Opinion
CASE NO. 466 CRD-4-86
JUNE 21, 1988
The claimant was represented by John M. Creane, Esq. and Rita L. Lisko, Esq., Creane Donahue.
The respondents were represented by William B. Rush, Esq., Edward M. Sheehy, Esq. and Thomas W. Witherington, Esq., Pullman, Comley, Bradley and Reeves.
This Petition for Review from the March 5, 1986 Finding and Award of the Commissioner for the Fourth District was heard May 29, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Rhoda Loeb.
FINDING AND AWARD
The Fourth District Finding and Award of March 5, 1986 is affirmed and adopted as the Finding and Award of this Division.
OPINION
In this matter the Fourth District Commissioner's March 5, 1986 Finding and Award concluded Claimant had suffered a compensable injury due to repetitive stress arising out of and in the course of the employment. Respondents' appeal argues it was error (1) to award benefits for emotional injury in the absence of a contemporaneous physical injury or trauma, (2) to find compensable an emotional disability in the absence of a sudden and severe emotional shock traceable to a definite time, place and cause and (3) to grant benefits when the stress to which Claimant was subjected was not extraordinary or greater than the ordinary stress encountered by managerial employees generally.
The first argument fails to persuade in its attempt to import into workers' compensation law an old tort doctrine now abandoned by our courts. Its principal fault lies in the assumption that there is a doctrinal equivalence between tort and workers' compensation law. Although they share a common ancestry, the systems are not identical twins. The judiciary has not always agreed, but the legislative branch throughout the law's seventy-five year history has evinced a keen awareness of the differences between the two. Indeed, legislative enactments have consistently followed the philosophy expressed in Justice Wheeler's early dissent, "The injuries compensated by the Act are not only those for which an action lay under the common law but all injuries `arising out of and in the course of' the employment of the injured", Miller v. American Steel and Wire Co., 90 Conn. 349, 375 (1916).
The word "injury" in chapter 568 is not defined as physical injury only. Neither are the words "incapacity" or "disability" when used in the statute confined exclusively to somatic conditions. In fact, the absence of such limiting language in the rest of the statute and its inclusion in Sec. 31-349, C.G.S. permits the Second Injury and Compensation Assurance Fund to argue successfully that liability under that section may not be transferred if the previous impairment is mental or emotional. It follows, in reliance on the classic inclusio unius exclusio alterius argument, that had the legislature wished to restrict compensable incapacity only to those occasions when some physical element was involved, it would have included in other chapter 568 sections similar restrictive language to that used in Sec. 31-349.
Sec. 31-275. Definitions. (8) "Personal injury", or "injury", as the same is used in this chapter, shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined. (11) "Occupational 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.
Sec. 31-349 states in part: The fact that an employee has suffered previous disability,. . . total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment. . . ." (emphasis added).
Professor Larson's discussion of the various mental, nervous and stress conditions divides cases into three categories: "mental stimulus causing physical injury; physical trauma causing nervous injury; and mental stimulus causing nervous injury". The courts throughout the country generally find compensability in the first two groups, Sgritta v. Hertz Construction Co., 124 Conn. 6 (1938); McDonough v. Conn. Bank and Trust Co., 204 Conn. 104 (1987), aff'g, 184 CRD-2-82, 3 Conn. Workers' Comp. Rev. Op. 46; Donato v. Pantry Pride, 37 Conn. Sup. 836 (1981), aff'g, 2 CRD-4-79, 1 Workers' Comp. Rev. Op. 21. It is the third category, the so-called mental mental group in which the instant case lies which has been the most vexing.
