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CASE NO. 4796 CRB-1-04-3
CASE NO. 4831-CRB-1-04-7
CASE NO. 4978 CRB-1-05-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 8, 2006
ESTATE OF MICHAEL SULLO and GILDA SULLO, Surviving Dependent Spouse
STATE OF CONNECTICUT JUDICIAL BRANCH
GAB ROBINS NORTH AMERICA, INC.
The claimant was represented by John J. Quinn, Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.
The respondent was represented by Donna Hixon-Smith, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
These Petitions for Review from the March 5, 2004 Finding and Award, the July 19, 2004 Finding and Order, and the July 15, 2005 Finding and Award of the Commissioner acting for the First District were heard January 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and George A. Waldron.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from three separate rulings of the Commissioner acting for the First District: a March 5, 2004 Finding and Award, a July 19, 2004 Finding and Order, and a July 15, 2005 Finding and Award. In its brief, the respondent challenges the compensability of the claimant’s injury, the award of permanent partial disability benefits, the sufficiency of notice regarding the issue of dependency and cause of death, the finding that the claimant’s wife qualifies as a surviving widow under § 31-306, the amount of benefits payable pending appeal, and the denial of its motion to strike certain evidence. We find error only with regard to findings related to dependency and survivorship1, and affirm the trial commissioner’s decision in all other respects.2
The claimant, Michael Sullo, had worked for the state of Connecticut as a supervising Judicial Marshal prior to January 25, 2001. On or about that date, the Judicial Department accused him of sexual harassment and creating a hostile work environment, as a complaint had been filed in response to comments he allegedly made regarding the sexual orientation of a female associate. The complaint resulted in the claimant’s transfer to another Judicial Department facility and relief from his supervisory duties, pending the outcome of the investigation.3
On January 29, 2001, the claimant appeared at the Hartford Hospital emergency room complaining of shortness of breath and other cardiac symptoms. On February 1, 2001, Dr. LaSala, a cardiologist, diagnosed the claimant with an exacerbation of congestive heart failure. Dr. LaSala had been treating the claimant for that condition since 1992. The Human Resources Supervisor of the Judicial Branch, Eileen Meehan, admitted him into the state’s FMLA (Family Medical Leave Act) program from March 12, 2001 through June 4, 2001, based on his physical condition. On April 11, 2001, the claimant made a claim for severe aggravation of a pre-existing cardiac condition by way of a Form 30C. A pre-disciplinary hearing was then held on April 12, 2001, at which probable cause for sexual harassment was not found. Meehan completed a final report concerning the allegations against the claimant, reaching no conclusions that could substantiate the sexual harassment/hostile environment complaint.
Dr. LaSala was of the opinion that the claimant’s stress, humiliation, and fear of losing his job significantly contributed to the exacerbation of his underlying heart disease, which rendered him totally disabled. Dr. LaSala initially prescribed Zoloft, an antidepressant, for the claimant’s dangerously severe depression. In his deposition, the doctor explained that the stress put on the claimant by the allegations of sexual harassment was a major contributing factor in the worsening of his heart condition. The claimant’s worsening depression was also causing him to be noncompliant with his diet, his medication and his office visits over time, accelerating the claimant’s heart failure.
The claimant continued to treat with Dr. LaSala throughout 2001 with a deteriorating cardiac condition. On August 15, 2001, Dr. LaSala opined that the claimant’s whole person impairment had increased from 30-40% prior to the sexual harassment allegation to 60-70% afterward. He stated that the claimant was permanently disabled from his job as a judicial marshal primarily because of the stress-related decompensation of his cardiac status. The claimant testified as to the stressful effect of the sexual harassment allegations, prior to his death on September 2, 2002.4
Another cardiologist, Dr. Clark, conducted an independent review of the claimant’s medical records. He opined that the claimant suffered from a serious and deteriorating heart condition that usually resulted in death within two to five years. He did not believe that the stress suffered by the claimant in 2001 caused any additional deterioration of cardiac function, nor did it aggravate the claimant’s cardiomyopathy. Dr. Clark identified a 20% permanent partial disability to the heart. The trier noted that Dr. Clark never examined the claimant personally, and had admitted at his deposition that he could not rule out that the stress and anxiety caused by the sexual harassment charges played a substantial role in the claimant’s worsening heart condition.
