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CASE NO. 2298 CRB-2-95-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 16, 1996
UTC/PRATT & WHITNEY
The claimant was represented by Mark Merrow, Esq., Forbes & Thomson, 17 Lenox Place, P. O. Box 157, New Britain, CT 06050.
The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
The Second Injury Fund filed a brief and appeared before the board on the concurrent employment issue. The Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.
This Petition for Review from the February 2, 1995 Finding and Award of Compensation of the Commissioner acting for the Second District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
GEORGE A. WALDRON, COMMISSIONER. The claimant and respondents have both petitioned for review from the February 2, 1995 Finding and Award of Compensation of the Commissioner acting for the Second District. The claimant argues that the commissioner erred in calculating his benefit rate and in excluding certain medical bills, while the respondents argue that the commissioner erred in finding the existence of a compensable injury in the first place because the claimant was guilty of willful misconduct. We affirm the trial commissioner’s decision.
The trial commissioner found the following facts. As of January 16, 1992, the claimant was 35 years old, and had been employed by the respondent Pratt & Whitney as a machinist and a union representative for seven years. His personal background included gang membership as a youth, a period of counseling in the mid-1970s due to an abusive stepfather, the 1985 birth of his daughter, a 1988 divorce, and a second engagement to a woman he has lived with since 1988. The claimant testified that things went well at work until 1990, when a new supervisor began to complain about the amount of time he spent on union business. His next supervisor, Charles Konarski, demanded more accountability from the claimant on his union activities, and occasionally criticized him in front of other workers, even going so far as to provoke an altercation at one point. The claimant testified that this continuous behavior made him feel upset and belittled; he also noted that his productivity during that period declined due to increased requests from co-workers regarding union business.
The claimant testified that on January 16, 1992, Konarski told him to return to work and began yelling at him while he was talking to two other employees. He testified that he felt so bad the next day that he visited Dr. Havilcek, a general practitioner, who disabled him from work for two weeks and referred him to Dr. Noonan, a psychiatrist. Dr. Noonan diagnosed a depressive disorder, and disabled the claimant until February 10, 1992, with partial disability afterward until March 30, 1992. Dr. Noonan testified that the claimant admitted that certain statements he had made about his past were false, and explained his behavior by relating past drug, alcohol and self-esteem problems. The doctor also testified that the claimant had many personal problems at that time with his ex-wife, his daughter, his girlfriend and her daughter, and had recently had an alcohol-related physical altercation with his girlfriend that led to his moving out of their home.
When the claimant returned to work, he was transferred to the first shift at a different plant (a change he had sought earlier). Dr. Noonan continued to treat the claimant, who reported that he now felt tormented by his supervisors because he had lost his power as a union representative since his transfer. At one point, the claimant confided that he was frustrated because he could no longer act like a bully. The doctor also testified that the claimant was worried about excessive debts and a family member’s drug problems. The doctor stated that the claimant’s depression and anxiety could have been caused by a combination of prior personality traits and non-work-related social stresses, as his background and family problems may have been more significant causes of his condition than his employment.
Four of the claimant’s former supervisors, including Konarski, testified that the claimant performed his job poorly and often took credit for work he did not perform. They all testified that he spent excessive time away from work and that he was an argumentative and confrontational person. Konarski disputed the claimant’s version of the January 16, 1992 incident, stating that after he told the claimant to get back to work that day, the claimant came yelling and swearing after him. He also stated that he had not had any conflicts with any of the other union stewards, as they managed to conduct their union business in a manner that did not interfere with their productivity.
The commissioner found that there was sufficient evidence to indicate that the claimant experienced depression and anxiety that arose from the workplace. Thus, he found that the claimant suffered a compensable injury on January 16, 1992. He further found that the claimant had many emotional problems that preexisted his employment, and that those combined with the disciplinary stressors of the workplace caused him to be totally disabled from January 17, 1992 to March 16, 1992, when Dr. Noonan returned him to light duty work. He concluded that no further benefits were warranted, as the claimant did not indicate that he looked for light duty work after March 16, 1992. The commissioner also declined to authorize payment for treatment with Dr. Noonan after March 30, 1992. Both parties have appealed that decision.
The respondents argue that the commissioner erred in not making a finding as to whether the claimant’s conduct amounted to “willful and serious misconduct” under § 31-284(a) C.G.S., and that the commissioner should not have found that the claimant suffered a compensable injury. They also argue that the commissioner erred in denying the majority of their Motion to Correct. The claimant, meanwhile, argues that the commissioner erred by finding that the claimant was not an employee of the union and consequently failing to add union wages into his compensation rate, and also argues that the commissioner erred in finding that the claimant’s treatment after March 30, 1992 was not work-related.
