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CASE NO. 6307 CRB-8-19-2
CASE NO. 6308 CRB-8-19-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 30, 2020
BARBARA ORZECH, DEPENDENT WIDOW OF STANELY ORZECH, DECEDENT
GIACCO OIL COMPANY
FEDERATED MUTUAL INSURANCE COMPANY
The interests of the claimant were represented by Andrew E. Wallace, Esq., Jacobs & Wallace, P.L.L.C., 1087 Broad Street, Suite 400, Bridgeport, CT 06604.
The interests of the respondents were represented by Nicholas C. Varunes, Esq., Varunes & Associates, P.C., 5 Grand Street, Hartford, CT 06106.
These Petitions for Review from the December 24, 2018 Finding and Award by Peter C. Mlynarczyk, the Commissioner acting for the Eighth District, was heard June 21, 2019 before a Compensation Review Board panel consisting of Commission Chairman Stephen M. Morelli and Commissioners David W. Schoolcraft and Scott A. Barton.1
STEPHEN M. MORELLI, CHAIRMAN. The respondents have appealed from a Finding and Award (finding) wherein Commissioner Peter C. Mlynarczyk (commissioner) awarded the dependent widow survivorship benefits after the death of her husband, who had sustained a knee injury in the course of his employment. The commissioner concluded the decedent’s death was self-inflicted and the result of despondency over his debilitating knee condition, and therefore a sequalae of his compensable injury. The respondents argue there was an insufficient quantum of probative evidence to support this conclusion and that the result herein is in contravention of the precedent in Sapko v. State, 305 Conn. 360 (2012). We believe that this case may be distinguished from Sapko and that a sufficient quantum of probative evidence supports the commissioner’s decision. Therefore, we affirm the Finding and Award.
The commissioner noted the factual circumstances herein. The decedent filed a claim subsequent to a November 1, 2016 fall at work, which fall resulted in his need for right total knee replacement surgery. The respondents contested that this incident was a substantial factor in the need for surgery. A hearing on this claim was held on June 15, 2017, and the decedent testified at this hearing as to his work for his employer since 1994, Giacco Oil, and the events of November 1, 2016. Prior to that incident, he treated with Leonard A. Kolstad, M.D., for his knees. Kolstad would occasionally drain fluid from his knees, and sometimes the doctor would inject Synvisc or cortisone. See Findings, ¶ 1.d., citing June 15, 2017 Transcript, p. 12. After these treatments, he was able to return to his job as an oil delivery driver and while he had discussed knee replacement surgery with Kolstad “down the road,” there was no plan to replace the right knee. Although the knee was hurting, the use of a knee brace enabled the decedent to do his job. See Findings, ¶ 1.e.-g. The decedent testified at a formal hearing on July 15, 2017, to the events of November 1, 2016. The commissioner summarized this testimony as follows:
On November 1, 2016, he started work at 8:00 o’clock. He would typically go into the office in the morning, say good morning to everyone, grab his delivery tickets and a cup of coffee, and hit the road for the day. He did deliveries that morning and his right knee felt good. While making a delivery on Cass Street in Wallingford, he slipped and fell to the ground. He stayed on the ground because he felt like he had gotten an electrical shock. He called Mrs. Giacco and told her that he had fallen because the customer had not cleaned the yard and he had slipped on a piece of wood. He worked his way back to the truck and the homeowner came running over and apologized for not having cleaned the yard. The homeowner helped him to get back in the truck. He then went back to the office and told Fran Giacco that he could not finish his deliveries for the day. He didn’t think that the injury was too bad, so he went home. He awoke during the night to use the bathroom and his knee gave out, so he knew that he needed to see Dr. Kolstad.
Findings, ¶ 1.h., citing July 15, 2017 Transcript, pp. 14-17.
