CASE NO. 3991 CRB-01-99-03
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 23, 2000
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTIONS
The claimant was represented by Richard Gifford, Esq., 449 Silas Deane Highway, Wethersfield, CT 06109.
The respondent was represented by Matthew Levine, Esq., Assistant Attorney General, 55 Elm Street,P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 3, 1999 Finding and Award of the Commissioner acting for the First District was heard October 15, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
ANGELO L. dos SANTOS, COMMISSIONER. The respondent has petitioned for review from the March 3, 1999 Finding and Award of the Commissioner acting for the First District. In that decision the trial commissioner found that the claimant sustained a compensable injury, vasospastic angina, on October 3, 1996, and that this cardiac condition exacerbated an existing psychiatric condition. In support of their appeal, the respondent does not contest the compensability of the claimant’s cardiac condition, but they do contest the psychiatric condition. Specifically, the respondent argues that the psychiatric condition did not arise from a physical injury, and thus it is not compensable under § 31-275(16)(B).
The trial commissioner found the following relevant facts. The claimant was employed by the respondent employer, the Department of Corrections, since February 10, 1983. On October 3, 1996, in the course of his work, the claimant began to experience increasingly intense pain and tightness in his chest, with pain radiating to his left arm. The claimant had no previous cardiac history. On October 3, 1996, the claimant was admitted to the hospital, and remained hospitalized for four days. He was treated by a cardiologist, who performed left heart catheterization, coronary angiography, and left ventriculography. The claimant was diagnosed with coronary spasm, specifically vasospastic angina. Dr. Bombassei, a cardiologist who treated the claimant, opined that the claimant’s cardiac condition was work-related.
In 1994, the claimant had been diagnosed with Post Traumatic Stress Disorder (PTSD) and was under treatment for that condition when the cardiac incident occurred on October 3, 1996. The trial commissioner specifically found that although the claimant’s psychiatric condition had initially developed from personal traumatic episodes in the claimant’s life, it was subsequently triggered by a succession of incidents at work. Moreover, the trial commissioner found that the claimant’s psychiatric condition was exacerbated by the physical symptoms of his cardiac spasms. The trial commissioner concluded that claimant’s cardiac condition constituted a compensable “condition of impairment of health caused by hypertension or heart disease” under § 5-145a. Furthermore, the trial commissioner concluded that the claimant’s pre-existing psychiatric condition was aggravated by the vasospastic angina, and thus was compensable.
Section 5-145a provides, in relevant part, as follows:
“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 Connecticut Correctional Institution, Enfield-Medium . . . who successfully passed a physical examination1 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 . . . .”
Section 5-145a grants to qualifying employees, such as the claimant in the instant case, “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).
In support of their appeal, the respondent does not contest the compensability of the claimant’s cardiac condition. However, the respondent contends that the psychiatric condition is not compensable. Specifically, the respondent argues that the record does not support a determination that the claimant’s psychiatric condition arose out of the claimant’s employment. Additionally, the respondent argues that the psychiatric condition did not arise from a physical injury, and thus is not compensable under § 31-275(16)(B) which excludes a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.”
When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted).
It has repeatedly been held that when a claimant sustains a compensable injury, the employer is liable for the sequelae of that injury. Hernandez v. Gerber Group, 222 Conn. 78 (1992); Owens v. R. R. Donnelley & Sons, 14 Conn. Workers’ Comp. Rev. Op. 28, 1892 CRB-2-93-11 (May 3, 1995). Moreover, it has repeatedly been held that the substantial aggravation of a latent or pre-existing condition by employment activity is sufficient to establish compensability of the injury. Seeger v. Naugatuck, 15 Conn. Workers’ Comp. Rev. Op. 240, 2220 CRB-5-94-11 (May 9, 1996). In Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996) the claimant’s workplace exposure to chemicals aggravated his pre-existing respiratory condition.2 The court explained that there is “a fundamental tenet of workers’ compensation law, namely, that an employer takes the employee in the state of health in which it finds the employee.” Id. at 435, citing Cashman v. McTernan School, Inc., 130 Conn. 401 (1943) and Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 1190 CRD-8-91-3 (June 30, 1992) (where claimant sustained an aggravation of his underlying lung disease, and the pre-existing impairment was not due to an occupational disease, respondent employer was liable for the entire resultant disability).
