Ken Dixon

KENNETH DIXON took his own life by hanging himself in the hallway of his home. His wife resided with the decedent and was the last person to speak to the decedent prior to his suicide, discovering his body HANGING IN THE HALLWAY OF THEIR HOME OF 30 YEARS. The wife contends this injury and its sequel, including surgeries, chronic pain and depression, contributed substantially to the decedent’s decision to commit suicide.

CASE NO. 3543 CRB-04-97-03 COMPENSATION REVIEW BOARD WORKERS’ COMPENSATION COMMISSION APRIL 9, 1998

The claimant was represented by Donald C. Cousins, Esq., Cousins & Johnson, P.C., 2563 Main St., Stratford, CT 06497.

The respondents were represented by Andrew Cohen, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the February 28, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 17, 1997 before a Compensation Review Board panel consisting of Commissioners James J. Metro, John A. Mastropietro and Stephen B. Delaney..

OPINION BY THE CROOKS CONNECTICUT WORKERS COMPENSATION DEPARTMENT OF CORRUPTION 35 Oak St. Hartford, CT 06106

JAMES J. METRO, COMMISSIONER. The claimant has petitioned for review from the February 28, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District. She argues on appeal that the trial commissioner erred by relying on the testimony of a non-treating psychologist who was allegedly unqualified to render an expert opinion on certain issues in this case, that the commissioner relied on the wrong legal standard of proof in this case, and that the commissioner made inappropriate factual findings based on the evidence. We affirm the trial commissioner’s decision.1

This claim for dependent death benefits on the part of Jeanine Dixon originates out of tragic circumstances. Kenneth Dixon, the late husband of the claimant, was employed by United Illuminating from 1970 to the date of his death on September 28, 1993. He took his own life by hanging himself in the hallway of his home. At the time of his death, the decedent still had an open, compensable workers’ compensation claim for injuries to his neck and back that occurred on July 24, 1987. The claimant contends this injury and its sequelae, including surgeries, chronic pain and depression, contributed substantially to the decedent’s decision to commit suicide, and that she is accordingly entitled to benefits under § 31-306 C.G.S. She had married the decedent in 1962, and they were wed until his death.

The trial commissioner elaborated upon the testimony of many witnesses in a painstakingly thorough decision in which she made hundreds of factual findings. Much discussion was given to the decedent’s lifelong battle with alcoholism, and the effect that it had on his depression and eventual suicide. The commissioner also noted testimony regarding the pain that the decedent chronically experienced because of his back and neck surgeries. She cited the testimony of the claimant, her son, four physicians, a nurse, a psychologist, two counselors, and a handful of the decedent’s co-workers in her findings. Ultimately, she adopted the testimony of the psychologist, Dr. Witte, who testified that she believed that the decedent’s alcoholism was a significant risk factor for suicide, and did not believe that he had been suffering continuous or inordinate pain. The trial commissioner concluded that the claimant had failed to prove that the decedent’s suicide was causally related to his 1987 compensable injury, and dismissed the claim. The claimant has appealed that decision.

The first issue we must address in this appeal is the claimant’s argument that the commissioner should not have relied on Dr. Witte’s testimony because she did not qualify as an expert in this case. The commissioner found that Dr. Witte was a clinical psychologist who earned her Ph.D. focusing on substance abuse, primarily alcoholism, and specialized in treating alcoholism and chronic pain, along with depression. She also noted that Dr. Witte spent a “substantial amount of time reviewing the files and preparing to provide this testimony.” She accepted Dr. Witte as an expert in the areas of clinical psychology and substance abuse, and ultimately relied on her testimony in reaching her decision.

The claimant argues, however, that the key issue in this case was specifically the role of the decedent’s chronic pain in contributing to his suicide. She contends that Dr. Witte is an expert in neither the etiology of suicide nor chronic pain, and that she lacks the medical expertise to assess whether the decedent suffered from chronic pain and whether it played a role in his death. These objections were repeatedly raised by the claimant at the formal hearing, but were overruled with respect to most of Dr. Witte’s testimony. See March 28, 1996 Transcript.

