State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Smith v. Connecticut Light & Power Co.

CASE NO. 4135 CRB-5-99-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 29, 2001

DENNIS SMITH

CLAIMANT-APPELLANT

v.

CONNECTICUT LIGHT & POWER CO.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Kenneth W. Williams, Esq., Solomon, Krupnikoff & Wyskiel, P.C., 35 Pleasant Street, P. O. Box 835, Meriden, CT 06450-0835.

The respondent was represented by Robert Cullen, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the October 6, 1999 Finding and Dismissal of the Commissioner acting for the Fifth District was heard October 27, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 6, 1999 Finding and Dismissal of the Commissioner acting for the Fifth District. He contends on appeal that the trier erroneously found that he did not suffer a compensable “mental-mental” injury, i.e., a psychiatric injury caused by non-physical stimuli. We discern no error in the trial commissioner’s interpretation of the law, and affirm his dismissal of the instant claim.

The claimant began working for the respondent (CL&P) as a gas fitter in 1971. He was promoted to lead gas fitter sometime during or around 1984. He received a one-day suspension on August 7, 1984, for not being “on call,” and sustained an accident with a company vehicle one week later that resulted in a two-day disciplinary suspension. In 1985, he suffered a compensable injury to his back; after a few months of absence from work, he returned to a light duty position, though he alleges that the light duty work was no different than usual. He also testified that he received a notice shortly thereafter stating that, as he was no longer able to perform his former job duties, he had ninety days in which to find another position within the company, or face termination of his employment. The trier found that the employer’s policy at that time was to allow current employees in situations like that of the claimant to have the first opportunity to secure appropriate jobs that became available, with no set time period in which the employee had to find another position. However, a “ninety-day rule” of sorts was implemented in 1989, though the employer would spend 45 to 60 days assisting an employee in finding a new job within the company prior to the commencement of the 90-day period.

The claimant attended a meeting on September 29, 1986, leading to his reassignment to the position of meter and service mechanic helper. He testified that his new job paid less than his old one, though he was promoted to mechanic about two and one-half years later. At that time, he lived in Meriden, and when an opening emerged in town shortly thereafter, he applied for and received that job. He worked there for only a few months, because CL&P’s electric facility was moved to Cheshire in January 1990. During that year, he sustained a compensable injury to his right knee, and was again out of work for approximately three months. After returning, he was able to perform his job with a brace. The company assigned him to work in the Bristol area, where he testified that he was kept for about two years despite his requests that he be rotated into other areas like other workers were. He began working for a new supervisor, Mr. Nestico, in 1991. Nestico allegedly reassigned the claimant to the Meriden region, where he was required to disconnect the electrical service of friends and disgruntled acquaintances who had failed to pay their electric bills. The claimant states that his requests for disconnect assignments in other neighborhoods were not granted, and he was not supported in incidents regarding disgruntled customers. However, Nestico did begin to reassign specific work orders with which the claimant had a personal conflict.

Through September 18, 1992, the claimant received pay raises and good periodic progress reports. At the time, he had medical restrictions regarding lifting and climbing stairs, and he was not allowed to work overtime (which would require him to work alone) because the respondent did not want to place him in a situation that exceeded his restrictions. On September 17, he was given two assignments to reconnect electrical service at approximately 2:45 p.m. His work shift ended at 3:30 p.m., and he reported back to the Cheshire office at 3:55 having failed to complete the two reconnects because he was not eligible for overtime. He placed the two work orders in the “incomplete” pile, marked them “CGI” (or, “can’t get in”), and went home. When he returned to work the next day, Nestico summoned him and verbally counseled him for failing to inform anyone that he had not completed the two reconnections. He told the claimant that letters of reprimand might be placed in his personnel file regarding that incident, as well as a prior incident when he was seen traveling outside his assigned work area.

The claimant testified that he believed that three letters in a personnel file meant that an employee could be terminated. He became very angry during his conversation with Nestico, swore, kicked the desk, slammed the door to Nestico’s office on his way out, left the CL&P building to go out to his car, then came back and stared at Nestico through an office window until he decided to return to his vehicle and leave the premises. He immediately went to see his family doctor, Dr. Godsell, who prescribed medication and referred him to Dr. Kennedy, a psychiatrist. The claimant did not return to work, and was terminated from employment on or about January 26, 1994. However, he was reinstated on June 6, 1995, after a union grievance and arbitration proceeding.

The claimant testified that he felt as if other workers with compensable injuries received better treatment than he did, and he thought that his employer had been trying to terminate his employment because of his past workers’ compensation claims. However, no evidence was introduced that the claimant attempted to seek a remedy through his union prior to September 1992, or that the claimant sought either relief under § 31-313 (the “light duty” statute) or § 31-308(a) wage differential benefits due to his lost ability to work overtime. The trier also found that CL&P did not have a policy of terminating employment following three letters of reprimand.

