Briggs v. State Employees Retirement Com'n

• Decision Date: 23 February 1988
• Docket Number: No. 5570,5570
• Citation: 13 Conn.App. 477,538 A.2d 225
• Court: Connecticut Court of Appeals
• Parties: Henry O. BRIGGS v. STATE EMPLOYEES RETIREMENT COMMISSION.

Page 225

538 A.2d 225

13 Conn.App. 477

Henry O. BRIGGS v. STATE EMPLOYEES RETIREMENT COMMISSION.

No. 5570.

Appellate Court of Connecticut.

Argued Dec. 2, 1987.

Decided Feb. 23, 1988.

Edward Gallant, New Haven, with whom, on the brief, was Peter F. Culver, Hartford for appellant (plaintiff).

Richard T. Sponzo, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Robert E. Walsh, Asst. Atty. Gen., Hartford for appellee (defendant).

Before DUPONT, C.J., and BORDEN and O'CONNELL, JJ.

BORDEN, Judge.

The plaintiff appeals from the judgment of the trial court affirming a decision of the defendant state employees retirement commission. That decision denied the plaintiff's application for service connected disability retirement benefits pursuant to General Statutes § 5-169(b). The dispositive issue of this appeal is whether the decision of the defendant was "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record...." General Statutes § 4-183(g)(5). We conclude that the decision was clearly erroneous, and we find error.

In December, 1979, the plaintiff was a mental health worker at Norwich Hospital, a state facility, when he was physically assaulted by a violent patient. In April, 1984, the hospital, acting pursuant to General Statutes § 5-244, ¹ requested the personnel division of the state department of administrative services to seek a position for the plaintiff requiring less arduous duties. This request was predicated on the plaintiff's injuries suffered in December, 1979. The personnel division was unable to do so. In July, 1984, the plaintiff filed an application for service connected disability retirement benefits pursuant to General Statutes § 5-169(b), ² claiming that as a result of the December, 1979 attack he was permanently disabled from continuing to render service as a mental health worker. His claim had two medical bases: (1) injuries to his back, supported by reports of his orthopedic surgeon; and (2) psychiatric disability, supported by reports of his psychiatrist.

In October, 1984, a hearing on the plaintiff's application was held before the medical examining board pursuant to General Statutes § 5-169(c). ³ At this hearing, the plaintiff testified and introduced medical reports by his orthopedic physician ⁴ and by Michael P. O'Brien, the psychiatrist who treated him for his condition resulting from the 1979 attack. In November, 1984, the board denied the plaintiff's application. The plaintiff then requested a reconsideration of the board's decision. The board held a second hearing and, in May, 1985, again denied the plaintiff's application. The plaintiff then requested the defendant commission to review the board's decision. The defendant adopted the board's decision. ⁵ The plaintiff appealed to the Superior Court, which affirmed the defendant's decision. This appeal followed.

The plaintiff claims that the trial court erred in sustaining the defendant's decision because (1) the decision was not based on substantial evidence, and (2) the defendant employed an erroneous legal standard. ⁶ We agree with the plaintiff's first claim of error, and therefore need not reach his second claim.

General Statutes § 4-183(g) provides in pertinent part that, in an administrative appeal such as this case, "[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.... The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record...."

This standard has been recently and exhaustively explained. We must sustain the agency decision if any one of its reasons is supported by substantial evidence, leaving the credibility of witnesses within the agency's province. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987). " 'This so-called substantial evidence rule is similar to the "sufficiency of the evidence" standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords "a substantial basis of fact from which the fact in issue can be reasonably inferred.... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." ... "The 'substantial evidence' rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration.... [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and to provide a more restrictive standard of review than standards embodying review of 'weight of the evidence' or 'clearly erroneous' action...." ' (Citations omitted.) Lawrence v. Kozlowski, [171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977) ]; Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). The United States Supreme Court, in defining 'substantial evidence' in the 'directed verdict' formulation, has said that it 'is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.' Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018 [1026], 16 L.Ed.2d 131 (1966); see Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206 , 83 L.Ed. 126 (1938). 'The reviewing court must take into account [that there is] contradictory evidence in the record ... but "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence...." ' American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478 [2497], 2497, 69 L.Ed.2d 185 (1981), quoting Consolo v. Federal Maritime Commission, supra.

We have said that an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980)." Huck v. Inland Wetlands & Watercourses Agency, supra, 541-42, 525 A.2d 940.

We first note that the standard of disability which the plaintiff was required to establish was not that he was permanently disabled from rendering any service. It was, instead that "while in state service, [he became] permanently disabled from continuing to render the service in which he has been employed as a result of any injury received while in the performance of his duty as a state employee...." (Emphasis added.) General Statutes § 5-169(b). ⁷

It is clear from the two decisions of the board that, while recognizing that the plaintiff's claim of a psychiatric disability was supported by substantial evidence, the board read that same evidence as insufficient to establish that the psychiatric disability was permanent. In its first decision, the board stated: "While recognizing the substantial evidence of a psychiatric condition as presented by the applicant, the Board finds that there is insufficient evidence to conclude that the psychiatric condition is permanently disabling. The Board takes note of a report from the applicant's psychiatrist, Doctor Michael P. O'Brien, dated May 15th, 1984, which states that applicant, '... have psychiatric treatment to avoid chronicity ...' 'His treatment was prematurely terminated in March, 1981.' From the statement by the applicant's own psychiatric consultant, the Board infers that Doctor O'Brien, himself, is not satisfied as to the permanence of the disability sustained by Mr. Briggs." In its second decision, the board stated: "After consideration of new evidence submitted by the applicant, as well as the applicant's testimony, the Board again finds that while there is substantial evidence of psychiatric problems currently under treatment the Board notes that the applicant's psychiatrist states that there is improvement. 'He is less depressed. His speech is more spontaneous.' 'His concentration is improved ...' With these considerations in mind the Board fails to find sufficient new evidence of the permanence of a psychiatric condition claimed by the applicant and therefore upholds its denial of service-connected disability."

It is also clear that the board based its findings that the plaintiff's psychiatric disability was not permanent and its conclusion of evidentiary insufficiency on the reports of O'Brien, the plaintiff's psychiatrist. As the plaintiff points out, however, the board's reading of those reports is distorted and unduly selective; it simply cannot be squared with a fair reading of the psychiatric reports in their proper context.

In his report of May 15, 1984, O'Brien noted, inter alia, that the plaintiff's "psychiatric condition continues relatively unchanged since my report of September 30, 1980 and subsequent treatment reports through March 16, 1981." He diagnosed the plaintiff as having "[p]ost-traumatic stress disorder, chronic." His report concluded: "I recommended that Mr. Briggs have psychiatric treatment to avoid chronicity in my report of September 30, 1980. His treatment was prematurely...