In general, the opinions of experts may be considered in workers’ compensation cases in accordance with the rules applicable in other actions, although § 31-298 allows a trial commissioner broader discretion to admit evidence than is prescribed by the common law or by statutory rules of evidence and procedure. Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 119 (1961); Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 360, 3143 CRB-5-95-8 (June 26, 1996). The standard axiom counsels us that “whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court.” Rodriguez v. Petrilli, 34 Conn. App. 871, 876 (1994), citing DiBella v. Widlitz, 207 Conn. 194, 202 (1988). That exercise of discretion will not be disturbed on appeal unless it has been abused, or is clearly erroneous and involves a misconception of the law. Siladi v. McNamara, 164 Conn. 510, 513 (1973); Rodriguez, supra. Indeed, our Supreme Court once noted that “[w]hile it may be error to exclude the opinion of an expert, it is difficult to claim error in its admission because of the wide discretion allowed the trial court in ruling on this question.” Rogoff v. Southern New England Contractors Supply Co., Inc., 129 Conn. 687, 691 (1943). Again, the fact that this is a workers’ compensation case only serves to further widen the scope of the commissioner’s authority.

In Davis v. Margolis (a legal malpractice case), our Supreme Court stated the general standard for admitting expert testimony: the expert must demonstrate “a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” Id., 215 Conn. 408, 416 (1990), quoting Siladi, supra. “It makes no difference whether the witness’ familiarity results from practical or academic experience. . . . Once the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not to the admissibility, of his testimony.” Davis, supra, 416-17. The “ultimate issue” in this case from the claimant’s point of view may have been whether the decedent’s suicide was linked to chronic pain, but it was certainly pivotal to explore other possible motivations that may have led the decedent to take his own life. Causation in this case cannot be determined in a vacuum.

To that end, the respondents brought in Dr. Witte. She explained her expertise in the areas of substance abuse and depression, which were clearly established as a possible cause of the decedent’s suicidal condition. She also stated that she had considerable experience with chronic pain patients. Transcript, p. 9-10. The type of people she reportedly focused on in her work bore a similarity to the decedent, and one would expect that she would have had insight into the decedent’s mental state, particularly after reviewing all of his records as she did. Transcript, p. 13-15. This provided a sufficient foundation for the introduction of her testimony into evidence regarding the cause of the decedent’s suicide. Dr. Witte did not have to be a suicide “specialist” to possess special knowledge in this area, nor did she have to be a medical doctor with experience treating chronic pain to discuss its impact on the claimant.

We recently stated in Harris, supra, that the testimony and reports of psychologists are admissible as evidence in a workers’ compensation case. “Any question of a psychologist’s competence to determine causation, for example, would be directed at the weight of that evidence rather than its initial admissibility.” Id., 360-61. The trial commissioner is undeniably the person charged with determining the credibility of witnesses and gauging the weight to give the testimony and reports of the medical experts in a workers’ compensation matter. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This fact-finding responsibility includes the authority to reject seemingly uncontradicted testimony, to accept portions of a witness’ testimony while rejecting other parts, and to overlook apparent inconsistencies in a person’s testimony. Jusiewicz, supra; Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995).

This is an important point, because underlying the claimant’s argument is the assumption that the trial commissioner was required to credit the testimony of at least one of the physicians who testified in the claimant’s favor. In evaluating the “sufficiency” of Dr. Witte’s testimony, it is crucial to remember that the claimant had the burden of proving that the decedent’s compensable injury was related to his eventual suicide. The respondents did not have to disprove that fact.