The next morning, the decedent’s wife called Kolstad’s office and the decedent was examined that day. Subsequent to that visit, “Kolstad said that it was time for the knee replacement because of the injury.” Findings, ¶ 1.i-j. The decedent testified that he had not worked since the November 1, 2016 injury, because he could barely walk. He was prescribed Vicodin for pain, but he did not take them because they hurt his stomach. He said he did not have health insurance, but wanted to get the knee replacement surgery done; noting that while he had started treating with Kolstad for his knee in 2002, he had not gone forward as Kolstad thought he was too young and the replacement would not last the rest of his life. He testified to an incident on or about October 16, 2016, when his right knee let go while getting down off the truck. He had been wearing the brace on his right knee since December of 2008. After the October 16, 2016 incident, he went to Kolstad and the doctor drained his knee. He saw Kolstad again on October 24, 2016 and went forward with a Synvisc injection, and knee surgery was discussed again at this time.
The decedent reiterated in his June 15, 2017 testimony that after the November 1 fall he wanted knee replacement surgery as he found it too painful now to do anything else. June 15, 2017 Transcript, p. 14. The commissioner summarized this testimony as follows: “The severity of the pain is much different since the November 1 fall; it’s unbearable now. He is not able to walk long distances and hasn’t driven since the accident. He now has to go up and down stairs in his home while on his butt, pushing himself up with his hands. He did not need to do that prior to November 1. He is also no longer able to do household chores, such as mowing his lawn. He now needs to pay someone to do it for him.” Findings, ¶ 1.u., citing Id., pp. 37-38.
On July 23, 2017, the decedent died and “[a]ccording to the Office of the Chief Medical Examiner, the cause of death was acute intoxication due to the combined effects of alcohol, Eszopiclone, Lorazepam, Sertraline and Diphenhydramine. The manner of death is listed as suicide.” Findings, ¶ 3, citing Claimant’s Exhibit C. The investigative report issued by the Chief Medical Examiner noted that he was found dead at home by his wife and a number of medication containers were found near him that were empty or almost empty. See Findings, ¶ 4, citing Claimant’s Exhibit F. At the formal hearing for the claimant’s survivorship claim, deposition testimony of Maura DeJoseph, M.D., a pathologist with the Chief Medical Examiner’s office was entered into evidence. See Respondents’ Exhibit 2. The relevant findings as to her testimony, where she opined the decedent died of suicide, were as follows:
Findings, ¶ 5.
At the formal hearing for her survivorship claim, the claimant testified that she had lived with the decedent for eighteen years. Her daughter, Alexa Jamieson and her brother, Donald Werner, also lived with them. She married the decedent in 2005 and accompanied him to every medical appointment. Prior to November 1, 2016, the decedent was a “big-chested, happy-go-lucky man who loved to tell jokes, played with kids in the yard, mowed the lawn every day, took the garbage out every Sunday, and had a large collection of lighthouses that he dusted every Sunday. He also had a koi pond that he cared for meticulously.” Findings, ¶ 6.f. After November 1, 2016, the decedent started complaining that his back, shoulder and knees hurt. He was unable to do chores around the house and started walking with a cane. He also stopped driving. The claimant said “sometimes I would come downstairs, and I would see him almost crying in his chair.” April 3, 2018 Transcript, p. 21. See also, Findings, ¶ 6.a-d; f-l.
The claimant testified that, “[a]fter he got hurt on November 1, 2016, Stanley said, ‘This is no life.’ He was anxious to get better and go back to work because he didn’t want to be laying around and doing nothing. He complained about his knees, back and shoulder.” Findings, ¶ 6.m.
As a result of these circumstances, the claimant contacted Joseph T. Tomanelli, M.D., who examined the decedent in December 2016 and prescribed Zoloft. See Findings, ¶ 6.e. Kolstad recommended knee surgery, but because the decedent lost his health insurance coverage thirty days after the injury it was not pursued and any medical treatment was reliant on approval from workers’ compensation. See Findings, ¶ 6.o-p.
