source: Caselaw Access Project

author: KATZ, J. MCDONALD, J., with whom BERDON, J., joins,

license: Public Domain

text:
    WILLIAM BIASETTI v. CITY OF STAMFORD ET AL.
    (SC 16057)
    Callahan, C. J., and Borden, Berdon, Noreott, Katz, Palmer and McDonald, Js.

    Argued May 27
    officially released August 3, 1999

      Gary J. Wilson, for the appellant (plaintiff).

      James D. Moran, Jr., with whom was James L. Sullivan, for the appellees (defendants).

       This appeal was originally argued before a panel consisting of Chief Justice Callahan and Justices Berdon, Noreott, Palmer and McDonald, on May 27, 1999. Thereafter, the court decided to consider the case en banc. Justices Borden and Katz were added to the panel and read the record and the briefs, as well as the transcript of the oral argument.

   Opinion

KATZ, J.

This appeal requires the court to decide whether, under the facts of this case, post-traumatic stress disorder, a mental impairment, is an. occupational disease pursuant to General Statutes § 31-275 (15) and is compensable pursuant to § 31-275 (16) (B) (ii) of the Workers’ Compensation Act (act). Although we conclude that the disorder is an occupational disease pursuant to § 31-275 (15), we nevertheless determine that it is not compensable because it fails to satisfy § 31-275 (16) (B) (ii).

The record reveals the following pertinent facts. On January 7, 1997, the parties entered into a stipulation of facts, which they submitted to the workers’ compensation commissioner (commissioner) for consideration of the following issue: whether the plaintiffs injury and treatment of post-traumatic stress disorder combat fatigue syndrome (PTSD/CFS) is compensable. Thereafter, the commissioner adopted these facts and issued the following decision.

“FINDING OF DISMISSAL

“On January 9, 1997 the [defendants] forwarded to the Seventh District office of the Workers’ Compensation Commission a Stipulation of Facts signed by both parties, and based upon the same, the following facts are found:

“1. On or about June 8, 1994, a contract of employment existed between the [plaintiff], William Biasetti, and the [defendant], City of Stamford.

“2. The [plaintiff] has a temporary total disability rate of $638.00 and a permanent partial disability rate of $529.00 as a police officer.

“3. The [plaintiff] is married with no eligible dependents and has a date of birth of December 4, 1958.

“4. On June 8, 1994, the [plaintiff], while working for the [defendant] in his capacity as a police officer, was involved in a high-speed pursuit. The pursuit came to an end in the Town of Fairfield, Connecticut, and a gun battle pursued.

“5. As a result of this pursuit on June 8, 1994, the [plaintiff] was instructed by his supervisor to go to Stamford Hospital for medical treatment with regard to the injuries suffered due to the gun battle.

“6. As a direct result of the gun battle, the [plaintiff] suffered from headaches, upset stomach, a pressure sensation in his right calf and upper leg, and [PTSD/ CFS].

“7. The [plaintiff] came under the care of Dr. H. Martin Fuchs of Norwalk, Connecticut, and is still being treated by Dr. Fuchs for the headaches and stomach cramps.

“8. The [plaintiff] was referred to Dr. Steven A. Garrett of Norwalk, Connecticut, with regard to the pressure sensation of his right calf and upper leg.

“9. The [plaintiff] was referred to Dr. Patricia Otis Cook, a psychologist in Darien, Connecticut. The [plaintiff] saw Dr. Cook until about August 15, 1996.

“10. Dr. Cook referred the [plaintiff] to Dr. Joel Albert, a psychiatrist in Weston, Connecticut. The [plaintiff] is still [being treated] and under the care of Dr. Albert.

“11. All medical and hospital and incidental expenses relating to the treatment of the [plaintiffs] disability and injuries have been paid by the [defendant].

“12. The [plaintiff] claims that the injury and treatment of [PTSD/CFS] is an occupational disease as defined by [General Statutes §] 31-275 (15). [PTSD/CFS] is a disease peculiar to the occupation of apolice officer, in which the [plaintiff] was engaged and due to causes in excess of the ordinary hazards of employment as such.

“13. On March 7, 1996, the [plaintiff] claimant was operating the [defendant’s] vehicle in transporting a prisoner to Stamford police department headquarters. While in the vehicle, the [plaintiff] became dizzy and lightheaded, stopped the vehicle and blacked out.

“14. On March 7, 1996, as a result of the blackout, the [plaintiff] was sent by his supervisor to Stamford Hospital as to his injury.

“15. The [plaintiff] came under the care of Dr. Robert LaBarre, a cardiologist in Stamford, Connecticut, and treated with Dr. LaBarre.

“16. The injury of March 7, 1996, is considered a manifestation of the June 8,1994 [PTSD/CFS], for which the [plaintiff] is still under the care of Dr. Joel Albert.

“17. It is undisputed that all physical complaints suffered by the [plaintiff] are symptoms of his [PTSD].

“18. The [defendants] contend that the [plaintiffs] [PTSD] is non compensable pursuant to [General Statutes §] 31-275 (16) (B) (ii).

“Based upon the foregoing stipulated facts, I Find, Order and Decree that . . . the [plaintiffs] . . . [PTSD/CFS] is not compensable under [General Statutes §] 31-275 (16) (B) (ii) and therefore this matter is DISMISSED.”

Subsequently, the plaintiff filed a motion to correct the commissioner’s findings, asking the commissioner to delete his conclusion that PTSD/CFS is not compensable under § 31-275 (16) (B) (ii) and insert in its place a conclusion that the plaintiff had “set forth a prima facie case that [PTSD/CFS] is an ‘occupational disease’ under ... § 31-275 (15) and therefore is entitled to all benefits under the [act] . . . .”

Following the commissioner’s denial of that motion, the plaintiff appealed to the workers’ compensation review board (board), claiming that the commissioner’s failure to make the proposed substitute finding had been improper “because such facts [had been] admitted and undisputed.” He further challenged the commissioner’s conclusion as being “legally inconsistent with the subordinate facts found” in that the order dismissing his claim failed to consider the “undisputed facts that the [plaintiff] incurred a mental, physical type injury . . . [and that] said injury has always been compensable and continues to be compensable under our present system.”

The board, in a two to one decision, affirmed the dismissal. Thereafter, the plaintiff appealed from the decision of the board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c). We affirm the board’s decision.

I

Before reaching the merits of the plaintiffs appeal, we reiterate the standards governing our review of decisions by the compensation review board. “[W]hen a decision of a commissioner is appealed to the [board], the [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fairy. People's Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)]. . . . Our scope of review of the actions of the review [board] is similarly limited. DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 [cert. denied, 215 Conn. 808, 576 A.2d 538 (1990)].” (Citations omitted; internal quotation marks omitted.) Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d967 (1991). “Where, however, the appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995) (state agency not entitled to special deference when its construction of statute has not undergone previous judicial scrutiny).” Doe v. Stamford, 241 Conn. 692, 697, 699 A.2d 52 (1997).

II

The first issue we address is whether the plaintiff suffered from an occupational disease. The term “occupational disease” is specifically defined as including “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .” General Statutes § 31-275 (15). Although we recognize the public policy implications of this case, the first issue presented is, at bottom, a matter of statutory construction. We decide this issue mindful both of general principles of statutory construction and of principles specifically applicable to workers’ compensation law. As a general matter, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). We discern that intent by looking to the statutory language, to legislative history and policy and to other legislation and common-law principles. See id., 409.

In Glodenis v. American Brass Co., 118 Conn. 29, 40, 170 A. 146 (1934), this court analyzed the statutory language requiring an occupational disease to be “ ‘peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such’ ” and concluded that to be within the definition, the disease need not “be one which arises solely out of the particular kind of employment in which the employee is engaged, nor that it ... be due to causes in excess of the ordinary hazards of that particular kind of employment. Otherwise the definition would exclude most diseases .... The phrase ‘peculiar to the occupation’ is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general ran of occupations; see Oxford Dictionary; Funk & Wagnalls Dictionary; and the phrase ‘employment as such’ means employment in general.”