Dr. Kennedy diagnosed the claimant with post-traumatic stress disorder (PTSD) as a result of the cumulative effect of a series of events that caused him to fear losing his job, culminating with the events of September 18, 1992. Dr. Grayson, an independent examiner, described the claimant as having major depression and adjustment disorder with mixed disturbance of emotions and conduct, secondary to perceived work-related stress. He explained that the claimant may have had “difficulty properly discriminating between the severity or the significance of certain statements and how other people might interpret them” due to a somewhat limited intellectual capacity. Findings, ¶ 46. Dr. Tulco, a neuropsychologist, evaluated the claimant on December 1, 1993 and concluded that he is “an individual of modest intelligence who has trouble understanding ambiguous situations” and who perceived himself to be helpless in the face of unfair criticism, which in conjunction with the pressure he had long felt at work led to his outburst on September 18, 1992. Findings, ¶ 46.

The trial commissioner accepted these diagnoses, stating that the claimant had failed to show that he was discriminated against or treated differently than fellow employees due to his claims history or his race. In fact, his employer had assisted him in finding suitable light duty work. He was subjected to no stimuli greater than those in everyday employment life, but unilaterally misperceived the actions of his employer as discrimination and efforts to terminate his employment. Thus, the trier concluded that the claimant’s depression and adjustment disorder did not arise out of his employment with CL&P, even if it occurred during the course of his employment. The claimant has appealed the trier’s dismissal of his claim to this board.

The essential question before us on review is straightforward: do the trier’s factual findings establish a compensable injury under the Workers’ Compensation Act? This is primarily a question of law, as the conclusions drawn by the trier from the facts found must stand “unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). At the time of the September 18, 1992 incident, “mental-mental” injuries could still be compensated, as § 31-275(16)(B) was not revised to exclude mental and emotional impairments that are not traceable to a physical injury or occupational disease until 1993. Forster v. Pitney Bowes, 3293 CRB-4-96-3 (Nov. 18, 1997). The claimant seeks to persuade us that it is irrelevant whether he misperceived the severity of the situation at work, as he nonetheless suffered his PTSD and depression in response to workplace events. He sees no material distinction between his circumstances and those of the claimants in Crochiere v. Board of Education, 227 Conn. 333 (1993) (elementary school teacher suffered stress, psychological decompensation and eventual breakdown due to publicity surrounding false allegations of sexual harassment toward students), and Wilder v. Russell Library Co., 107 Conn. 56 (1927) (long work hours caused claimant excessive fatigue, leading to her nervous breakdown and suicide; claimant was hereditarily predisposed to insanity).

In Crochiere, supra, our Supreme Court held for the first time that “mental disorders, even if not accompanied by physical trauma to the body, constitute an injury under the act.” Ironically, that decision was issued shortly after P.A. 93-228 changed the law to exclude such injuries unless they were occasioned by physical trauma or occupational disease, and to exclude mental or emotional impairments resulting from personnel actions. Still, Crochiere had the effect of recognizing that a growing majority of states supported compensability of “mental-mental” injuries, as defined by Professor Larson in his seminal treatise on workers’ compensation. Crochiere, supra, 361, citing 1B A. Larson, The Law of Workmens’ Compensation (1992) § 42.20, p. 7-813. The Court deemed this approach applicable to Connecticut law as it stood in 1987, at the time of the schoolteacher’s mental stress claim; the Crochiere approach would also apply to the law as it stood in 1992, when the claimant in the instant case was injured.

However, unlike the claimants in Crochiere and Wilder, supra, who were both faced with unusually stressful work situations, the claimant here was found to have misjudged the severity of disciplinary procedures and other events that were common to the CL&P environment. As the trial commissioner ruled, though the claimant’s adjustment disorder occurred at work, its origin and cause were not such that it can be said to have arisen out of the claimant’s employment rather than from his own mind. See McNamara v. Hamden, 176 Conn. 547, 550 (1979). Neither Crochiere nor any other Connecticut workers compensation case states whether a claimant’s psychological injuries must arise from stress greater than that normally found in the work environment in order to be compensable, or whether a subjective standard should be used that would allow an “eggshell” claimant to collect benefits for emotional injuries suffered in response to ordinary pressures. This again leads us to Professor Larson’s treatise, which indicates that very few states currently compensate claimants who, due to their particular sensitivities, suffer tremendous stress from routine events. 3 Larson’s Workers’ Compensation Law (2000), §§ 56.04-56.06.