The claimant said she never expected her husband to take his own life. Findings, ¶ 6.n. On the evening before he did so, they went to the home of her husband’s niece and went out for drinks. They fell asleep in separate rooms watching different TV programs. The decedent tapped on the wall which she said was his way of saying good night. The next morning, the claimant checked in on her husband and discovered he was dead. She alerted her brother who called the authorities. See Findings, ¶ 6.s-t. She noted that she would help her husband with his medications but he would take them himself. See Findings, ¶ 6.x. She testified that after the death of Tomanelli, his practice was assumed by John Huang, M.D., who wrote a letter dated May 25, 2017 stating that the decedent had depression and insomnia as a result of his work injury and prescribed Zoloft, Ativan, and a sleep medication. See Findings, ¶ 6.y. The claimant also testified that Sandeep Johar, D.O., who the decedent had been referred to by another treater, John G. Strugar, M.D., had prescribed him Vicodin on April 7, 2017. She said that because shots hurt him, he did not return to pain management treatment after April 27, 2017. See Findings, ¶ 6.z-aa. At the time they were married, he took some pills for general anxiety, but he did not take them very often. She said that despite his pre-existing anxiety it never stopped him from working.
Both Werner and Jamieson testified at the formal hearing held on April 5, 2018. Both witnesses corroborated the claimant’s narrative as to the demeanor of the decedent changing dramatically following his November 1, 2016 injury. Werner testified that the decedent’s condition deteriorated greatly during the months after the accident and it got worse to the point where he would just come downstairs and sit in his chair and do nothing. See Findings, ¶ 7. He said the decedent was frustrated with the process and said that he didn’t know how long he could go on like he was. Jamieson said her stepfather lost interest in many activities after his injury and he did not want to do anything anymore. He was vocal about his pain and said sometimes “[t]his is no life. How can someone do this?” Findings, ¶ 8.g., citing April 5, 2018 Transcript, p. 69.
The claimant presented testimony from Mark Waynik, M.D. Waynik, who has been a treating psychiatrist since 1984, performed a records review of the decedent’s medical records, autopsy report, the police report and the death certificate. As a result of his records review, he concluded that the work injury of November 1, 2016, was a substantial contributing factor in the decedent’s major depression and anxiety and ultimately, his death. See Findings, ¶ 9.e, citing Claimant’s Exhibit E. He based his causation opinion on the fact that the decedent was essentially a hard worker, someone who worked through a number of injuries and it wasn’t until the last work-related injury that he became dysfunctional and severely depressed. Records indicate there was also a dramatic change in his personality. The decedent went from being an active person to being housebound. This made him increasingly depressed. Waynik said it’s very common in people who have any kind of chronic illness to get depressed after a while. “If anything goes on and on and doesn’t go away, depression frequently results. ‘So, it is my opinion the chronic pain in his case caused the depression.’” Findings, ¶ 9.f., quoting June 5, 2018 Transcript, p. 11. He testified that signs of depression included depressed mood, weepiness, insomnia or hypersomnia, overeating or under-eating, hopelessness, helplessness, irritability, lack of energy, lack of drive, and lack of motivation, and most of these symptoms were present in the decedent’s history subsequent to his 2016 work injury. Id., pp. 28-29. He did not believe that the death was due to an accidental overdose as the quantity of medication that he took showed intent to die. He did not believe alcohol was the cause of the decedent’s death. Given the large amount of drugs that the decedent ingested, Waynik said there is no question that he committed suicide and intended to commit suicide.
