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Funaioli v. City of New London

CASE NO. 3814 CRB-02-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 16, 1999

RAYMOND FUNAIOLI

CLAIMANT-APPELLANT

v.

CITY OF NEW LONDON

EMPLOYER

and

CIRMA/ROLLINS HUDIG HALL

AON RISK SERVICES OF CT., INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Dominic S. Piacenza, Esq., 164 Hempstead Street, New London, CT 06320.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett, & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the May 8, 1998 Finding and Dismissal of the Commissioner acting for the Second District was heard November 6, 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 8, 1998 Finding and Dismissal of the Commissioner acting for the Second District. He argues on appeal that the trier erred by failing to award him § 31-308(c) benefits for permanent partial disability attributable to a compensable June 1992 injury. We affirm the trial commissioner’s decision.

The claimant was employed as a police officer with the city of New London. In a December 13, 1995 ruling, the claimant was found to have sustained a compensable injury, that being a single episode of major depression that was in full remission as of November 25, 1992. He was also found capable of returning to his job as a police officer after that date. Neither party sought review of this decision. The claimant also initially prevailed in a May 22, 1996 Finding and Award on his § 7-433c claim, but that ruling was overturned by this board in Funaioli v. New London, 3346 CRB-1-96-5 (Nov. 4, 1997), where we determined that the claimant failed to file proper notice under § 31-294c. That matter was then appealed to the Appellate Court, who reversed our decision, ruling that the trial commissioner’s findings of facts regarding notice should not have been disturbed on appeal. Funaioli v. New London, 52 Conn. App. 194 (1999).

The issue on review before us here concerns the claimant’s quest for § 31-308(c)1 discretionary benefits as redress for an alleged loss of brain function relating to the June 18, 1992 compensable injury. The claimant contends that the trial commissioner ignored uncontradicted medical expert testimony in dismissing his claim, and that she mistakenly required the claimant to prove that his job-related anxiety was the sole cause, rather than merely a substantial cause, of his psychological difficulties in order for his condition to be compensable. The respondents counter that the claimant simply failed to introduce sufficient medical evidence to establish a relationship between his 1992 injury and his more recent mental state. Instead, they argue, the evidence showed that his current disability stems from his obsession with, and frustration over, his pending workers’ compensation claims.

The claimant is correct insofar as he states that, in order to merit benefits under § 31-308(c), his compensable injury need only be a substantial factor in precipitating his temporary total disability. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119 (1987). The term “substantial” generally means “worthwhile” or “significant,” as opposed to “the most important” or “primary,” and there may be more than one substantial cause of a given medical condition. Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (Sept. 8, 1998). However, the claimant also carries the burden of proving to the trier of fact via expert medical testimony that such “substantial” causation was, within a reasonable degree of medical probability, attributable to the compensable injury. Id., 118; Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The trier of fact is never required to believe the medical opinion of any expert witness, even one that is seemingly unopposed.2Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). The credibility of the evidence is ultimately a matter for the trier’s determination, and this board may not disturb decisions regarding the appropriate weight to give the testimony of a witness, or a physician’s medical reports. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The claimant urges this board to recognize on appeal that all of the physicians agreed that there was some aspect of the claimant’s anxiety that was job related. Aside from the fact that the trier was not required to credit any of this testimony if she found it incredible, it is also the case that she was entitled to rely on some parts of the medical testimony while placing little emphasis on others, provided the accepted portions were not dependent upon the rejected portions. Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). Both the psychologist and the psychiatrist who treated the claimant referred to multiple causal factors that underlay the claimant’s alleged disability.

