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Biasetti v. City of Stamford

CASE NO. 5320 CRB-7-08-2



FEBRUARY 19, 2009











The claimant was represented by Stewart M. Casper, Esq., Casper & de Toledo L.L.C., 1458 Bedford Street, Stamford, CT 06905.

The respondents were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06824-0550.

This Petition for Review from the February 6, 2008 Finding and Dismissal of the Commissioner acting for the Seventh District was heard August 29, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 6, 2008 Finding and Dismissal of the Commissioner acting for the Seventh District. We find no error, and affirm the decision of the trial commissioner.1

The following factual background is pertinent to our review. The claimant was employed by the Stamford Police Department as a police officer in 1985. On May 24, 2005, the claimant became involved in a high-speed car chase on Interstate 95. The suspect vehicle left the highway at Exit 23 in Fairfield and proceeded to run over spikes which had been placed in the road by local law enforcement. At that point, the inhabitants of the vehicle entered into a gun battle with the claimant, during which the claimant feared for his life. While in pursuit of one of the suspects, the claimant attempted unsuccessfully to hurdle a guardrail and fell, hitting his left knee and right elbow. The suspect ultimately escaped, although several other individuals in the car were apparently apprehended.2

The claimant began treating with Joel Albert, M.D., a psychiatrist, who diagnosed the claimant as suffering from post-traumatic stress disorder (“PTSD”). The parties to this matter stipulated that the events of May 24, 2005 had given rise to the development of the claimant’s PTSD symptoms. On May 27, 2005, John Downing, M.D., the claimant’s treating orthopedist, diagnosed the claimant with left knee traumatic patellofemoral chondrosis and a right elbow contusion. Claimant’s Exhibit A. The claimant’s medical reports for the period between the date of injury and May 2006 indicate the claimant continued to experience discomfort in his right elbow and left knee. The parties to this matter have also stipulated that the claimant sustained injuries to his elbow and knee on May 24, 2005 for which permanent partial disability benefits were paid.

The respondents contend that the claimant’s PTSD is not a compensable injury because, per a plain reading of § 31-275(16)(B)(ii) C.G.S., the PTSD did not “arise from” the physical injuries the claimant sustained during the incident on May 24, 2005.3 The respondents rely for their contention on the claimant’s own testimony in that when queried about the fall in which he sustained the injuries, the claimant remarked that when he fell, he kept his eyes on the suspect and was “not really concerned with my tumble.” April 10, 2007 Transcript, p. 56. The respondents also note that when the claimant arrived at the Stamford Hospital emergency room, he was treated for anxiety, elevated blood pressure and a headache, all of which were attributed to the stress of the events of the evening. Id., at 58. The respondents further rely on the testimony of the claimant’s treating physician, Dr. Albert, who initially testified that the shootout and the injuries sustained by the claimant were “inextricably” one event but then stated that either the highspeed chase or the physical injuries alone could have triggered the PTSD. Id., at 33. Dr. Albert ultimately testified that the “true precipitating factor” of the PTSD was the “life-threatening event itself.” Id., at 37.

The claimant also testified that although he continues to experience recurring dreams of the chase and the shootout, the dreams do not include any reference to his knee or elbow injuries. Dr. Albert testified that the claimant’s pain when he straightens his leg or elbow creates “heightened tension and anxiety,” id., at 35, and is “evocative of the memory that created a threat to his physical integrity,” id., at 40, but the claimant did not corroborate these assertions. Dr. Albert also testified that the claimant continues to suffer from PTSD, particularly when he is in a patrol situation. The claimant indicated that certain activities such as responding to police calls and intervention in domestic disputes will trigger his PTSD. The claimant also reported that during his weapons requalification course, he experienced a recurrence of his PTSD symptoms because one of the paper targets at the firing range resembled the suspect involved in the shootout with the claimant on May 24, 2005.

At the request of the respondents, the claimant was evaluated by Mark Rubenstein, M.D., a psychiatrist, on February 7, 2007. Following this evaluation, Dr. Rubenstein testified that he agreed with Dr. Albert that the claimant suffers from PTSD as a result of the events of May 24, 2005 but did not agree that the physical injuries sustained by the claimant played any role in its development. Rather, Dr. Rubenstein indicated the claimant would have developed PTSD even had he not sustained any physical injuries. The trial commissioner also found that even though the claimant spoke at great length regarding the events of May 24, 2005 during the course of the evaluation with Dr. Rubenstein, the claimant never referred to his knee or elbow injuries.