The respondents presented testimony from their expert witness, Kenneth Selig, M.D., a forensic psychiatrist who conducted a records review. Selig issued a report to respondents’ counsel on December 24, 2017 (Respondent’s Exhibit 12). At the formal hearing on August 21, 2018, he testified that he was asked to render an opinion as to whether the decedent committed suicide. Selig testified that he does not know whether the decedent intentionally committed suicide or died from an accidental overdose and he does not see how anyone else could know based on the information available. See Findings, ¶ 10.c, citing August 21, 2018 Transcript, pp. 20-21. He said none of Tomanelli’s records listed symptoms of major depression and the Zoloft prescription written by the treater was inadequate to treat depression. He did not think the decedent suffered from hopelessness as he had been losing weight and taking other steps in anticipation of undergoing surgery. He did not believe the decedent anticipated that his pain was permanent in nature. Selig said he did not see how suicide would be a natural outcome to a knee injury. Selig also testified that if the decedent was severely depressed, most primary care physicians would refer their patients for mental health treatment. The absence of a referral led him to believe that his treater did not consider the decedent to be severely depressed. He was not aware that the decedent did not have health insurance and was unable to pay for treatment on his own. See Findings, ¶ 10.d-i.
The commissioner noted Tomanelli opined in a January 5, 2017 report that the November 1, 2016 fall may have accelerated the need for knee replacement surgery. See Respondents’ Exhibit 9. The commissioner also noted that Kolstad opined in a letter dated June 14, 2017, that the Claimant’s severe osteoarthritis to both knees was aggravated by the work-related fall. See Joint Exhibit 1. Based on these facts, he concluded that the decedent sustained a compensable injury on November 1, 2016 and his “right knee pain became unbearable after the fall on November 1, 2016.” Conclusion, ¶ J. The commissioner concluded “[i]n December of 2016, Mr. Orzech elected to go forward with the right knee replacement surgery because the fall of November 1, 2016 had substantially aggravated his underlying osteoarthritis and accelerated the need for the surgery.” Conclusion, ¶ L. The work injury was a significant factor in accelerating the need for right knee replacement surgery. See Conclusion, ¶ R. He concluded that the decedent could no longer perform his normal household routines, see Conclusion, ¶ K, and he was totally disabled from work after the November 1, 2016 fall and never regained a work capacity before he died. See Conclusion, ¶ M.
The commissioner concluded that the work injury of November 1, 2016, was a substantial contributing factor in causing the decedent’s depression and that as a result of his depression, the decedent intended to cause his death and did commit suicide on July 23, 2017. See Conclusion, ¶¶ P-Q. While the decedent did have some alcohol in his bloodstream at the time of his death the commissioner concluded the death was due to a drug overdose as the decedent had “ingested a shockingly high number of pills.” Conclusion, ¶ O. The commissioner found Waynik’s opinions persuasive, but chose not to credit Selig’s opinion that “it is possible for Mr. Orzech to have accidentally taken such a high number of pills accidentally.” Conclusion, ¶¶ S-T. As a result, the commissioner issued two orders: a) that the decedent had proven his need for right knee replacement surgery and that the respondents were to pay any benefits associated with this finding and b) he awarded the claimant survivorship benefits under General Statutes § 31-306.
The respondents filed a motion for articulation and a motion to correct in response to the Finding and Award. The motion for articulation sought to have the commissioner expound upon his rationale for finding the decedent’s suicide linked to his alleged depression. The commissioner denied this motion in its entirety. The motion to correct sought forty-eight corrections which sought to substitute findings that the decedent’s demise and his need for knee replacement were unrelated to the November 1, 2016 work injury. The commissioner granted three corrections that did not materially impact the Finding and Award and denied the other forty-five corrections.
The respondents have now pursued this appeal. They raise a number of claims of error. They believe the commissioner failed to properly credit the role alcohol intake contributed to the decedent’s demise, reached an improper conclusion as to the credibility of Selig, and failed to properly credit testimony inconsistent with a conclusion that decedent was depressed and hopeless. We do not find these arguments persuasive.
The standard of deference we are obliged to apply to a commissioner’s findings and legal conclusions on appeal is well-settled. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003), quoting Thalheim v. Greenwich, 256 Conn. 628, 656 (2001). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).