The trial commissioner found that the claimant was temporarily totally disabled from March 12, 2001 forward. He ruled that the claim presented by the claimant was for a physical injury caused by the unsubstantiated sexual harassment charges. It was not a claim for mental or emotional stress, and was therefore not barred by § 31-275(16)(B)(ii) C.G.S. Also, the claim was not based on a personnel decision, but rather a heart condition worsened by workplace conditions; nor was the claim barred by § 31-284a due to intentional misconduct. Furthermore, notice was filed in a timely manner. The trier accordingly ordered the respondent to pay total disability benefits to the claimant from March 12, 2001 through the date of his death, and benefits based upon a 20% permanent partial impairment of the heart from September 3, 2002 forward, payable to the claimant’s estate. The trier also stated that the “claimant will be allowed to present further evidence as to the disability rating to the heart based upon Dr. LaSala’s whole person evaluation,” as there was no specific rating in evidence. The respondent filed an appeal from that decision on March 23, 2004.
Another trial commissioner entered a Finding and Order Re: 31-301(f) on July 19, 2004, ordering the respondent to pay temporary total disability benefits to the claimant at a base weekly compensation rate of $388.19 pending the outcome of its appeal. The respondent filed an appeal from that ruling as well. Shortly thereafter, the respondent filed a Motion to Dismiss the entire claim for want of subject matter jurisdiction based upon the Supreme Court’s August 10, 2004 decision in Del Toro v. Stamford, 270 Conn. 532 (2004). The respondent moved to stay the appeal proceedings pending a ruling on the motion, which request was granted.
Following a formal hearing, the trial commissioner issued a decision on July 15, 2005 denying the Motion to Dismiss. In his findings, the trier took administrative notice of the entire record, and revisited the case history. He observed that there was no physical confrontation at the January 25, 2001 meeting in which the claimant was told about the sexual harassment allegations and his transfer to another courthouse, and that the claimant did not suffer a physical injury on that date, or the following work day. There was also no evidence of any acute heart injury or treatment for heart disease when the claimant was examined at the emergency room on January 29, 2001.
The trier further found that there was no medical or testimonial evidence to show that the claimant’s work duties were a factor in the stress he experienced, or in triggering his heart symptoms. “It appears the medical opinions in the record identify only the allegations, resulting investigation, transfer, losing his supervisory powers and fear of termination as the work events exacerbating claimant’s heart conditions.” Findings, ¶ 27. However, the trier then recounted findings of the previous trial commissioner, who had relied on Dr. LaSala’s opinion in finding a stress-caused exacerbation of a physical injury. Although the trier saw no evidence in the record that the claimant’s stress arose from his actual job duties or activities incidental to them, he also found that the findings of the prior commissioner supported the original holding, which remained intact. Based on that decision, Del Toro was inapposite, and did not require dismissal of the case for lack of subject matter jurisdiction. The respondent has appealed that ruling as well.
The alleged injury here is an aggravation of the claimant’s cardiac condition caused by work-related stress resulting from a sexual harassment charge. Initially, we must confront two of the major hurdles facing such a claim: satisfying the statutory definition of “personal injury” in light of certain exceptions to that definition, and demonstrating a causal connection between the alleged injury and the employment. See McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 110-11 (1987)(in heart-related cases, the concepts of accident and causation are deeply commingled). In analyzing the workers’ compensation statute to address these questions, it helps to keep the issues separate where possible. See, e.g., Biasetti v. Stamford, 250 Conn. 65 (1999) (police officer’s post-traumatic stress disorder satisfied definition of occupational disease, but injury did not satisfy separate requirement that mental impairment be caused by physical injury or occupational disease to be compensable).
As part of the statutory definition of “personal injury,” certain categories of claims are excluded from the Workers’ Compensation Act. The respondent argues that two of those exceptions apply here: § 31-275(16)(B)(ii), which excludes “a mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease,” and § 31-275(16)(B)(iii), which excludes “a mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.” In the respondent’s view, the true workplace injury here was mental stress, which led to a worsening of the claimant’s heart condition as a sequela of the injury, divisible from the original injury. It alleges that there is no evidence to support the finding that the claimant sustained a heart injury as a result of workplace events, as the physical sequelae of his work stress “are derivative of the mental stress . . . [and] are removed from the work events by time, space and trigger.” Appellant’s Brief, p. 7.
