State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Villemaire v. City of Stamford

CASE NO. 4921 CRB-7-05-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 18, 2006

JOSEPH VILLEMAIRE

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

CITY OF STAMFORD

EMPLOYER

and

WEBSTER INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Stewart Casper, Esq., Casper & de Toledo, 1458 Bedford Street, Stamford, CT 06905.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the February 9, 20051 Finding and Award of the Commissioner acting for the Seventh District was heard before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves a claim brought by a former Stamford police officer seeking compensation for Post-Traumatic Stress Disorder (PTSD). It is unusual in that both the claimant and the respondents have appealed from the Finding and Award issued by the trial commissioner. Upon review, we believe the trial commissioner’s Finding and Award better represents the present state of the law concerning PTSD claims in Connecticut than the alternatives presented by the litigants, and herein dismiss both appeals.

Following formal hearings held on May 5, 2003, August 25, 2003, March 22, 2004 and May 17, 2004, the commissioner found the following facts in his Finding and Award of February 9, 2005. The claimant became a Stamford police officer in 1984 and was assigned to some of the city’s most dangerous areas, including the Southfield Village housing project. Findings, ¶ 1. The officer experienced a series of highly traumatic events during his first eight years on the force including the discovery of a murder victim who had her throat slashed, responding to a hostage situation at a shopping mall, and an unsuccessful effort to revive a child who drowned in a swimming pool. Findings, ¶¶ 2-3. In 1992, the claimant’s treating physician Cosmo Filiberto prescribed anti-anxiety medication to respond to the claimant’s flashbacks, racing pulse and generalized anxiety. This treatment continued for about two years. Findings, ¶¶ 4-5. The claimant was then asymptomatic until March 2001 when he suffered bruised ribs sustained when a suspect caused a car door to be slammed into him while he was trying to effect an arrest. Findings, ¶ 6. The claimant was treated for his injuries and missed one week of work. Findings, ¶¶ 7-8. In October 2001, the claimant emotionally fell apart and was admitted to Silver Hill Hospital for treatment, which occasioned his disability retirement from the police force. Findings, ¶¶ 9-13.

Three psychiatrists examined the claimant as part of the disability retirement process and all opined the claimant had PTSD. An IME was performed by another psychiatrist, Dr. Mark Rubinstein, who agreed the claimant had PTSD, but did not attribute it to the 2001 physical injuries, rather to the cumulative effect of psychic trauma commencing shortly after the claimant commenced his employment with the Stamford police. Findings, ¶¶ 14-17. A treating physician, Dr. F. Carl Mueller, concurred that the claimant’s PTSD was due to cumulative effects. The two doctors differed slightly on the extent of the claimant’s injuries. Dr. Mueller testified that the claimant was disabled from all work and that his brain had been permanently “rewired” as a result of the trauma. Findings, ¶¶ 20-22. Dr. Rubinstein concurred only to the extent that the claimant was totally disabled from police work and the metabolic and chemical changes to his brain were not permanent in nature. Findings, ¶¶ 18-19, 23.

The trial commissioner explained his reasoning in a Memorandum of Decision summarizing the legal aspects of the findings of facts. In doing so, the trial commissioner determined that “[t]he exacerbation or aggravation of the Claimant’s PTSD is found to be compensable.” Findings, ¶ A.

The claimant submitted a Motion to Correct that included clarifications to the Finding and Award (which were granted) and additional findings that the claimant’s pre 1993 traumatic incidents were all compensable and accepted injuries (which were denied). The claimant appeals from the denial of these corrections. The respondents did not file a Motion to Correct, but submitted Reasons for Appeal on the grounds the Finding and Award was not supported by evidence in the record (specifically on the issue of the 2001 car door injury); that the injury in question was a mental injury that was not compensable under current Connecticut law, and that the claimant failed to satisfy the “but for” test required under Gartrell v. Dept. of Correction, 259 Conn. 29 (2002).

We address the respondents’ appellate arguments first since we must first establish as a threshold matter whether the claimant sustained a compensable injury under the statute. Having done so, we believe there is little substantive difference between the factual and legal foundations of the Gartrell case and this claim.

The trial commissioner was required to apply § 31-275(16)(B)(ii). This statute states: “‘Personal injury’ or ‘injury’ shall not be construed to include a mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.”

Our Supreme Court has held in Biasetti v. Stamford, 250 Conn. 65 (1999) that emotional or psychic distress must arise from a specific injury or disease and that the distress in and of itself is not compensable under the statute as amended in 1993. The court delineated the standard in Gartrell, supra, that mental distress which is the sequelae of physical injury or occupational disease is compensable if the work related injury constituted an aggravation of a pre-existing condition. Gartrell, supra, 39.