Whether the claimant’s psychiatric condition was aggravated by his compensable cardiac condition was a factual issue for the trial commissioner, and his conclusion “is entitled to the same deference as that of a trial judge or a jury on the issue of proximate cause.” Pothier v. Stanley-Bostitch Company, 3411 CRB-3-96-8 (Jan. 21, 1998), quoting Rogers v. Laidlaw Transit, 45 Conn. App. 204, 206 (1997). Here, the claimant’s treating therapist opined that the claimant’s psychiatric condition was “exacerbated by the physical symptoms related to migraines, seizures, and cardiac spasms.” (Claimant’s Exh. L; see also Finding ¶ 18). This opinion was affirmed by Eliot Barron, a psychiatrist. (Claimant’s Exh. M). Thus, the record supports the trial commissioner’s determination that the claimant’s psychiatric condition was exacerbated by the physical symptoms3 of his cardiac spasms.
Finally, we will address the respondent’s argument that the psychiatric condition did not arise from a physical injury, and thus is not compensable under § 31-275(16)(B) which excludes a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” In support of this argument, the respondent cites Biasetti v. Stamford, 250 Conn. 65 (1999), in which the court held that the claimant suffered from PTSD/CFS which was an occupational disease as defined under § 31-275(15), but that the PTSD/CFS was excluded from the definition of personal injury under § 31-275(16)(B) because it did not arise from a physical injury or from a separate occupational disease.4 The respondent’s reliance upon Biasetti, supra, is misplaced, because in Biasetti there was no compensable injury, whereas here it is undisputed that there is a compensable injury, and the trial commissioner specifically found that the claimant’s psychiatric condition was aggravated by the compensable injury. Accordingly, we must affirm the trial commissioner’s decision. See Epps, supra; Hernandez, supra; Owens, supra; Prisco, supra.
The trial commissioner’s decision is affirmed.
Commissioner Stephen B. Delaney concurs.
JESSE M. FRANKL, COMMISSIONER, DISSENTING. I respectfully dissent. I agree with the majority’s articulation of the law that an employer takes the employee in the state of health in which it finds him, and is responsible for all sequelae which are caused by the compensable injury. However, in my opinion the medical evidence in the record is insufficient to support the trial commissioner’s determination that the claimant’s psychiatric condition was substantially aggravated by the claimant’s cardiac condition. Indeed, the trial commissioner found that the claimant was undergoing treatment for his pre-existing psychiatric condition at the time of his cardiac injury on October 3, 1996. The trial commissioner relied upon the opinion of the claimant’s treating social worker, who was not a physician, but whose opinion was “rubber stamped” by a psychiatrist in a one sentence note. (See Claimant’s Exh. L and M). In my opinion, this medical evidence is insufficient to support the conclusion that the claimant’s psychiatric condition was aggravated by his employment.
1 Section 5-145a specifically waives the physical examination requirement for employees who began their service prior to June 28, 1985. In the instant case the claimant commenced his employment in 1983.BACK TO TEXT
2 This board explained the Epps decision as follows: “Even though the plaintiff’s asthma was neither caused nor permanently worsened by the workplace exposure, the fact that the chemicals at work triggered an allergic reaction while the plaintiff was in contact with them amounted to a compensable injury under the Workers’ Compensation Act. This broader definition of “injury” was reaffirmed in Doe v. Stamford, 241 Conn. 692, 698-700 (1997) .” Pothier, infra (emphasis added). BACK TO TEXT
3 The physical symptoms of the claimant’s cardiac condition included severe chest pain. (9/8/98 TR. at p. 21-22; see also Finding ¶ 14). BACK TO TEXT
4 The court explained as follows:
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.’
Biasetti, at 79. BACK TO TEXT