The record contains a report by Dr. LaSala stating that the physical and mental stress of the claimant’s job led to the decompensation of his cardiac status. He stated that this stress, “including the allegation of sexual discrimination and sexual harassment,” contributed to the worsening and exacerbation of his heart disease.” Claimant’s Exhibit I. He also explained that cardiologists such as himself often treat depression in cardiac patients because of its effect on heart disease, as depressed patients experience higher blood pressure and adrenaline levels, which destroy heart muscle. November 10, 2003 Deposition, p. 45.5 In Dr. LaSala’s view, the claimant’s depression was exacerbated by the stress of facing sexual harassment allegations and their possible ramifications, thereby accelerating the cardiac disease process. Id., pp. 32-33. Prior to January 25, 2001, the claimant was responding easily to medication, while afterward he responded less quickly, and his exacerbations of congestive heart failure came more frequently. Id., p. 36.
The trial commissioner gave credence to this medical opinion, and it is not the place of this board on review to overturn that factual finding. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony.” Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). Dr. LaSala’s diagnosis was sufficient to constitute a medical opinion stated with reasonable probability. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Thus, a valid finding was made that congestive heart failure—a physical injury—was caused by stress that occurred at the claimant’s workplace.
Where unusual emotional stress at work accelerates underlying physical conditions and plays a substantial role in triggering the onset of disabling heart disease, our law has allowed the payment of compensation. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987)(unexpected events at work were a substantial factor in accelerating underlying heart condition and precipitating disabling cardiovascular disease); Stier v. Derby, 119 Conn. 44 (1934)(excitement and extraordinary physical exertion by claimant at scene of drowning contributed to cause his death by coronary thrombosis); Donato v. Pantry Pride (Food Fair), 37 Conn. Sup. 836 (1981)(job-related anxiety caused cardiac arrest); Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 148 Conn. App. 250 (1998)(per curiam)(job stress caused heart attack that occurred 30 hours after end of shift). The claimed injury can include both the stress and its causal sequelae. A single incident may cause a worker to suffer multiple separate injuries, as long as that incident is within the chain of causation of each subsequent injury. See, e.g., Hernandez v. Gerber Group, 222 Conn. 78, 85 (1992).6
The question raised here is similar to a central issue in Chesler v. Derby, 4823 CRB-4-04-6 (July 15, 2005), aff’d, 96 Conn. App. 207 (2006), where a board of education employee facing imminent job termination suffered a fatal heart attack at a board meeting at which people were criticizing a work proposal that he had favored. The trier found that the meeting was stressful for the decedent, which stress significantly contributed to his death, making the injury compensable. In challenging this ruling, the respondents raised the exclusion in § 31-275(16)(B)(ii) for mental or emotional impairments, arguing that the heart attack was not compensable because it arose from a mental stimulus. This board disagreed, holding, “Nowhere does the statutory exception purport to address physical impairments, whether they are precipitated by direct physical trauma, or by some type of non-physical, work-related mental or emotional stress.” Id.7 Likewise, the “personal injury” exclusion in § 31-275(16)(B)(iii) for mental or emotional impairments resulting from personnel actions did not apply, because a heart attack is a physical impairment. Id., n.1. This reasoning was affirmed by the Appellate Court, which also noted that the heart attack was not caused by the nonrenewal of the decedent’s contract, but by stress experienced at a meeting that involved subject matter within his job duties.
Similarly to Chesler, we have a finding of a physical injury here. The claimant may not have experienced an acute heart event until several days following the incident that caused his stress, but that does not change the fact that the stress played a substantial role in exacerbating his congestive heart failure. See Hernandez, supra. We are not dealing with the attendant somatic symptoms of a psychiatric pathology such as major depression or post-traumatic stress disorder, as discussed in Del Toro, supra, and Biasetti, supra, and we disagree with the respondent’s attempt to invoke Del Toro as authority precluding this claim. That case involved a claimant who alleged post-traumatic stress disorder after being involved in a shooting incident that resulted in no physical trauma. The Del Toro claimant was seeking compensation for a mental or emotional injury within the meaning of § 31-275(16)(B)(ii). Our Supreme Court’s ruling that the commissioner lacked subject matter jurisdiction over that injury does not implicate our holding here with respect to § 31-275(16)(B)(ii), because this commission does have jurisdiction over claims for congestive heart failure. Thus, that subsection is inapposite.
With regard to § 31-275(16)(B)(iii), we need not rest our determination here on the fact that exacerbation of congestive heart failure is a physical injury. Instead, we turn to the second issue: whether the stress produced by the sexual harassment allegations arose out of and in the course of the claimant’s job duties. Because we conclude that the stress did originate from incidents of his job duties as opposed to a personnel action, § 31-275(16)(B)(iii) is inapplicable to this case on that ground.
