Noble v. Allstate Insurance

The claimant was represented by Neil Johnson, Esq., 96 Webster Street, Hartford, CT 06114.

The respondent was represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 22, 1999 Finding and Dismissal of the Commissioner acting for the Fifth District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commissioners Robin L. Wilson, Leonard S. Paoletta and Amado J. Vargas.

OPINION

ROBIN L. WILSON, COMMISSIONER. The claimant has petitioned for review from the November 22, 1999 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision the trial commissioner concluded that the claimant did not sustain his burden of proof regarding his claim that he suffered mental stress and physical illness as a result of harassment by his supervisor. In support of his appeal, the claimant contends that the trial commissioner erred by relying upon the opinion of the physician who conducted an independent medical examination of the claimant. We find no error.

In the instant case, the claimant contended at the formal hearing that as a result of harassment by his supervisor, he suffered physical illness and nervous conditions from January through May of 1993, which culminated in a nervous breakdown on or about May 19, 1993.1 The trial commissioner found that the claimant commenced employment with the respondent employer as a claims adjuster in 1982. From 1983 until January of 1993 the claimant worked under the supervision of Ron Hawkins, who was replaced by Timothy Driscoll in January of 1993. Mr. Driscoll was the claimant’s supervisor until May 18, 1993, the last day of the claimant’s employment. The claimant testified that he was harassed by Mr. Driscoll. However, the trial commissioner found that the claimant failed to establish that he was discriminated against or treated differently than other employees. The trial commissioner found that the claimant was not “subjected to stimuli any greater than those of every day employment life.” (Finding ¶ C). Moreover, the trial commissioner found that the claimant was not credible in his testimony that his personal life, including his daughter’s suicide attempt in April of 1993, had no impact on him.

Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, numerous formal hearings were held at which a profuse amount of evidence was introduced, including testimony from the claimant, the claimant’s wife, the claimant’s supervisors, and other employees of the respondent employer. The trial commissioner’s conclusion that the claimant’s condition was not caused by his employment was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record. Moreover, the trial commissioner’s decision is supported by the medical opinion of Dr. Selig, a forensic psychiatrist, who conducted an examination of the claimant at the request of the respondent, and opined that the claimant’s condition was not caused by his employment. We have repeatedly held that it is within the discretion of the trial commissioner to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)). The record in the instant case, including the opinion of Dr. Selig, amply supports the trial commissioner’s decision.

The decision of the trial commissioner is affirmed.

Commissioners Leonard S. Paoletta and Amado J. Vargas concur.

1 Public Act 93-228 (now § 31-275(16)(B)) which became effective July 1, 1993, limits the definition of “personal injury” in § 31-275 C.G.S. so as to exclude a “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” The legislation further excludes any “mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.” In applying this substantive change, we adhere to the date of injury rule. Sanford v. Clinton Public Schools, 3446 CRB-3-96-10 (March 5, 1998), aff’d., 54 Conn. App. 266 (1999). BACK TO TEXT