CASE NO. 4823 CRB-4-04-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 15, 2005
SHARON CHESLER, Dependent widow of NATHAN CHESLER
CITY OF DERBY
The claimant was represented by Lawrence C. Sgrignari, Esq., Gesmonde, Pietrosimone & Sgrignari, LLC, 3127 Whitney Avenue, Hamden, CT 06518-2344.
The respondents were represented by Marie E. Gallo-Hall, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the June 17, 2004 Finding and Award of the Commissioner acting for the Fourth District was heard January 21, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 17, 2004 Finding and Award of the Commissioner acting for the Fourth District. They argue in their appeal that the trier erred by finding that the decedent’s stress-related heart attack was a compensable injury under the Workers’ Compensation Act. We find no error, and affirm the trial commissioner’s decision.
The claimant, Sharon Chesler, is the dependent widow of Nathan Chesler, a former contractual employee of the respondent City of Derby. As per the trier’s findings, on his June 29, 2000 date of injury and death, the 62-year-old decedent was on the verge of ending an eleven-year term of employment as Derby’s school superintendent. He had been informed in February 1999 that the Board of Education was not going to renew his contract, which would end on June 30, 2000. The claimant testified that the decedent became brooding and pensive at the prospect of losing his job, and worried about his future. His medical history included an aortic valve replacement in 1988, and two instances of atrial fibrillations. According to his cardiologist, Dr. Pareles, whom the decedent had been seeing for about two years prior to his death, he had also been treating for hypertension.
On the evening of June 29, 2000, the decedent was attending what was to be his last meeting as superintendent of schools. It was a special meeting of the Board of Education, which concerned the approval of a “last chance agreement” for a Board maintenance mechanic who had been involved in an accident with a city vehicle. The decedent was in favor of approving the agreement. Lou Rogowski, the Board’s facility manager, and Loren Lettick, the Board’s attorney, both testified that they had expected the meeting to be brief, and the agreement to be approved. Instead, the meeting proved to be contentious, with criticism being directed toward the decedent and Mr. Rogowski. It appeared to Rogowski that the decedent was struggling both physically and emotionally with the way the meeting was proceeding. Following a break during which the Board privately discussed the agreement, the claimant, Rogowski and Lettick re-entered the meeting room. At that point, the Board’s chairman began to explain that they had decided to allow the new superintendent to advise them on whether the agreement should be approved. During that announcement, the decedent gasped, fell back in his chair, and died of what was later diagnosed as a ventricular arrythmia attack.
After reviewing the decedent’s medical records and the testimony of witnesses who worked with the decedent, Dr. Pareles opined that the stress the decedent experienced at the June 29, 2000 meeting was a significant contributing factor in his sudden death. Dr. Krauthamer, a cardiologist who performed a medical records review for the respondents, disagreed. He opined that the claimant’s pre-existing hypertension, his leaking mitral and tricuspid valves, his use of the medication Quinidine, and his history of aortic valve surgery put him at high risk for fatal arrhythmia. He stated that those factors, plus a loss of electrolytes in the decedent’s system due to a long bout with diarrhea, caused the fatal heart attack.
The trial commissioner concluded that the June 29, 2000 meeting was stressful for the decedent, and that this stress was a significant contributing factor to his death. He thus ruled that the decedent’s heart attack was a compensable injury, making the claimant entitled to death benefits as a dependent under § 31-306 C.G.S. The respondents have petitioned for review from that decision.
The respondents begin by arguing that § 31-275(16)(B)(ii) excludes the instant claim because the claimant’s heart attack arose from mental or emotional stress, as opposed to a physical injury. That section excludes from the definition of “personal injury” under the Workers’ Compensation Act, “A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” The respondents read this to mean that “the physical injury must be the precursor to the mental injury and not vice versa.” Brief, p. 6. We disagree. Section 31-275(16)(B)(ii) excludes only mental or emotional impairments. A fatal heart attack is most definitely a physical impairment. Nowhere does the statutory exception purport to address physical impairments, whether they are precipitated by direct physical trauma, or by some type of non-physical, work-related mental or emotional stress. A plain reading of the statute does not support the respondents’ position.1
Our Supreme Court has also spoken on this issue, and has acknowledged that a categorical line has been drawn between cases in which mental stressors give rise to a distinct physical injury “such as a heart attack or stroke,” and cases in which a mental ailment produces somatic symptoms that are merely a manifestation of stress. Biasetti v. Stamford, 250 Conn. 65, 79 (1999). As examples of the latter, the Court cited major depression that produces symptoms “such as significant weight loss, insomnia, psychomotor agitation, fatigue and diminished ability to think or concentrate,” or panic attacks “that are marked by heart palpitations, sweating, trembling or shaking, feelings of choking, chest pain or discomfort, nausea or abdominal stress, dizziness, lightheadedness, paresthesia and chills or hot flashes.” Id., 80. While these latter examples would not be compensable under § 31-275(16)(B)(ii), physical injuries such as heart attacks and strokes remain compensable. Under Connecticut law, compensability is recognized in cases that involve either mental stimulus that causes physical injury, or physical trauma that causes nervous injury. Id., 77, citing Crochiere v. Board of Education, 227 Conn. 333, 360-62 (1993)(discussing categories of cases in Larson’s treatise); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987); Sgritta v. Hertz Construction Co., 124 Conn. 6 (1938). There is no indication in either the text or the legislative history of § 31-275(16)(B)(ii) that lawmakers intended to eliminate those categories. We therefore reject the allegation in the respondents’ brief that, “in order for the decedent’s heart attack to be compensable, the precipitating factor [the stress itself] must also be compensable.” See Brief, p. 10; see also, Harkins v. State/Dept. of Mental Retardation, 4650 CRB-5-03-3 (March 4, 2004)(stroke is a physical injury, so alleged injury in Form 30C was not barred by § 31-275(16)(B)(ii)).
