State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Nunes v. State of Connecticut/Dept. of Motor Vehicles

CASE NO. 4360 CRB-2-01-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 16, 2002

KENNETH NUNES

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPT. OF MOTOR VEHICLES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Matthew Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondent was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the February 15, 2001 Finding and Award of the Commissioner acting for the Second District was heard September 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this proceeding, the State of Connecticut, has petitioned for review from the February 15, 2001 Finding and Award of the Commissioner acting for the Second District. The state argues on appeal that the trier erred by finding that the claimant’s post-traumatic stress disorder (PTSD) was cognizable as a personal injury under § 31-275(16), and by finding that the claimant became disabled as a result of this alleged injury. We find no error of law, and affirm the trial commissioner’s decision.

The claimant began working for the state Department of Motor Vehicles (DMV) in 1989, and was promoted to the position of Inspector in 1990. On April 4, 1997, he was the acting sergeant-in-charge at the DMV office in Norwich. Upon observing the strange demeanor of Donald Cohen, a customer, the claimant ran a computer check and discovered that Cohen was wanted for petty larceny. He contacted the police, who dispatched an officer to the DMV office to question Cohen. When the officer arrived, he instructed Cohen to sit at the claimant’s desk while he used a telephone on a nearby desk. Cohen then requested his canvas bag so that he could retrieve his identification. Another DMV employee handed him the bag, whereupon Cohen reached into it and pulled out a gun, aiming it at the police officer.

The claimant reacted quickly, grabbing Cohen and attempting to wedge his finger behind the trigger of the gun so that it could not be discharged. However, the gun managed to fire once, with the bullet fortunately striking a wall. A struggle then ensued in which the claimant, his co-worker and the police officer attempted to subdue Cohen. The claimant, who is 5’7” tall and weighs only 140 lbs., fell to the floor along with the 6’4”, 300 lb. Cohen, attempting to seize the gun away from him. With his one free hand, the claimant grabbed the gun barrel. At this point, Cohen shouted that he had a grenade in his other hand, and warned that he had pulled its pin. While lying on Cohen’s back, the claimant (with the help of his co-worker) was able to pull Cohen’s hand out from beneath him, and discovered that there was no grenade. Cohen continued to struggle, and the claimant’s grip on the gun barrel loosened. Cohen then placed the gun in his own mouth and pulled the trigger. A bullet exploded through the side of his face, exiting via his jaw and his eye. The claimant witnessed this, and saw the residue of the gunshot: a pool of blood, and dislodged teeth in the corner of the room.

Once Cohen had been subdued and was under control, the claimant observed that his hands had been scratched while struggling over the gun. He was given a solution with which to wash himself, as his wounds had likely been exposed to Cohen’s blood. The claimant was later transported to a hospital for treatment of the cuts. The respondent paid for that treatment. He returned to work the next day, but only lasted five minutes because he was so nervous and jittery. With his supervisor’s permission, he went home. On the following business day, he was able to resume his job.

The claimant managed to continue working until July 1, 1998, a day on which he was the only DMV employee available to handle the public. A customer who was waiting for service became dissatisfied that the claimant was not attending to him quickly enough, and angrily demanded immediate service. When the claimant failed to comply, the customer became upset. He threatened to leave, and to reappear with a gun. The claimant became incapacitated with fright and left work. He could not return, and has not returned, to work at the DMV.

Since that event, the claimant has struggled with depression and suicidal ideation. Because of his mental state, he was voluntarily admitted to Lawrence and Memorial Hospital in New London for three days beginning on March 13, 1999, followed by seven days at a facility in Norwich. The history taken there revealed that the claimant had experienced increasing depression since leaving work at the beginning of July, and that he had suffered intense flashbacks regarding the April 4, 1997 shooting incident, along with the later homicidal threat. The claimant had been unable to sleep, had lost his appetite, and had begun abusing marijuana and alcohol to cope with his feelings of despair. He was diagnosed as suffering from severe depression and PTSD, accompanied by substance abuse. He was treated with medication for alcohol abuse, depression and anxiety, and when he was discharged he no longer felt suicidal and his symptoms of PTSD had decreased. However, he was still nervous about his financial situation, and did not want to go to the Veterans Administration Hospital for further treatment.

