ASARO v. WATERBURY REPUBLICAN, NO. 5121 CRB-5-06-8 (8-8-2007)


AUGUST 8, 2007

This Petition for Review filed from the July 31, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District was heard February 23, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Scott A. Barton.

The claimant was represented by Jon Del Buono, Esq., and Robert Elfont, Esq., 680 Main Street, Watertown, CT 06795 at the trial level. However, the claimant appeared pro se on appeal.

The respondents were represented by Lawrence R. Pellett, Esq., McGann, Bartlett Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

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The claimant appeals from the Commissioner acting for the Fifth District’s July 31, 2006 Finding and Dismissal. The pertinent facts are as follows:

On March 16, 1998 the claimant was employed by the Waterbury Republican newspaper as a photojournalist. On March 16, 1998 the claimant was working his shift when he called the Waterbury Police Department claiming he heard gun shots emanating from along the Naugatuck River near Route 8 and the Watertown entrance ramp. A police officer was dispatched to the scene and while the claimant and police officer were walking atop an embankment, the claimant fell down the embankment and fractured his upper right arm.

Claims were filed for workers’ compensation benefits on March 27, 1998 and November 16, 1998. However, both claims described the injury sustained as fractured right shoulder/arm and paid all benefits to which the claimant was entitled for his injured arm/shoulder. In proceedings initially brought before Commissioner Darius Spain[1] , the claimant sought workers’ compensation benefits claiming that as a result of the fall on March 16, 1998 he sustained a traumatic brain injury and/or aggravation of his preexisting obsessive compulsive disorder. However, in the course of the proceedings Commissioner Spain died. Commissioner Michelle Truglia was assigned to the case and the parties agreed that Commissioner Truglia [hereafter the trial commissioner] could review the transcripts and exhibits in the record presented to Commissioner Spain. The trial commissioner held one formal hearing and reviewed the record and issued the July

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31, 2006 Finding and Dismissal at issue here. On August 16, 2006 the claimant filed this appeal.

The ultimate issue presented for review is whether the claimant suffered a traumatic brain injury and/or an aggravation of his preexisting condition of obsessive-compulsive disorder arising out of and in the course of his employment on March 16, 1998. In the proceedings before the trial commissioner and Commissioner Spain the claimant was represented by counsel. The claimant appears pro se in the prosecution of this appeal.

There is no question that the claimant suffers from emotional/psychiatric disorders. There is no question that the disorders have had an impact on the quality of claimant’s life. However, what is at issue here is whether the events that occurred on March 16, 1996 were the legal cause of claimant’s condition. As we have noted on other occasions legal causation and medical causation are not equivalent concepts. Under the Workers’ Compensation Act, whether a work place event is the legal cause of some personal injury for which compensation may be paid is based on whether (1) the event arose out of and in the course of employment and (2) whether the event was a substantial factor in causing the harm for which the claimant seeks the compensation.Fratino v. Harry Grodsky Co., Inc., 5087 CRB-7-06-5 (May 8, 2007).

The determination reached on the above issue requires the trial commissioner to review the evidence in the record and to assign the weight and credibility to be accorded the evidence in the record.Gibbons v. UTC/Pratt Whitney, 4000 CRB-8-99-3 (April 12, 2000) aff’d, 63 Conn. App. 482 (2001), cert. denied, 257 Conn. 905 (2001). We will not disturb the trial commissioner’s findings and conclusions where so based unless the conclusions reached are without support in the evidence, contrary to law or based on

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unreasonable or impermissible factual inferences. Fair v. People’sSavings Bank, 207 Conn. 535 (1988).

The record below indicates the claimant’s primary care physician, Dr. Peter Levinson, diagnosed the claimant with anxiety, insomnia and multiple phobias in 1995. Approximately two years later, he was diagnosed as suffering from Obsessive Compulsive Disorder [hereafter OCD] and was referred for psychological counseling with Dr. Leonard Goldstein. Dr. Levinson testified that prior to claimant’s March 1998 fall, he visited Dr. Levinson at various times with complaints of headaches, vertigo, chest and stomach pains, and excessive hand washing. Dr. Levinson noted that the claimant’s OCD symptoms wax and wane. Thus, claimant had a preexisting psychological problem.

