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Bertalovitz v. City of Danbury

CASE NO. 2204 CRB-7-94-11



APRIL 1, 1996











The claimant was represented by Michael Stratton, Esq., Koskoff, Koskoff & Bieder, 350 Fairfield Ave., Bridgeport, CT 06604.

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

This Petition for Review from the November 2, 1994 Amended Finding and Award of Dismissal of the Commissioner acting for the Seventh District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 2, 1994 Amended Finding and Award of Dismissal of the Commissioner acting for the Seventh District. He argues on appeal that the commissioner erroneously dismissed his claim for benefits and that she improperly ordered a change in the authorized treating physician. We affirm the trial commissioner’s decision.

The claimant sustained a work-related injury on August 20, 1979 during his employment with the Danbury Police Department as a consequence of observing a man commit suicide. He claims that he developed Post-Traumatic Stress Disorder (PTSD) as a consequence of the incident, and that he is entitled to benefits for permanent partial disability of the brain along with additional benefits under § 31-308a C.G.S. The respondents conceded before the trial commissioner that the claimant developed PTSD, but argued that no permanent partial disability resulted from the suicide incident, and further argued that § 31-308a benefits were unsupported by the evidence.

The claimant, who had been a police officer since 1968, testified that he had known the suicide victim from a prior arrest, and had “a good rapport” with him. He was summoned to the scene on the night of the suicide, and spent nearly an hour alone with the gunman trying to convince him not to pull the trigger before the gunman fired the gun into his temple. One week after the incident, the claimant suffered a breakdown in the middle of the squad room, and began seeing a psychiatrist that very day. He continued to see the psychiatrist, Dr. Reed, several times a week through 1982, when he began treating with Dr. Hubbard, another psychiatrist.

The trial commissioner found that Dr. Hubbard diagnosed the claimant’s illness as PTSD, which was precipitated by the suicide. Dr. Hubbard defined PTSD as a physical and mental impairment of the brain, marked by a deficit in the ability of the brain to gather and sort information and translate it into performance. He testified that it can be a permanent disorder and that it can effectively disable a person from work. Although he initially thought that the claimant could handle some type of gainful employment, after over 200 sessions with the claimant, he concluded that the claimant was permanently disabled as of September 25, 1992. The claimant retired from the police department on December 10, 1986, as a result of the PTSD, and has not worked full time since then.

The trial commissioner found that Drs. Dawe, Borelli and Arcuni each examined the claimant as independent psychiatric examiners, and each opined that the claimant was no longer fit for police work because of PTSD. Dr. Robert Novelly, a neuropsychologist, examined the claimant on three occasions in June of 1987. He confirmed the presence of PTSD, but believed that the claimant’s emotional difficulties superseded the PTSD and existed prior to 1979. In his opinion, the claimant should have been improving through treatment since the suicide, and was not too emotionally impaired to prevent his gainful employment in another field. Further, he testified that the claimant’s anxiety disorder was not a brain disease, and that there was no evidence of organic neurologic impairment or loss of brain function. Dr. Rubenstein, a psychiatrist, concurred in the diagnosis of PTSD, and agreed with Dr. Novelly that there was no evidence of organic brain dysfunction or permanent partial disability. He also said that the claimant would benefit from a different approach to treatment than that prescribed by Dr. Hubbard.

The trial commissioner concluded that the August 20, 1979 incident indeed caused the claimant’s PTSD and disabled him from his job as a gun-carrying police officer. However, she also concluded that this did not disable him from all gainful employment, and that the claimant’s PTSD is a treatable anxiety disorder rather than a neurological impairment of the brain. Noting that the evidence did not indicate that Dr. Hubbard’s treatment would lead to recovery or rehabilitation, the commissioner ordered that authorized treatment with Dr. Hubbard be terminated in favor of treatment with a new psychiatrist that would take into account the diagnoses of Drs. Novelly and Rubenstein. Because insufficient credible evidence was presented to establish that there was loss of brain function or permanent partial disability of the brain, the commissioner declined to award permanent partial disability benefits. She also noted that no evidence had been presented to support a § 31-308a claim. The claimant has appealed from that decision, including the commissioner’s subsequent denial of his Motion to Correct.

Our standard of review of the factual findings and conclusions of a trial commissioner is well settled. The commissioner is the legal body charged with finding the facts, which encompasses the authority to determine the weight of evidence presented and the credibility of testimony offered by both lay and expert witnesses. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). Her conclusions on review must stand unless they are the result of an incorrect application of the law to the facts found, or of an illegal or unreasonable inference drawn from those facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Findings can be changed only if they are unsupported by evidence or if they fail to include material facts which are admitted and undisputed. Webb, supra. Where a requested correction would have no impact on the outcome of a case, we will uphold a commissioner’s refusal to grant a motion to correct the findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

Many of the requested corrections centered on the commissioner’s reliance on the testimony of Dr. Novelly. According to the claimant, the trial commissioner should have added findings that call into question Dr. Novelly’s competence to testify as to the claimant’s post-1987 condition, as well as findings that tend to support the legitimacy of Dr. Hubbard’s treatment of the claimant. After reviewing Dr. Novelly’s testimony, however, we conclude that the trial commissioner committed no error.

The fact that Dr. Novelly is a psychologist rather than a medical doctor has no legal bearing on the admissibility of the testimony that he offered, and the trial commissioner was well aware that Dr. Novelly had not examined the claimant for six years prior to his appearance on the witness stand. Despite this hiatus, the substance of Dr. Novelly’s testimony was consistent with the findings made by the trial commissioner, and provided support for the notion that the claimant was not permanently partially disabled and could be amenable to rehabilitation given the proper treatment. Given the commissioner’s authority to accept and reject the testimony of witnesses, we cannot say that her characterization of, or reliance on, Dr. Novelly’s testimony was erroneous.

The testimony of Dr. Novelly and Dr. Rubenstein support the notion that the claimant’s PTSD was not a permanent partial disability of the brain within the meaning of § 31-308(d). The commissioner was certainly not required to infer from the other medical evidence that a permanent partial disability did exist, as it was her prerogative to assess the credibility of the medical evidence offered by the claimant. Where evidence is in conflict, the trier’s reliance on a given portion of the testimony cannot be disturbed. Laine v. New England Aircraft, 6 Conn. Workers’ Comp. Rev. Op. 138, 139, 536 CRD-6-86 (April 5, 1989). Thus, the commissioner was entitled to deny the testimony-based corrections offered by the claimant.

As for the claimant’s continuing total disability from all gainful employment, the commissioner was likewise not required to rely on the conclusion of Dr. Hubbard that the claimant was incapable of any gainful employment as opposed to just police work. The evidence did not preclude the existence of doubt as to whether the claimant’s PTSD was a permanent partial disability, and certainly allowed for an inference that the claimant might be capable of recovery or rehabilitation if different treatment was administered. We note that § 31-294d(c) allows the commissioner to direct a change of the treating physician without a hearing, which the commissioner did here when she refused to authorize continued treatment by Dr. Hubbard. See Adams v. Stop & Shop, 4 Conn. Workers’ Comp. Rev. Op. 80, 81, 380 CRD-2-85 (June 4, 1987). Based on the whole of the record, the commissioner could reasonably have found that such a change would be beneficial to the claimant. Thus, it was not an abuse of her discretion to terminate Dr. Hubbard’s status as authorized treating physician.

The trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Michael S. Miles concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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