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Bilsky v. Ansonia Copper & Brass

CASE NO. 4703 CRB-5-03-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 23, 2004

WALTER BILSKY

CLAIMANT-APPELLANT

v.

ANSONIA COPPER & BRASS

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jack Senich, Esq., Ouellette & Senich, L.L.C., 390 Middlebury Road, Middlebury, CT 06762.

The respondents were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 24, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District was heard February 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 24, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District. He argues that the trier erred by failing to hold that the claimant suffered a compensable personal injury within the meaning of § 31-275(16) C.G.S. We find error, and remand this case to the trial commissioner for further articulation.

The trial commissioner found the following facts. The claimant was employed as an electrician by the respondent Ansonia Copper & Brass on December 18, 2001. Shortly after 7:00 a.m. on that day, the claimant and his co-workers were awaiting their work assignments from their supervisor, Robert Sanford. When Sanford approached the claimant, he grabbed the claimant’s shirt pocket and asked for cigarettes in vulgar terminology. The claimant responded by asking what had happened to the cigarettes he had given Sanford the day before, whereupon Sanford retorted that they were on his desk (again interspersing his reply with obscenities), and slapped the claimant on the left side of his face. This incident was witnessed by Joseph DeGennaro, a fellow electrician and the president of the claimant’s union.

The claimant experienced a stinging sensation from the slap that lasted for about ten minutes. He spoke to DeGennaro a short while afterward, and said that he was experiencing distress and concern about the incident, and that he could not let it pass. The claimant and his union steward then reported the incident to George Buehler, the Human Resources Manager. By this time, there was no longer any visible sign of the red mark and discoloration that the slap had left on the claimant’s face. Buehler sent the claimant to the company medical department, where the claimant was monitored by Margaret Iannone, a registered nurse. He made no mention of facial pain while he was there. When Buehler later went to the medical department to check in, the claimant told him that he wanted to have Sanford arrested.

Iannone, meanwhile, noted in her records that the claimant had a history of cardiac disease and open heart surgery. She had taken elevated blood pressure readings from him in the past, though the readings she took on December 18, 2001 were somewhat higher than they had been previously. Between 10:20 a.m. and 12:15 p.m., she recorded blood pressures of 186/96, 190/100, 180/94, 190/98, and 190/100. Iannone notified the claimant’s physician, Dr. Farens, of the situation, and sent the claimant home to rest with instructions that he see his doctor and monitor his blood pressure. He visited Dr. Farens the next day, who removed him from work. Dr. Farens saw the claimant again on December 26, 2001 and kept him out of work due to stress. On January 3, 2001, Dr. Farens reported that the claimant was unable to work until further notice. He diagnosed “severe anxiety, depression and insomnia” in a disability claim form dated January 11, 2002, which the claimant filed with his employer. Dr. Farens then referred the claimant to a psychologist, Dr. Schoenfeld, whom the claimant began seeing weekly.

The short-term disability insurance carrier for Ansonia Copper & Brass requested that the claimant see a psychiatrist, Dr. Behrends, who opined that the claimant was suffering from acute distress disorder as a result of having been slapped by Sanford. The claimant had provided a history of insomnia with recurrent nightmares, including dreams of having been struck by his boss, which were causing him to awaken startled, perspiring and breathing quickly. On February 24, 2003 Dr. Behrends stated that the claimant had suffered a psychological reaction to the December 18, 2001 incident which began as acute stress disorder and evolved into post-traumatic stress disorder (PTSD). He recommended that the claimant not return to work with Robert Sanford.

Four witnesses testified on behalf of the respondent with respect to the working relationship between Sanford and the claimant. None had witnessed the incident in question, but they all testified that the two men had been engaging in horseplay with each other on a daily basis for several years. Two of the witnesses reported seeing them initiate frequent physical contact such as slapping, touching, throwing small objects at each other, and placing each other in headlocks. See October 28, 2002 Transcript; Respondent’s Exhibits 2, 3. The claimant denied this history of horseplay.

The trial commissioner concluded that no medical treatment was provided for the slap across the claimant’s face, and that it was not a “physical injury (i.e. damage to the body) of the claimant’s person.” He also concluded that no medical treatment was provided for the claimant’s elevated blood pressure after the incident, and that there was insufficient evidence to show that these hypertensive symptoms constituted a physical injury. The trier recognized that the claimant has received medical treatment for a mental and/or emotional impairment, but held that it did not arise from a physical injury. He accordingly found the alleged injury not to be compensable. The claimant has petitioned this board for a review of that decision.