More recently, we reiterated that, in interpreting the phrase “occupational disease,” “ ‘the requirement that the disease be “peculiar to the occupation” and “in excess of the ordinary hazards of employment,” refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, [the disease] need not be unique to the occupation of the employee or to the work place; it need merely be “so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” ’ Hansen v. Gordon, 221 Conn. 29, 35, 602 A.2d 560 (1992).” Crochiere v. Board of Education, 227 Conn. 333, 352, 630 A.2d 1027 (1993).

In the present case, the workplace circumstances that caused the plaintiffs PTSD/CFS reasonably can be said to be “peculiar to” his occupation as a police officer. A “gun battle,” the incident to which the parties stipulated, is not a common occurrence in most of the working world. Indeed, the plaintiffs PTSD/CFS is “distinctively associated with” his particular occupation as a police officer. See id. Thus, it can be said that the plaintiffs PTSD/CFS was an occupational disease because his job and experiences as a police officer were more likely to cause this stress disorder “than would other kinds of employment carried on under the same conditions.” Madeo v. I. Dibner & Bro., Inc., 121 Conn. 664, 667, 186 A. 616 (1936); see Discuillo v. Stone & Webster, 242 Conn. 570, 579, 698 A.2d 873 (1997) (painter cannot claim heart attack as occupational injury because both mental and physical stresses of painting were no more likely to cause heart attack than other kinds of employment under same circumstances); Crochiere v. Board of Education, supra, 227 Conn. 353 (music teacher could not claim mental injury as occupational disease where injury based upon false charges of sexual misconduct by student, because such allegations “could arise in numerous occupational settings”); Hansen v. Gordon, supra, 221 Conn. 37 (hepatitis was occupational disease where dental hygienist was “at a particular risk of contracting [hepatitis] because of [her] contact with blood and other secretions”). Therefore, because the plaintiffs PTSD/CFS, which was caused by a gun battle, “occupied a definite relationship to the [plaintiffs] occupation,” we conclude that it was an. occupational disease.

Ill

The next issue to be decided is whether the plaintiffs PTSD/CFS was compensable. We decide this issue, again, mindful both of general principles of statutory construction and of principles specifically applicable to workers’ compensation law.

The defendant claims that, in the absence of a physical injury, the plaintiffs PTSD/CFS was not compensable based upon § 31-275 (16) (B) (ii), which excludes “mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease.” The plaintiff asserted that his claim is not a “mental-mental” claim — that is, a mental disease giving rise to a mental impairment — but rather is a “mental-physical” claim — a claim that has a mental stimulus that causes a physical injury. In affirming the commissioner’s decision, the board agreed with the defendant that the plaintiff had failed to establish a physical injury.

Additionally, the board concluded that, in amending § 31-275 (16) (B) (ii) to eliminate from the definition of personal injury “a mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease”; Public Acts 1993, No. 93-228, § 1; the clear intent of the legislature was to eliminate any occupational disease that does not have a physical component. Specifically, the board stated that “[i]n order to constitute an occupational disease, the [plaintiffs PTSD/CFS] must [have] originate [d] from a physical trauma, or some other occupational disease that was caused by a tangible physical stimulus.”

In Crochiere v. Board of Education, supra, 227 Conn. 333, the defendant had challenged the commissioner’s conclusion that a mental injury unaccompanied by a physical component was compensable under General Statutes (Rev. to 1989) § 31-294, and argued, instead, that the physical component is essential. We disagreed. First, we turned to § 31-275, which used the term “injury” without limitation. Id., 359. Next, finding no cases that had interpreted the statute to include the proposed limitation, we determined that the court had never hypothesized that mental injury alone could not be the subject of compensation provided that it is causally connected to the employee’s work. Id. We then consulted decisions by the compensation review division, the agency entrusted with interpreting and enforcing the act, which held to the contrary. Id., citing Henderson v. Brink’s, Inc., 5 Conn. Workers’ Comp. Rev. Op. 115 (1988); Zipoli v. Watertown, 3 Conn. Workers’ Comp. Rev. Op. 23 (1986).

In Crochiere, we then stated: “The injuries compensated by the act axe not only those for which an action lay under the common law, but all injuries arising out of and in the course of the employment of the injured. Miller v. American Steel & Wire Co., 90 Conn. 349, 375, 97 A. 345 (1916). Injury, as stated throughout the act is not defined exclusively as physical injury. Neither are the words incapacity or disability when used in the statute confined exclusively to somatic conditions. Henderson v. Brink’s, Inc., supra, [5 Conn. Workers’ Comp. Rev. Op.] 116. The absence of such limiting language in the rest of the statute, in contrast to the inclusion of such limiting language in General Statutes (Rev. to 1989) § 31-349, precluding liability under that section from being transferred if the previous impairment is mental or emotional, reflects the legislative intent. [I]n reliance on the classic inclusio unius [est] exclusio alterius argument, (we conclude) that had the legislature wished to restrict compensable incapacity only to those occasions when some physical element was involved, it would have included in other chapter 568 sections similar restrictive language to that used in § 31-349. Id.” (Internal quotation marks omitted.) Crochiere v. Board of Education, supra, 227 Conn. 359-60.

Additionally, we looked to Professor Arthur Larson, who, in his treatise, “discusses three categories of cases that address the various mental, nervous and stress conditions for which workers’ compensation claims are routinely made: mental stimulus causing physical injury; physical trauma causing nervous injury; and mental stimulus causing nervous injury [mental-mental cases], 1B A. Larson, The Law of Workmens’ Compensation (1992) § 42.20, p. 7-813.” Crochiere v. Board of Education, supra, 227 Conn. 360. Having found compensability in the first two groups; see McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 527 A.2d 664 (1987); Sgrilla, v. Hertz Construction Co., 124 Conn. 6, 197 A. 754 (1938); we turned to the growing majority position among other jurisdictions supporting compensability in Larson’s third category. We noted that, “in fact, only eight states have expressly ruled out liability in any kind of mental-mental case. 1B A. Larson, supra, § 42.25 (d), p. 7-963.” Crochiere v. Board of Education, supra, 362. Based upon then recent developments in toil law reflecting a broadening of the definition of a compensable injury to include emotional distress; Montinieri v. Southern, New England Telephone Co., 175 Conn. 337, 344, 398 A.2d 1180 (1978); and a refusal “to subject a claim of mental suffering ... to stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints”; Buckley v. Lovallo, 2 Conn. App. 579, 589, 481 A.2d 1286 (1984); we held “that mental disorders, even if not accompanied by physical trauma to the body, constitute an injury under the act.” Crochiere v. Board of Education, supra, 363.

While our decision in Crochiere was pending, the legislature, as part of a major revision of the act, enacted No. 93-228, § 1, of the 1993 Public Acts, now codified at § 31-275 (16) (B) (ii), which provides in pertinent part: “(B) ‘Personal injury’ or ‘injury’ shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease . . . .’’In reliance on certain comments contained in the legislative history, the board in the present case interpreted this legislative action to forbid the “mental-mental” claims included by Crochiere. The one dissenting member of the board disagreed, focusing on the remedial nature of the act as well as on the language in the Public Act “or occupational disease” (mental or emotional impairment is not a personal injury, “unless such impairment arises from a physical injury or occupational disease”). (Emphasis in original.) “Rather than defining ‘occupational disease’ in terms of the absence of a mental impairment claim, the [a]ct does the opposite: it permits a mental impairment to be recognized as a personal injury if the impairment arises from an occupational disease. We should not take it upon ourselves to adopt a more exclusionary definition in light of the humanitarian purpose of the [a]ct . . . .” Citing to Doe v. Stamford, supra, 241 Conn. 698-700 (accidental exposure to contagious disease, though it had not been contracted by claimant, constitutes an injury, even in absence of puncture or other outward sign) for its discussion of the breadth of the definition of physical injury, the dissent rejected the limitations imposed by the majority.

