David v. Beloff Billiards, Inc. d/b/a Boston Billiards, Inc.

The claimant was represented by James T. Baldwin, Esq., Coles, Baldwin & Craft, LLC, 1261 Post Road, P.O. Box 577, Fairfield, CT 06824.

The respondents were represented by Olga Zargos, Esq., Rome, McGuigan & Sabanosh, 1 State St., Hartford, CT 06103-3101.

This Petition for Review from the August 4, 2004 Finding and Award of the Commissioner acting for the Fourth District was heard March 18, 2005 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 respondents have petitioned for review from the August 4, 2004 Finding and Award of the Commissioner acting for the Fourth District. They contend on appeal that the trier erred by finding that the claimant’s post-traumatic stress disorder (PTSD) arose out of a compensable physical injury. We find no error, and affirm the trial commissioner’s decision.

The trial commissioner found the following relevant facts. The claimant was employed as the Assistant General Manager for the respondent Beloff Billiards, which did business as Boston Billiards, on May 7, 2003. That evening, the claimant and a doorman (“bouncer”), Nima Rezvan, were standing near the entrance door to Boston Billiards when an armed customer walked up behind Rezvan, raised a gun toward his head, and fired a shot. The claimant was standing between six and 16 inches from Rezvan at the time. She had seen the gun being pointed prior to the firing of the shot, and had attempted to push Rezvan out of the way. Both the claimant and Rezvan fell to the floor when the gun went off, causing the claimant to experience ringing in her ears, and to break a fingernail.1 Still, when she observed the assailant run by her, she got up and chased him into the parking lot, taking down his license plate number as he drove off. She had a bit of splattered blood on her, and experienced difficulty hearing people immediately after the gunshot, which she described as the loudest noise she had ever heard.

She was unable to compose herself enough to work on May 8, 2003, and secluded herself in her office the following two days. On May 8, 2003, she reported a hearing loss condition to the respondents’ workers’ compensation adjuster, which condition improved after a few days without medical treatment. She also indicated that she wanted to see a psychiatrist, so the adjuster referred her to Dr. Holzman, who began treating the claimant on May 12, 2003. Dr. Holzman diagnosed the claimant with acute stress disorder on May 15, 2003, with the cause being the May 7, 2003 gunshot incident. He also indicated that the claimant was disabled from working. For several months, the respondents paid the claimant’s medical bills for treatment related to her PTSD and her disability benefits, until they filed a Form 43 contesting the claim on September 22, 2003. The claimant, meanwhile, filed a Form 30C notice of claim on September 22, 2003, listing injuries to hear head, arms, legs, body, and ears/hearing. She also alleged in her Form 30C that she scuffled with the assailant who had fired the gun.

The respondents requested that the claimant be examined by Dr. Sarfaty, who saw her on September 4, 2003, and opined that she suffered from PTSD that totally disabled her from working. The respondents continued to contest this claim on the ground that the claimant’s PTSD did not arise out of a physical injury, thereby making it noncompensable under § 31-275(16)(B)(ii).2 The trial commissioner considered the occurrences of a temporary hearing loss and ringing of the ears, a broken fingernail, and the act of shoving a co-worker away from an assailant resulting in a fall to the floor and being splattered with another person’s blood, and reasoned that those events amounted to a compensable work-related condition, in conjunction with the subsequent diagnosis of PTSD. The trier thus ordered the respondents to accept compensability for the PTSD and pay for the claimant’s disability benefits and related medical care. The respondents have appealed that decision to this board.3

To begin, we note that the respondents did not file a Motion to Correct the trial commissioner’s factual findings following the issuance of his decision. The filing of such a motion allows a party to call attention to evidence that the trier of fact may have either overlooked or misinterpreted. Marcoux v. Allied Signal, Inc., 4366 CRB-4-01-3 (January 16, 2002). Having declined to file a Motion to Correct, the appellants may not challenge on appeal the factual inferences that the trier drew from the evidence in the record, e.g., whether there was sufficient evidence to establish that the claimant in fact fell to the ground following the gunshot, or whether she was splashed with blood. We are limited on review to the factual findings as they exist in the trial commissioner’s decision. Id.; Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998). We may, however, review the trier’s application of law to ensure that it has been applied correctly to the facts of this case, and to ensure that the trier did not draw an illegal or unreasonable inference from the subordinate findings. Bilsky v. Ansonia Copper & Brass, 4703 CRB-5-03-8 (August 23, 2004); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).