It is the duty of the claimant in a workers' compensation case to prove that a compensable injury has occurred, and that an alleged disability or medical condition has resulted from it. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). When this board is called upon to review a trial commissioner’s decision on compensability, we grant substantial deference to the impressions that the finder of fact has drawn from the evidence and testimony. Belanger v. J & G Belanger Concrete Construction, 4684 CRB-6-03-6 (July 28, 2004); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). If there is evidence in the record to support the inferences that have been drawn by the trier, we will not second-guess those assessments of credibility on appeal. Id. The legal conclusions that the trier has drawn in applying the law to the facts will also be upheld as long as the law has been applied correctly, and no illegal or unreasonable inference have been drawn from the subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra.

There is no dispute that the claimant was slapped across the face by his supervisor on December 18, 2001. The question is whether this incident can be said to have been too trivial to legally constitute an injury based on the trier’s factual finding that there was no physical damage from, or medical treatment for, the slap itself, even though a mental and/or emotional impairment may have ultimately resulted from the incident. Section 31-275(16)(A) C.G.S. defines a personal injury as including an “accidental injury which may be definitely located as to the time when and the place where the accident occurred.” Among the statutory exclusions to that definition is, pursuant to § 31-275(16)(B)(ii), “A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” The trial commissioner in this matter concluded that neither the slap across the claimant’s face nor any resultant hypertension symptoms constituted a “physical injury (i.e. damage to the body)” to his person, which apparently led him to conclude that the incident was not cognizable as a personal injury under § 31-275(16). Without any physical injury to trigger the claimant’s acute distress disorder or PTSD, his condition was deemed to fall into the category of non-compensable emotional impairments. See Biasetti v. Stamford, 250 Conn. 65, 80 (1999)(claimant’s PTSD was not itself a physical injury, even though the condition produces transitory attendant physical symptoms).

In analyzing this issue, it is useful to keep in mind the fundamental tenet of workers’ compensation law that an employer takes the employee in the state of health in which it finds the employee. Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435 (1996); Pothier v. Stanley-Bostitch/The Bostitch Company, 3411 CRB-3-96-8 (January 21, 1998). The Pothier case is a helpful illustration of that precept. There, the claimant was playfully poked in the sides of his chest and then squeezed by a co-worker who had approached him from behind. It so happened that this claimant had been electrocuted several years earlier, which had damaged his chest wall and caused nerve deficits. Though no specific damage or physiological change was evident from the subsequent incident, the claimant began experiencing severe chest pain immediately after it occurred, which led to his resumption of pain management and a 17-month stretch of disability from work. This board upheld the trier’s finding that the claimant had suffered a new compensable injury, as it was reasonable for the trier to find that this identifiable incident was causally connected to the claimant’s pain and disability.

There is no threshold of severity built into in the definition of “personal injury.” Rather, the key question regarding any given incident that arises out of and in the course of employment is whether it has played a causal role in bringing about a claimant’s disability or a need for medical treatment. Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (November 1, 1995), aff’d, 43 Conn. App. 908 (1996) (per curiam); Niebler v. Waldbaum’s Foodmart, 14 Conn. Workers’ Comp. Rev. Op. 61, 1851 CRB-3-93-9 (May 11, 1995). In Driscoll v. General Nutrition Corp., 252 Conn. 215 (2000), our Supreme Court held that a woman who had been sexually assaulted at the workplace was covered by the Workers’ Compensation Act, as the term “personal injury” was broad enough to include forced participation in oral sex. In the process, the Court disagreed that a “physical injury” includes only physical trauma of a sort that excludes all minor physical symptoms, and noted the “judicial philosophy of construing access to workers’ compensation benefits as broadly as the act will permit.” Id., 224-25. “The plaintiff herein was, at the very least, physically manhandled . . . [and] subjected . . . to an invasive physical contact. The plaintiff’s emotional distress, as alleged in her own complaint, arose from or was caused by a physical injury.” Id., 226.