We need not determine, however, whether § 31-275 (16) (B) (ii) eliminated a “mental-mental” claim in order to decide the present case. Even if we were to assume, without deciding, that the legislature did not intend to eliminate “mental-mental” cases, a review of the plain language of the statute as applied to the facts of this case is dispositive of the plaintiffs claim.

Section 31-275 (16) (B) (ii) includes within the definition of “personal injury” an emotional impairment that arises from or is caused by a physical injury or occupational disease. It does not, however, extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed within the term “arises.”

The physical symptomology of which the plaintiff complains is associated with PTSD. Indeed, the parties stipulated that the plaintiffs physical complaints constitute symptoms of his mental impairment. Although a mental impairment may give rise to a distinct and separate “personal injury,” such as a heart attack or stroke precipitated by mental stressors, the plaintiff in the present case seeks to extend coverage to mental ailments that produce concomitant physical symptoms. Essentially, the plaintiff seeks this court to extend coverage to an emotional impairment which is itself an occupational disease, thereby ignoring the causation requirement of the term “arises.” We agree with the defendant that the legislature intended not to extend coverage to an emotional impairment that is itself an occupational disease.

Virtually all psychiatric pathologies have attendant somatic symptoms. For example, five of the diagnostic criteria for major depression are physical symptoms including significant weight loss, insomnia, psychomotor agitation, fatigue and diminished ability to think or concentrate. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994) p. 327 (Diagnostic and Statistical Manual). Similarly, the diagnostic criteria for, or “symptoms” of, a panic disorder include the presence of panic attacks that are marked by heart palpitations, sweating, trembling or shaking, feelings of choking, chest pain or discomfort, nausea or abdominal stress, dizziness, lightheadedness, paresthesia and chills or hot flashes. Id., 394-95, 402.

Indeed, in the present case, the blackout, which is the “injury” of March 7, 1996, according to the parties’ stipulation, “is considered a manifestation of the June 8,1994 [PTSD/CFS], for which the claimant is still under the care of Dr. Joel Albert.” Moreover, as stipulated, “[i]t is undisputed that all physical complaints suffered by the [plaintiff] are symptoms of his [PTSD].” Furthermore, in a letter introduced as an exhibit, Albert, the plaintiffs treating psychiatrist, treats both the plaintiffs “PTSD and its medical sequelae” as occupational diseases.

“[Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment. 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988), quoting State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). Courts must presume that the General Assembly did not intend to enact useless legislation. Bergner v. State, 144 Conn. 282, 287, 130 A.2d 293 (1957).” (Internal quotation marks omitted.) Union Trust Co. v. Heggelund, 219 Conn. 620, 625-26, 594 A.2d 464 (1991). Because mental impairments often carry attendant physical symptoms; see Diagnostic and Statistical Manual, supra, p. 327; by specifically including the term “arise from” in § 31-275 (16) (B) (ii), the legislature must have intended something more than the causal connection generally associated with the “time, place and circumstances of the injury” inquiry required to fall within the exclusive coverage of the act. See Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996). To conclude that physical symptoms of mental impairments are not excluded from coverage under the act would, at best, be to radically dilute the term “arise from,” if not render it entirely superfluous. Such an interpretation would effectively result in virtually all psychiatric disabilities or mental impairments being covered, regardless of whether the impairment arises from a physical injury or an occupational disease. We therefore reject it.

The decision of the board is affirmed.

In this opinion, CALLAHAN, C. J., and BORDEN, NORCOTT and PALMER, Js., concurred.

MCDONALD, J., with whom BERDON, J., joins,

dissenting. Although I agree with part II of the majority opinion, I disagree with the majority’s conclusion that the plaintiffs injuries are not compensable.

The basis for the majority’s conclusion that the plaintiffs injuries are not compensable is that, because his disabling combat fatigue is, itself, an occupational disease, it does not “arise from,” an occupational disease. Such a narrow reading of the definition of “personal injury”; see General Statutes § 31-275 (16); does not effectuate the remedial purposes behind the Workers’ Compensation Act (act). See, e.g., Green v. General Dynamics Corp., 245 Conn. 66, 71, 712 A.2d 938 (1998); Herman v. Sherwood Industries, Inc., 244 Conn. 502, 511, 710 A.2d 1338 (1998). I do not believe that the term “arises from,” found in § 31-275 (16) (B) (ii), bars the plaintiffs recovery, as his disability does arise from an occupational disease. I would hold that the plaintiffs injuries, which include mental anguish with physical manifestations or symptoms, are compensable because they arise from an occupational disease.

The majority dismisses the plaintiffs claim that his combat fatigue syndrome is compensable, concluding that the plaintiffs claim is merely a “mental claim with attendant symptoms.” Footnote 12 of the majority opinion. According to the majority, the plaintiffs headaches, upset stomach, dizziness and blackout episode are not physical injuries because they are “symptoms” of combat fatigue. In footnote 7 of its opinion, the majority suggests that, if the plaintiff suffered a heart attack arising from his condition, such an injury would be compensable. The distinction between a blackout, which the majority characterizes as a physical symptom, and a heart attack, which the majority finds to be a compensable physical injury, escapes me. The majority would have us distinguish between a physical symptom — a sign or indication of a disease — and a physical disability that arises from that disease. Logically, a physical symptom must be a result of that disease, or else it would be a symptom of some other condition. If that symptom causes a disability, which it clearly does in this case, then it should be compensable. In effect, the majority states that there can be no compensation unless the disability for which the worker seeks compensation is different than the symptoms through which the occupational disease manifests itself. The majority peels a grape to deny compensation in this case.

It is clear from the legislative history of Public Acts 1993, No. 93-228, codified at General Statutes § 31-275 et seq., that the legislature did not intend to exclude disabilities such as the plaintiffs disability from compensation. In discussing the part of the proposed legislation dealing with mental or emotional impairment, Representative Christopher G. Donovan mentioned the case of a female correction officer who had been sexually assaulted at work, but who had suffered no physical injury. 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6153. Representative Donovan explained: “The prisoner grabbed [the correction officer’s] body — various parts, ripped her clothes and engaged in a tussle. She was able to subdue the prisoner, close the door and receive some assistance. . . . [T]here was no physical injury at the time. There was contact, but no physical injury.” Id., p. 6154. The correction officer suffered emotional damage as a result of the attack, however. Id., p. 6153. The representatives agreed that, in this situation, the correction officer would receive compensation for her mental anguish related to the attack. See id., pp. 6155-56. Representative Michael P. Lawlor stated: “In my opinion, there is a physical injury there, although if she was touched and physically assaulted, I think that is an injury and she may be compensated. . . . [B]eing assaulted by a prisoner is one of the hazards that takes place inside our State’s prisons and I think she is more than entitled to receive workers’ [compensation] benefits, she will receive 100 [percent] of her gross base pay and I think she deserves it and I hope no one ever suggests that is taken away in that kind of situation.” Id.

The scenario involving the correction officer is nearly identical to the plaintiffs situation in this case. The plaintiff was assaulted in the line of duty, although he was not wounded, as he was involved in a gun battle and shots were fired at him. While the plaintiff did not suffer physical trauma from the attack, his subsequent mental condition had arisen from the incident just as the mental distress of the correction officer. If combat fatigue syndrome is an occupational disease, a disease that is peculiar to the officer’s occupation and due to causes in excess of the ordinary hazards of that occupation, it seems clear that the mental and emotional disabilities that also may be symptomatic of that disease are compensable.