The trial commissioner determined that the applicable statute relative to the compensability of the claimant’s claim was the pre-July 1, 2005 revision to § 31-275(16)(B)(ii) C.G.S., which states that a personal injury shall not be construed to include a mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.4 Noting “there is no threshold of severity built into the statutory definition of ‘personal injury,’” she concluded that in order to comport with our Supreme Court’s analysis in Biasetti v. Stamford, 250 Conn. 65, 79 (1999) [“Biasetti I”], “the claimant’s PTSD must arise from some physical injury suffered in the May 24, 2005 incident.” Findings, ¶ B. On the basis of the evidentiary record presented, the trial commissioner dismissed the claim, stating, “[t]he weight of the medical evidence does not support the contention that the claimant’s PTSD arose from, or was caused by, any physical injury or occupational disease suffered by the claimant on the evening of May 24, 2005.” Findings, ¶ C. The trial commissioner also found that “[t]he claimant’s own testimony does not support the claim that his PTSD arose out of the physical injuries suffered on May 24, 2005.” Findings, ¶ D.5

The claimant filed a lengthy Motion to Correct which was denied save for the correction referenced herein relative to the apprehension of the suspects, and this appeal followed. On appeal, the claimant raises numerous allegations of error. First, the claimant argues that the trial commissioner applied the wrong legal standard vis-à-vis § 31-275(16)(B)(ii) C.G.S. It is the claimant’s contention that although “PTSD must arise from an incident involving a physical injury, altercation, or component,” [the] “physical injury need not be a substantial factor in causing the PTSD.” Appellant’s Brief, p. 1. The claimant also argues, in the alternative, that the trial commissioner erred in failing to find that the claimant’s preexisting PTSD was exacerbated by the physical injuries sustained in the events of May 24, 2005. Additionally, the claimant alleges error stemming from the trial commissioner’s decision to admit the deposition testimony of Dr. Rubenstein, the IME doctor, who purportedly exhibited animosity towards the claimant and claimant’s counsel during his deposition and failed to properly assess the significance of the claimant’s physical injuries. Finally, the claimant asserts that the trial commissioner reached a number of adverse inferences which were unreasonable and unsupported by the record relative to the testimony of the claimant’s treating physician, the claimant’s demeanor while testifying, Dr. Rubenstein’s failure to inquire about the claimant’s physical injuries during the course of the IME, and the role of the events of May 24, 2005 in the development of the claimant’s PTSD symptoms.

We begin by reciting the standard of deference a reviewing board must apply to a trial commissioner’s findings and legal conclusions. As this board articulated in Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007),

… the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

We now turn our analysis to an examination of the issues raised by the claimant on appeal, starting with the claimant’s assertion that the trial commissioner misconstrued the court’s holding in Biasetti I and incorrectly interpreted the language of the pre-2005 version of § 31-275(16)(B)(ii) C.G.S. relative to the compensability of mental impairments. As previously mentioned herein, the trial commissioner, relying on the language of the statute and the court’s opinion in Biasetti I, concluded that the phrase “arises from” in the statute signified that a direct causal relationship must exist between the claimant’s PTSD and the physical injuries he suffered in the May 24, 2005 incident.6 Because the trial commissioner determined that neither the medical evidence proffered by Drs. Albert and Rubenstein nor the claimant’s own testimony supported such an inference, she dismissed the claim. Given that our review of the evidentiary record and pertinent case law since Biasetti I support the findings of the trial commissioner, we affirm her decision on appeal.

In Biasetti I, the claimant (as it happens, the same claimant as in the instant matter) brought a claim for benefits for PTSD stemming from yet another high-speed pursuit and gun battle which occurred on June 8, 1994. The claimant asserted that PTSD is an occupational disease as defined by § 31-275(15) C.G.S.,7 and the court agreed, remarking that “it can be said that the plaintiff’s PTSD/CFS [combat fatigue syndrome] was an occupational disease because his job and experiences as a police officer were more likely to cause this stress disorder ‘than would other kinds of employment carried on under the same conditions.’” Id., at 73, quoting Madeo v. I. Dibner & Bro., Inc., 121 Conn. 664, 667 (1936). However, the Biasetti I court reviewed the 1993 legislative amendments to § 31-275(16)(B)(ii) which “eliminate[d] from the definition of a personal injury ‘a mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease,’” Id., at 75, and concluded that it was “the clear intent of the legislature to eliminate any occupational disease that does not have a physical component.” Id.