The trial commissioner was undoubtedly impressed with Dr. Witte’s testimony, as she specifically adopted her analysis in the Finding and Dismissal. Dr. Witte was far more persuaded by the decedent’s history of alcohol abuse and its effects on his life than she was by the impact of any pain he may have experienced due to his compensable injury in 1987. Dr. Witte stated that her opinion that the 1987 injury was unrelated to his suicide was given with a reasonable degree of medical probability. That opinion was founded on the claimant’s long-standing battle with alcohol-related depression (which predated his compensable injury), and the personal problems that resulted from his family’s attempt to intervene by notifying the decedent’s employer about his drinking problem in late 1989. In Dr. Witte’s opinion, the decedent had shown the capacity to act impulsively and irrationally when he threatened his wife in March 1990, and records showed that he was drinking heavily at the time and had felt that his wife had betrayed him by discussing his alcohol abuse problem with United Illuminating. Although the decedent experienced bouts with physical pain afterward, the records showed that during the last six months of his life, he only missed one day of work, and was not on pain medication. Instead, he had been experiencing problems at work due to his inability to perform his duties properly, and was very worried about losing his job. The decedent had also kept a journal that noted a suicide attempt several weeks before his final, successful attempt, and did not mention pain as a reason for any of the problems at work. Dr. Witte did not believe that the evidence she reviewed demonstrated that pain caused by the decedent’s 1987 injury was much of a factor in his depression and suicide.

In our view, the trial commissioner was entitled to rely on Dr. Witte’s testimony in forming an opinion as to the compensability of the decedent’s suicide. Putting aside that testimony, however, the claimant would still have had to convince the trier to credit the testimony of the doctors linking the decedent’s injury-related pain to his suicide. The trier found that many of the doctors who testified or submitted reports did not fully review the decedent’s psychological history, and did not adequately discuss the decedent’s alcoholism as it related to his physical or emotional state. She also was not able to conclude from the record whether or not the decedent was abstinent from alcohol at the time of his death. The commissioner noted a history of denial as to the severity of the decedent’s alcohol abuse on the part of the claimant, thus calling into question the reliability of her testimony. Thus, even without Dr. Witte’s testimony, this board would not have the power to reverse the trial commissioner’s decision to disregard the testimony of Jeanine Dixon or the portions of the doctors’ reports that drew a connection between Kenneth Dixon’s suicide and his 1987 compensable injury. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra, 71. We do not have the authority to reverse the inferences that she drew from the evidence presented to her. Therefore, we do not believe it would be proper to disturb the commissioner’s factual findings.

The claimant also argues that the trial commissioner applied the wrong legal standard of proof to her claim. According to the claimant, the commissioner should have used the “substantial factor” test applied in Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (decided April 25, 1997), which allows for multiple causes of an injury, but instead used a test that improperly implied only one factor could be “substantial” in causing the decedent’s suicide. The claimant also states that the commissioner erroneously applied a “but-for” causation test that improperly placed a burden on the claimant to negate all other possibilities regarding causation of the suicide. We disagree with the claimant’s characterization of the findings.

Under Wilder v. Russell Library Co., 107 Conn. 56 (1927), the pre-eminent compensable suicide case in Connecticut, the question is whether the employment was a proximate cause of the disability. “Where such a claim is made, a commissioner must give careful consideration to all the circumstances in evidence . . . [including] those which have to do with . . . [the employee’s] personal characteristics, and with his conditions of life outside the employment. . . . Compensation is not to be awarded unless it is properly found that the insanity is traceable to the employment or its conditions . . . and that, had it not been for that employment or those conditions, it would not have occurred.” Id., 62. Although there were no allegations of insanity in this case, the fact that the decedent’s work-related injury allegedly led to his suicidal tendencies makes Wilder instructive here.

The commissioner found that the claimant “failed to prove by a preponderance of evidence that the decedent, Kenneth Dixon, suffered from a psychiatric condition and/or chronic pain syndrome which was causally related to the compensable July 24, 1987 work injury.” She also found that the evidence “failed to establish by a preponderance of evidence that but for his work-related injury Mr. Dixon would not have committed suicide.” The language of these legal conclusions reflects an exacting adherence by the trier to both the language of Wilder and the general standard of causation necessary under the Workers’ Compensation Act. We see no indication that the commissioner placed an inappropriate burden of proof on the claimant. Her statement that “the substantial continued lifelong alcohol abuse of Kenneth Dixon was the significant contributing factor in his alleged depression . . . and ultimately resulted in his suicide” does not bespeak a misunderstanding of the law. The trier was simply stating that she found only one significant cause of the decedent’s suicide, and it was not his compensable injury. That is not a conclusion this board can disturb on review. See Fair, supra; Webb, supra.