Commissioner Amado J. Vargas, a member of the compensation review board who dissented from the board’s decision in this case, correctly stated: “Neither § 31-275 (15) . . . nor § 31-275 (16) specifically states that occupational diseases must be accompanied by physical indicia of trauma or exposure to a foreign substance. Instead, § 31-275 (16) (B) (ii) merely says that a mental or emotional impairment is not a personal injury ‘unless such impairment arises from a physical injury or occupational disease.’ . . .

“Rather than defining ‘occupational disease’ in terms of the absence of a mental impairment claim, the Act does the opposite: it permits a mental impairment to be recognized as a personal injury if the impairment arises from an occupational disease.” Biasetti v. Stamford, No. 03632-CRB-07-97-06 (September 8, 1998) (dissenting opinion).

The majority, I regret, ignores the legitimate needs of law enforcement officers in the dangerous and necessary work of protecting the public. That work is physically dangerous and that causes emotional and psychological harms. “Police work has been identified as the most psychologically dangerous job in the world.” (Internal quotation marks omitted.) W. Terry, “Police Stress: The Empirical Evidence,” 9 J. Police Sci. & Admin. 61, 70 (1981).

For the foregoing reasons, I disagree that the workers’ compensation law denies compensation to this officer.

Accordingly, I dissent.

       General Statutes § 31-275 (15) provides: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
      We note that since 1994, the time of the underlying occurrences in this case, changes have been made to various subdivisions of § 31-275, including subdivision (16). See footnote 3 of this opinion. Those changes, however, are not relevant to this appeal and references herein are to the current revision.

       General Statutes § 31-275 (16) provides: “(A) ‘Personal injury’ or ‘injury’ includes, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.”
      “(B) ‘Personal injury’ or ‘injury’ shall not be construed to include:
      “(i) An injury to an employee which results from his voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity;
      “(ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease;
      “(iii) A mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination; or
      “(iv) Notwithstanding the provisions of clause (i) of this subparagraph, ‘personal injury’ or ‘injury’ includes injuries to employees of local or regional boards of education resulting from participation in a school-sponsored activity but does not include any injury incurred while going to or from such activity. As used in this clause, ‘school-sponsored activity’ means any activity

        sponsored, recognized or authorized by a board of education and includes activities conducted on or off school property and ‘participation’ means acting as a chaperone, advisor, supervisor or instructor a.t the request of an administrator with supervisory authority over the employee.”

       General Statutes § 31-275 et seq.

       The defendants in this case are the city of Stamford and its insurer, Kemper Risk Management Services. References herein to the defendant, however, are to the city of Stamford only.

       In connection with stipulation number twelve, the parties disagree as to whether there was in fact a stipulation that PTSD was an occupational disease under § 31-275 (15). The plaintiff claims that the parties stipulated that PTSD/CFS is an occupational disease. The defendant, however, asserts that it stipulated only to the fact that the plaintiff had claimed that PTSD/ CFS is an occupational disease, not that PTSD/CFS actually met the statutory definition of § 31-275 (15). The compensation review board treated stipulation number twelve as a stipulation by the parties that PTSD/CFS is an occupational disease. It further noted that the commissioner also had found that PTSD/CFS is compensable as an occupational disease under § 31-275 (15) . At a subsequent point in its opinion, however, the board determined that, in order to be an occupational disease, the plaintiffs PTSD/CFS “must [have] originate[d] from a physical trauma, or some other occupational disease that was caused by a tangible physical stimulus.” Because we conclude that, under the facts of this case, PTSD/CFS is an occupational disease, we treat it as such and examine whether it is compensable under § 31-275 (16) (B) (ii).

       The board concluded that PTSD/CFS cannot be an occupational disease based upon its determination that, under § 31-275 (16) (B) (ii), which excludes mental or emotional impairments from the definition of personal injury unless they are caused by physical injuries or occupational diseases, in order to be an occupational disease, the plaintiffs PTSD/CFS must have originated from aphysical trauma, or have been caused by a tangible physical stimulus. Essentially, the board interpreted subdivision (16) and then grafted onto subdivision (15) its interpretation of the term “occupational disease” under subdivision (16). We disagree with the board’s conclusion and its reasoning.
      The defendant acknowledges that mental impairment may be an occupational disease, but argues, nonetheless, that it is not a personal injury under § 31-275 (16) (B) (ii). Therefore, according to the defendant, whether the plaintiffs PTSD/CFS can be categorized properly as an occupational disease is immaterial.
      Although the legislature enacted No. 93-228, § 1, of the 1993 Public Acts (now codified at § 31-275 [16] [B] [ii]), it did not amend § 31-275 (15). In appeals arising under workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. See Hansen v. Gordon, supra, 221 Conn. 32. Although we recognize that, in enacting workers’ compensation law, the legislature did not intend to create “a general health and benefit insurance program”; id.; we do not read the act to include limitations on eligibility for compensation for which there is no statutory basis. Doe v. Stamford, supra, 241 Conn. 698. Although the legislature amended § 31-275 in other ways, it left intact the court’s construction of the definition of occupational diseases. Therefore, in the absence of any limitations expressly placed upon § 31-275 (15), we hesitate to diminish its purview. See Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978) (“inference of legislative concurrence with the [court’s] interpretation [is] to be drawn from legislative silence concerning that interpretation”). Finally, we note that if PTSD/CFS were not considered to be an occupational disease, a heart attack arising from the mental impairment would not be compensable. Clearly, that was not a result intended by the legislature.

       In support of its interpretation of § 31-275 (16) (B) (ii), the board referred to the legislative history of Public Act 93-228. Specifically, the board noted the following: “[Representative Michael P.] Lawlor stated in his comments that ‘[t]he only injury that would not be compensable that is purely a mental injury is that which was not caused by any type of a physical injury in the first place,’ as opposed to a case in which an employee is physically or sexually assaulted, and subsequently incurs a mental injury. 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6215. [Representative Nancy A.] DeMarinis, who opposed the version of the bill that was passed, expressed concern that the language in the proposed statute would prevent people from being compensated for trauma or extreme stress caused by the witnessing of events such as the building collapse at L’Ambiance Plaza in Bridgeport or the bombing of the World Trade Center in New York. Id., 6308. [Representative Alan] Kyle explained his support of the bill by stating that he had personally pursued a dangerous avocation at which he had seen friends killed, but he continued pursuing the avocation nonetheless. ‘[I]t is a very subjective thing when we speak of and interject into our laws things as ill-defined ... as is emotional stress. ... If a person is physically injured and cannot work, then by all means they do deserve help, but for an emotional or stressful type things, there is stress in life and we need to accept that.’ Id., 6312. Comments such as these indicate that the legislature believed that the language of § 31-275 (16) (B) (ii) would not permit claims such as the one currently before us. We are not inclined to weaken the effect of the statute and the legislature’s judgment by manufacturing ways to define ‘mental-mental’ claims as either occupational diseases or ‘mental-physical’ claims.”

       In our review of the legislative history of Public Act 93-228, § 1, we note that whenever the question of mental impairment arises, the discussion appertains solely to the exception allowing for mental or emotional impairment arising from a physical injury. There is no discussion of mental impairment arising from an occupational disease, despite its inclusion in the statute. Nor is there any reference to Crochiere, which, although undecided, had been argued to this court.

       Although the plaintiff filed a motion with the board for permission to submit as additional evidence this letter from Albert, which motion the board in its opinion concluded was properly denied, the board nevertheless determined from its own review of the record that the letter “is in fact marked as page 3 of Exhibit B in the record. Thus it appears that the [plaintiffs] motion may have been unnecessary.”