As such, in light of the lack of physical injury to the Biasetti I claimant, the court held that although the statute extended coverage to “an emotional impairment that arises from or is caused by a physical injury or occupational disease,” id., at 79, the statute did not “extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed with the term ‘arises.’” (Emphasis in the original.) Id. The court also distinguished the symptoms of a mental impairment from the impairment itself, observing,

[t]o conclude that physical symptoms of mental impairments are not excluded from coverage under the act would, at best, be to radically dilute the term ‘arise from,’ if not render it entirely superfluous. Such an interpretation would effectively result in virtually all psychiatric disabilities or mental impairments being covered, regardless of whether the impairment arises from a physical injury or an occupational disease. We therefore reject it.

(Emphasis in the original.) Id., at 82.

Shortly after issuing Biasetti I, the Supreme Court had occasion to revisit § 31-275(16)(B)(ii) C.G.S. when the court rendered its decision in Driscoll v. General Nutrition Corporation, 252 Conn. 215 (2000). The Driscoll plaintiff was working as a sales clerk in the defendant’s store when an individual entered the store, dragged her to a back room and robbed the cash register. He then returned to the plaintiff and forced her to perform oral sex on him. Following these events, the plaintiff brought a negligence claim seeking damages against her employer for emotional distress, asserting the definition of a personal injury as set out in § 31-275(16)(B)(ii) C.G.S. removed her claim from the ambit of the Workers’ Compensation Act. The defendants moved for summary judgment, arguing that the exclusivity provision of the Workers’ Compensation Act barred the plaintiff from pursuing a civil action for damages stemming from an injury which occurred during the course of her employment.8

Ultimately, the appeal was certified to the Supreme Court, which determined that “[i]n this case, the word ‘personal injury,’ as used in the relevant [workers’ compensation] statutes, certainly is a term broad enough to include forcible fellatio.” Id., at 222. In reaching this determination, the court reviewed the legislative history behind § 31-275(16)(B)(ii) C.G.S., with particular attention to the comments of Representative Michael P. Lawlor, who was asked whether in his opinion a correction officer who successfully subdued a prisoner that had attempted to sexually assault her and in so doing incurred emotional distress but no physical injury would be eligible for workers’ compensation. Representative Lawlor “replied that because the correction officer had been ‘touched and physically assaulted … that is an injury and she may be compensated ….’” Id., at 223, quoting 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6155.

Observing that “Representative Lawlor’s subsequent statement that a sexual assault is a ‘physical injury’ for the purposes of workers’ compensation … gives us cogent guidance for the proper construction of § 31-275 (16) (B)(ii),” (internal citations omitted), Id., at 227, the court held that “none of the plaintiff’s arguments can overcome the persuasive power of the legislative history of the enactment of § 31-275(16)(B)(ii)” and her remedy was therefore to be found within the workers’ compensation forum.9 Id. The Driscoll court also examined its prior holding in Biasetti I and concluded that “[t]he facts of this case distinguish it from Biasetti. The plaintiff herein was, at the very least, physically manhandled by [her assailant]…. The plaintiff’s emotional distress, as alleged in her own complaint, arose from or was caused by a physical injury.” Id., at 226.

Subsequent to Biasetti I and Driscoll, this reviewing board has had several opportunities to consider whether a claimant’s physical injuries sustained during the course of a workplace altercation constituted a sufficient basis for finding the claimant’s subsequent mental impairment compensable. For example, in Nunes v. State/Department of Motor Vehicles, 4360 CRB-2-01-2 (January 16, 2002), the claimant was involved in a struggle for possession of a gun being brandished by a DMV customer who was being questioned by a police officer.10 The customer managed to gain control of the weapon and proceeded to shoot himself in the face. During the struggle, the claimant sustained lacerations to his hands, which were subsequently treated at the hospital. The claimant returned to the DMV the next day and was able to work for over a year, until one day when yet another irate DMV customer threatened to leave and come back with a gun. That day, the claimant left the DMV and never returned.