In order for a personal injury to fall within the provisions of the Act, it must arise out of and in the course of one’s employment as per § 31-284(a) and § 31-275(1) C.G.S. Our cases explain that an injury arises out of the employment if its origin and cause are attributable to the employment, while it occurs in the course of employment if it takes place within the employment period, at a place the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 506 (1998); McNamara v. Hamden, 176 Conn. 547, 550 (1979). As the claimant’s stress occurred during the course of his employment, the question becomes whether it arose out of the employment.
Our analysis begins with Crochiere v. Board of Education, 227 Conn. 333 (1993), in which the claimant was an elementary school music teacher who was accused of inappropriately touching a female student while teaching. The claimant had been suspended from employment shortly after the allegations were made, and was terminated three months later after a hearing. The trial commissioner found that the accusations and resulting media coverage had a devastating psychological effect on the claimant, eventually leading to a nervous breakdown.8 Meanwhile, the trier also found the charges were not substantiated.9 He found that the claimant, who was blind in his right eye, had been leaning over his student-accuser to read her music book during her clarinet lessons, and he had occasionally and inadvertently touched her either to help support himself or to get closer to the music book. “Any touching, the commissioner found, had been for instructional purposes or through inadvertence during the music instruction.” Id., 351. The trier concluded that the injury was compensable, as the psychological effects of the complaints and accusations arose out of and in the course of the claimant’s employment.
On appeal, the respondent argued that the claimant’s injury was not compensable because it flowed in part from a termination proceeding, and also because it was caused by willful misconduct. Our Supreme Court eventually ruled that the claimant’s injury had arisen out of and in the course of his employment, based on the findings that the mental injury resulted from the “mental stress associated with allegations of his sexual misconduct” and the media publicity surrounding those allegations, which were unsubstantiated. Crochiere, 350-51. The Court also held that the respondent had not been able to prove willful and serious misconduct, and that the claimant’s injury did not stem from his termination, as its origins arose out of his employment beginning at the time the accusations were made. Thus, the injury was compensable.
The respondent contends that Crochiere is distinguishable from this case because “[t]he critical determination is whether he was fulfilling his duties when (and if) he made any such remarks,” and the comments he was accused of making were not a part of his duties. Brief, p. 14, n. 12. “[U]nlike the claimant in Crochiere v. Board of Education, the evidence here does not establish that the claimant inadvertently engaged in the conduct of which he was accused, and that said conduct was necessary to fulfill his duties.” Id. The respondent further states, “It is irrelevant for purposes of this issue whether claimant actually made the comments of which he was accused.” Id.
The respondent asks that we rely instead upon Fulco v. Norwich Roman Catholic Diocesan Corporation, 27 Conn. App. 800 (1992), in which the court held that a claim for emotional distress arising out of the termination of the plaintiff’s employment was not pre-empted by the Workers’ Compensation Act because “the process of being fired is not a duty of employment.” Id., 808-09. The respondent also cites Tartaglino, supra, in which the court held that a claimant’s stress following notification of imminent transfer to a higher-security-level prison facility was “not the result of his employment duties or an activity that was incidental to his employment. Administrative policy decisions to open or close a facility or to arrange a transfer of an employee are not considered to be in the regular course of the employee’s duties or incidental to his employment.” Id., 194.
In our view, drawing a line between the sexual harassment allegations themselves and the resulting disciplinary action would be artificial. Despite the respondent’s diligent efforts at trial to prove otherwise, the findings and the evidence supporting those findings do not show that the claimant’s stress was due to a personnel decision independent of any event that took place during the course of his employment, as was the case in both Fulco and Tartaglino. Instead, the stress was found to be directly traceable to the sexual harassment allegation itself. The claimant’s initial transfer to another courthouse and the loss of his supervisory duties, which was later made a permanent arrangement, occurred in reaction to that allegation of sexual harassment. See Testimony of Eileen Meehan, October 28, 2003 Transcript, p. 124. The proper focus is on whether this allegation and the conduct surrounding it can be said to have arisen out of the claimant’s employment, as was the focus of our Supreme Court’s analysis in Crochiere, supra. It is also relevant that the trier found that the sexual harassment charges against the claimant could not be substantiated, insofar as specific comments concerning a fellow employee’s sexual orientation or behavior would be less likely to have arisen out of the claimant’s job duties. See Pacific Telephone & Telegraph Co. v. Workers’ Comp. Appeal Board, 169 Cal. Rptr. 285 (1980)(employee innocent of forging signatures would be acting in course of his employment, whereas employee guilty of forging signatures would not be directly or indirectly serving employer during furtherance of criminal activity).