       General Statutes § 31-275 provides in relevant part that “unless the context otherwise provides: (1) ‘Arising out of and in the course of his employment’ means ... an occupational disease of an employee originating while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer . . . .” (Emphasis added.) This reflects the causal connection between the injury and the employment, specifically the origin and cause of the accident; see, e.g., Herman v. Sherwood Industries, Inc., 244 Conn. 502, 506, 710 A.2d 1338 (1998); which the defendant does not dispute. Indeed, that causal connection is repeated in § 31-275 (16) (A). Because the legislature clearly intended to limit the compensability of a mental impairment by enacting Public Act No. 93-228, § 1, now codified at § 31-275 (16) (B) (ii), and in recognition of the fact that mental impairments often carry attendant physical symptoms, we conclude that the legislature intended to impose an additional burden when it chose to include the qualifying language “arises from.” Further evidence of this intent can be gleaned from a comparison between the statute as it was ultimately enacted and a proposed draft of the bill, Substitute House Bill No. 7172, dated May 13, 1993, which, in place of the current language of § 31-275 (16) (B) (ii), excluded the following from the definition of “personal injury”: “A MENTAL OR EMOTIONAL IMPAIRMENT UNLESS A SIGNIFICANT CONTRIBUTING CAUSE OF SUCH IMPAIRMENT IS AN EVENT OR SERIES OF EVENTS ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT . . . .” This language effectively mirrored, in pertinent part, the language in § 31-275 (16) (B) (i), which merely pertains to causation.

       In rejecting this interpretation, we also necessarily reject the plaintiffs assertion that his claim is not a “mental-mental” claim — that is, a mental disease giving rise to a mental impairment — but, rather, is a “mental-physical” claim — a claim that has a mental stimulus that causes a physical injury. The plaintiffs claim is a mental claim with attendant symptoms. As the board correctly observed: “The commissioner made no finding of a physical injury in this case, and we will not treat this claim as a ‘mental-physical’ claim for the purpose of review.” Such a finding is like the determination by a commissioner that an injury arose out of employment, in that it is factual in nature and therefore is accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. See Crochiere v. Board of Education, supra, 227 Conn. 347-48.

       See Mae West, in “I’m No Angel” (Paramount 1933), quoted in J. Bartlett, Familiar Quotations (14th Ed. 1968) p. 1029.


author: PETERS, J. BERDON, J.,

text:
    BRUCE JACOBY v. PAUL BRINCKERHOFF ET AL.
    (SC 16014)
    Borden, Berdon, Norcott, Palmer and Peters, Js.

      Argued June 1
    officially released August 10, 1999

      Paul J. Pacifico, for the appellant (plaintiff).

      Gaüeen A. Kaufman, with whom, on the brief, was Garie J. Mulcahey, for the appellee (defendant John Rhinehart).
   Opinion

PETERS, J.

In this medical malpractice case, the underlying issue is the extent to which a psychiatrist should be held liable for malpractice to a person who is not his patient but the former spouse of his patient. In particular, we must decide whether, in the absence of a claim against him by the patient, a psychiatrist owes any duty to the patient’s former spouse, to compensate him or her either for loss of consortium or for the direct injury to the marriage. We conclude, as did the trial court, that the former spouse cannot prevail on the allegations contained in his complaint in this case, and that the court properly rendered a judgment in favor of the psychiatrist.

The plaintiff, Bruce Jacoby, filed an eight count complaint against the named defendant, Paul Brinckerhoff, a psychologist, and the defendant John Rhinehart, a psychiatrist. Alleging that their treatment of his former spouse, Diane Jacoby, constituted a failure to render proper care, the plaintiff, in his third amended complaint, claimed a right to recover for: (1) loss of consortium; (2) breach of a contract of which the plaintiff was a third party beneficiary; (3) impairment of the marital relationship; and (4) breach of a direct contract to provide care to his spouse.

The gravamen of the plaintiffs factual allegations was that both of the mental health professionals treating his former spouse knew or should have known that their recommended course of treatment and counseling would have an adverse effect on the plaintiff and his marriage. The plaintiff alleged that his former spouse suffered from bipolar disorder, which had been stabilized through the use of specified medication. Thereafter, he alleged, her mental condition deteriorated when Brinckerhoff and the defendant, having reached an alternative diagnosis, pursued a different course of treatment involving the use of different prescribed medication. That allegedly improper course of treatment led, according to the plaintiff, to the irretrievable breakdown of his marriage and the loss of maternal care for his children. His reputation allegedly was damaged as a result of a false report by his former spouse to the local police that he abused drugs and sexually abused his children. He also alleged that his former spouse is unwilling to pursue any claim for negligence or malpractice against the defendant.

The trial court granted the defendant’s motion to strike all the counts of the plaintiffs original complaint that were directed against the defendant. The court made a similar ruling with respect to the plaintiffs third amended complaint.Thereafter, the court granted the plaintiffs motion for judgment in accordance with its ruling on the motion to strike. This appeal followed.

On appeal, the plaintiff contests the validity of the trial court’s judgment only with respect to his claims of negligence and malpractice insofar as they allegedly give rise to a claim for loss of consortium and for direct injury to his marriage. We affirm the judgment of the trial court.

Our review of the judgment of the trial court is guided by well established principles. “In an appeal from a judgment granting a motion to strike, we . . . take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.” Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 696, 694 A.2d 788 (1997); Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996).

I

LOSS OF CONSORTIUM

The plaintiffs first claim on appeal is that, in count five of his complaint, he has alleged a viable cause of action for loss of consortium even though his former spouse has refused to join in the action. He claims in his brief that her refusal to initiate or to participate in the filing of an action for negligence or malpractice against the defendant is a result of her deteriorating mental condition. Under these circumstances, the plaintiff argues that he is entitled to file suit for loss of consortium without joining it to a claim filed by her. He maintains that, because her conduct in declining to participate has made joinder impossible, joinder should be excused.

The trial court rejected the plaintiffs claim on the ground that a cause of action for loss of consortium cannot be maintained in the absence of a primary cause of action asserted by the injured spouse. Although Connecticut law, at least by way of dictum, supports the trial court’s conclusion, the plaintiff urges us to follow case law in other jurisdictions that, he claims, would permit an entirely freestanding pursuit of a claim for loss of consortium whenever an injured spouse declines to cooperate to protect the other spouse against a loss of consortium. We agree with the trial court.

This court first recognized a common-law claim for loss of spousal consortium in Hopson v. St. Mary’s Hospital, 176 Conn. 485, 487, 408 A.2d 260 (1979). Therein, we defined consortium “as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of affection, society, companionship and sexual relations. Comment, ‘The Action for Loss of Consortium in New Mexico,’ 2 N. Mex. L. Rev. 107, 108 (1972). These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage. Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631 (1912); Lippman, ‘The Breakdown of Consortium,’ 30 Colum. L. Rev. 651 (1930); Pound, ‘Individual Interests in the Domestic Relations,’ 14 Mich. L. Rev. 177 (1916); Holbrook, ‘The Change in the Meaning of Consortium,’ 22 Mich. L. Rev. 1 (1923).” (Internal quotation marks omitted.) Id. We recently reaffirmed the cause of action in precisely these terms. Mendillo v. Board of Education, 246 Conn. 456, 477, 717 A.2d 1177 (1998).

In Hopson, we considered the risk that enabling a spouse to recover for loss of consortium might lead to a multiplicity of legal claims arising out of a single act of negligence or intentional misconduct. We concluded that the risk would be minimized if “claims by spouses, whether for physical injuries or consortium losses, [were] joined in one action and tried before a single trier of fact.” Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494. Although we did not hold that joinder is always a prerequisite to an action for loss of consortium, we stated, in dictum, that “the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits.” Id.