Shortly thereafter, he suffered an acute anxiety attack, possibly as a result of a negative reaction to medications prescribed at the Norwich facility. He initially refused further medication at the V.A. Hospital, but after suffering acute anxiety and PTSD symptoms, he returned to Lawrence and Memorial and was prescribed Xanax. A panic attack the following day brought him back to the V.A. Hospital, where he was given Serax for his anxiety. He was then referred for outpatient substance abuse treatment, and has been participating in that program ever since. Continuing nightmares related to the 1997 incident motivated the V.A. Hospital to recommend in September 1999 that he apply for a three-month residential treatment program for PTSD.

The respondent requested that the claimant undergo an examination by Dr. Rubenstein, who saw him on December 2, 1999. He found evidence of anxiety and dysphoria, and diagnosed PTSD caused by the 1997 and 1998 workplace incidents. He recommended that the claimant enroll in the program recommended by the V.A. Hospital, and did not think that the claimant would be able to return to his former job at the DMV. He also expressed the view that the claimant’s condition was not related to a physical injury, which apparently led the respondent to refuse to authorize treatment for PTSD, though the trier later found that portion of Dr. Rubenstein’s opinion not to be credible. The claimant also has an extensive history of alcohol abuse, and had a predisposition to substance abuse as well, having gone so far as to inject heroin during the years prior to the April 3, 1997 workplace altercation and shooting.

The trier found that the claimant’s increased marijuana and alcohol use since the altercation had resulted from PTSD, and his inability to cope with the aftereffects of that unpleasant incident. She then concluded that the claimant’s PTSD is a compensable injury, as it “arises from a physical altercation and physical injuries occurring on April 4, 1997. The prolonged physical struggle with the assailant, resulting physical injuries, and shooting combined to result in this mental impairment.” She found that the claimant had been totally disabled from July 2, 1998 to October 1998, and partially disabled ever since because he could not return to his job at DMV. She also found in-patient treatment for PTSD to be medically reasonable. She accordingly ordered the payment of benefits, from which decision the respondent has petitioned for review.

There are two distinct levels of analysis necessary in this appeal. The respondent has challenged the legal sufficiency of the instant claim in light of § 31-275(16)(B)(ii) C.G.S., as well as the accuracy of the factual findings. Though the crux of this appeal would appear to rest on statutory interpretation, it is necessary for us to first consider the more routine issue of whether the evidence sufficiently supports the trier’s underlying findings. We must confirm the nature of the claimant’s condition and the relationship of his PTSD to the events of April 4, 1997 before we may apply the law.

As noted above, the trier found that the claimant suffers from PTSD, which has resulted from a physical altercation and physical injuries sustained during the course of his employment on April 4, 1997. The respondent contends in its brief that there are several problems with this factual finding. It challenges the finding that the physical struggle and finger injury were causal factors in the claimant’s PTSD, the trier’s failure to find that a new injury occurred on July 1, 1998, and the trier’s failure to find that any and all disability was due to noncompensable substance abuse. The state also objects to the trier’s findings concerning a period of temporary total disability. In reviewing the trier’s findings on these matters, we are conscious that it is the trial commissioner’s prerogative to determine whether the testimony of lay witnesses and the reports of doctors are credible. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). If a commissioner believes that a claimant has satisfied his burden of proving that a given condition is related to a workplace incident, this board may not disturb that finding unless there is no competent evidence upon which said finding can reasonably be based. Johnson v. State, 67 Conn. App. 330, 336 (2001); Warren, supra.

