DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.

• Citation: 294 Conn. 132,982 A.2d 157
• Decision Date: 10 November 2009
• Docket Number: No. 17869.,17869.
• Parties: Evana DiNUZZO v. DAN PERKINS CHEVROLET GEO, INC., et al.
• Court: Supreme Court of Connecticut

982 A.2d 157

294 Conn. 132

Evana DiNUZZO v. DAN PERKINS CHEVROLET GEO, INC., et al.

No. 17869.

Supreme Court of Connecticut.

Argued February 8, 2008.

Decided November 10, 2009.

Geraldine Ficarra, with whom was Robert J. Nicola, Trumbull, for the appellant (plaintiff).

G. Randall Avery, Stamford, for the appellee (defendants).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

The sole issue raised by this certified appeal is whether the Appellate Court properly reversed the decision of the compensation review board (board) upholding the decision of the workers' compensation commissioner for the third district (commissioner), who awarded the plaintiff, Evana DiNuzzo, survivor's benefits under General Statutes § 31-306(a).¹ The Appellate Court concluded that there were insufficient subordinate facts in the record to support the commissioner's finding that the death of the plaintiff's husband, James DiNuzzo (decedent), was causally related to a compensable injury and, therefore, that the plaintiff was not entitled to survivor's benefits. DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn.App. 336, 337, 913 A.2d 483 (2007). We agree and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "Following the decedent's death, the plaintiff ... submitted a claim for dependent widow's benefits pursuant to ... § 31-306.... The decedent was employed by the [named] defendant [Dan Perkins Chevrolet Geo, Inc.]² and sustained a compensable injury to his cervical spine when he was involved in a motor vehicle accident on June 26, 1997. As a result of the injury, the decedent experienced radiculopathy into his left side and [left arm]. He underwent [surgery, after which he] continued to experience [pain in his neck and the left side of his body, as well as numbness and tingling in] his left arm.

"Prior to his death on January 12, 2002, the decedent had suffered from injuries and illnesses that were unrelated to his compensable injury. He had chronic bilateral shoulder and low back pain that [was] the result of a bicycle accident [that] he had in 1974. Since before 1982, the decedent had been treated for a chronic hepatitis C infection, a result of his intravenous drug use. The decedent was diagnosed with adult onset diabetes in 1995. In 1994 or 1995, he was diagnosed with hypertension and high cholesterol. The decedent's diabetes, hypertension and high cholesterol [all of which are risk factors for atherosclerotic heart disease] were controlled by medication. On December 1, 2001, the decedent was hospitalized with complaints of dizziness, [excessive perspiration] and pain. The symptoms were caused by the effect [that] Interferon, a medicine he took [for his] hepatitis C infection, had on his blood sugar level.

"On the evening of January 11, 2002, the plaintiff observed that the decedent was mumbling and incoherent. [The decedent] complained that he had severe lower back pain, [that] his stomach was bothering him, and [that] he was constipated. At midnight [on January 12, 2002], the decedent struggled successfully to have a bowel movement, after which he said that he felt better. The plaintiff last saw the decedent [alive] at 2 a.m. on January 12, 2002. Because the plaintiff and the decedent slept in separate rooms, the plaintiff was unaware of the decedent's activities between 2 and 8 a.m. when she discovered his body. Members of the Milford police department responded to the plaintiff's call for assistance. ... [T]he decedent was declared dead at 8:50 a.m. on January 12, 2002, and ... [his] body was not examined by the medical examiner.

"Cosmo Filiberto, a board certified family practitioner and expert in preventive medicine and care, prepared the decedent's death certificate. Filiberto stated that the cause of death was heart disease, secondary to atherosclerotic heart disease. Filiberto had treated the decedent for twenty years and had seen him days before his death but did not examine his body postmortem. No autopsy was performed on the decedent's body. The record is silent as to why no postmortem examination or autopsy was done. Filiberto opined at the hearing before the commissioner that the decedent's death was brought about by the curtailment of his physical activities. His weight sometimes exceeded 300 pounds. [In Filiberto's view, the decedent's] weight gain and resulting inactivity, along with the heavy doses of narcotics [that] he was required to take to control his pain, made it `medically probable and certain that the stress' of [his] compensable injury and its treatment substantially contributed to his death ... because they severely limited his ability to maintain his physical fitness and aerobic conditioning. Prior to [sustaining] the ... compensable injury, [the decedent] was able to control his pain [from] prior accidents with over-the-counter medication and muscle relaxants. Relief from the pain of the decedent's 1997 accident, however, required high doses of narcotics, eventually reaching 3200 milligrams [each] day.