In Connecticut cases that deal with workplace altercations, coverage is extended to those injuries arising out of disagreements that are a natural consequence of the employment, whether or not their risk is foreseeable. Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355 (1938); Alling v. Davis & Geck, 4483 CRB-7-02-1 (December 20, 2002). The line is drawn between disputes caused by a claimant’s desire to complete the job, even if communications to another employee are inappropriately expressed and cause the problem, and disputes rooted in personal feelings unrelated to employment. Fair v. People’s Savings Bank, 207 Conn. 535, 544 (1988)(injury not compensable where no connection existed between victim’s job and dispute culminating in shooting); Alling, supra, (injury compensable where aggressive remarks regarding inability to restart boilers precipitated assault); Setterstrom v. C.R. Klewin, Inc., 3643 CRB-2-97-7 (August 12, 1998)(injury not compensable where hostile personal relationship inspired taunting that caused assault); Nolan v. Brennan Concrete Corporation, 11 Conn. Workers’ Comp. Rev. Op. 224, 1362 CRD-7-91-12 (Nov. 4, 1993)(remand to determine if altercation was caused by racist motivations or personal feelings, rather than desire to do job).
Also, Professor Larson’s treatise on workers’ compensation contains a short discussion of cases involving stress caused by misfeasance, altercation, or anxiety over job loss. 2 A. Larson, Larson’s Workers’ Compensation Law (2006), § 44.05[c], p. 44-47. Where tension has been caused by alleged misfeasance related to the employment, the treatise cites several compensable cases, including two from Connecticut. See McDonough, supra (problems in supervisor’s department resulted in criticism that caused her emotional stress, leading to cardiovascular symptoms); Donato, supra (anxiety due to investigation of cash shortage). Contrarily, “when the employee’s misconduct is related, not to his or her employment life, but to the personal life, the fact that the result is some kind of employment disciplinary action has usually not been enough to make the case compensable. Examples include investigation of charges that a manager hugged and kissed a cashier, and that police officers threatened a wife or girlfriend.” Larson’s Workers’ Compensation Law, supra, citing Burriesci v. Gristede Bros., 420 N.Y.S.2d 794 (1979)(store manager accused of sexual harassment; actions relative to cashier whom he admittedly hugged and kissed were beyond scope of his duties, and were not condoned by employer); McDaniel v. Albuquerque, 653 P.2d 885 (N.M. Ct. App. 1982)(police officer administratively investigated after he held girlfriend and her family at gunpoint); Los Angeles v. Workers’ Comp. App. Bd., 174 Cal. Rptr. 25 (1981).10
The scope of the sexual harassment charges influences our decision here. Eileen Meehan testified as to the allegations, which evidence was supplemented by a Report of Investigation that she had prepared following her workplace investigation. Though not binding in this forum, the trier was entitled to consider Meehan’s testimony and report as evidence in making his own findings as to the manner in which the allegation of sexual harassment11 arose. According to the investigative report, the claimant allegedly “engaged in speculation regarding [the complainant’s] sexual orientation as well as allowed such talk and speculation to occur among the staff. It is her allegation that JM Sullo is responsible for the creation of this hostile work environment.” Claimant’s Exhibit K; Respondent’s Exhibit 3. (Emphasis added.) Reportedly, another co-worker had told the complainant that the claimant made a comment about her “kissing her girlfriend in the parking lot,” which bothered the complainant insofar as it put her sexual orientation up for discussion. The co-worker told Meehan that she had overheard that comment about the complainant, and that the claimant had set a tone allowing others to speculate on the complainant’s sexual orientation as well.
Meehan stated that she was unable to substantiate that the claimant had made the alleged comment independent of the co-worker, who had refused to participate in the investigation. October 28, 2003 Transcript, p. 57. In her report, she had noted that the complainant had not in fact attempted to keep her sexual orientation confidential through her words and actions. She clarified at trial, however, that the complainant’s perception of a hostile work environment and her concerns that people speculated about her sexual orientation were founded, and that the claimant had allowed this environment to exist. Transcript, p. 62, 76. A note from the claimant’s former supervisor, Lawrence Callahan, made in response to a different complaint indicated that the claimant had been told part of his job as supervisor was “to lead by example” and “to begin creating a better work environment” if the everyday atmosphere became tense. Respondent’s Exhibit 5.