We note the same observation made by the trier at the outset of her Finding and Award: the only testimony in these proceedings is the claimant’s direct testimony. The respondent did not cross-examine him, nor was any medical evidence presented outside of the written reports from hospitals and doctors that were offered by the claimant. For the claimant’s part, he testified that he had been unable to work at the DMV since July 1, 1998, when a customer threatened to shoot him because his office’s service was too slow. He explained, “I don’t know what happened, I just lost it, I went into shock I think, and I just left the building.” August 10, 2000 Transcript, p. 19. Since that time, the claimant testified that his sleep is regularly disturbed by nightmares in which he pictures Mr. Cohen lying on the floor amidst his blood and teeth. Id., 38. He stated that he had drunk alcohol years ago, but since the 1998 incident he had begun drinking excessively and using marijuana to fall asleep because of his anxiety. Id., 39. He also said that his substance abuse had become a serious problem, but he was managing it a lot better now that he had joined an alcohol and drug abuse program. Id.

The medical reports from the various hospitals visited by the claimant and from Dr. Rubenstein, meanwhile, contain significant support for the various challenged findings. To begin, none of these documents treat the 1998 work incident as a separate and unrelated occurrence to the April 3, 1997 incident with regard to its effect upon the claimant’s mental state. The report of the claimant’s initial examination at Lawrence and Memorial Hospital, for example, describes him as being depressed and suicidal in reaction to “severe flashbacks regarding an incident in which he tried to take a gun away from a person who ultimately shot himself . . . and then in July 1998 he was the victim of a homicidal threat, again, at his place of employment . . . .” Claimant’s Exhibit O. Dr. Rubenstein explains, “Clearly, the incident of July 1, 1998 involved a revivification for Mr. Nunes of the frightening incident of April 3, 1997, which may have had some retrospective implication with respect to Vietnam. (However, Mr. Nunes represented that he was discharged from the Army following his service in Vietnam and that he experienced no significant untoward symptoms or psychopathology thereafter.)” Claimant’s Exhibit T. No one has ever treated the 1998 incident as a sole cause of the claimant’s stress. Thus, the trier did not err by classifying the claimant’s PTSD as a direct sequela of the April 3, 1997 incident, rather than as the product of a new injury.

We acknowledge § 31-284(a), which states that “compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication,” and § 31-275(1)(C), which declines to compensate “in the case of an accidental injury, a disability or death due to the use of alcohol or narcotic drugs . . . .” Neither statute applies here. Though mention was made that the claimant may have experienced greater substance abuse problems prior to 1997 than he was willing to acknowledge; see, e.g., Claimant’s Exhibit S; there is no evidence that such problems caused his current disability in any way. Rather, the evidence suggests that the incidents of April 3, 1997 and July 1, 1998 so disturbed the claimant that he turned to alcohol and other controlled substances as a misguided means of trying to cope with his hyper-anxious feelings. Substance abuse is certainly problematic, but there is no evidence that the claimant’s use of alcohol and marijuana has either caused his current psychological state, or kept him from returning to work. Also, the claimant reported that he has been making consistent efforts to overcome these dependencies. The trier did not err by declining to bar the claimant from recovery on this ground.

The trier made a finding that the claimant was totally disabled from July 2, 1998 through the date in October 1998 when he began working at a laundry. Whether or not a claimant is totally disabled for a given time period is a question of fact for the trial commissioner to decide. LaPierre v. UTC/Pratt & Whitney, 4305 CRB-8-00-10 (Oct. 23, 2001). The claimant testified that, after his psychological breakdown at the DMV, he felt too scared to try to go back to work there. He applied for unemployment compensation, which was initially granted, but finally rescinded when the DMV appealed. Transcript, p. 20. The claimant was ordered to pay back his unemployment compensation, at which point he found the aforementioned job driving a truck for the laundry. Id., 26. However, the claimant’s goal generally has been to return to the DMV. Id., 28; see also Claimant’s Exhibit R. The record contains no direct or contemporaneous evidence of the claimant’s psychological status between July and October of 1998. Given the claimant’s general mental state during the months that followed, however, we think it reasonable for the trier to infer that the claimant was unable to perform work during the interim 12-15 weeks between his evidently traumatic departure from the DMV and his hiring by the laundry.