The commissioner had the following uncontroverted facts to consider.2 On March 21, 2001, the claimant was working a stakeout looking for a stolen car when the perpetrator drove the car down a ramp and rammed the vehicle in which the claimant was riding. “As the sergeant that was driving the car stopped, I went to exit the car, and the car went forward, and the door jammed me in my ribs, as I was grabbing the male.” May 5, 2003 Transcript, p. 40.

The central thesis of the respondents is that the physical injury herein described is inadequate to meet the “but for” test in Gartrell. A review of the facts of each case indicates that if anything, the claimant here suffered a more significant physical injury than the claimant in Gartrell. In Gartrell, the claimant suffered cardiac issues unrelated to a physical assault. The Supreme Court deemed this sufficient to permit a finding that it was the source of the claimant’s PTSD, as the statute requires a mental injury to “arise from” a physical injury to be compensable. In this circumstance herein, the claimant was placed in a situation where he faced a sudden, potentially life threatening collision with a fleeing felon driving a stolen automobile. He received medical treatment and missed several days of work. Findings, ¶ 6, 8.

“It long has been a ‘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, 675 A.2d 1377 (1996), citing Cashman v. McTernan School, Inc., 130 Conn. 401, 409, 34 A.2d 874 (1943).” Gartrell, supra, p. 40. In this instance, on March 21, 2001 the claimant’s state of health was someone who had previously been treated for anxiety, but had been asymptomatic for years. At that point, a physical injury intervened. Within a matter of months, the claimant’s emotional state collapsed.

Given those uncontroverted facts, the commissioner’s conclusion that the 2001 incident exacerbated a pre-existing condition is a permissible inference based on the facts in the record. “We have held that the substantial aggravation of a latent or pre-existing condition by employment activity is sufficient to establish compensability of the injury.” Seeger v. Borough of Naugatuck, 2220 CRB-5-94-11 (May 9, 1996). In Seeger, we upheld the finding that a police officer suffered an aggravation of chronic lymphedema although the medical evidence was “[t]he etiology is not certain and probably cannot be completely determined.” In that case, the claimant presented a compelling argument to the finder of fact that excessive time on his feet aggravated his condition.

Since the existence of a physical injury and a subsequent mental injury are facts that are not in dispute, we need only determine whether under the applicable law the trial commissioner appropriately determined a compensable injury occurred.3 This determination is uniquely a finding of fact, which we cannot disturb unless the necessary evidence is wanting.

The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party. (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 292, cert. denied, 275 Conn. 905, 882 (2005).

For those foregoing reasons, we agree with the trial commissioner that the claimant sustained a compensable injury in 2001. The respondents’ appeal is therefore dismissed.

The claimant advances a number of well researched legal and medical arguments as to why his emotional trauma prior to 1993 should be deemed compensable. However, there is no evidence in the record the claimant filed a timely Form 30C for these alleged injuries during the period in which the statute made mental injuries compensable. This poses a circumstance where the commission’s jurisdiction over the claim must be considered prior to any further consideration. Section 31-294c(a) sets out the statute of limitations for Workers’ Compensation claims which provides in pertinent part:

No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later.

The commissioner found that there were clear manifestations of PTSD in 1992. See Findings, ¶¶ 4-5. No matter how it is characterized, a claim for PTSD in this era should have been brought over a decade ago. Were this considered an “occupational disease” the holding of Fredette v. Conn. Air National Guard, 4828 CRB-8-04-7 (January 13, 2006) would apply. “We believe that the correct interpretation of § 31-294c demand that the statute of limitations begin running at the time a symptom of the disease is, or should have been recognized by the claimant, irrespective of whether a causal connection has been drawn between the disease and the claimant’s employment. Ricigliano v. Ideal Forging Corp., 4851 CRB-6-04-9 (September 28, 2005) (Emphasis added)”. Fredette, supra. The record indicates the manifestation of PTSD should have been recognized by the claimant in the early 1990s.

Were the claimant’s pre 1993 mental injuries deemed an accidental injury, the holding of Discuillo v. Stone & Webster, 242 Conn. 570 (1997), providing that a claim should be filed within a year of the accident, would bar consideration of the claim at this time. As to the theory the claimant’s pre 1993 stress is a “repetitive trauma” claim, our holding in Sanford v. Clinton Public Schools, 3446 CRB-3-96-10 (March 5, 1998) holds that in such cases the date of injury is the date of last exposure and the law in effect of the date of last exposure i.e., as of the date of his disability retirement, governs the claim. The enactment of Public Act 93-228 § 1 would then bar the claim.