In Bilsky, supra, we recently explained that “the key question regarding any given incident that arises out of and in the course of employment is whether it has played a causal role in bringing about a claimant’s disability or a need for medical treatment.” There, the trial commissioner had held that a slap across the face from a co-worker did not constitute a physical injury, as there was no physical damage to the claimant from the slap itself that required medical treatment. The claimant in Bilsky did, however, develop PTSD as a result of the slapping incident. In past cases, our courts have found PTSD to be a mental or emotional impairment rather than a physical impairment, even though acute stress conditions often produce transitory physical symptoms. Biasetti v. City of Stamford, 250 Conn. 65, 80 (1999); Bilsky, supra. The trier had thus dismissed the claim on the ground that the claimant’s mental or emotional impairment did not arise from a physical injury, requiring dismissal under § 31-275(16)(B)(ii).

With respect to the slap, this board held on appeal that there is no threshold of severity built into the statutory definition of “personal injury.” We cited Driscoll v. General Nutrition Corp., 252 Conn. 215 (2000), in which a store employee was assaulted and forced to perform oral sex on her attacker. Our Supreme Court held that a “physical injury” under § 31-275(16)(B)(ii) is not limited to physical traumas that exclude all minor physical symptoms. The physical manhandling of the claimant and the invasive physical contact to which she was subjected also constituted physical injuries, and the resultant emotional distress that she experienced was held to have arisen from a physical injury. We observe that, in Driscoll, the Court stated that its judicial philosophy was to construe access to workers’ compensation benefits “as broadly as the act will permit.” Id., 224-25.

The Bilsky panel also discussed Nunes v. State/Dept. of Motor Vehicles, 4360 CRB-2-01-2 (January 16, 2002), where we had talked about the legislative intent underlying the “mental-mental” exception to compensable injuries. We stated, “[I]n excluding mental and emotional injuries that do not arise out of an occupational disease or a physical incident, the legislature apparently intended to carve out an exception for ‘bystander’ emotional trauma that occurs from witnessing an event at one’s workplace, as well as emotional trauma that arises from a direct, non-physical confrontation. In contrast, mental trauma that a claimant suffers after engaging in a physical altercation was not meant to be excluded; a claimant who was touched and physically assaulted—even if she or he escaped unscathed—would have sustained a physical injury that would make any subsequent emotional distress compensable. See, e.g., 36 H.R. Proc., Pt. 18, 1993 Sess., pp. 6153-55 (remarks of Rep. Lawlor).” Id. We then explained that, if the claimant’s acute distress disorder and PTSD were causally connected to his having been slapped, said disorder would be compensable under the Act, even though his disability was primarily due to those mental or emotional ailments.

Here, the trial commissioner’s findings establish that the claimant was either pushed or fell to the ground as a result of the gunshot, and suffered hearing loss and tinnitus (ringing of the ears) for several days, as well as minor damage such as a broken fingernail and blood spattered on her clothes. Both physicians who evaluated the claimant opined that this experience caused her to develop disabling PTSD. Though the PTSD is not a physical injury, we believe that the physical component of the claimant’s participation in this incident was sufficient to constitute a physical injury within the meaning of § 31-275(16)(B)(ii).

The claimant’s hearing loss, for example, lasted for several days. Though she did not require medical intervention to treat that symptom, it no doubt remained within the claimant’s awareness during the hours following the gunshot incident. The auditory damage caused by the sound of the gunshot thus played a role in her overall experience of the event, and in her perception of the danger that she had faced when the gun was fired. The claimant’s broken fingernail was also evidence that she experienced some level of bodily trauma when she fell to the floor. Again, this would have contributed to her perception of the severity of the experience of being in such close proximity to the gunshot. These physical stimuli are quite comparable to the slap that the claimant sustained in Bilsky. Once again, there is an identifiable causal relationship between the physical components of this incident and the mental stress that the claimant subsequently experienced. Thus, the trial commissioner correctly ruled here that the claimant’s injury was compensable.

The trial commissioner’s decision is accordingly affirmed. Insofar as benefits due may have remained unpaid pending the outcome of this appeal, interest is hereby awarded as required by § 31-301c C.G.S.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 According to Rezvan’s testimony, he suffered gun powder burns and hearing loss from the firing of the shot, but the bullet itself missed his face. February 26, 2004 Transcript, p. 55. BACK TO TEXT

2 Section 31-275(16)(B)(ii) 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.” BACK TO TEXT

3 We note for the record that, during the pendency of this appeal, the claimant moved for a two-week extension of time to file her appellate brief, which was granted by this board. BACK TO TEXT