Following these events, the Nunes claimant was voluntarily admitted to Lawrence and Memorial Hospital for three days, followed by a seven-day stay at another facility in Norwich. The claimant was diagnosed as suffering from severe depression, PTSD, and substance abuse. After his release from the hospital, he began suffering panic attacks which led him to an outpatient treatment program and the recommendation that he apply for a three-month in-patient PTSD program. The claimant was eventually evaluated by Dr. Rubenstein, who opined that the claimant was suffering from PTSD but his condition was not related to the minor injuries he had sustained in the initial workplace skirmish. On the basis of Dr. Rubenstein’s opinion and the claimant’s prior history of substance abuse, the respondents denied treatment for the PTSD, and the matter went to a formal hearing.

The trial commissioner concluded that the claimant’s PTSD constituted a compensable injury, as it had arisen from a “physical altercation,” and held that “[t]he prolonged physical struggle with the assailant, resulting physical injuries, and shooting combined to result in this mental impairment.” Id. Although on appeal the respondents attempted to argue there, as here, that the PTSD was not compensable because it did not arise directly from the physical trauma associated with the workplace incident, this board, remarking that that point was “questionable,” reviewed the Supreme Court’s decisions in Biasetti I and Driscoll and concluded that the claimant’s PTSD was compensable in light of the legislative history of the 1993 amendments as set out in Driscoll. Again referencing the example of the prison guard cited in Driscoll, we stated that “the fact that she was touched and physically assaulted – even if she escaped unscathed – left her with a physical injury that would make any subsequent emotional distress compensable.” (Emphasis in the original.) Nunes, supra. We also remarked that in Driscoll, “a line seems to have been drawn excluding ‘bystander’ emotional trauma that occurs from witnessing an event at one’s workplace, or emotional trauma that arises from a direct non-physical confrontation of some kind.” (Emphasis added.) Nunes, supra. Thus, in light of the Nunes claimant’s struggle for possession of the gun during the initial workplace incident, and the fact that the claimant sustained injuries to his hands during the struggle, this board concluded that the scope of the injury exceeded “bystander trauma” and the facts of the matter “suffice[d] to support the trier’s legal conclusion that the claimant’s resulting nervous injury, disability, and need for medical care [were] compensable under the Act, having resulted from a physical altercation that amounts to a physical injury.” (Emphasis added.) Id.

Similarly, in Bilsky v. Ansonia Copper & Brass, 4703 CRB-5-03-8 (August 23, 2004), this board had the opportunity to review a matter in which the claimant was slapped in the face by a co-worker during an allegedly profane discussion regarding the whereabouts of a pack of cigarettes. Although the physical repercussions from the incident initially seemed limited to a “stinging sensation” in the claimant’s cheek, the claimant registered elevated blood pressure readings later in the day which resulted in him being sent home and ultimately disabled from work. The claimant’s treating physician diagnosed severe anxiety, depression and insomnia and referred the claimant to a psychologist, with whom the claimant began treating on a weekly basis. At the request of the short-term disability carrier, the claimant was evaluated by a psychiatrist, who opined “that the claimant had suffered a psychological reaction to the December 18, 2001 incident which began as acute stress disorder and evolved into posttraumatic stress disorder (PTSD).” Id.

The trial commissioner determined that even though the claimant received treatment for the PTSD, he had not received medical treatment for the slap across the face, and the PTSD was therefore not compensable because the emotional impairment did not arise from a physical injury. On appeal, this board focused on the issue of whether the blow sustained by the claimant could be considered “too trivial to legally constitute an injury” given that the claimant did not receive medical treatment for the slap itself but, rather, the emotional distress that allegedly arose from the incident. Id.

Noting that one of the wellsettled maxims of workers’ compensation law is that an employer takes an employee in the state of health in which it finds him or her, Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 435 (1996), we then examined the matter of Pothier v. Stanley-Bostitch/The Bostitch Company, 3411 CRB-3-96-8 (January 21, 1998). In Pothier, the claimant, who had been electrocuted several years before and sustained injuries to his chest wall and lingering nerve deficits, was poked in the side of the chest and squeezed by a coworker who had come up from behind. At first, he did not appear to suffer any significant damage from the incident with the coworker; however, shortly afterward he began experiencing severe chest pain which ultimately led to a pain management regimen and a seventeen-month absence from work. On appeal, this board upheld the trial commissioner’s determination that the claimant suffered a compensable injury due to the workplace incident and the causal connection between the incident and the claimant’s subsequent disability.

Our conclusion in Pothier was the basis for our analysis of Bilsky, where we observed,

[t]here is no threshold of severity built into in [sic] the definition of ‘personal injury.’ Rather, 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.

