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JANEL J. JONES v. CONNECTICUT CHILDREN'S MEDICAL CENTER FACULTY PRACTICE PLAN (AC 32486)
DiPentima, C. J., and Bear and Espinosa, Js. Argued May 20--officially released September 13, 2011

(Appeal from workers' compensation review board.) John D. Palermo, for the appellant (plaintiff). Colette S. Griffin, with whom was Melissa A. Federico, for the appellee (defendant).

Opinion

DiPENTIMA, C. J. The plaintiff, Janel J. Jones, appeals from the decision of the workers' compensation review board (board) reversing the decision of the workers' compensation commissioner for the first district (commissioner). On appeal, the plaintiff claims that the board improperly (1) concluded there was insufficient evidence to support the finding that the plaintiff's work-related motor vehicle accident was a substantial factor in the development of her psychiatric injury and impairment and (2) permitted the defendant Connecticut Children's Medical Center Faculty Practice Plan (employer) to contest the compensability of her injuries and disability rating.1 We disagree and, accordingly, affirm the decision of the board. The following history is necessary for the resolution of this appeal. The plaintiff is an advanced practice registered nurse2 who began working for the employer in December, 2002. The plaintiff's work duties included basic management and human resource functions and clinical supervision of mid-level and administrative staff. On February 27, 2006, the plaintiff, as part of her employment, traveled from a medical office in Windsor to one located in Bloomfield. During this trip, the rear tire of a truck driving in front of the plaintiff fell off and crashed onto the roof of her motor vehicle. As a result, the plaintiff pulled off to the side of the road. A police officer drove the plaintiff home. Later that day, after she developed a headache, neck and shoulder soreness, and nausea, the plaintiff received treatment from the emergency department at the University of Connecticut (emergency department), where she was diagnosed with ``cervical/thoracic strain, with complaints of right-sided headache and upper back pain/ neck pain.'' At this time, neither the physician at the emergency department nor the plaintiff believed that she had hit her head in the accident. The plaintiff again received a medical examination in the emergency department on March 3, 2006, and the records indicate a ``normal exam.'' Following medical advice, the plaintiff consulted Sarah Dainiak, a physician, and shortly thereafter began a course of physical therapy. On March 28, 2006, the plaintiff again went to the emergency department, complaining of worsening headaches, constant dizziness and nausea, blurred vision and photosensitivity. At this time, she was diagnosed with post-concussive syndrome and instructed to see a neurologist. A computed tomography scan (CT scan) of her neck and cervical magnetic resonance imaging also were conducted, the results of which were normal. At the request of her employer, the plaintiff saw Pietro A. Memmo, a physician. The plaintiff indicated that she suffered a loss of consciousness and some memory loss

at the accident scene. Memmo suspected a ``closed head injury'' and recommended that she consult with a neurologist. That same day, the plaintiff was seen at the Hartford Hospital emergency department and received treatment from Isaac Silverman. After learning that the result of the plaintiff's CT scan of her head and brain were normal, Silverman diagnosed the plaintiff with typical post-concussive syndrome and concurrent anxiety. Later, the plaintiff was treated by an ear, nose and throat (ENT) specialist to evaluate her complaints of aural pressure, dizziness, nausea, blurry vision, otalgia and bilateral tinnitus.3 In recounting her history, the plaintiff stated that she had lost consciousness for a minute or two following her accident. The ENT tests were normal. At some point, the plaintiff, fearing that she was having a stroke, went to the emergency department at St. Francis Hospital. An angiography4 was performed and the results were normal. The plaintiff also saw Marlene A. Murphy-Setzko, a urologist, who diagnosed the plaintiff with a neurogenic bladder5 and prescribed her medication to treat the urinary symptoms. In June, 2006, the parties entered into a voluntary agreement. The employer accepted a claim for injury as a result of the motor vehicle accident. The body parts listed as injured were as follows: ``Concussion, Cervical, Thoracic and Lumbar Strain.'' On July 17, 2006, Robert H. Berland, a physician, performed an independent medical examination of the plaintiff. Berland indicated that ``although there appeared to be a direct relationship between the [plaintiff's] injury and her symptoms, anxiety also played a role in precipitating many of her symptoms.'' The plaintiff subsequently saw John A. Crouch, a neuropsychologist, who indicated that the plaintiff ``reportedly sustained a traumatic brain injury'' and recommended ``aggressive mental health treatment . . . .'' In February and May of 2007, Kimberlee J. Sass, a neuropsychologist, examined the plaintiff and determined that it was unlikely that she lost consciousness or was amnesic for even a brief period of time. Sass further opined that the plaintiff would not reach maximum medical improvement unless she underwent psychological treatment and that ``the primary neuropsychological impediment to [the plaintiff's] return to employment is the disruption of the family system that had existed prior to [the accident].'' Peter Wade, a neurologist, determined, contrary to some of the physicians who had examined the plaintiff, that there was a period of amnesia and confusion consistent with the plaintiff having sustained a concussion. He further indicated that the plaintiff had sustained a 10 percent permanent partial disability to her brain and that she had reached maximum medical improvement. He concluded that the plaintiff currently was not capable of gainful employment, was not a candidate for

