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Franco v. Dependable Motors Inc. d/b/a Branford Dodge

CASE NO. 4281 CRB-3-00-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 17, 2001

CARL J. FRANCO

CLAIMANT-APPELLANT

v.

DEPENDABLE MOTORS INC. d/b/a BRANFORD DODGE

EMPLOYER

and

SEACO/LUMBER MUTUAL INSURANCE

REILLY’S ADJUSTING SERVICE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Anselmo M. Delia, Esq., Delia & Dunne, 45 Court Street, New Haven, CT 06511.

The respondent was represented by Andrew W. Bray, Esq., Regnier, Taylor, Curran & Eddy, CityPlace, Hartford, CT 06103.

This Petition for Review from the July 27, 2000 Finding of Dismissal of the Commissioner acting for the Third District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 27, 2000 Finding of Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner addressed the claimant’s allegation that his employment caused him emotional stress which exacerbated his underlying cardiac condition, causing him to suffer angina. The trial commissioner concluded that the claimant’s underlying heart disease was not work related, and that as his emotional stress caused only somatic symptoms of chest pain, it was not compensable under § 31-275(16)(B) subparts (ii) and (iii).1 In support of his appeal, the claimant argues that his employment stress caused an exacerbation of his underlying heart condition by causing unstable angina. The claimant further argues that the angina constitutes a compensable mental-physical injury rather than a non-compensable mental-mental injury under § 31-275(16)(B) subparts (ii) and (iii).

The trial commissioner found that the claimant was employed as a service manager for the respondent’s car dealership from November 1981 through April 28, 1997. The claimant had two myocardial infarctions in 1990. The claimant alleged that he began to experience stress when the business was converted from a Peugeot dealership to a Dodge dealership in 1992. In 1995, the claimant had a cardiac catherization due to chest pain and a history of coronary artery disease. On September 24, 1996, the claimant’s treating physician indicated that the claimant had noticed signs of congestive heart failure, and accordingly, prescribed medication. On October 2, 1996, the claimant had a catherization performed because of marked congestive heart failure, which indicated coronary artery disease and cardiomyopathy. A subsequent stress test indicated severe cardiac limitation.

On April 25, 1997, the owner of the respondent Branford Dodge informed the claimant that he would have to work Saturdays and that his pay would be reduced. The claimant alleged that this conversation put him into a state of physical agitation during the weekend of April 26th - 27th, causing shortness of breath and chest pains. The claimant went to work on April 28th on which day the owner was not present. The claimant alleged that he left work early on April 28th because he was not feeling well.

On April 29, 1997, the claimant was examined by a cardiologist, Dr. Cabin, who indicated that the claimant had been experiencing angina for the past few weeks. The claimant indicated to Dr. Cabin that he had been under tremendous stress at work and that he was told his hours would be increased and his pay reduced. On April 30, 1997, the claimant was taken to the hospital due to unstable angina, and was hospitalized until May 3, 1997. The claimant was examined by Dr. Clemen, who indicated on May 28, 1997 that the claimant continued to have angina with even minimal stress. The claimant did not return to work after April 28, 1997. On September 8, 1997, Dr. Clemen indicated that the claimant continued to experience angina in very stressful situations.

At the request of the respondents, Dr. Berman, a cardiologist, reviewed the claimant’s records. Dr. Berman noted that the claimant had several cardiac risk factors, including a prior history of cigarette smoking, hypertension, obesity, hypercholesterolemia with low HDL, a sedentary life style, and stress. Dr. Berman also indicated that a difficult divorce and the death of some family members had caused the claimant some stress. He opined that the claimant sustained an increase in his angina symptoms due to his underlying coronary artery disease. Significantly, Dr. Berman opined that it was not work stress that caused the claimant’s cardiac disease to become symptomatic. The trial commissioner concluded that neither the claimant’s cardiac disease nor his heart condition was caused by his employment. The trial commissioner further concluded that the claimant’s allegation that he experienced emotional stress due to personnel related matters which caused somatic symptoms of chest pain does not constitute a compensable claim under § 31-275(16)(B)(iii) and § 31-275(16)(B)(ii).