Our dictum in Hopson is a roadblock to the plaintiffs claim for recovery in this case. We can discern no viable distinction between precluding a consortium claim when the injured spouse has settled with the alleged tortfeasor and precluding it when the injured spouse, as in this case, has declined altogether to sue the alleged tortfeasor. Our statement reflects the premise, which the plaintiff does not challenge, that an action for loss of consortium, although independent in form, is “derivative of the injured spouse’s cause of action . . . .’’Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494; Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 287, 627 A.2d 1288 (1993); Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987); Ladd v. Douglas Trucking Co., 203 Conn. 187, 195, 523 A.2d 1301 (1987); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 563-64, 562 A.2d 1100 (1989).

Although the noninjured spouse has a right to choose whether to bring or to forgo a derivative consortium claim; Mendillo v. Board of Education, supra, 246 Conn. 495; there is logical appeal to linking that right to an existing viable claim by the injured spouse. “In a growing number of jurisdictions a separate action for loss of consortium is not permitted, and instead joinder with the principal action on the physical injury is mandatory, in order to reduce the hazard of double recovery. . . . In some joinder is not mandatory but is ‘strongly encouraged.’ ” (Citations omitted.) 2 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 8.9, pp. 553-54 n.14.

The plaintiff nonetheless disputes the propriety of insistence on joinder under any and all circumstances. He relies on a number of cases in other jurisdictions, as well as a statement contained in the Restatement (Second) of Torts § 693 (2) (1965), for the proposition that joinder may be excused if intervening events have made it impossible. See, e.g., Kubian v. Alexian Bros. Medical Center, 272 Ill. App. 3d 246, 255-56, 651 N.E.2d 231, appeal denied, 163 Ill. 2d 560, 657 N.E.2d 623 (1995); Rosander v. Copco Steel & Engineering Co., 429 N.E.2d 990, 991 (Ind. App. 1982). He claims that he cannot be faulted for having failed to join his cause of action to one that his spouse has categorically declined to initiate. Even if we were persuaded that the absence of joinder might be excusable sometimes, we are not so persuaded in the present case.

It is inherent in the nature of a derivative claim that the scope of the claim is defined by the injury done to the principal. The party pursuing a derivative cause of action may have a claim for special damages arising out of that injury, but he may not redefine the nature of the underlying injury itself. In the ordinary physical injury case, a person pursuing a derivative claim may be unable to proceed if the injured spouse’s rights were compromised by that spouse’s comparative responsibility for the injury. See Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494; F. Harper, F. James & O. Gray, supra, § 8.9, p. 555. It follows that, in the case of medical malpractice, a person pursuing a derivative claim may be barred from bringing suit if the injured spouse gave informed consent to the professional procedure that caused the patient’s condition to change.

In the case before us, the record does not disclose the reason for the refusal of the plaintiffs spouse to pursue a malpractice claim against the defendant. The plaintiff claims in his brief — although he did not allege in his complaint — that her disinterest in such litigation is a result of her mental illness. He has not alleged that she lacks the competency to make a decision about whether to sue the defendant. She may believe that it would be better not to engage in litigation with the defendant, or she may believe that the course of medication and treatment that he provided for her caused her no injury. She may believe that, despite setbacks to her ultimate recovery, the benefits of her therapeutic relationship with the defendant are commensurate with the risks that she knowingly assumed about the nature of the treatment required to enable her to improve.

We are not prepared to hold that a derivative cause of action may proceed upon the mere possibility that the plaintiffs spouse may have sustained an injury that resulted from negligent or intentional misconduct on the part of a psychiatrist. None of the cases cited by the plaintiff hang on so gossamer a thread. When § 693 of the Restatement (Second) of Torts excuses joinder that is “not possible,” it does so on the premise that “all of the elements of a tort action in the [injured] spouse must exist, including the tortious conduct of the tortfeasor, the resulting harm to the [injured] spouse and the latter’s freedom from such fault as would bar a recovery by him or her, as for example, contributory negligence. . . .”3 Restatement (Second), supra, § 693, p. 497, comment (e). It is precisely that premise that is absent in this case. If a former spouse were permitted to fill the gap, the spouse would be acting as a self-appointed surrogate for another person who has refused to consent to the surrogacy. A derivative cause of action for loss of consortium does not confer surrogate authority on the noninjured spouse to pursue a claim that does not yet exist.

We conclude, therefore, that the plaintiff cannot pursue an action for loss of consortium in the absence of any basis in the record for a finding that his former spouse was injured as a result of her treatment by the defendant. Accordingly, the trial court properly granted the defendant’s motion to strike count five of the plaintiffs complaint.

II

DIRECT CAUSE OF ACTION

To sidestep the difficulties inherent in a derivative claim for relief for loss of consortium, the plaintiff also alleged, in count one of his complaint, that the defendant owed him an independent duty of care that he dishonored by his alleged malpractice in the treatment of his former spouse. The trial court rejected that claim on the ground that the plaintiff had failed to allege facts demonstrating that the defendant owed such a duty directly to him. We agree with the trial court.

The plaintiff characterizes his cause of action as follows: he claims that the defendant, in treating the mental illness of the plaintiffs former spouse, knew or should have known that the prescribed course of treatment “would directly affect her marriage” because “marital problems were one of her complaints.” Allegedly, the defendant knew or should have known that the plaintiff and his former spouse had previously engaged in marital counseling. As a result of that knowledge, according to the plaintiff, the defendant “was in effect treating the marital res or status which was enjoyed equally by the plaintiff and the plaintiffs ex-wife.” Therefore, the plaintiff argues, the defendant had a duty to the plaintiff, “since he equally enjoyed or possessed the marital res or status.” It was foreseeable, the plaintiff maintains, that any negligence in the defendant’s treatment of his former spouse “would directly impact upon the marriage relationship that existed between and [was] shared by both parties.”

The plaintiff does not allege that the defendant ever undertook to treat the plaintiff either individually or as part of couples’ counseling. Even without such a personal professional engagement, the plaintiff claims that he is entitled to pursue a direct cause action by analogy to our decision in Fraser v. United States, 236 Conn. 625, 674 A.2d 811, cert. denied, 519 U.S. 872, 117 S. Ct. 188, 136 L. Ed. 2d 126 (1996).

In Fraser, we delineated the scope of the duty of a psychotherapist to control a psychiatric outpatient to prevent the patient from committing an imminent act of violence against a third person. Id., 625-26, 630-37. To protect the integrity of the therapeutic relationship, we held that a duty to disclose the substantial risk of such an act of violence would arise only if the third person was an identifiable victim or a member of a class of identifiable victims. Id., 632-35. In effect, the plaintiff alleges that he was such an identifiable victim.

The plaintiff is not a victim as that term was used in Fraser. In defining the scope of duty of a psychotherapist, we deliberately focused on the centrality of the therapeutic relationship between a mental health professional and his or her patient. Id., 634-35. We declined to jeopardize that relationship except under the most compelling circumstances. Such an exception was warranted, we held, in the event of an imminent risk of serious personal injury to identifiable victims. Id., 634, 637. Third party claimants under Fraser must allege not only identifiability but physical injury. The plaintiff has not alleged that his former wife ever threatened him physically.

Indeed, the considerations of public policy that underlay our decision to limit the scope of a mental health professional’s duty of care in Fraser provide persuasive grounds for rejecting the plaintiffs claims in this case. The choice of psychotherapist and psychotherapy belonged to the plaintiffs former spouse and not to him. The psychotherapists whom the spouse chose to consult for treatment owed a duty of undivided loyalty to her and not to him.