The respondents’ arguments are centered upon one theme: that the connection between the claimant’s work accident, his subsequent psychological condition and his ultimate demise was too attenuated for a trier of fact to draw a definitive chain of causation. However, as we held in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006), “[t]here are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence.”
We must ascertain if the result the commissioner reached in this matter was a reasonable conclusion based on the evidence presented. The fact that an injured worker’s suicide can be deemed to be a compensable injury has been the law in Connecticut for over ninety years. Our Supreme Court in Wilder v. Russell Library Co., 107 Conn. 56 (1927), affirmed an award to the surviving dependent of an employee who took their own life. The Wilder decision cited Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926), for the proposition that a commissioner must answer the question “was the employment a proximate cause of the disablement, or was the injured condition merely contemporaneous or coincident with the employment?” Id., 62. Finding that the evidence supported the commissioner’s conclusion in Wilder that employment was the proximate cause of the decedent’s suicide, the award was affirmed. However, in Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000), where the trial commissioner found the sequalae of a work injury was not a substantial contributing factor to the decedents’ suicide, our Appellate Court affirmed the denial of survivorship benefits. Id., 61.2
These older cases set the stage for the most recent Supreme Court case where the compensability of an injured worker’s death due to a self-administered drug overdose was litigated, Sapko, supra.3 The issue in that case was whether the commissioner had properly determined that compensable work injuries were not the cause of the decedent’s death. Id., 364. The Sapko decision restated the black-letter standard of determining the question of proximate causation.
The question of proximate causation . . . belongs to the trier of fact because causation is essentially a factual issue. . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.
(Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., [234 Conn. 597] 611 [(1995)]. Id., 373.
The critical issue in Sapko was whether it was a reasonable conclusion for the commissioner to conclude that an overdose of two different drugs, one which was Oxycodone prescribed for the compensable injury and the other, Seroquel prescribed for a noncompensable condition, acted to break the chain of proximate causation. Id., 369-70. Noting that the claimant had the burden of proving proximate cause, the Sapko court stated that the evidence in the record supported the conclusion that the decedent’s use of Seroquel was unrelated to his injury and the claimant’s ingestion of Oxycodone alone was unlikely to be fatal. Id., 386-87. “In addition, the plaintiff presented no expert testimony to show any medical causal connection between the overdose and the decedent’s primary compensable injury.” Id., 387. Our Supreme Court finally noted that, “[t]he sole expert testimony that the plaintiff did proffer to establish that the decedent’s depression was causally related to his employment-that is, his compensable injuries made him more depressed-was not credited by the commissioner.” Id., 388. Consequently, “it was reasonable for the commissioner to conclude that the causal link between the decedent’s death and his compensable injuries was too tenuous to support a finding of proximate cause.” Id., 393.
While the respondents argue that the result in this case is inconsistent with the precedent in Sapko, we disagree. In the present case, the commissioner reasonably concluded that the decedent intentionally killed himself, while in Sapko the commissioner reasonably concluded that death was accidental.4
The respondents argue that the evidence supporting a finding that the decedent willfully ended his own life was insufficient to support this conclusion. We disagree. The official death certificate identified the cause of death as “suicide.” Claimant’s Exhibit C. The medical examiner’s report reached a similar conclusion. Claimant’s Exhibit F. The testimony of DeJoseph also supported a conclusion the decedent willfully ended his own life. See Respondents’ Exhibit 2. Waynick’s testimony and opinions also supported this conclusion. See Claimant’s Exhibit E. The commissioner had sufficient probative evidence presented on the record to reach the conclusion he reached.
While the respondents argue that other evidence on the record, including the decedent’s testimony at a June 15, 2017 hearing concerning his claim for benefits for the November 1, 2016 injury, suggested the decedent was not despondent and was looking forward to recovery, the commissioner did not credit this evidence and was not obligated to do so.