A. Larson, 1B The Law of Workmen's Compensation, Sec. 42.20, p. 7-586 1987).
More than a half century ago the Connecticut Supreme Court affirmed compensability in a mental mental case, Wilder v. Russell Library, 107 Conn. 56 (1927). Respondents attempt to place that precedent into the mental physical group. They have cited language in the opinion about a "physical breakdown", but the facts related in Justice Maltbie's opinion belie that categorization. Miss Wilder's incapacity, insanity and eventual suicide were caused by:
"The unusual efforts put forth by the decedent and the long hours spent . . . in relation to the library work. . . The long hours she worked caused excessive fatigue. A physical breakdown occurred, which was followed by a nervous breakdown. This developed into a mental condition amounting to insanity, resulting in suicide. . . . The worry, anxiety, and excessive nervous and mental activity in connection with the library work were all contributing factors in the ultimate mental breakdown. . . ."
Wilder v. Russell Library, supra, at 60-61.
This tribunal followed that precedent in Zipoli v. Watertown, 215 CRD-5-83, 3 Conn. Workers' Comp. Rev. Op. 23 (1986). The appellants seek to reverse Zipoli, but except for their "physical breakdown" analysis of Wilder, they cite no Connecticut case law in support of their position.
Even if we were to embrace the premise of doctrinal equivalence between the common law of torts and workers' compensation administrative legislature made law, Orlo v. Connecticut Co., 128 Conn. 231 (1941) no longer represents prevailing law in our state. The court there held actionable disabling fright or shock caused to one who was within the range of physical danger. Since then Urban v. Hartford Gas Co., 139 Conn. 301 (1952), Montinieri v. Southern New England Telephone Co., 175 Conn. 337 (1978), Buckman v. People Express, Inc., 205 Conn. 166 (1987) and Buckley v. Lovallo, 2 Conn. App. (1984) have broadened the tort recovery for mental injury, eliminating the need for the victim to be in the zone of physical danger.
Thus, in Montinieri v. Southern New England Telephone Co., supra, at 344:
"Nevertheless, there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only."
Similarly, Judge Borden stated in Buckley v. Lovallo, supra, at 589:
"We see no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints. [M]edical science has unquestionably become sophisticated enough to provide reliable and accurate evidence on the causes of mental trauma' (citations omitted). Medical science and mental health fields have advanced sufficiently to enable a trier of fact to determine the extent of mental suffering by the same standard of proof as physical injury. . . . A plaintiff need only establish a claim for mental or emotional distress by a fair preponderance of the evidence, unfettered by any additionally exacting gauge."
Hence, Connecticut's tort law provides no comfort to appellants on this first argument.
Appellants' second point proposes for the purpose of mental mental injuries that our law revert to the reasoning in the majority opinion, Miller v. American Steel and Wire Co., 90 Conn. 349 (1916). The majority there interpreted "injury" to refer only to an accidental happening definitely located in time and place. We have alluded to Wheeler's dissent which argued for a much broader interpretation. In fact, the legislature adopted Wheeler's reasoning by including occupational disease in 1919 and repetitive trauma in 1947, broadened definitions now contained in Sec. 31-275(8) and (11). Also, as we indicated in Zipoli, Wilder v. Russell Library Co., supra, involved a situation without a specific traumatic injury definitely located in time and place which the court held compensable. We can hardly be expected in 1988 to impose greater limitations on the worker compensation remedy than were set in 1927.
The appellants' final contention is the "special hazard" argument which our Supreme Court has long since refuted. We analyzed this concept in Gecewicz v. Sealtest Foods Division, 77 CRD-1-81, 1 Conn. Workers' Comp. Rev. Op. 195 (1982). There we cited St. John v. U. Piccolo Co., Inc., 128 Conn. 608 (1942), Jones v. Hamden, 129 Conn. 532 (1942), Garofola v. Yale Towne Mfg. Co., 131 Conn. 572 (1945) and Acquaotta v. Niles Bement Pond Co., 18 Conn. Sup. 510 (1954) to demonstrate that Connecticut for more than forty years has not required unusual exertion or activity to hold an injury compensable. We cannot now quarrel with that line of authority.
We affirm the Commissioner below and dismiss the appeal.
Commissioners Robin Waller and Rhoda Loeb concur.