There is no factual dispute that the claimant was aware of the traumatic stress of his occupation in 1992. The nature of his medical treatment with Dr. Filiberto and the number and gravity of his emotionally charged job related episodes indicate a viable claim for mental distress would have accrued at that time. The record contains no finding that the claimant filed such a claim in the early 1990’s. Our precedent makes clear once a claimant suffers a compensable injury, the statute presumes he will exercise his rights.

We recently had occasion to deal with a similar circumstance in Teague v. Repko Roofing, 4920 CRB-7-05-2 (March 1, 2006) in which the claimant filed a claim for an injury more than a year after it occurred. We held “[t]o deny further recovery to the claimant in this matter is a result driven by deference to the legislative purpose of statutes of repose. Clearly the General Assembly has decided that not only must a Workers’ Compensation claim be meritorious, it must be timely as well.”

In the absence of a timely notice of claim, this commission lacks jurisdiction to consider whether an award can be granted for an injury. The claimant advances no legal authority for the proposition that the time to file a claim for an existing mental injury was tolled during the period from 1994 to the present. Indeed, this line of reasoning would eviscerate the legislative purpose of the 1993 public act removing mental injuries from the ambit of Chapter 568. A claimant could merely assert his or her injuries predated the change in the statute. The obvious incompatibility of such a theory with incontrovertible precedent holding that statutes of repose bar stale claims is self-evident. See for example, Daily v. New Britain Machine Co., 200 Conn. 562, 583 (1986).4

Following the reasoning of the Supreme Court’s holdings in Biasetti, supra, and DelToro v. Stamford, 270 Conn. 532 (2004) determining that Public Act 93-228, § 1 removed jurisdiction for exclusively mental injuries from this commission, we are limited to consideration of the claimant’s PTSD that are within the jurisdictional requirements of § 31-294c(a) and § 31-275(16)(B)(ii). The trial commissioner appropriately denied those parts of the claimant’s Motion to Correct adding the claimant’s pre 2001 PTSD claims to the Finding and Award. We therefore dismiss the claimant’s appeal. The finding that the 2001 accident constituted an “aggravation” of a preexisting condition is herein upheld.

We therefore dismiss both appeals from the Finding and Award of February 9, 2005.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur in this opinion.

1 We note that a postponement and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 As the respondents did not file a Motion to Correct, all facts in the record are deemed admitted for the purposes of this appeal and this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4; Soto-Velez v. Michael’s Chrysler-Plymouth, 4628 CRB-2-03-2 (February 3, 2004); Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); Crochiere v. Enfield Board of Education, 227 Conn. 333, 347 (1993). BACK TO TEXT

3 The trial commissioner in his Memorandum of Decision discusses at great length the claimant’s theory that cumulative stress caused a physical injury by “rewiring” the claimant’s brain. There is no appellate legal precedent on these issues which can be applied by this board, nor are we sufficiently versed in the current science of neurology to evaluate the validity of this assertion. We also decline to parse the legal rationale behind the holding of Driscoll v. General Nutrition Corp., 252 Conn. 215 (2000). Since the trial commissioner appropriately applied the well-established legal precedent in Gartrell, supra, to the facts presented, the board need not address the dicta herein. BACK TO TEXT

4 The General Assembly has frequently extended the statute of limitations to file a tort action to advance public policy. See for example § 52-577(d) C.G.S. which permits an action by a victim of childhood sexual abuse to be filed up to thirty years after the victim reaches the age of majority. Public Act 86-401 § 6, Public Act 02-138 § 2. When the General Assembly passed Public Act 93-228, § 1, (making mental injury subsequently noncompensable under Chapter 568) there was no action taken to extend the statutory limitation to file such a claim under § 31-294c(a) C.G.S. The rules of statutory construction compel us to conclude the General Assembly intended to bar claims for a purely mental injury that occurred prior to the effective date of Public Act 93-228, § 1 which were not commenced within the statutory limitations of § 31-294c(a). Had the General Assembly intended a different result they would have amended the statute to extend the time permitted to file PTSD claims under Chapter 568, as they did in the case of tort actions for the mental trauma of childhood abuse. The General Assembly is always presumed to know all the existing statutes and the effect its actions or nonactions will have upon any one of them, Hatt v. Burlington Coat Factory, 263 Conn. 273, 310 (2003). BACK TO TEXT

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