The respondents argue that their witness, Selig, offered expert testimony that was contrary to Waynik’s conclusions and it was error for the commissioner not to credit Selig’s opinion. We disagree. In any case where conflicting expert testimony is presented we must respect the right of the commissioner to choose the opinion he or she deems more persuasive. See O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818-819 (1999); Madden v. Danbury Hospital, 5745 CRB-7-12-4 (April 22, 2013) and Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003).5
Finally we address the respondents’ argument that the various expert witnesses relied upon by the commissioner did not sufficiently address the impact of alcohol on the decedent’s demise. Waynik specifically testified that “alcohol wasn’t the cause of the death,” June 5, 2018 Transcript, p. 16 and “[i]t wasn’t an alcohol abuse that caused his death.” (Emphasis in original) Id., pp. 23-24. DeJoseph testified at her deposition that “I will not say that eight drinks would be enough to have caused his death alone.” Respondents’ Exhibit 2, p. 36. Therefore, it was reasonable for the commissioner to discount the theory that this was a death by misadventure due to the abuse of alcohol as the evidence clearly supports his conclusion that the decedent had willfully “ingested a shockingly high number of pills.” Conclusion, ¶ O.
We must also discuss the commissioner’s denial of the motion for articulation and the denial of forty-five of the forty-eight corrections sought by the respondents in their motion to correct. We are not persuaded that in a case such as this matter, where the relative credibility and weight of expert testimony was the critical factor, that an articulation was necessary as to the commissioner’s reasoning behind the Finding and Award. As for the motion to correct, our review of the proposed corrections suggests that the respondent was merely reiterating the arguments made at trial which ultimately proved unavailing. As such, we find no error in the trier’s decision to deny the balance of the claimant’s motion to correct. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003).
As our Appellate Court held in Estate of Haburey v. Winchester, 150 Conn. App. 699, cert. denied, 312 Conn. 922 (2014), the “law does not demand metaphysical certainty in its proofs.” Id., 716, quoting Curran v. Kroll, 118 Conn. App. 401, 408, (2009), aff’d, 303 Conn. 845 (2012). The claimant presented evidence that the commissioner credited creating a chain of causation between the decedent’s work injury and his ultimate demise, consistent with the standards delineated in Sapko, supra. Given the significant weight of evidence which supports the commissioner’s conclusions in this matter, we affirm the Finding and Award.
Commissioners David W. Schoolcraft and Scott A. Barton concur in this Opinion.
1 We note that a motion for extension of time for each case was granted during the pendency of this appeal. BACK TO TEXT
2 We discussed the need for a claimant to prove that employment was a “substantial contributing factor” in one’s medical condition in order to deem the ailment compensable in Santiago v. Laidlaw Transit, Inc., 5379 CRB-5-08-9 (July 27, 2009), citing Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000). BACK TO TEXT
3 The medical examiner’s report in Sapko v. State, 305 Conn. 360 (2012), attributed the death of the decedent to an accidental drug overdose, and not to suicide. Id., 365. We may also distinguish the present case from another case where the decedent was an injured worker who succumbed to a drug overdose. See Micale v. State/Dept. of Emergency Services and Public Protection, 5910 CRB-6-14-2 (January 8, 2015), where the fatal overdose was due to the excessive prescription of narcotics for a compensable injury, and “[i]t is black letter law that when a physician provides treatment to an injured worker for a compensable injury and the treatment ultimately proves injurious; that the additional injuries resulting from the treatment are a compensable sequalae of the original injury.” BACK TO TEXT
4 We may also distinguish this case from Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000), cert. denied, 253 Conn. 908 (2000), as in that case, the commissioner did not accept the expert testimony linking the decedent’s depression and suicide to the compensable work injury, id., 61, wherein in this case the commissioner did credit such opinions. BACK TO TEXT
5 It is black-letter law that, “[w]hen the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law.” (Internal citations omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). BACK TO TEXT