As for the trier’s finding that the claimant’s PTSD arose from a physical altercation and physical injuries, there is clearly a factual element at its core. Yet, there seems to be little overt disagreement as to the claimed etiology of the claimant’s PTSD; the chief point of dispute is more akin to a battle over semantics, which leads us directly into the primary issue on this appeal. Is it reasonable to characterize the claimant’s psychological trauma as having “arisen from” a physical injury or occupational disease within the meaning of § 31-275(16)(B)(ii)? Or, as the respondent contends, is the claimant’s condition one that arose independent of any physical injuries that can be said to have occurred on April 4, 1997? The claimant was involved in a physical struggle with a gunman at his workplace. His life was clearly in danger, and the gunman fired his weapon twice, eventually wounding himself. During the skirmish, the claimant suffered minor abrasions to two or three of the fingers on his right hand, which constituted the only physical injury for which he sought or received medical treatment. Serious psychological problems did not begin manifesting themselves until over a year later, after another, less violent event triggered overwhelming fears that the earlier unpleasant incident might recur.

The respondent contends that, because the claimant’s PTSD did not arise directly from the results of the physical trauma done to him, it cannot be compensated under the operative version of the Workers’ Compensation Act due to the exclusion in § 31-275(16)(B)(ii). This point is questionable. Prior to the enactment of Public Act 93-228, an employee who suffered nervous injuries as the result of mental stimuli unaccompanied by any physical trauma was not precluded from bringing an action for workers’ compensation. Crochiere v. Board of Education, 227 Conn. 333 (1993) (mental trauma of teacher who was publicly accused of sexual harassment by student constituted an injury under Act). While the Crochiere decision was pending before our Supreme Court, the legislature passed the aforementioned Public Act, § 1 of which excluded from the definition of “personal injury” a mental or emotional impairment that did not arise from a physical injury or occupational disease. PTSD is generally considered to be a mental impairment, even though it may produce transitory attendant physical symptoms such as insomnia, weight loss, fatigue, heart palpitations, sweating, dizziness and nausea. Biasetti v. Stamford, 250 Conn. 65, 80 (1999) (claimant’s PTSD qualified as an occupational disease under § 31-275(15), but was not compensable because it constituted an emotional impairment that was itself an occupational disease, rather than one arising from a separate occupational disease, as required by § 31-275(16)(B)(ii)). By itself, it does not constitute a physical injury, as opposed to, say, actual or even possible exposure to life-threatening infectious diseases during one’s employment. See Doe v. Stamford, 241 Conn. 692 (1997); Hansen v. Gordon, 221 Conn. 29 (1992).

In the recent case of Driscoll v. General Nutrition Corp., 252 Conn. 215 (2000), our Supreme Court had an opportunity to consider whether a woman who had been sexually assaulted was barred by the Workers’ Compensation Act from pursing a tort claim for damages due to emotional distress. In that case, the plaintiff’s assailant had seized her by the neck, had forced her into a back room of the store at which she worked, and after robbing the store, had forced her to perform oral sex on him. Her complaint alleged that she had suffered “various physical and psychological injuries.” Id., 220. Without needing to take into account the assailant’s conduct in forcibly removing the plaintiff to the rear of the store; Id., n. 9; the Court held that the term “personal injury” as used in § 31-275(16) is broad enough to include forcible fellatio. The Court cited the legislative debate surrounding the enactment of P.A. 93-228, § 1 as strongly supporting its decision. See 36 H.R. Proc., Pt. 18, 1993 Sess., pp. 6153-54 (remarks of Reps. Donovan and Lawlor). It also rejected the claimant’s argument that a “physical injury” must be manifested by “physical trauma” of a sort that excludes all minor physical symptoms, unless they rise to the level of a heart attack or exposure to a contagious disease. “The plaintiff herein was, at the very least, physically manhandled by [the assailant]. When he forced her to perform fellatio, he subjected her to an invasive physical contact. The plaintiff’s emotional distress, as alleged in her own complaint, arose from or was caused by physical injury.” Id., 226.