Bilsky, supra, citing Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (November 1, 1995), aff’d, 43 Conn. App. 908 (1996) (per curiam); Niebler v. Waldbaum’s Foodmart, 14 Conn. Workers’ Comp. Rev. Op. 61, 1851 CRB-3-93-9 (May 11, 1995).

We also remarked that “[c]ases such as Driscoll and Nunes demonstrate that the physical component of an assault need not damage the body severely enough to necessitate medical treatment for physical trauma in order to constitute a personal injury within the meaning of the Act.” Bilsky, supra. Ultimately, we remanded the matter to the trial commissioner with instructions to make a factual finding as to whether a relationship existed between the claimant’s mental/emotional impairment and the blow he sustained in the workplace incident, “as it does not suffice merely to say that the slap was not a physical injury under § 31-275(16).” Id. We also stated, “[w]hether or not medical treatment for hypertension was provided is not the determinative factor in assessing whether the claimant’s symptoms of hypertension constituted a physical injury under the Act.” Id. Rather, consistent with Driscoll and Nunes, the dispositive issue was rooted in the causal relationship between the workplace incident and the subsequent emotional impairment.

Finally, in David v. Beloff Billiards, Inc. d/b/a Boston Billiards, Inc., 4843 CRB4048 (August 15, 2005), we reviewed a finding of compensability for a claimant who intervened in the attempted shooting of a bouncer in the nightclub where she was employed. The claimant sustained injuries when she and the bouncer fell to the floor as the gun went off. Although the claimant’s physical trauma was limited to a broken fingernail and a temporary hearing loss which resolved on its own within a few days, she was unable to work outside of her office and, several days later, sought psychiatric care. The psychiatrist diagnosed the claimant with an acute stress disorder as a result of the gunshot incident and took the claimant out of work. Four months after the gunshot incident, the respondents’ examiner opined that the claimant “suffered from PTSD that totally disabled her from working.” Id. Following a formal hearing, “[t]he 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.” Id.

The matter came before this board and, consistent with precedent discussed herein, we upheld the trial commissioner’s finding of compensability. The evidentiary record indicated the claimant suffered a hearing loss which lasted for several days and “no doubt remained within the claimant’s awareness during the hours following the gunshot incident.” Id. The testimony regarding the claimant’s broken fingernail also suggests she sustained some degree of bodily trauma when she fell to the floor. In fact, the claimant “alleged in her Form 30C that she scuffled with the assailant who had fired the gun.” Id. Remarking that “[o]nce again, there is an identifiable causal relationship between the physical components of this incident and the mental stress that the claimant subsequently experienced,” we concluded, “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).” Id.

In the instant matter, the evidentiary record demonstrates incontrovertibly that the claimant’s PTSD originated in the workplace incident involving a car chase and an exchange of gunfire. However, the record also suggests that the claimant’s physical injuries to the knee and elbow occurred not as a result of any direct physical assault on the claimant but, rather, during his pursuit of one of the suspects on foot. It is this lack of a direct physical encounter which serves to set this matter apart from the precedent reviewed herein. Although Dr. Rubenstein testified that the claimant “certainly had a life and death experience,” July 26, 2007 Deposition, p. 10, and that the “appropriate” psychiatric diagnosis for the claimant was PTSD, id., at 17, arising from “the traumatic incident, the experience of a near death and life-threatening situation.” Id., at 18. Dr. Rubenstein also testified that the claimant would have developed PTSD even had he not sustained any physical injuries. Id., at 19. The claimant himself testified that he was “not concerned” with his physical injuries at the time they occurred, April 10, 2007 Transcript, p. 56, or when he reported to the emergency room following the incident. Id., at 58. Finally, the trial commissioner found that although the claimant spoke at great length regarding the events of May 24, 2005 during the course of his evaluation with Dr. Rubenstein, the claimant never referred to his knee or elbow injuries. Findings, ¶ 22.

In fact, even the claimant’s treating physician, Dr. Albert, who initially testified that the shootout and the injuries sustained by the claimant were “inextricably” one event, admitted that either the highspeed chase or the physical injuries alone could have triggered the PTSD. Id., at 33. Under cross-examination, Dr. Albert also stated that “it was more likely than not,” id., at 36, that the claimant would have suffered a PTSD episode even without sustaining physical injuries and ultimately testified that the “true precipitating factor” of the PTSD was the “life-threatening event itself.” Id., at 37.

