Opinion
CASE NO. 1069 CRB-1-90-7
AUGUST 27, 1992
The claimant was represented by Leon Rosenblatt, Esq.
The respondent was represented by William C. Brown, Esq. and Jonathan L. Reik, Esq., both of McGann, Bartlett Brown.
This Petition for Review from the June 28, 1990 Finding and Award of the Commissioner for the First District was heard April 26, 1991 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Angelo dos Santos.
OPINION
Both the claimant, a music teacher with twenty years experience in Enfield's public school system, and the town itself have appealed. In June, 1987 the parents of a sixth grade female student accused claimant of improper behavior during the course of a clarinet lesson he was giving their daughter on March 30, 1987. This and other complaints caused the Board of Education to institute a termination proceeding resulting in his permanent separation from employment effective October 21, 1987. In the interim between the original accusation and the termination print and broadcast media publicized the allegations against claimant portraying him very unfavorably. This had a devastating effect causing him to suffer stress, anger, resentment, humiliation and loss of self esteem. He underwent psychological decompensation resulting eventually in a psychotic breakdown and hospital confinement December 25, 1987.
The commissioner found this to be a compensable mental injury and awarded total incapacity benefits from December 1987 to October 31, 1988 and partial benefits thereafter until August 2, 1989.
Claimant's appeal filed July 19, 1990 attacks the commissioner's failure to grant preclusion of defenses and an irrebuttable presumption of compensability under Sec. 31-297(b). The commissioner's decision was issued June 28, 1990. Sec. 31-301(a) provides "At any time within ten days after entry of such award . . . either party may appeal therefrom to the Compensation Review Division by filing in the office of the commissioner from which such award . . . originated an appeal petition and five copies thereof." (emphasis ours). Claimant has given no explanation for the late filing which would justify a conclusion that the time requirements for Sec. 31-301(a) should be tolled. See Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 742-45 (1992). As the appeal was not filed within the ten days required by the statute, it is therefore dismissed.
Respondent's appeal attacks the decision below on five grounds: (1) was the refusal to rule on respondent's Amended Motion to Correct error, (2) was the claim time barred under Sec. 31-294, (3) was claimant's injury compensable when it flowed, in part, from a termination proceeding, and (b) was it the result of a deviation from employment or willful and misconduct, (d) was the failure to admit transcribed evidence from other proceedings error and (5) was this type of mental injury compensable.
The employer appellant filed its original Motion to Correct July 10, 1990. Claimant then filed a pleading opposing the Motion July 31, 1990. On September 20 respondent filed an Amended Motion to Correct. On October 4 claimant filed a Motion to Strike Respondents' Amended Motion to Correct.
Sec. 31-301-4 of the Regulations provides in pertinent part, "If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked. . ."
Here, respondent's original motion failed to include portions of the evidence which would support its requested corrections. The commissioner therefore dismissed the motion. We concur in his decision. As noted in Paragraphs 3-5 of the September 27, 1990 ruling, Administrative Regulation Sec. 31-301-4 provides a limited period of time, two weeks, to file such motions. Also, movant must attach the appropriate evidentiary references to support the corrections sought. Filing an Amended Motion to Correct ten weeks after the original pleading was due, and without satisfying Administrative Regulation Sec. 31-301-4's provision allowing for extensions of time does not conform to the regulations. Consequently declining to rule on the Amended Motion to Correct was not error.
On respondent's second point alleging untimeliness of the claim, the argument is that the commissioner failed to find whether the injury was repetitive trauma or occupational disease. Sec. 31-294 sets a one year limit for filing repetitive trauma claims and a three year limit for occupational disease. Claimant's last day on the job was October 21, 1987 and the first day of disability was December 25, 1987. The notice of claim alleging both repetitive trauma and occupational disease theories of recovery was filed September 22, 1988. In repetitive trauma cases the date of injury is the last day of exposure or the last day worked. See Carvalko v. Bassick Company, 767 CRD-4-88-9 (decided December 2, 1991) citing Delos v. United Illuminating, 7 Conn. Workers' Comp. Rev. Op. 111, 751 CRD-88-7 (1989), Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD 6-84 (1988). Here October 21, 1987 was the last day worked and consequently the last day of exposure to the work related mentally traumatizing events. A repetitive trauma claim filed within one year of that last exposure is clearly timely filed.
In occupational disease cases, Sec. 31-307 provides "the time of injury shall be the date of total or partial incapacity to work as a result of such disease." Here a September 22, 1988 claim for a December 25, 1987 injury certainly is within the Sec. 31-294 occupational disease limit. In construing v. Russell Library, 107 Conn. 56 (1927), a decision involving mental illness injury at a time when our statute defined injury either an accidental one definitely located in time and place or occupational disease, we have ruled that mental illness is occupational disease, Henderson v. Brink's, Inc., 5 Conn. Workers' Comp. Rev. Op. 115, 466 CRD-4-86 (1988). As the date of filing the claim satisfies both the one year repetitive trauma and the three year occupational disease limit, the argument as to timeliness seems irrelevant.