Subsequently, this board discussed Driscoll and the legislative history to the § 31-275(16)(B)(ii) “mental-mental” exclusion in Nunes v. State/Dept. of Motor Vehicles, 4360 CRB-2-01-2 (January 16, 2002). There, we observed that in excluding mental and emotional injuries that do not arise out of an occupational disease or a physical incident, the legislature apparently intended to carve out an exception for “bystander” emotional trauma that occurs from witnessing an event at one’s workplace, as well as emotional trauma that arises from a direct, non-physical confrontation. In contrast, mental trauma that a claimant suffers after engaging in a physical altercation was not meant to be excluded; a claimant who was touched and physically assaulted—even if she or he escaped unscathed—would have sustained a physical injury that would make any subsequent emotional distress compensable. See, e.g., 36 H.R. Proc., Pt. 18, 1993 Sess., pp. 6153-55 (remarks of Rep. Lawlor). The claimant in Nunes had experienced significant emotional trauma after becoming involved in a prolonged physical altercation with an armed DMV customer that resulted in the customer shooting himself in the face during the struggle. Noting the gravity of the threat that had faced the claimant, we held, “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. . . . The claimant’s resulting nervous injury, disability, and need for medical care . . . resulted from a physical altercation that amounts to a physical injury.”

Cases such as Driscoll and Nunes demonstrate that the physical component of an assault need not damage the body severely enough to necessitate medical treatment for physical trauma in order to constitute a personal injury within the meaning of the Act. The trial commissioner seems to have applied that standard, however, in dismissing the instant claim. This was done in error, which resulted in several consequences to the trier’s findings that will need to be remedied on remand.

First, the trier did not make it clear whether the claimant’s acute stress disorder and PTSD were causally connected to his having been slapped. Even if the claimant’s disability is primarily due to those mental or emotional ailments, if their onset was occasioned by the slap, those ailments would potentially be compensable under the Workers’ Compensation Act. It will be necessary for the trial commissioner to make a factual finding as to whether such a relationship exists, as it does not suffice merely to say that the slap was not a physical injury under § 31-275(16).

Second, the trier did not specifically address in his conclusions the role that horseplay may have had in this incident. There was testimony regarding a pattern of conduct between the claimant and Sanford that could suggest another interpretation of the incident, and the trier recounted some of that testimony in his findings. There is also testimony that the claimant had Sanford arrested following the slapping incident. Injuries resulting from horseplay are normally not compensable under the Act, as a claimant who has voluntarily departed from the duties of his employment and embarked upon an enterprise of his own is responsible for any risk created by that enterprise. Simmons v. Bonhotel, 40 Conn. App. 278, 282-83 n.3 (1996); Beaubien v. Chesebrough Ponds, U.S.A., 3386 CRB-3-96-7 (January 22, 1998). If the trial commissioner had reason to believe that the incident was a case of horseplay gone too far similar to Swaggerty v. Mattie’s Service Station, 3378 CRB-6-96-7 (February 3, 1998), thereby making it noncompensable, that needs to be explained in his conclusions.

Third, the trial commissioner drew the conclusion that there was no evidence that the claimant received medical treatment for hypertension after the slap incident, despite the elevated blood pressure readings that Iannone took in her capacity as company nurse. Yet, there is also a factual finding that Iannone notified the claimant’s physician of his elevated readings, and noted in her records that he should have his blood pressure checked again later. It is unclear whether the trial commissioner found that the claimant’s high blood pressure readings were transitory and self-limiting, and reasoned on that basis that they were unrelated to the claimant’s subsequent mental and emotional impairments. If so, the trier’s findings were misleading. Whether or not medical treatment for hypertension was provided is not the determinative factor in assessing whether the claimant’s symptoms of hypertension constituted a physical injury under the Act. That question would be relevant if the notice exception under § 31-294c(c) C.G.S. were at issue, or if we were attempting to determine the date of onset of hypertension symptoms. Under these circumstances, however, it does not carry much weight in assessing the nature of the claimant’s injury.

These factual issues must be resolved further before the controlling law may be applied correctly to the facts of this case. “No case under this Act should be finally determined when the … court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.” Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 3, 936 CRD-6-89-11 (March 19, 1991)(quoting Cormican v. McMahon, 102 Conn. 234, 238 (1925)). Accordingly, we remand this matter to the trial commissioner with instruction to make further findings on these issues, in accordance with the guidance provided by this opinion and the cases cited therein.

Commissioners A. Thomas White, Jr., and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: September 2, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4703crb.htm

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