Though the respondent argues that the Driscoll case exemplifies a narrow exception for sexual assaults that the legislature carved out of the “mental-mental” exclusion during the course of its debates over P.A. 93-228, we are disinclined to read the debate as narrowly as does the respondent. “The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering [its] purposes;” Driscoll, supra, 221, quoting Mingachos v. CBS, Inc., 196 Conn. 91, 97 (1985); and our “fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” Driscoll, supra, 227. The discussion on the floor of the state House of Representatives treats the primary purpose of the proposed law as disallowing mental and emotional injuries that do not arise out of a physical occurrence involving the claimant, or an occupational disease. More specifically, a line seems to have been drawn excluding “bystander” emotional trauma that occurs from witnessing an event at one’s workplace, or emotional trauma that arises from a direct, non-physical confrontation of some kind. For example, Representative Donovan asked Representative Lawlor, the chief proponent of the bill, about the case of a female correction officer who was grabbed and groped by a prisoner, successfully fought off her attacker in a struggle that tore her clothes, and suffered emotional damage from the incident, but no physical damage to her body. 36 H.R. Proc., supra, pp. 6153-54. The response by Representative Lawlor was, “In my opinion, there is a physical injury there, although if she was touched and physically assaulted, I think that is an injury and she may be compensated . . . .” Id., p. 6155; see also, Id., p. 6215.

Another speaker, Representative DeMarinis, opposed the bill, stating that compensation should be provided for “anyone who has been through trauma or extreme stress caused by a series of events, for instance, harassment by an employer, L’Ambiance Plaza, being involved in a California postal workers’ shooting, [or] the [1993 bombing of the World Trade Center] Towers in New York . . . .” Id., pp. 6308-09. Representative Staples also referred to the L’Ambiance Plaza disaster, “where many people were not injured physically, but if they had witnessed the injuries occur to their co-workers and have experienced a mental or an emotional reaction to that, then they would be compensable under this [proposed alternative amendment]. Id., p. 6310. Representative Garcia voiced concerns about emotional harassment of employees by employers. Id., p. 6216. Senator Looney also spoke on the matter during the Senate debate over the bill, stating that, “in practicality, . . . someone . . . working at a machine next to someone who is horribly maimed, working at the same kind of machine . . . , that individual who witnesses his fellow and his friend at the very next machine being crippled or maimed and thereby being traumatized by that experience, but not physically injured would not have a compensable injury under the bill . . . .” 36 Sen. Proc., Pt. 11, 1993 Sess., p. 3886.

The nature of these observations and illustrations during the process of legislative debate, together with the timing of Public Act 93-228, § 1 vis-à-vis Crochiere, do not necessarily bespeak an intent to exclude mental trauma that a claimant suffers after being involved in a physical altercation with an armed assailant. The person who came closest to directly discussing that subject during legislative debate was Representative Lawlor, who stated that in the case of the prison guard who was assaulted by an inmate, the fact that she was touched and physically assaulted—even if she escaped unscathed—left her with a physical injury that would make any subsequent emotional distress compensable. The fact that the assailant apparently intended to abuse the guard sexually rather than in some other manner does not appear to be the sole basis of the distinction drawn by the proponent of the bill. Rather, it was her involvement in a physical altercation on which the representative focused.

It would appear to this board that, in attempting to consistently interpret and apply the humanitarian provisions of the Workers’ Compensation Act, we should recognize that there is a tremendous similarity between the situation of a prison guard physically fighting off an attacker and a DMV employee attempting to physically subdue an armed customer in an intense struggle. The dangers of being raped or otherwise sexually abused by an assailant and being murdered by an assailant, though somewhat different in emotional context, are both of the gravest nature imaginable to a human being. Thus, the Supreme Court’s decision in Driscoll, supra, lends support to a finding of compensability in the instant case as well. The trial commissioner’s finding that the claimant’s PTSD directly resulted from his involvement in the physical struggle with Cohen over the gun is borne out by the evidence. The claimant was more than a bystander to the ultimately gruesome incident, and even sustained minor abrasions to his hands during his participation in the fight over the gun. These facts suffice to support the trier’s legal conclusion that the claimant’s resulting nervous injury, disability, and need for medical care are compensable under the Act, having resulted from a physical altercation that amounts to a physical injury.

The trial commissioner’s decision is accordingly affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

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