In assessing their testimony, the trier was entitled to focus on their discussion of the claimant’s “obsession” with his workers’ compensation claims, and to deduce that his 1992 compensable injury did not play a significant part in any anger, depression and anxiety the claimant might currently be experiencing, thus making such symptoms noncompensable. Kowalski v. New York, N.H. & H.R. Co., 116 Conn. 229, 234-36. She was not required to accept Dr. Meier’s admittedly speculative opinion that the claimant’s psychological difficulties would likely survive the resolution of his workers’ compensation cases, and that his compensable injury and his preoccupation with his legal struggles are inextricably intertwined in their effect on his psychological state. See Claimant’s Exhibit D, p. 59-64. Similarly, she was not required to give credence to Dr. Allen’s statement that the claimant’s workplace incident was a substantial contributing factor to his symptoms of depression and anxiety, nor was she obligated to believe his “unscientific” assessment of a 50% permanent partial disability of the brain. See November 25, 1996 Transcript, p. 20, 33.

The trial commissioner permissibly gave greater weight to Dr. Selig’s testimony in making her factual findings and legal conclusions. Dr. Selig, a forensic psychiatrist who examined the claimant on behalf of the respondents, opined that the only limitation on the claimant’s work capacity was that he could not specifically return to the New London Police Department. October 15, 1997 Transcript, pp. 20, 101. He believed that the claimant’s impairment, if quantifiable, would be extremely low—between two and five percent. Id., 39. Moreover, Dr. Selig stated that his review of the other medical providers’ notes indicated that the claimant was angry and anxious because of his reaction to the problems with his compensation claims. Id., 22. He described the claimant’s emotional state as “sort of a barometer of his litigation process.” Id.

This testimony provides direct support for the trier’s dismissal of the instant claim, and certainly prevents us from reversing her decision. It was within her discretion as the factfinder to deem the respondents’ version of the relevant facts more persuasive than the claim of disability and related etiology that was proffered by the claimant. We cannot tamper with such an evaluation of credibility on appeal. See Webb, supra.

We thus affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 Section 31-308(c) was repealed in 1993, but was part of the Workers’ Compensation Act when the claimant’s June 18, 1992 injury occurred. The statute provides that “[i]n addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for in this section, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body. The commissioner may not award more than the sum equivalent to compensation for seven hundred and eighty weeks under this subsection.” We note that the parties refer to “§ 31-308(d)” in their briefs and motions, as does the trial commissioner in his decision; however, this subsection was actually moved to § 31-308(c) by P.A. 91-32. BACK TO TEXT

2 The claimant cites Tanner v. Conservation Commission, 15 Conn. App. 336 (1988), for the proposition that an administrative agency cannot disregard the only expert evidence available on an issue when its members lack their own expertise or knowledge. The quotation relied upon by the claimant in his brief, however, was taken out of context.

In Tanner, the plaintiff sought permission from the defendant to construct a single-family residence on “their combined adjoining property;” Id., 337; and the defendant, a municipal commission entrusted with enforcing the Inland Wetlands and Watercourses Act and the wetlands regulations of the town of Norwalk, held a hearing on the plaintiff’s application. The plaintiff offered as evidence the testimony of four experts who agreed that the proposed dwelling would not significantly affect the soil, wetlands or watercourse systems. The commission nonetheless denied the application, claiming that one of the experts thought that the structure would have an adverse impact on said wetlands. The matter was appealed to a trial court, which found that there was no disparity among the expert witnesses. The biologist’s report relied on by the commission did not state that the house would necessarily harm the protected area; rather, it merely cautioned against disturbing the wetland grounds, and stated that the residence could indeed be built in a non-intrusive manner.

The Appellate Court held that the trial court properly “recognized that the commission, in dealing with complex issues, ignored the testimony of the expert witnesses and relied solely on their own insight. While we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses, it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge.” Id., 341 (citations omitted). Here, the trial commissioner did not rely on her own insight in making positive factual findings contrary to the testimony of the experts. Instead, she simply found that the claimant had failed to meet his burden of proof because none of the evidence was convincing enough to persuade her that his work-related injury directly precipitated a permanent partial disability. Insofar as she attributed the claimant’s condition to his preoccupation with his workers’ compensation claim, that diagnosis is contained in the expert testimony, and did not come from an attempt by the trier to avail herself of her own extrajudicial expertise. Thus, Tanner does not preclude the trier from reaching the conclusions she did in this case. BACK TO TEXT

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