Our common-law cases have shielded professional decision making from the complaints of third parties when third party intervention carried with it a substantial risk of interference with the primary purpose of the professional consultation. “Considerations of public policy . . . undergird the judicial determination of the scope of duty in the law of negligence . . . .” Fraser v. United States, supra, 236 Conn. 625, 634. In Fraser, we applied that principle in the context of defining the scope of duty of mental health professionals engaged in treating outpatients. In Zamstein v. Marvasti, 240 Conn. 549, 561, 692 A.2d 781 (1997), we employed it to define the scope of duty of mental health professionals performing sexual assault abuse evaluations of children. To avoid the risk that such evaluations might, in close cases, be affected by the risk of liability “to the very persons whose conduct they might implicate,” we held that a mental health professional had no duty to such third persons. Id., 561. Similarly, in this case, when it is foreseeable that marital differences may become a subject for therapeutic analysis, sound public policy counsels that a psychiatrist’s treatment of a troubled spouse should not be burdened by accountability to the other spouse.

The principle upon which we rely finds support not only in the law of medical malpractice but also in the law of attorney-client responsibility. In Krawczyk v. Stingle, 208 Conn. 239, 246, 543 A.2d 733 (1988), we concluded that the imposition of liability to third parties for an attorney’s negligent delay in the execution of estate planning documents “would not comport with a lawyer’s duty of undivided loyalty to the client.” We held that an attorney’s duty to his client would be undermined if the attorney were required to undertake estate planning with an eye to safeguarding the interests of potential estate beneficiaries. Id., 246-47. If such third party pressures create an unacceptable risk of a conflict of interest in the execution of a will, it is plain that an even greater risk of improper influence would color a choice among psychiatric therapies if a mental health professional were required to accommodate the interests of the spouse of a patient.

Finally, our decision to preclude the plaintiff from bringing a direct action against the defendant is consistent with the statutory law governing the relationship between psychiatrists and their patients. It is difficult to see how the plaintiff could proceed with such a direct action against the defendant, were he permitted to bring one, without confronting the prohibition on disclosure of psychiatric communications and records contained in General Statutes § § 52-146d and 52-146e. See Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983). Neither his present nor his past relationship with his former spouse would afford him statutory access to this confidential information. He has not alleged that his former wife has waived or would waive her personal right to confidentiality. He similarly has not alleged that he is entitled to disclosure because of a “substantial risk of imminent physical injury” by his former spouse to herself or to him. General Statutes § 52-146f (2). Although likely evidentiary constraints at trial do not, themselves, affect the sufficiency of a stated cause of action, the public policy reflected in these statutes supports our conclusion that the plaintiff has no direct claim for relief under the circumstances of the present case.

The judgment is affirmed.

In this opinion BORDEN, NORCOTT and PALMER, Js., concurred.

BERDON, J.,

dissenting. In 1979, Justice Bogdanski led a unanimous court in liberating our law from the rusty shackles of the common law. In that year, Justice Bogdanski authored a magnificent majority opinion in Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979), which changed the law in the state of Connecticut in order to permit a cause of action for loss of spousal consortium. Today, my colleagues in the majority place a new set of manacles upon this cause of action.

The standard with which we review a trial court’s decision to grant a motion to strike is well settled. As the majority acknowledges, we must “ ‘take the facts to be those alleged in the [plaintiffs] complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.’ ” In the present case, the plaintiff alleged in his complaint that the two defendant mental health professionals negligently subjected his former wife to a course of treatment that (1) caused his marriage to “[break] down irretrievably”; (2) caused him to lose the “love, support and consortium of his wife . . . for the rest of his life”; and (3) caused him to lose “the mother of his children within a marital context . . . ,”

This case calls upon us to resolve an issue of first impression in the courts of Connecticut: whether a plaintiff may assert a so-called “freestanding” claim for loss of consortium (i.e., a claim that is not joined with a claim asserted by the injured spouse). In my view, we must answer this question in the affirmative. This result is supported by leading commentators, the overwhelming weight of authority from other jurisdictions, our own opinion in Hopson, and — most importantly— the interests of justice.

I agree with my colleagues in the majority that, ideally, a claim for loss of consortium should be joined with the claim asserted by the injured spouse. Nevertheless, there are times when a freestanding action for loss of consortium is appropriate. According to the Restatement (Second) of Torts, a freestanding claim is appropriate when, inter aha, the injured spouse has “simply refused to sue” the defendant. 3 Restatement (Second), Torts § 693, comment (g), p. 498 (1977). This is precisely what happened in the present case.

The Restatement (Second) of Torts disfavors — but does not categorically preclude- — freestanding claims for loss of consortium. See id., comment (g). As the New York Court of Appeals recently noted in Buckley v. National Freight, Inc., 90 N.Y.2d 210, 215, 681 N.E.2d 1287, 659 N.Y.S.2d 841 (1997): “A great many States take a position that is consistent with that of the Restatement. Other State courts allow defendants the option of having the action for loss of consortium joined with the action for illness or bodily harm, while still other States have statutes or rules granting plaintiffs that option. The highest courts in several States have held that joinder is desirable, but not required.”

There is good reason for this widespread agreement that, under certain circumstances, it is appropriate to permit a plaintiff to assert a freestanding claim for loss of consortium. In Hopson, the unanimous court explained why the interests of justice support a cause of action for loss of consortium in general: “the mental and emotional anguish caused by seeing a healthy, loving, companionable mate turn into a shell of a person is undeniably a real injury. ’’Hopson v. St. Mary’s Hospital, supra, 176 Conn. 493. This anguish is not diminished by the fact that the injured spouse has declined to sue the tortfeasor. Accordingly, the equitable considerations that underlie the cause of action for loss of consortium apply with full force to cases such as the one presently before us.

The majority claims that dicta in Hopson is a “roadblock” to the plaintiffs recoveiy for loss of consortium. This is simply incorrect. To begin with, dicta can never block a road; the most it can do is suggest that we should travel in one direction or another. For the reasons that I have discussed, the interests of justice counsel us to ignore any dicta in Hopson suggesting that the plaintiff is not entitled to recover for his injuries. In my view, this would be true even if prior holdings of this court had reached the contrary result.

Moreover, any dicta in Hopson adverse to the plaintiff’s claim is trumped by the court’s statement that “the mental and emotional anguish caused by seeing a healthy, loving, companionable mate turn into a shell of a person is undeniably a real injury.” Id. If we are going to accord the force of law to any dicta contained in Hopson, we should accord it to this resounding note of compassion.

Finally, the majority’s reliance upon dicta in Hopson is misplaced. The opinion in Hopson contains the following dictum: “the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement. . . .” Id., 494. My colleagues in the majority are simply incorrect to assert that there is “no viable distinction between precluding a consortium claim when the injured spouse has settled with the alleged tortfeasor and precluding it when the injured spouse, as in this case, has declined altogether to sue the alleged tortfeasor.” A tortfeasor settles a claim in order to avoid future liability. For this reason, it is unjust to permit a spouse to ambush a tortfeasor with a subsequent claim for loss of consortium. No similar injustice obtains in the present case. Significantly, the court in Hopson did not state that freestanding claims for loss of consortium are categorically impermissible.

Setting to one side our nit-picking over dicta, it could not be any clearer to me that the interests of justice require us to permit a plaintiff to assert a freestanding claim for loss of consortium.

Accordingly, I dissent.

       Although Brinckerhoff was named as a defendant, the plaintiff withdrew his claims against Brinckerhoff during the pendency of this appeal. We will, therefore, refer to Rhinehart as the sole defendant.

       The plaintiff alleged that he had paid medical bills rendered for the treatment of his former spouse.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book § 65-1, and General Statutes § 51-199 (c).

       The plaintiffs appellate brief states that, for purposes of this appeal, “the plaintiff is not pursuing the issues raised in his counts concerning breach of contract and breach of a third party beneficiary duty.”

       He does not claim, however, that his former wife lacks the mental capacity to join in his lawsuit, or to make her own competent decision regarding whether to do so.