This evidence shows that the claimant’s involvement in these charges stemmed at least in part from his role as a supervisor, and the responsibility he had for the workplace atmosphere and the job assignments of his staff. In today’s society, one of the risks a supervisor faces during the course of his or her employment is confrontation with false or mistaken accusations of sexual harassment or similar misconduct. The trier’s finding that the sexual harassment allegations were unsubstantiated entails that the claimant did not create the hostile work atmosphere by making actionable comments unrelated to his employment duties. As such, the allegations of sexual harassment at least in part arose out of the claimant’s employment duties rather than out of his own personal actions, as was the case in Crochiere, supra.
In so holding, we again acknowledge the legislative exception to “personal injury” that excludes mental or emotional impairments arising from a personnel action. This Commission recognizes the legislature’s intent via the passage of Public Act 93-228 to remove from the Act stress claims related to personnel actions. It is neither our role nor our intent to abridge or avoid that exception. However, as cases present themselves we are required to draw boundaries between those that fit the statutory mold and those that do not. Though this decision is a close one, the facts found here do not appear to fall within the exclusionary language of § 31-275(16)(B)(iii). Therefore, the physical effects of the claimant’s mental stress caused by the unsubstantiated allegations are compensable under the Act.
Having determined the compensability of the claimed injury, we next turn to the respondent’s challenges to the permanent partial disability benefits awarded by the trial commissioner. A permanent partial disability award is payable to a claimant once the claimant reaches maximum medical improvement. McCurdy v. State, 227 Conn. 261, 268 (1993). A worker who has reached maximum medical improvement and continues to be totally disabled from working may also continue to collect total disability benefits, provided the worker has not requested payment of the specific indemnity award. Id., 268-69. A deceased claimant’s estate may collect a permanency award if the claimant has requested permanency benefits prior to his death, and there are no dependents whose entitlement takes precedence. Id., 269-70; see also, Cappellino v. Cheshire, 226 Conn. 569 (1993)(permanency awards survive to dependents, as workers’ compensation laws are meant to benefit injured employees and their dependents). There has not yet been a determination in this case whether any dependents qualify for compensation under § 31-306 C.G.S. See n.1, supra. Thus, the estate is the proper beneficiary of any permanency award to which the claimant is entitled.
If a claimant reaches maximum medical improvement but does not request payment of permanent partial disability benefits prior to death, or requests such payment prior to reaching maximum medical improvement, the right to collect such benefits does not vest. Squitieri v. Mariano Cardillo & Sons, 3084 CRB-7-95-6 (January 6, 1997); Burr v. Hoffman Water Treatment Co., 14 Conn. Workers’ Comp. Rev. Op. 180, 193, 2125 CRB-8-94-8 (June 29, 1995); Bacote v. Anaconda American Brass, 1 Conn. Workers’ Comp. Rev. Op. 42, 44, 18 CRD-5-80 (June 12, 1981). At the July 3, 2002 formal hearing, the claimant sought permanent partial disability benefits as an alternative to total disability, which is reflected in the record. Transcript, p. 64. The claimant then died two months later, prior to the next formal hearing. Consistent with the humanitarian spirit of the Act, we read the claimant’s statement as a request for payment of permanency benefits as of July 3, 2002, or whatever subsequent date the claimant ceased to be entitled to total disability, given that a claimant can have a permanent partial impairment and be temporarily totally disabled at the same time. McCurdy, supra. The trial commissioner had discretion to construe that request for permanency benefits as a demand for payment beginning on, or immediately before, the date of death.
In awarding permanency, the trial commissioner did not make a specific finding as to a maximum medical improvement date. He relied on the opinion of Dr. Clark that the claimant suffered a 20% permanent partial disability to the heart, which opinion was based on an evaluation date of March 1, 2001.12 In light of Dr. LaSala’s 60-70% whole person rating, the trier ruled that the issue should remain open, and made the 20% award without prejudice to the claimant. Findings, ¶ 27. Whole person ratings are not recognized under our Act. Donlin v. Cytec Industries, 4415 CRB-7-01-7 (June 5, 2002), aff’d, 77 Conn. App. 903 (2003)(per curiam). Where a physician has provided only a “whole person” rating, this board has affirmed a trier’s denial of a permanent partial disability award, with the claimant being eligible to resubmit a request for permanency if a physician provides a rating to a specific body part that is scheduled pursuant to § 31-308(b). Id.