Thus, in light of the evidentiary submissions regarding the genesis of the claimant’s physical injuries and the role those injuries played relative to the development of the claimant’s PTSD symptoms, we conclude that the circumstances of the instant matter distinguish it sufficiently from the prior cases discussed herein such that we must affirm the factual determinations made by the trial commissioner. This is particularly so in light of the Biasetti I court’s observation that, “Representative Lawlor stated in his comments that ‘[t]he only injury that would not be compensable that is purely a mental injury is that which was not caused by any type of physical injury in the first place.’” Id., at 78, fn. 8. We are also guided by the analysis of the Driscoll court which, in distinguishing Driscoll from Biasetti I, concluded that “[t]he plaintiff’s emotional distress, as alleged in her own complaint, arose from or was caused by a physical injury.” Driscoll, supra, p. 226.

In addition, we agree with the appellees that a plain reading of the language of § 31-275(16)(B)(ii) C.G.S. in effect at the time of the claimant’s injury makes it clear that the claimant’s PTSD must have arisen from the claimant’s physical injuries. The record before us supports the trial commissioner’s inference that the injuries in this matter, “were merely incidental,” Appellees’ Brief, p. 16, rather than central to the claimant’s confrontation with the suspect and did not occur as a direct result of a physical assault or altercation, thereby distinguishing this matter from the precedent discussed herein. In conclusion, the factual findings made by the trial commissioner are supported by the evidentiary record and it is not the province of an appellate body to overturn such findings on appeal. “It is … immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

The claimant has also asserted that the trial commissioner erred in failing to find in the alternative that the claimant’s pre-existing PTSD was exacerbated by the physical injuries sustained in the events of May 24, 2005. We note that Dr. Albert opined in his report of July 12, 2007 that, “[i]t has become increasingly evident that the left knee and right elbow injuries he sustained in the coarse [sic] of the gun battle exasperates [sic] the PTSD in particular at rest and during sleep.” Claimant’s Exhibit H. See also August 1, 2007 Transcript, p. 4. On the other hand, Dr. Rubenstein’s testimony regarding the role the claimant’s physical injuries may play in triggering his PTSD symptoms was more equivocal. When asked as an example whether he thought a Vietnam veteran’s PTSD could be triggered by pain caused by old shrapnel wounds, he replied, “[i]t might, it might not.” July 26, 2007 Deposition, p. 31. Dr. Rubenstein went on to state,

[m]ost veterans who have had PTSD have never been wounded. They have seen other people wounded and killed. It’s the experience of the threat of death and annihilation, it’s the wartime combat, it’s the fact that you’re on constant vigilance and hyperalert because you’re in a jungle and you could be dead or seriously injured at any second without your even being aware of it. That’s what evokes the PTSD, not the wound itself.

Id., at 31-32.

Arguably, the statement by Dr. Albert regarding the exacerbating effect of the claimant’s physical injuries could provide an alternative means of assessing the compensability of the claimant’s PTSD, in light of our Supreme Court’s holding in Gartrell v. Dept. of Correction, 259 Conn. 29 (2002). In Gartrell, the Supreme Court found compensable a claimant’s preexisting non-work-related PTSD which the claimant asserted had been exacerbated by workrelated cardiovascular problems. Although the Gartrell respondent attempted to argue that the medical reports adduced at trial were insufficient to substantiate such a finding, the court found otherwise, stating “we conclude that there is sufficient evidence in the record from which the commissioner reasonably could have concluded that the plaintiff’s preexisting psychiatric condition was aggravated by his cardiovascular disorder.” Id., at 36-37. The court also indicated that it found credible the claimant’s contention “that when the aggravation of a preexisting psychiatric condition is a direct consequence of a workrelated physical injury, as in the present case, the aggravation of the psychiatric condition is, itself, a sufficiently distinct and identifiable injury to constitute an ‘impairment’ that ‘arises from’ the compensable work-related physical injury.” Id., at 38.

However, in the instant matter, while the record does contain testimony from Dr. Albert regarding the role of the claimant’s injuries in exacerbating his PTSD symptoms, there is also the testimony previously discussed herein from Dr. Rubenstein dismissing the connection. It is a well-settled tenet of appellate review that the credence which should be assigned to the testimony of a particular witness remains solely within the trial commissioner’s purview. “The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). Here, the trial commissioner simply chose to credit Dr. Rubenstein’s opinion regarding the role of the claimant’s injuries in exacerbating his PTSD rather than Dr. Albert’s, and we cannot overturn that credibility determination on appeal.