       The record contains no allegations concerning the present whereabouts of the plaintiffs former spouse. We do not know, therefore, whether it would have been possible for the plaintiff to have filed a motion for mandatory joinder.

       3 Restatement (Second), Torts § 693, p. 495 (1965), provides: “Action by One Spouse for Harm Caused by Tort Against Other Spouse
      “(1) One who by reason of his tortious conduct is liable to one spouse for illness or other bodily harm is subject to liability to the other spouse for the resulting loss of the society and services of the first spouse, including impairment of capacity for sexual intercourse, and for reasonable expense incurred by the second spouse in providing medical treatment.
      “(2) Unless it is not possible to do so, the action for loss of society and services is required to be joined with the action for illness or bodily harm, and recovery for loss of society and services is allowed only if the two actions are so joined.”
      Comment (g), entitled “Joinder” provides in relevant part: “The invasion of the deprived spouse’s interests in the marriage is a separate tort against that spouse, although it is conditioned upon factors that also constitute a tort against the impaired spouse. Despite this, the possibility of double recovery, together with the danger that different juries may return verdicts that are inconsistent or that overlap, must be obviated when possible by requiring that the cause of action of the deprived spouse ... be joined with that of the impaired spouse for trial. ‘Joinder’ includes consolidation of suits for trial, as well as the addition of either spouse as a party plaintiff in an action begun by the other. It may, if local procedure permits, allow the addition of a reluctant spouse as a party defendant in an action begun by the other.
      “There will be situations in which it is not possible to join the causes of action for the single trial. Thus the impaired spouse’s cause of action may have been abated by death. Or the action of the impaired spouse may be barred by a workmen’s compensation act, which does not bar the deprived spouse’s action. Or the impaired spouse may have settled and released the claim for bodily harm without the knowledge of the deprived spouse. Or the impaired spouse may simply refuse to sue. There are no doubt other possible situations. . . .” (Emphasis added.) Id., pp. 497-98.

       General Statutes § 52-146d provides: “As used in sections 52-146d to 52-146i, inclusive:
      “(1) ‘Authorized representative’ means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-1461, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient’s nearest relative;
      “(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
      “(3) ‘Consent’ means consent given in writing by the patient or his authorized representative;
      “(4) ‘Identifiable’ and ‘identify a patient’ refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records;
      “(5) ‘Mental health facility’ includes any hospital, clinic, ward, psychiatrist’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient’s mental condition;
      “(6) ‘Patient’ means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
      “(7) ‘Psychiatrist’ means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.”
      General Statutes § 52-146e provides: “(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”

       General Statutes § 52-146Í provides in relevant part: “Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited . . .
      “(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility. . . .”

       The panel that decided Hopson included the author of the majority opinion in the present case.

       The court in Hopson v. St. Mary’s Hospital, supra, 176 Conn. 487, overruled the precedent of Marri v. Stamford Street R Co., 84 Conn. 9, 78 A. 582 (1911).

       The Restatement (Second) of Torts, § 693 (1) (1977), contains the following definition of the cause of action for loss of consortium: “One who by reason of his [or her] tortious conduct is liable to one spouse for illness or other bodily harm is subject to liability to the other spouse for the resulting loss of the society and services of the first spouse . . .

       According to the plaintiffs complaint, the defendants did so by negligently committing the following tortious ads: (1) terminating a successful course of treatment for his former spouse’s manic depression; (2) initiating a dangerous experimental course of treatment; (3) continuing this latter course of treatment in the face of obvious warning signs that it was causing disastrous consequences; and (4) disregarding alternative forms of treatment “with well-verified efficacy in multiple articles appearing in peer-reviewed medical literature.”

       The Restatement (Second), supra, § 693 (2) provides in pertinent part: “Unless it is not possible to do so, the action for loss of [consortium] is required to be joined with the [injured spouse’s] action for illness or bodily harm . . . (Emphasis added.)

       “See, e.g., Schreiner v. Fruit, 519 P.2d 462, 466 (Alaska [1974]); Hopson v. St. Mary’s Hosp., [supra, 494-95]; Jones v. Elliott, 551 A.2d 62, 65 (Del. [1988]); Brown v. Metzger, 104 Ill. 2d 30, 35, 470 N.E.2d 302, 304 [1984]; Madison v. Colby, 348 N.W.2d 202, 209 (Iowa [1984]); Deems v. Western Md. Ry. Co., 247 Md. 95, 115, 231 A.2d 514, 525 [1967]; Thill v. Modern Erecting Co., 284 Minn. 508, 513, 170 N.W.2d 865, 869 [1969]; General Electric Co. v. Bush, 88 Nev. 360, 367-68, 498 P.2d 366, 371 [1972]; Ekalo v. Constructive Serv. Corp., 46 N.J. 82, 92, 215 A.2d 1, 6 [1965]; Nicholson v. Chatham Mem. Hosp., 300 N.C. 295, 303-304, 266 S.E.2d 818, 823 [1980]; Butz v. World Wide, Inc., 492 N.W.2d 88, 91 (N.D. [1992]); Wilson v. Hasvold, 86 S.D. 286, 293, 194 N.W.2d 251, 255 [1972]; Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 558, 150 N.W.2d 137, 145 [1967]; see also Rosander v. Copco Steel & Eng’g Co., 429 N.E.2d 990, 992 (Ind. App. [1982]) (‘[p]erhaps the best rule ... is to require joinder’).” Buckley v. National Freight, Inc., supra, 90 N.Y.2d 215 n.2.

       “See, e.g., Swartz v. United States Steel Corp., 293 Ala. 439, 445, 304 So. 2d 881, 886 [1974]; Gates v. Foley, 247 So. 2d 40, 45 (Fla. [1971]); Diaz v. Lilly & Co., 364 Mass. 153, 161-63, 302 N.E.2d 555, 560-561 [1973].” Buckley v. National Freight, Inc., supra, 90 N.Y.2d 215 n.3.

       “See, e.g., Stapleton v. Palmare, 250 Ga. 259,297 S.E.2d 270 [1982]; Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 118 (Mo. [1974]); Hopkins v. Planeo, 224 Pa. Super. 116, 121-23, 302 A.2d 855, 858-59 [1973], aff’d 457 Pa. 90, 320 A.2d 139 [1974].” Buckley v. National Freight, Inc., supra, 90 N.Y.2d 215 n.4.

       “See, e.g., Rodriguez v. Bethlehem Steel Corp., [12 Cal. 3d 382, 407, 115 Cal. Rptr. 765, 525 P.2d 669 (1974)]; Kotsiris v. Ling, 451 S.W.2d 411,412-413 (Ky. [1970]); Reid v. Spadone Mach. Co., 119 N.H. 198, 199-200, 400 A.2d 54, 55 [1979]; Layne v. Huffman, 42 Ohio St. 2d 287, 289, 327 N.E.2d 767, 770 [1975].” Buckley v. National Freight, Inc., supra, 90 N.Y.2d 215 n.5.

       According to Black’s Law Dictionary (6th Ed. 1990), dicta “go beyond the fact s before court and therefore are individual views of author of opinion and not binding in subsequent, cases as legal precedent.” Because dicta are “made without argument or full consideration of the point, [they] are not the professed deliberate determinations of the [author].” Id.

       As the court of last resort in the state of Connecticut, we have an obligation to read our prior opinions with analytic rigor and reject those that do not comport with the interests of justice. To choose just one example, this is precisely what we did in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). In that case, a unanimous en banc panel of this court— including then Chief Justice Peters — overruled thirty years of express holdings by permitting a bystander to recover for the negligent infliction of emotional distress. Id., 56. Significantly, we did not in Clohessy preclude the possibility of a freestanding claim for such a cause of action. Id.

       The countervailing policy concern is, of course, efficiency. In my view, we should not sacrifice mental and emotional anguish upon the altar of judicial economy.