Respondent's third point contesting compensability rests on a two pronged argument. The mental illness, it is claimed, did not arise out of the employment as it was the termination which caused it. The other argument relies on Sec. 31-284(a) which states the employer is not responsible "when the personal injury has been caused by the wilful and serious misconduct of the injured employee. . ." This reasoning holds that claimant's alleged improper touching of the student was such misconduct. An appellate tribunal is limited in its power to change a commissioner's findings when they depend on the weight and credibility he places on the evidence before him, Mack v. Blake Drug Co., 152 Conn. 523 (1965), Fair v. People's Savings Bank, 207 Conn. 535 (1988), Rivera v. Guida's Dairy, 167 Conn. 524 (1975). Fair, supra, 541, cites Herbst v. Hat Corporation of America, 130 Conn. 1, 4, 7-8 (1943).
"A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact. . . . This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function. . . This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that injury did not arise out of it is one of fact." (citations omitted).
Fair, supra at 541.
Here, there was evidence to support the finding, paragraphs #48, 49 and 50, that claimant's mental injury began in June, 1987 while claimant was still employed. Similarly, there was evidence for the findings, paragraphs #45, 56 and 61, that there was no misconduct. In fact, besides the specific reference in paragraph #56 to the testimony of Dr. Swords, the claimant's psychiatrist, there is also the statement by Dr. Walter Borden, the respondent's psychiatric witness. Dr. Borden said at page 42 of his deposition, "And clearly I should add and make clear that I've already said that it doesn't mean he's a sexual deviant or sexual offender. . . It's not something that he would willingly engage in, in my opinion." As the findings that the injury arose out of and in the course of the employment and was not the result of willful misconduct are thus rooted in the evidence, we cannot disturb them.
Both points four and five of the respondent's argument concern the Board of Education termination proceedings. The evidentiary exclusion complained of is testimony given August 14, 1987 by another complaining female student in that proceeding. The commissioner carefully considered whether her transcribed testimony there should be admitted. At the June 1, 1990 hearing before the commissioner, claimant's counsel objected to respondent's offer of that portion of the August 14, 1987 transcript. Claimant argued that the evidence was not admissible an exception to the hearsay rule given the fact it had not been proved the witness in question was not available. See June 1, 1990 TR at 95-116. A party seeking to proffer such evidence must prove that witness' unavailability by a showing of "`[d]ue diligence to procure the attendance of the absent witness' ". . . State v. Aillon, 202 Conn. 385, 391 (1987) quoting State v. Weinrib, 140 Conn. 247, 251 (1953). See also, Tait and LaPlante, Handbook of Connecticut Evidence, Sec. 11.4.2 (2nd ed. 1988)
In the June 1, 1990 hearing, the witness testifying to the other student's unavailability stated his "search" for her consisted of two phone calls to two unidentified secretaries at schools outside this state. See June 1, 1990 TR at 104-115. That hardly satisfies the requirements of our case law. Certainly there was not sufficient compliance to cause us to rule that the commissioner's exclusion of the evidence was error.
Finally, respondent's brief cites Corey v. Avco-Lycoming Division, 163 Conn. 309 (1972) for the contention that the doctrine of collateral estoppel precluded the commissioner from even inquiring into the alleged willful misconduct as the termination proceedings had decided that issue against the claimant, and it could not be relitigated. Corey, supra at 317 states,
Collateral estoppel is that aspect of res judicata which is concerned with the effect of a final judgment on the subsequent litigation of a different cause of action involving some of the issues determined in a former action between the parties. Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190." (1) Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action. . . (2) A judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action. Restatement, Judgments Sec. 68." Brockett v. Jensen, supra.
Corey involved grievance proceedings conducted as a result of a collective bargaining agreement. The proceedings alleged concerned discriminatory termination from employment due to an employee's religion. Corey held that the arbitration decision collaterally estopped the Commission on Human Rights and Opportunities from relitigating the same issue in a complaint brought against it. Our Supreme Court thus established "the principle that an administrative adjudication may give rise to res judicata or collateral estoppel." Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 198 (1988).
But, before collateral estoppel applies, there must be an identity of issues between the prior and subsequent proceedings.
"For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." State v. Ellis, 197 Conn. 436, 463, 492 A.2d 974 (1985)." (citation omitted) Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 402 (1988).
See also, Aetna Casualty and Surety Co. v. Jones, 220 Conn. 285, 296 (1991); Virgo v. Lyons, 209 Conn. 497, 501 (1988). To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. Aetna Casualty and Surety Co. v. Jones, supra, 297. Therefore, here for the doctrine to apply, the issue of lack of compensability for the employee's injury under Sec. 31-294 C.G.S. must be the functional equivalent of the causes for dismissal under the education title, Sec. 10-151 C.G.S. Sec. 10-151 permits the termination of a tenured school teacher "for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; 5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified. . ." At no point in the Workers' Compensation 1990 hearing did the municipality offer or submit in evidence the decision in the teacher's 1987 termination proceeding. Therefore the record does not reveal what actually was decided in the 1987 matter apart from the fact that the employee was dismissed. So far as we know from the record, that dismissal may have been for inefficiency or incompetence, insubordination against reasonable rules or disability as shown by competent medical evidence. That last reason, disability, certainly is quite probable in view of the 1990 medical evidence of the employee's state of health in 1987. But we need not speculate. There has not been an identified litigated and decided issue in the 1987 matter which could preclude the litigation of the misconduct allegation in 1990.