Similarly, with regard to the claimant’s allegations of error with regard to the trial commissioner’s decision to admit the deposition testimony and IME report of Dr. Rubenstein, we would simply reiterate that it is the trier’s prerogative to assess the credibility of the expert witnesses who appear before the court. While we concede the transcript of Dr. Rubenstein’s deposition does appear to reflect the existence of a certain amount of animosity between the doctor and claimant’s counsel, the trial commissioner was free to rely on as much or as little of the contents of this evidentiary submission as she deemed appropriate. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony.” Tartaglino, supra.11 Likewise, with regard to claimant’s allegations that the trial commissioner drew adverse inferences from the claimant’s “lack of observable anxiety while testifying,” Appellant’s Brief, p. 2, we would simply reiterate that this board cannot second-guess the trier’s conclusions regarding the credibility of a party or a witness.

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.

Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006) aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008), quoting Burton v. Mottolese, 267 Conn. 1, 40 (2003).

Finally, as previously mentioned herein, the claimant filed an extensive Motion to Correct which was denied save for the correction regarding the apprehension of the suspects. Our review of the other proposed corrections indicates that the claimant was primarily engaged in an effort “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), either through the incorporation of a vast amount of additional, and occasionally extraneous, background information or the creation of supplemental findings which essentially reiterated the claimant’s arguments at trial. Thus, we find no error in the trial commissioner’s refusal to grant those corrections, as “[t]he [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.

Having found no error, the February 6, 2008 Finding and Dismissal of the Commissioner acting for the Seventh District is hereby affirmed.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 The trial commissioner indicated in Findings, ¶ 4, that all of the suspects involved in the car chase and shootout were apprehended. However, the record indicates that the suspect being pursued on foot by the claimant ultimately eluded capture. The claimant incorporated his objection to this finding into his Motion to Correct, and the trial commissioner granted the correction, noting that the reference to “all suspects apprehended” referred to the prior car chase in which the claimant had been involved in 1994. BACK TO TEXT

3 Sec. 31-275(16)(B)(ii) C.G.S. (Rev. to 2005) states that a “personal injury” or “injury” shall not be construed to include: [a] mental or emotional impairment, unless such an impairment arises from a physical injury or occupational disease. BACK TO TEXT

4 In 1993, § 31-275(16) C.G.S. was amended by P.A. 93-228 §1, resulting in the creation of § 31 275(16)(B)(ii). (See footnote 3, supra.) This portion of the statute was amended again in 2005 by P.A. 05-236, § 2. BACK TO TEXT

5 The claimant had also requested that the respondent reimburse him for the fee of $875.00 charged by Dr. Albert for appearing and testifying at the formal hearing of April 10, 2007. This request was likewise denied. BACK TO TEXT

6 As the appellees point out, “Black’s Law Dictionary (7th Ed., West 1990) defines ‘arises’ as ‘to originate, to stem (from) to result from).’” Appellees’ Brief, p. 16. BACK TO TEXT

7 Sec. 31-275(15) C.G.S. (Rev. to 2005) states, “[o]ccupational disease” includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment. BACK TO TEXT

8 Sec. 31-284(a) C.G.S. (Rev. to 1999) states, “[a]n employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . BACK TO TEXT

9 The Driscoll court observed that “we attach special significance to a legislator’s statement describing the intended applicability of a statute if that statement is made by the proponent of the underlying bill.” Driscoll v. General Nutrition Corp., 252 Conn. 215, 227-228 (2000). BACK TO TEXT

10 The police officer had been summoned to the scene when a DMV computer check revealed that the customer had an outstanding warrant for petty larceny. BACK TO TEXT

11 We do confess to sharing the claimant’s perplexity at Dr. Rubenstein’s failure during his evaluation of the claimant to broach the topic of the claimant’s physical injuries, given that respondent counsel’s two page correspondence of February 1, 2007 to the doctor contains at least nine references to the claimant’s injuries, and specifically requests that he “advise whether the physical injuries [sustained by the claimant] were a substantial factor in causing [the claimant’s] psychological symptoms.” Respondents’ Exhibit 1, [Defendant’s Exhibit 1]. When queried at deposition on this point, the doctor replied, “I’m not an orthopedist, and I didn’t ask those questions.” Respondents’ Exhibit 1, p. 34. BACK TO TEXT


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