"Jonathan Alexander, a cardiologist at Danbury Hospital and clinical faculty member of Yale University School of Medicine, testified for the defendant. Alexander based his opinion and report on a review of the decedent's medical records, including Filiberto's records. Alexander found no evidence of atherosclerotic heart disease in the decedent's medical records. Alexander concluded, therefore, that neither the treatment the decedent received as a result of his cervical injury nor his inactivity nor his weight gain [was a factor] in his death.

"The commissioner was not persuaded by Alexander's opinions. [The commissioner] found, on the basis of Filiberto's twenty year[s] [of] treatment of the decedent and familiarity with [the decedent's] ongoing medical condition[s], that there was a relationship between the compensable injury and the decedent's death. He concluded that the plaintiff was entitled to benefits pursuant to § 31-306. The defendant thereafter filed a motion to correct the findings and award, which the commissioner denied.... The defendant [thereafter] appealed to the board." Id., at 338-40, 913 A.2d 483. "The board concluded that the commissioner's award was not contrary to law, without evidence or based on unreasonable or impermissible inferences. The board, therefore, affirmed the commissioner's award. The defendant appealed." Id., at 341, 913 A.2d 483.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the board improperly had affirmed the commissioner's findings for two interrelated reasons, namely, that those "findings were predicated on expert medical testimony grounded in conjecture speculation or surmise," and that "the expert medical testimony was not supported by the subordinate facts...." Id., at 338, 913 A.2d 483. The Appellate Court agreed with both of the defendant's contentions. Id. In doing so, the Appellate Court first observed that the commissioner, in concluding that the plaintiff was entitled to survivor's benefits, had credited the testimony of Filiberto, the decedent's personal physician. Id., at 343-44, 913 A.2d 483. The Appellate Court stated: "We accept the commissioner's credibility determination for purposes of our analysis, but the testimony of even the most persuasive expert witness cannot be credited if it is not based on facts. The determinative question, therefore, is not whether Filiberto was credible but whether there are sufficient subordinate facts in the record to support his opinion that the decedent's death was causally related to his compensable injury." Id., at 343-44, 913 A.2d 483. The Appellate Court then concluded that the record was devoid of such facts, explaining: "Filiberto testified before the commissioner on May 5, 2004, and a copy of his deposition testimony was placed into evidence. Our review of the transcripts reveals that the decedent was morbidly obese in 1982 and that he gained twenty to thirty pounds after the 1997 accident and thirty to thirty-five more pounds after his [surgery]. Due to the decedent's weight and the drugs [that the decedent] took to control his pain, Filiberto opined that the decedent was unable to exercise and that he would have lived longer had he exercised. According to Filiberto, the decedent died of a heart attack caused by atherosclerotic disease, although he never ordered tests to determine whether the decedent, in fact, had atherosclerotic heart disease.³ Filiberto also opined that Oxycontin, which the decedent was taking for pain, can cause constipation. According to Filiberto straining to have a bowel movement can cause changes in the body's system that can produce cardiac arrest. [Filiberto testified, however, that he could not state to a reasonable medical probability that the decedent's constipation was connected to his work-related injury or to his death.]

"Filiberto also testified that he did not examine the decedent's body [postmortem] ... and that no autopsy had been performed. Filiberto did not know whether the decedent had a congenital heart defect that could have caused a heart attack and acknowledged that a ruptured aneurysm, pulmonary embolism, stroke or sudden arrhythmia can cause sudden death.⁴ He conceded that, without an autopsy, there [was] no way [of] know[ing] the exact cause of the decedent's death.

"On cross-examination before the commissioner, the defendant's counsel presented Filiberto with a copy of the ... records [from the decedent's admission to Milford Hospital on December 1, 2001], which he previously had not seen.⁵ [Those records indicated that a] gastroenterologist [had been] treating the decedent's chronic hepatitis C infection, and Filiberto [testified that he] was unaware that the decedent had [started] taking Interferon [before his admission to the hospital]. Filiberto conceded that the symptoms [that]...