, the non-hypothetical questions asked by the respondent to Dr. Silverstein here did not rely impermissibly on underlying hearsay information that was provided by the claimant. We thus do not believe that the acceptance of this deposition into evidence was outside the trier’s discretion under § 31-298 to determine the admissibility of the evidence. Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 359, 3143 CRB-5-95-8 (June 26, 1996).
Second, the claimant challenges the competence of Dr. Silverstein’s testimony by arguing that the commissioner was not permitted to conclude in ¶ P of her findings “[t]hat stress does not cause hypertension, but may aggravate an existing condition which is in accord with the medical opinions of Dr. Silverstein,” in light of the legislative purpose of § 5-145a. As stated above, the presumption in § 5-145a is rebuttable. It must be open to rejoinder in order to remain constitutional, as our Supreme Court has struck down similar statutes that attempted to legislate binding presumptions of compensability under the Workers’ Compensation Act. Ducharme v. Putnam, 161 Conn. 135, 140 (1971) (original version of § 7-433a declared unconstitutional, as it attempted to legislate a factually unsupportable conclusive adjudication). Thus, we must assume that the shifting of the burden of persuasion contemplated by § 5-145a was not intended to create an automatic entitlement to compensation.
The trial commissioner’s conclusion in ¶ P was drawn directly from the testimony of Dr. Silverstein. The question posed by the claimant is essentially this: if Dr. Silverstein does not believe that hypertension can originate solely from workplace stress, is the trial commissioner bound to reject his medical opinion regardless of its subjective credibility? Even in the case of a rebuttable presumption, the legislature has impliedly declared that the proof of the fact which is specified (i.e., that the claimant did not show signs of hypertension at the time he was hired) leads “naturally and logically” to the fact inferred or presumed (i.e., that any hypertension was caused by his employment as a corrections officer). Ducharme, supra, 141. Yet, if there are doctors who doubt the causal connection between hypertension and workplace stress, Ducharme counsels that it would be a violation of due process for the legislature to enact into existence a fact, or the presumption of a fact, which does not exist in actuality. Id., 142-43.
We must interpret § 5-145a in a constitutional manner, if possible. Overriding the authority of the trial commissioner to accept the opinion of a medical doctor that contradicts the statute’s rebuttable presumption would raise the same concerns that the Court addressed in Ducharme. Further, it would abrogate the power of the trier of fact to accept the opinion of whatever expert witness she finds most credible, which is possibly the most fundamental ingredient of her fact-finding role in a workers’ compensation case. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). That would be a dangerous road for this board to commence traveling.
Here, the trial commissioner simply accepted the clearly-reasoned opinion of a medical professional who believed that the claimant’s symptoms of mild hypertension were unrelated to his employment. He stated his opinion within a reasonable degree of medical probability, and explained the basis for that opinion. See Respondent’s Exhibit 2, p. 20-22, 31-32. This opinion was admissible into evidence, and sufficed to rebut the statutory presumption in favor of the claimant. Once that occurred, the playing field was leveled, and the trial commissioner found the claimant’s testimony and much of his medical evidence less than completely credible. See ¶¶ L, N, O, Q, R. The claimant did not prove causation to the satisfaction of the trial commissioner, and we may not alter her findings and conclusions on this matter. Pallotto, supra.
As such, the trial commissioner’s decision is affirmed.
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.
1 § 5-145a provides in relevant part that “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death to . . . state personnel engaged in guard or instructional duties in . . . the community correctional centers . . . who successfully passed a physical examination on entry into such service, which examination failed to reveal evidence of any such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568 . . . .” BACK TO TEXT