Based on the reports of both Drs. Clark and LaSala, the claimant appears to have reached maximum medical improvement within a month or two after the January 25, 2001 incident. There is no evidence to the contrary. The trier’s failure to specify a date in his findings technically omitted a mandatory step in the process, but we hold that such error was harmless under the circumstances of this case. Thus, we affirm the trial commissioner’s award of permanent partial disability benefits.
The respondent also contends that the second trial commissioner improperly ordered it to pay attorney’s fees and costs via the § 31-301(f) C.G.S. award, which directed the respondent to pay temporary total disability benefits from March 13, 2001 through September 2, 2002 at the claimant’s base compensation rate of $388.19. Attorney’s fees were not expressly included in that award, nor have they been discussed in any of the decisions issued in this case. The respondent instead contends that an “unspecified sum of attorney’s fees and costs” would have been retained by counsel from the total disability payments, which sums the respondent should have been allowed to identify and withhold after examining the contingency fee agreement.
The claimant has not sought payment of attorney’s fees by the respondent pursuant to § 31-327 C.G.S. All benefits payable to the claimant under the § 31-301(f) order are total disability payments calculated using the claimant’s base compensation rate. The entire amount of the $388.19 weekly compensation rate constitutes “compensation . . . payable under the terms of the award,” which § 31-301(f) directs that the claimant shall receive during the pendency of any appeal of a workers’ compensation award. See Horn v. State/Dept. of Correction, 4764 CRB-3-03-12 (January 24, 2005)(benefits pending appeal are payable upon request by the claimant). Section 31-301(f) grants the claimant a right to these total disability payments, regardless of whether he is bound by a separate contract to pay a portion of those payments over to his attorney.
A respondent does not have standing to invoke § 31-327(b) and require this Commission to step in and approve an attorney’s fee that is payable by the employee rather than the employer or insurer, even though the commissioner has a general authority to oversee attorney’s fees under the statute. See Horn, supra; Prioli v. State Library, 64 Conn. App. 301, 309-10 (2001); Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 89, 1931 CRB-2-93-12 (May 12, 1995). Section 31-327 is designed to ensure that a claimant’s rights are being protected, e.g., whether the Commission’s attorney’s fee guidelines are being honored. Id. Section 31-327 is not an apparatus to protect an employer or insurer from hypothetical claimant insolvency in the event an award is overturned on appeal and the claimant is required to repay benefits, which situation arose in Horn, supra. The respondent was therefore not entitled to discovery of the fee agreement, to which transaction it was neither a party nor a beneficiary. Id.
The trial commissioner’s decision is accordingly affirmed, with the exception of findings relating to a potential survivor’s claim under § 31-306.
Commissioners Donald H. Doyle, Jr., and George A. Waldron concur.
1 With regard to those two issues, the claimant concedes that the issue of a separate dependents’ claim under § 31-306 was not litigated or noticed during the course of the formal hearing. Thus, the trial commissioner’s finding that the surviving widow had rights under § 31-306 C.G.S. is vacated, without prejudice against her ability to pursue a claim for dependent death benefits in future proceedings. There is likewise no finding in the record as to cause of death, which is relevant to a survivor’s claim. BACK TO TEXT
2 During the pendency of the respondent’s petition for review, we note that extensions of time were granted to the respondent to file both Reasons of Appeal and briefs. BACK TO TEXT
3 The trial commissioner wrote in ¶ 28 of his findings, “The State investigation into the harassment charges did not result in a finding as such against Marshal Sullo. The State asserts that the Claimant created or allowed the existence of a hostile work environment and that the Claimant had supervisory difficulties which led to his transfer to another facility and removal of his supervisory duties.” BACK TO TEXT
4 The respondent objected to portions of the claimant’s testimony given that his death occurred prior to the respondent having had an opportunity to cross-examine. The trial commissioner overruled that objection on the record, relying on § 31-298 C.G.S. and case law stating that commissioners are not bound by the ordinary Rules of Evidence. December 3, 2003 Transcript, p. 140; see, e.g., Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 779 (1998). The respondent raises this as an issue on appeal. The trier specifically found the claimant’s testimony credible in his findings, which suggests that the testimony had relevance to the outcome of the case. In the discussion concerning the admissibility of the claimant’s testimony, both claimant’s counsel and the trier observed that several Judicial department employees and the claimant’s daughter had also testified, which gave the respondent an opportunity to question other witnesses (including physicians) about possible discrepancies in the claimant’s testimony regarding facts such as his first knowledge of the sexual harassment complaint and the date he first sought treatment at the hospital. We agree that having this opportunity meaningfully helped to protect the respondent’s rights, even if the claimant’s death necessarily created a situation that was less than ideal. We thus hold that sufficient respect was afforded to the respondent’s right to a fair hearing and due process, as discussed in Bailey v. State, 65 Conn. App. 592 (2001). BACK TO TEXT
