Opinion
CASE NO. 03519 CRB-05-97-01CLAIM NO. 500008349
JUNE 15, 1998
The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando Dalton, L.L.C.
The respondent was represented by Matthew Beizer, Esq., Assistant Attorney General.
This Petition for Review from the January 22, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and Stephen B. Delaney.
OPINION
The claimant has petitioned for review from the January 22, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision the trial commissioner concluded that the claimant's stress did not arise out of or in the course of his employment. In support of his appeal, the claimant contends that all of the medical evidence indicates that the claimant's stress was caused by his employment. We find no error.
The trial commissioner found the following relevant facts. The claimant was employed by the state Department of Corrections as a prison guard from 1982 until June 11, 1993. The claimant worked in the Cheshire facility from 1982 to 1987 without any stress-related symptoms. The claimant worked at the Litchfield facility from 1987 to 1989 without any stress-related symptoms. From 1989 to July 17, 1992, as a result of changed conditions at the Litchfield facility, the claimant experienced stress which arose out of and during the course of his employment. During this time the claimant continued to perform his job duties and experienced no disability. Subsequently, from July 17, 1992 to 1993, as a result of the Litchfield facility's change to a drug rehabilitation facility, the claimant's symptoms of stress resolved.
In 1993, the claimant was informed that he was being transferred back to the Cheshire facility because the Litchfield facility was being closed. He testified that he again began to experience insomnia and some stress. The claimant did not seek medical attention, however; instead, he pursued administrative avenues such as requesting a different facility for assignment, filing a union grievance, and seeking a leave of absence. These efforts were unsuccessful. The claimant stated that he was convinced he could not handle the stress in Cheshire, and tendered his resignation effective on June 11, 1993, the date the Litchfield facility closed. The trial commissioner concluded that the claimant's stress did not arise out of and during the course of his employment, but instead was caused by the impending transfer.
Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority "entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses." Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
In order for the Workers' Compensation Act to apply, a claimant's injury must arise out of and in the course of his employment. Fulco v. Norwich Roman Catholic Diocesan Corporation, 27 Conn. App. 800, 807 (1992), appeal dismissed, 226 Conn. 404 (1993); Senatro v. Royal Insurance Co., 14 Conn. Workers' Comp. Rev. Op. 44, 46, 1890 CRB-8-93-11 (May 4, 1995). Section 31-275 (1) C.G.S. defines "arising out of and in the course of employment" to include accidental injuries "originating while [the employee] has been engaged in the line of his duty in the business or affairs of the employer upon the employer's premises. . . ." Thus, in order to come within the course of employment, an injury must occur "(a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it." McNamara v. Hamden, 176 Conn. 547, 551 (1979). In order to arise out of the employment, the injury must occur in the course of the employment and be the result of a risk incident to the employment or the conditions under which it is performed. Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), appeal dismissed, 229 Conn. 587 (1994), see also Crochiere v. Board of Education, 227 Conn. 333, 349 (1993).
In the instant case, the claimant's stress was caused by the termination of the claimant's position at the Litchfield facility and the resulting impending transfer to Cheshire. The Appellate Court's decision in Fulco, supra, and our decision in Senatro, supra, support the trial commissioner's conclusion that the cause of the claimant's injury did not arise out of or during the course of his employment. In Senatro, supra, the board explained:
In Fulco, supra, our Appellate Court reversed a trial court's decision to preclude a claimant from suing his former employer for negligent infliction of emotional distress based on the exclusivity provision of the Act. The court held that the claimant's emotional distress arose out of his discharge, not his employment, and that it would "unduly strain the language of the statute for us to conclude that termination of employment creates a job related injury." Id., 808. The court noted that the process of being fired is not a duty of employment, and is not conduct regularly engaged in as an incident to employment. Id., 808-809. This board followed Fulco in Senatro v. Royal Insurance Co., 14 Conn. Workers' Comp. Rev. Op. 44, 1890 CRB-8-93-11 (May 4, 1995), where we dismissed a claim for a compensable psychiatric condition because the claimant's emotional distress was related to her reaction to her impending discharge rather than to any employment-related duties.
Much like the termination proceedings in Fulco, the respondent's elimination of the claimant's position and its inability to arrange a suitable replacement job for the claimant did not constitute conduct regularly engaged in as an incident to the claimant's employment. The commissioner's finding that the claimant suffered emotional and mental injuries during the period of her employment, as opposed to after her employment had ended, makes no difference when one considers the reasoning behind the Fulco decision. Conduct relating to the actual or potential termination of employment is of a different nature than conduct relating to the duties of employment or incidental to that employment. Senatro, supra, at 46.
Because we find no error in the trial commissioner's determination that the claimant's injury did not arise out of or occur during the course of his employment, we need not address the claimant's contention that the trial commissioner erred by failing to accept the opinion of Dr. Mark Rubenstein.
The trial commissioner's decision is affirmed.
Commissioners James J. Metro and Stephen B. Delaney concur.
Lorraine Lockery Administrative Hearings Lead Specialist