retraining and her ability to return to work was ``nonexistent.'' In December, 2007, James O. Donaldson, a neurologist, conducted another independent medical examination. Donaldson opined that the plaintiff did not lose consciousness, suffer a concussion or post-concussive syndrome or a traumatic brain injury, but did experience some strain and muscle spasms. Donaldson further concluded that the plaintiff's bladder condition was not related to the accident, and that the ``most likely cause of . . . the symptoms was psychological distress which is unrelated to the motor vehicle accident.'' In March, 2008, the plaintiff saw Walter A. Borden, a psychiatrist. He diagnosed the plaintiff as suffering from a somatization disorder associated with her underlying depression and anxiety. He believed that the plaintiff did not suffer from a traumatic brain injury or posttraumatic stress disorder and that her issues originate from anxiety and depression that predated the motor vehicle accident. The commissioner, charged with the arduous task of reconciling the various contradictory medical opinions, found that there was insufficient evidence to support a finding that the plaintiff ``had experienced a loss of consciousness, an altered state of mind, or an amnesic period during the motor vehicle accident of February 27, 2006.'' The commissioner further determined that the plaintiff had provided the various medical providers with inconsistent histories. As a further result of these inconsistent histories, the commissioner discredited the diagnoses of post-concussive syndrome or posttraumatic stress disorder. He also specifically discredited the opinion of Wade with respect to post-concussive syndrome and work capacity. The commissioner also noted the lack of objective evidence from the various medical tests that had been performed on the plaintiff. The commissioner then found: ``[T]he only issues keeping the [plaintiff] from returning to full-duty work in her prior position are emotional and psychological. . . . Other than [these] issues . . . she has a full-duty work capacity.'' The commissioner also made the following findings: ``Most of the physicians involved in this case (including Crouch, Sass, Donaldson, and Wade) have concluded that the [plaintiff] has significant emotional and psychological issues and the [physicians] vary only in their opinions as to causation. There are, obviously, significant underlying emotional and psychological issues unrelated to the motor vehicle accident. However, the fact remains that the [plaintiff] had no problem performing her work duties prior to the accident on February 27, 2006. Therefore, the accident was a substantial factor in her subsequent emotional and psychological sequelae.''6 (Emphasis added.) Additionally, the com-

missioner found Murphy-Setzko's opinions regarding the causation of the plaintiff's neurogenic bladder to be persuasive. Ultimately, the commissioner concluded that the plaintiff sustained a 10 percent permanent partial disability of her brain as a result of the motor vehicle accident and determined that her employer would not be liable for prospective indemnity benefits until she complied with the treatment plan set forth by Crouch. The employer unsuccessfully moved to correct certain findings made by the commissioner and then filed an appeal to the board. The employer first challenged the commissioner's finding that the motor vehicle accident was a substantial factor in the development of the plaintiff's psychological issues. The board stated that it was ``unable to discern from the evidentiary record a medical basis for the trier's conclusion that the motor vehicle accident was a substantial contributing factor in the development of the [plaintiff's] subsequent psychological issues . . . .'' The board also rejected the commissioner's findings with respect to the plaintiff's neurogenic bladder, reasoning that Murphy-Setzko's diagnosis was predicated largely on her understanding of the diagnosis from Wade as conveyed to her by the plaintiff. Turning to the issue of whether the finding of the 10 percent permanent partial disability of the brain was improper, the board noted that the commissioner had taken administrative notice of an agreement, approved on June 26, 2006, indicating a concussion as ``an accepted body part.'' The board also observed that although the employer had issued a voluntary agreement awarding the plaintiff a 10 percent permanent partial disability rating of the brain with a maximum improvement as of April 29, 2007, the plaintiff had failed to execute it. The board could not discern the rationale for this order given the commissioner's rejection of Wade's diagnosis of post-concussive syndrome and his opinion of the plaintiff's work capacity. It concluded that, given the commissioner's findings as to Wade, the agreement was moot. Finally, it declined to construe the agreement as a judicial admission. Accordingly, the board reversed the decision of the commissioner. This appeal followed. Additional facts will be set forth as necessary. We begin by setting forth the general legal principles behind the workers' compensation statutory scheme. ``The purpose of the [workers'] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer . . . . The Workers' Compensation Act [(act), General Statutes

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