The claimant was also examined by Dr. Edward J. Fredericks, a neurologist for the purpose of evaluating claimant’s memory loss complaints. Dr. Fredericks’ report opines that the claimant suffered a significant head trauma and loss of consciousness as a result of his March 1998 fall. However, Dr. Fredericks’ conclusion was based on the history of events that occurred on March 16, 1998 as told to him by the claimant. In his history to Dr. Fredericks, the claimant contended that he remembers hitting his head on the pavement and being unconscious for three minutes. Finding, ¶ 54. Further, Dr. Fredericks found the claimant’s neurologic exam to be within normal limits. The trial commissioner noted that Dr. Fredericks’ opinion does not appear to factor in claimant’s preexisting depression.

Dr. Fredericks referred the claimant to Dr. Gerladine Cassens, a clinical neuropsychologist. Dr. Cassens administered a number of tests to the claimant in October and November 2000. Dr. Cassens found that claimant’s post March 16, 1998 IQ was consistent with assessments given in his youth. Further, while Dr. Cassens opined

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claimant suffered from frontal lobe (brain) dysfunction which is consistent with a head injury, she also noted claimant’s OCD and attention deficit problems can also be correlated to frontal lobe dysfunction. In Finding ¶ 80 the trial commissioner noted:

Dr. Cassens feels that the neuropsychological data are only partially consistent with the claimant’s self-report of symptomatology. He can remember faces, numbers and stories at a level above expectancy given the self-report of his complaints. She goes on to say that “he is clearly experiencing a diminution of cognitive function and aspects of his profile are consistent with head injury, but his difficulties can be explained to a large degree on the basis of his psychiatric disorder.”

In support of his claim the claimant proffered the opinions and reports of Dr. Emily Littman a neuropsychologist with the Waterbury Hospital. In July 2000 the claimant availed himself of a free evaluation offered as part of a program to train psychologists in diagnosing and treating psychological disorders. The tests were administered by Natalie Barone a new fellow studying under Dr. Littman. Dr. Littman signed off on Ms. Barone’s report but testified that she did not adopt the July 2000 report as her own. Finding, ¶ 62. Dr. Littman opined the claimant suffered a significant brain injury as a result of the March 1998 fall and claimant’s preexisting OCD was exacerbated by the fall. Dr. Littman herself re-tested the claimant in October 2002 and concluded that the claimant’s IQ had returned to pre-injury levels. Finding, ¶ 68.

The trial commissioner found that the claimant’s claim of having lost consciousness at time of his fall was not supported by any evidence other than the claimant’s testimony. Neither Officer Ronald Tompkins who was with the claimant at the time of his fall nor the EMS personnel who arrived upon the scene noted the claimant’s loss of consciousness. In fact, the EMS personnel noted the claimant scored 15/15 on the Glasgow coma scale and the claimant was alert and oriented when they arrived on the scene.

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Finally, at the request of the respondents, the claimant was examined by Dr. Stephen D. Sarfaty a board certified, licensed neuropsychologist. Dr. Sarfaty not only tested the claimant himself but reviewed the claimant’s test results and reports for periods three months prior to the March 1998 fall and various periods thereafter. Dr. Sarfaty opined that claimant did not sustain a traumatic brain injury as a result of the March 16, 1998 fall nor did the fall cause an aggravation of the claimant’s preexisting underlying psychological and emotional problems.

The record indicates that following the healing of his arm/shoulder injury the claimant returned to work and continued to work for the Waterbury Republican until December 1998 when he left his employment. Further the testimony of claimant’s co-worker, John Harvey, stated that the claimant’s work product upon his return to work was still good. Finding, ¶ 25.

In the instant matter the weight and credibility assigned to the evidence is a matter exclusively within the trial commissioner’s purview. On appeal we do not consider claims de novo. The trial commissioner considered all of the evidence presented including the record before the late Commissioner Darius Spain. Commissioner Truglia made her determination and we cannot say the conclusions reached resulted from an abuse of her discretion. Therefore, her conclusions must stand. Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670

We therefore affirm the July 31, 2006 Finding and Dismissal.

Commissioners Nancy E. Salerno and Scott A. Barton concur.

[1] Formal hearings before Commissioner Darius J. Spain were held on May 6, 2004, November 18, 2004 and December 16, 2004. Commissioner Michelle D. Truglia presided over one formal hearing held September 20, 2005.