“Determining whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Crochiere v. Board of Education, 227 Conn. 333, 346 (1993). The commissioner, as the factfinder, is charged with analyzing the weight of the evidence and the credibility of the testimony in making his determinations. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). His findings may be disturbed on appeal only if they contain facts unsupported by the evidence or omit undisputed material facts. Id., 71. His legal conclusions must likewise stand unless they result from an incorrect application of the law to the underlying facts or from an inference unreasonably or illegally drawn from those subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
The issues raised on appeal here by both parties can be resolved with the guidance of these general principles. The findings that the respondents sought to add in their Motion to Correct were in large part supplementary to the findings made by the trial commissioner and were based on the testimony of certain witnesses. Not only does the authority of the trial commissioner to assess the credibility of evidence prevent us from challenging his decision to deny the requested corrections, but he was also not required to grant a correction that would not affect the outcome of this case. Webb, supra. Here, there was sufficient medical evidence to support the ultimate conclusion that the claimant suffered a compensable injury. For example, Dr. Noonan stated in his deposition that it was reasonably medically probable that the claimant’s injury was linked to his employment. (January 13, 1994 Transcript, p. 20); see Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Rogers v. Laidlaw Transit, 2154 CRB-3-94-9 (decided June 24, 1996). Adding more findings regarding the claimant’s workplace behavior would not change that.
Also, many of the requested corrections are geared toward the issue of the claimant’s alleged willful and serious misconduct pursuant to § 31-284(a). Willful and serious misconduct is an affirmative defense, and the respondents had the burden of proving those allegations. Crochiere, supra, 356; Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 239, 1030 CRD-5-90-6 (Oct. 31, 1991). “By willful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp. Rev. Op. 224, 229, 1362 CRD-7-91-12 (Nov. 4, 1993), appeal dismissed, A.C. 13041 (Jan. 5, 1994), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921). The commissioner’s rejection of the corrected findings offered by the respondents indicates that he did not accept as a factual matter that the claimant’s conduct was of a grave enough character to warrant such a finding, and/or that he did not appreciate that he was exposing himself to serious injury by engaging in such conduct. See Nolan, supra, citing Mancini v. Scovill Mfg. Co., 98 Conn. 591, 597 (1923). Although the commissioner’s findings certainly cast a shadow over the claimant’s workplace conduct, he was certainly not required to find as a matter of law that such actions amounted to willful and serious misconduct. Thus, the respondents’ appeal must be dismissed.
Concerning the claimant’s petition for review, the claimant’s argument that the commissioner erred by denying compensation for further medical treatment after March 30, 1992 must likewise be dismissed. The commissioner found that the claimant was returned to light duty work on March 16, 1992, and that he did not seek limited duty work after that date. The claimant did not file a Motion to Correct or challenge the legality of this finding on appeal, and it therefore must stand. Eligio v. DiLauro Brothers, 2212 CRB-3-94-11 (May 24, 1996). This finding provides support for the conclusion that the claimant was not disabled after March 30, 1992 (which was also the date Dr. Noonan stated in a note that the claimant could return to full duty work), and thus did not require continuing medical treatment after that date. We will not disturb that decision on appeal.
As to the claimant’s contention that he was an employee of the union and that he should have received concurrent employment benefits under § 31-310 C.G.S., we likewise note that he did not file a Motion to Correct challenging the commissioner’s finding that he received no payments from the union during the four weeks preceding the injury and that there was no indication that he was a union employee under the Workers’ Compensation Act. Thus, he is not entitled to attack the factual basis of that finding on appeal. Because that finding necessarily leads to the commissioner’s decision not to include union wages in the claimant’s compensation rate, that conclusion will also remain in place on review.
The trial commissioner’s decision is affirmed.
Commissioner Robin L. Wilson concurs.
JESSE M. FRANKL, CHAIRMAN, dissenting in part. I would sustain the respondents’ appeal, as I believe that the commissioner’s finding of a compensable injury lacked sufficient evidentiary support. I recognize that the legislative amendment excluding emotional impairments that do not result from a physical injury or occupational disease, as well as personnel actions, from the definition of “personal injury” in § 31-275(16)(B) did not take effect until July 1, 1993, and is thus not applicable to this case. However, there must still be an “injury” of some kind within the meaning of the Workers’ Compensation Act.
The commissioner ’s findings here do not establish the occurrence of an identifiable workplace trauma to the claimant. The most they indicate is that the claimant had emotional problems throughout his life, and that they spilled over into his employment. Although Dr. Noonan testified that it was reasonably medically probable that the claimant’s emotional disorder was work-related, the commissioner gave brief mention of that belief in his findings. Instead, the commissioner noted that the doctor also testified that “it was possible that Claimant’s depression and anxiety may have been caused by a combination of prior personality traits and non work related social stresses. He was a victim of child abuse and participated in gang activities. These experiences which emphasize posturing and violence, together with worries over finances, his daughter’s emotional problems, and the stresses of a frequently interrupted relationship with his girlfriend, may have been more significant causes of his anxiety and depression than work related conditions.”
Notably, the commissioner did not specifically pin down one event, or an incident of repetitive trauma, that would explain how these emotional problems were aggravated, outside of describing the claimant’s heavily disputed version of several events. Compare Crochiere v. Board of Education, 227 Conn. 333 (1993) (false charges of sexual misconduct constituted incident of repetitive trauma). In this case, I do not believe that the trial commissioner’s findings establish the occurrence of a workplace injury within the meaning of the Workers’ Compensation Act. It appears instead that the events that actually caused the claimant’s work difficulties were prior personal problems. Consequently, I dissent from the majority’s dismissal of the respondents’ appeal.
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