The following colloquy between counsel at the June 1, 1990 hearing makes clear that the 1987 decision was not entered into evidence.
Attorney Rosenblatt: For the record, Commissioner, I would like to add one thing also to my objection; and that is that here's no showing that there was an identity of issues between the hearing that was the subject of this Respondents' Exhibit K and this hearing today.
Attorney Reik: As far that's concerned, if I might be heard on that briefly. That would be relevant if this was — if the issue here were a claim of collateral estopple (sic), a claim of an estopple (sic) effect. We're not claiming that this Commissioner in any way, form, or manner is stopped by this testimony. We're simply offering the testimony.
Thus collateral estoppel was not claimed by the respondent in the First District evidentiary hearing. As a matter of fact, the collateral estoppel defense was not even mentioned in the Reasons of Appeal. It did not surface until the respondent's appeal brief. Under Practice Book Sec. 4186, we need not even consider an issue that was not raised below; Mancini v. A. Laugeni Son, Inc., 9 Conn. Workers' Comp. Rev. Op. 45, 739 CRD-6-88-6, (1991); Trantolo v. Trantolo Trantolo, P.C. 8 Conn. Workers' Comp. Rev. Op. 69, 823 CRD-6-89-2 (1990).
Finally, the respondent asserts it was wrong to permit recovery for a mental injury without a physical component. It urges us to overrule or distinguish Zipoli v. Town of Watertown, 3 Conn. Workers' Comp. Rev. Op. 23, 215 CRD-5-83 (1986) and Henderson, supra. In that regard appellant argues that Wilder v. Russell Library, 107 Conn. 56 (1927) was misinterpreted in those two CRD holdings. The town also asserts that claimant's mental injury is not an occupational disease because it was not "any disease peculiar to the occupation" as required by Sec. 31-275(11).
Appellant's brief states "Purely `mental injuries', without a physical component are excluded." The brief then continues by reading Wilder, supra, to hold the only compensable mental injuries are those including a physical element. This is the same argument that was advanced and dismissed by us in Henderson. We held in Henderson that Wilder was a mental-mental case in that there was work related mental stress producing the mental injury, insanity. In that case the then Justice Maltbie had stated, "The worry anxiety and excessive nervous and mental activity in connection with library factors were all contributing factors in the mental breakdown." Wilder, supra, 60-61.
Appellant here refers to another part of the Wilder opinion mentioning a physical breakdown subsequent to work mental stress but prior to the mental breakdown. But whether Henderson incorrectly characterized Wilder as a mental-mental case is really not relevant. Nowhere in Wilder does Maltbie state that there needed to be a physical component in the proximate causation chain from job mental stress to disabling mental injury. Nor has the appellant cited any other Connecticut Workers' Compensation decision which dictates such a requirement in mental injury cases.
Neither do we need to consider the claimant's argument that there was in fact a physical component to the mental injury. The evidence showed that claimant had had a breakdown and needed to be restrained presumably because he was physically violent and had to be sedated and transported to the hospital on a stretcher December 25, 1987. The classic proximate causation language used by Maltbie and cited above defining the "contributing factors" to the "ultimate mental breakdown" makes no mention of a physical component.
In addition to the attack on Henderson for its mental-mental characterization of Wilder the appellant argues that the definition of occupational disease was changed in 1927 subsequent to the date of injury in Wilder to include the present language, Sec. 31-275(11), that such a disease must be "peculiar to the occupation. . . and due to causes in excess of ordinary hazards of the employment." This is the same argument relied on by the appellant employer in Cortes v. Allegheny Ludlum Steel Corp. 1 Conn. Workers' Comp. Rev. Op. 173, 61-CRD-3-81 (1982). In that decision we analyzed opinions by Chief Justice Maltbie, Glodenis v. American Brass Company, 118 Conn. 29 (1934) and LeLenko v. Wilson H. Lee Co., 128 Conn. 449 (1942) and an earlier opinion by Chief Justice Wheeler, Santini v. Levin, 110 Conn. 248 (1928).
Santini concerned an injury occurring before the 1927 amendment and Cortes pointed out that the LeLenko opinion for an injury post 1927 used the same proximate causation approach as that employed by Wheeler in the pre-1927 Santini case. Maltbie in LeLenko discussed the concept he mentioned in Glodenis and Madeo v. I. Dibner Brothers, Inc., 121 Conn. 664 (1936) where he referred to occupational disease as being a natural incident of the employment. He stated, "we used that word in the sense that we have used it in defining proximate causation." LeLenko, supra, 505. Hence we see no need to revisit Cortes or Henderson.
The June 28, 1990 First District decision is affirmed and both the claimant's and respondent's appeal are dismissed.
Commissioners Gerald Kolinsky and Angelo dos Santos concur.