In analyzing the effects of workplace stress, this board has followed the Supreme Court’s holding in McDonough that traditional proximate cause concepts apply. Drivas v. Fair Auto Park, 4383 CRB-7-01-4 (March 1, 2002); Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998)(per curiam). “Regarding heart attacks, we have consistently held that a claimant bears the burden of proving that a work factor such as work stress or exertion was ‘a substantial factor in producing his myocardial infarction.’” Drivas, supra, quoting Benlock, supra. To establish a stress-related heart claim, a claimant must prove within a reasonable degree of probability that a “sudden, unusual, and unexpected employment factor” substantially caused his condition. Thompson v. State of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 178, 180, 2206 CRB-6-94-11 (March 22, 1996), aff’d, 44 Conn. App. 924 (1997)(per curiam), quoting McDonough, supra, 117. The McDonough Court further explained that a myocardial infarction is compensable if the cause is of an accidental character, or if the heart attack was the unexpected result of routine performance of the claimant’s job duties. Id., 114 n. 4.
The respondents contend that there was insufficient evidence to show that the decedent’s heart attack arose out of his employment, even though it occurred during the course of that employment. They cite Dr. Krauthamer’s opinion, which identified a heightened risk of premature death for the decedent due to other factors such as the claimant’s history of aortic valve disease, hypertension, leaking heart valves, and Quinidine use. “The fact that his death occurred while at work does not make it compensable. . . . [U]nless there was evidence to support the contention that the decedent was performing some type of activity that heightened the risk of and/or caused his heart attack, . . . the trial commissioner misapplied the law to the subordinate facts and his decision should be reversed.” Brief, p. 16. In their view, the timing of the heart attack was essentially a coincidence.
After examining the record, we believe that there is sufficient evidence to support a finding of a causal connection between the decedent’s employment and his fatal heart attack of June 29, 2000. There was testimony in the record to support the trier’s finding that the tone of the Board of Education meeting was stressful for the decedent, which the trier was entitled to credit over any conflicting testimony by other witnesses. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). Attorney Lettick stated that the decedent felt that it was important for him to resolve the issue of the “last chance” contractual agreement before the end of his employment. September 22, 2003 Transcript, pp. 26-27. He also testified that the tone of the meeting was different and more contentious than the decedent had anticipated, and that the decedent felt as if he was on the defensive against the board’s accusations. Id., pp. 28-29, 47, 51.
In Rogowski’s testimony, he said that certain board members had rather angrily attacked him for not having advised them of the incident with the city vehicle. His “very strong impression” was that the decedent was having trouble coping with the harsh criticism that was being aimed at Rogowski, especially during the part of the conversation just before the recess period. Id., pp. 66-67. Rogowski stated that the decedent was his immediate supervisor, and that he was trying to be supportive of Rogowski and the implicated employee amidst the board’s anger. Id., pp. 68-69. “He was almost cringing at one point . . . his face just seemed to be contorted beyond what was normal to him.” Id., p. 66. Rogowski added that the decedent looked extraordinarily tired, even “emotionally exhausted,” on the night of the board meeting. Id., pp. 65, 66-67.
As the finder of fact, the trier was entitled to rely on this testimony. Duddy, supra. This set the backdrop for the trier to also rely on the opinion of Dr. Pareles, who stated in his August 14, 2003 deposition that it was reasonably probable that the stress of the June 29, 2000 meeting was a significant contributing factor in the decedent’s sudden cardiac death. Claimant’s Exhibit I, pp. 23-24, 41. Dr. Pareles explained that some stimulus or event contemporaneous to the decedent’s serious ventricular arrhythmia had triggered it, as “this is not the sort of situation, medical condition that smolders for a period of time. This is something that when it manifests itself, it’s sudden and acute and usually the precipitant is nearby in time, proximate in time.” Id., p. 25. He explained that he disagreed with the diagnosis of Dr. Krauthamer because the decedent had been using Quinidine for two years before his heart attack and had never had a problem with the drug. Id., p. 26. Also, his condition had been stable prior to the heart attack. Dr. Pareles commented that the decedent had suffered a cardiac arrest at a meeting, and had not previously suffered anything “even remotely close to the seriousness of this problem.” Id., p. 37.
This evidence adequately supports the trial commissioner’s decision. It is not the place of this board on review to substitute its own findings for those of the trial commissioner, or to reassess evidentiary credibility. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195-96 (1999), cert. denied, 251 Conn. 929 (1999); Warren, supra. Therefore, we dismiss the respondents’ appeal.
The trial commissioner’s decision is accordingly affirmed. Insofar as benefits may have remained due and owing to the claimant pending the outcome of this appeal, we are required to order the payment of interest pursuant to § 31-301c(b) C.G.S.
Commissioners Stephen B. Delaney and Michelle D. Truglia concur.
1 The same reasoning applies to the respondents’ argument that this claim is precluded by § 31-275(16)(B)(iii), which excludes from the definition of “personal injury” a “mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.” A heart attack is a physical impairment, and is not implicated by this subsection. BACK TO TEXT