Larson’s treatise describes a twenty-five year-old Michigan Supreme Court case, MacKenzie v. General Motors Corp., 394 Mich. 466, 232 N.W.2d 146 (1975), as the origin of the “subjective causal nexus standard” that focuses on a claimant’s state of mind. MacKenzie was a quality control worker who was in charge of returning defective parts on an assembly line, but whose co-workers would frequently install them anyway. A “compulsive perfectionist,” he became disabled due to emotional distress, and the state court held that benefits should be awarded even if the causal nexus between the trauma and the injury was strictly subjective. The claimant’s honest perception that his ordinary work caused his disability entitled him to compensation, as the claimant’s own perception of reality was the determinative factor. Larson’s, supra, § 56.04[4], p. 56-27. This is essentially the standard advocated by the claimant in the instant case.

This legal test has been rejected by most jurisdictions. Michigan’s own legislature repudiated it in 1982, stating that “mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.” Mich. Comp. Laws Ann. § 418.301(2). Meanwhile, New Jersey, Oregon, and Pennsylvania are among the states that have repudiated the “subjective nexus” idea, while only California has discussed it favorably, and even there a 1989 amendment requires that actual employment events be responsible for at least 10% of a psychiatric injury. Larson’s, supra, citing Albertson’s, Inc. v. Workers’ Comp. App. Bd., 182 Cal. Rptr. 304 (1982); Williams v. Western Elec. Co., 178 N.J. Super. 571, 429 A.2d 1063 (1980); McGarrah v. State Acc. Ins. Fund, 296. Or. 145, 675 P.2d 159 (1983), aff’g 59 Or. App. 448, 651 P.2d 153 (1982) (court was careful to prevent claims by employees suffering from personality disorder that might exaggerate actual stress of job); Pennsylvania Human Relations Comm. v. Workmen’s Comp. App. Bd., 683 A.2d 262 (Pa. 1996) (claimant must show not only that psychological injury emanated from real rather than perceived events, but also that such events were abnormal for the workplace). Indeed, only eight states even suggest that a mental-mental case can arise from everyday work stimuli where the claimant accurately perceives the effect of the stressful events; Larson’s, supra, § 56.06D[7] (including Alaska, California, Hawaii, Michigan, New Jersey, New York, Oregon, Pennsylvania and West Virginia); and many of their courts have also produced caselaw that effectively applies an “unusual stimulus” standard.

Although Connecticut courts, as noted above, have no “subjective perception” cases in their workers’ compensation oeuvre, they have interpreted related negligence doctrine in a manner that forewarns some hostility to the notion of “eggshell” mental stress plaintiffs. Our Supreme Court recently ruled that a bystander to a tortious incident could recover damages for emotional distress under the “reasonable foreseeability” rule if the following conditions were satisfied: “(1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.Clohessy v. Bachelor, 237 Conn. 31, 56 (1996) (emphasis added). Also, the Court has explained that a cause of action for unintentional infliction of emotional distress does not require proof of an ensuing physical injury or impact, but must arise out of conduct which the defendant should have known would involve an unreasonable risk of causing emotional distress which, in turn, might result in illness or bodily harm. Morris v. Hartford Courant Co., 200 Conn. 676, 683 (1986). Though tort law and workers’ compensation law are technically divergent, both of these standards suggest that, in order for a mental stress claim to be viable in this state, the stimulus causing such stress must be something that an ordinary person would identify as a probable stressor.

The Connecticut Workers’ Compensation Act is indisputably a remedial statute that should be construed generously to accomplish its humanitarian purpose. Driscoll v. General Nutrition Corp., 252 Conn. 215, 220 (2000); Herman v. Sherwood Industries, Inc., 244 Conn. 502, 511 (1998). However, this is equally true of workers’ compensation law everywhere, and very few jurisdictions have felt compelled to offer recovery to claimants who have experienced disabling psychic stress from abnormal responses to ordinary, non-physical workplace incidents. This is likely because the cause of such stress is more the inherent mental predisposition of the claimant than it is the workplace itself. We find no law or legislative intent that mandates the creation of a “safety net” for such emotionally fragile individuals via the mechanism of workers’ compensation, which is designed to limit tort law remedies in exchange for the certainty of compensation for injuries arising out of and in the course of a worker’s employment. Driscoll, supra, 220-21. Given the absence of clear language indicating that, prior to P.A. 93-228, our legislature favored a relaxed standard of proof in mental stress cases, and given the holdings of our Supreme Court in civil cases involving emotional distress, we decline to adopt the legal interpretation advocated by the claimant. Instead, we follow the majority of other states, and hold that the trier drew a permissible conclusion regarding the absence of a causal connection between the claimant’s psychological problems and the CL&P work environment, based on his factual findings. See ¶¶ D-G, Finding and Dismissal. Therefore, we affirm his decision on appeal.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

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