5 Dr. LaSala’s deposition was not entered into evidence as an exhibit. However, the record reflects that the parties agreed to hold the record open for the inclusion of this deposition, which had been taken but not yet transcribed as of the date of the last formal hearing on December 4, 2003. See December 4, 2003 Transcript, p. 127. BACK TO TEXT
6 In Hernandez, a claimant with a preexisting heart disability experienced physical stress at his workplace that caused a myocardial infarction. Treatment for the myocardial infarction resulted in the development of a leg injury. Our Supreme Court ruled that the leg injury was a separately identifiable injury that was causally connected to the preexisting disability and the workplace incident, for which liability was transferable to the Second Injury Fund under the provisions of § 31-349 C.G.S. BACK TO TEXT
7 We cited our Supreme Court’s opinion in Biasetti v. Stamford, 250 Conn. 65 (1999), in which the Court explained that a line had been drawn between cases in which mental stressors give rise to a distinct physical injury “such as a heart attack or stroke,” and cases where the mental ailment produces somatic symptoms that are only reflections of stress, such as insomnia, weight loss, diminished concentration, or panic attack symptoms like heart palpitations, sweating, trembling, dizziness, nausea and chest pain. Id., 79-80. While the former group of cases were compensable under the Workers’ Compensation Act, the latter were excluded by § 31-275(16)(B)(ii). BACK TO TEXT
8 At that time, mental or emotional impairments were not specifically excluded from the statutory definition of “personal injury.” Our Supreme Court went on to hold in Crochiere that the claimant’s mental disorder constituted an injury under the Act, even if unaccompanied by physical trauma to the body. Id., 363. BACK TO TEXT
9 The respondent had not introduced into evidence at trial the decision from the 1987 termination hearing that had been held pursuant to § 10-151 C.G.S. Its first attempt to raise a collateral estoppel defense was on appeal. Because the record did not reflect the ultimate basis of the claimant’s termination from employment, that decision could not have a collateral estoppel effect on the workers’ compensation claim. BACK TO TEXT
10 This case is particularly thought-provoking. There, the applicant was a police officer in a troubled marriage who seemed to be soliciting a fellow officer to kill his wife. After the applicant was investigated by the police department’s internal affairs division, he was diagnosed with reactive depression, caused in part by the treatment he received from his employer. Initially, the claim was found compensable, as the applicant was never charged with an illegal act, and the manner of the department’s internal investigation had played a significant role in his nervous breakdown. The California appeals court reversed that finding, explaining, “the underlying activity for which the Police Department investigated applicant was unconnected with his duties within the course of his employment, but related to his personal marital problems. . . . [A] police officer who is accused of criminal activity which pertains to matters outside of his functioning as a police officer is in no different a position from any private citizen accused of criminal activity.” Id., 174 Cal. Rptr. 30-31 (emphasis in original.) The court then remanded to determine if the applicant’s job had caused him to initially develop the psychiatric disorder that moved him to make threats against his wife, a scenario which would have been compensable in the court’s analysis. BACK TO TEXT
11 Sexual harassment is defined in relevant part by the nondiscrimination provision of § 46-60(a)(8) as “any unwelcome advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” BACK TO TEXT
12 Dr. Clark testified that the claimant suffered from a 90% whole person impairment rating after March 1, 2001, with at most a 20% remaining function of the heart. See Respondent’s Exhibit 11, pp. 73-75; see also Claimant’s January 27, 2004 Brief, pp. 11-12 (claimant sought 85% permanent partial disability of heart based on doctor’s testimony that claimant’s estimated 10% ejection fraction compared to 55-60% normal result was less than 20% of expected organ function). As neither party has contested the trier’s characterization of this as a 20% permanency rating, we need not discuss this further on appeal. BACK TO TEXT
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