In support of his appeal, the claimant argues that his employment stress caused an exacerbation of his underlying heart condition which culminated in unstable angina, and that his injury (angina) constitutes a compensable mental-physical injury. We agree with the claimant’s argument on appeal that the substantial aggravation of a latent or pre-existing condition by employment activity may be 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); see also Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996). However, whether the claimant’s alleged work stress aggravated his pre-existing non-work related cardiac condition so as to cause him to suffer a compensable injury 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).

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). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. Id. “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citations omitted).

Here, the trial commissioner found that the claimant had an underlying cardiac disease which was not caused by his employment, and that the work stress, as alleged by the claimant, merely caused somatic symptoms of chest pain. Indeed, the trial commissioner found that the claimant suffered from angina prior to the April 27, 1997 incident at work and for at least four months subsequent to April 28, 1997, his last date of employment. It was within the discretion of the trial commissioner to accept Dr. Berman’s opinion that the claimant’s work stress was not a substantial factor in causing the claimant’s cardiac disease to become symptomatic. Moreover, Dr. Berman’s medical opinion supports the trial commissioner’s conclusion that the claimant’s symptoms of angina did not constitute a compensable injury. Specifically, Dr. Berman stated as follows:

Q: And Doctor, in your opinion, again within a reasonable degree of medical probability, did Mr. Franco sustain a heart injury at the time of his admission to Yale-New Haven Hospital on April 30th of 1997?
A: No, he did not. The way that’s determined is by serial blood tests to determine whether there has been any heart muscle injury or heart attack, and those were all normal.
Q: So would it be fair to say, Doctor, that in your opinion, again within a reasonable degree of medical probability, that Mr. Franco didn’t suffer a heart injury at the end of April; he merely experienced an increase in symptoms relating to his previously existing and underlying coronary artery disease?
A: That’s correct.
Nov. 11, 1999 Deposition of Dr. Berman, p. 13.
Additionally, Dr. Berman opined as follows:
Q: Is the fact that Carl continued to experience symptoms after leaving work consistent with your opinion that his work stress, or whatever that was, was not the substantial factor in producing the incident of April 30, 1997?
A: That’s correct.
Id., pp. 22-23.

As the record fully supports the trial commissioner’s determination that the claimant’s angina did not constitute a compensable injury and was not caused by his alleged stress at work, we need not address the claimant’s argument that his angina condition constituted a mental-physical injury rather than a mental-mental injury under § 31-275(16)(B)(ii) which excludes a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” Similarly, we need not address the issue of whether the claimant’s claim is precluded by § 31-275(16)(B)(iii) which excludes a “mental or emotional impairment which results from a personnel action….”

The trial commissioner’s decision is affirmed.

Commissioners Ernie R. Walker and Stephen B. Delaney concur.

1 We note that the trial commissioner thus concluded that he did not have jurisdiction over the claim. Recently, our Appellate Court held in Del Toro v. Stamford, 64 Conn. App. 1 (2001) that the issue of compensability of an injury, including whether a claim is barred by § 31-275(16)(B)(ii), does not implicate subject matter jurisdiction. We note that this holding overturns a long line of cases. See Sanford v. Clinton Public Schools, 54 Conn. App. 266 (1999), cert. denied, 251 Conn. 917 (1999) (emphasis added), where Appellate Court held as follows: “Because the plaintiff’s claim for benefits is predicated on compensability for mental stress not related to a physical injury or to an occupational disease and therefore does not fit within the parameters of § 31-275(16)(B)(ii), we conclude that the commissioner properly dismissed the claim for jurisdictional reasons”); Reaves v. Brownstone Construction, 3930 CRB-4-98-11 (Nov. 30, 1999); Cunningham v. Stamford, 3112 CRB-7-95-7 (Dec. 16, 1996) (“Manifestly, one of these essential elements [of subject matter jurisdiction] is the existence of a personal injury within the meaning of the Workers’ Compensation Act”); see also Hatcher v. Bullard Co., 39 Conn. Sup. 250, 257 (1984) (employee’s claim for injury held barred by the exclusivity of the Workers’ Compensation Act and thus superior court “is without jurisdiction.”). BACK TO TEXT

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