Keenan v. Union Camp Corp.

• Decision Date: 30 June 1998
• Docket Number: No. 17197,17197
• Citation: 714 A.2d 60,49 Conn.App. 280
• Court: Connecticut Court of Appeals
• Parties: James KEENAN v. UNION CAMP CORPORATION, et al.

Page 60

714 A.2d 60

49 Conn.App. 280

James KEENAN v. UNION CAMP CORPORATION, et al.

No. 17197.

Appellate Court of Connecticut.

Submitted on Briefs March 5, 1998.

Decided June 30, 1998.

Guy L. DePaul, Danbury, for appellant (plaintiff).

Scott Wilson Williams, Fairfield, for appellees (defendants).

Before EDWARD Y. O'CONNELL, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

SPEAR, Judge.

The plaintiff, James Keenan, appeals from the decision of the workers' compensation review board (board) reversing a finding and award that was rendered in his favor by the workers' compensation commissioner. On appeal, Keenan claims that the board improperly concluded that the commissioner's decision was not premised on competent evidence. We agree and reverse the board's decision.

The record reveals the following relevant facts and procedural history. On September 30, 1993, Keenan sustained a compensable injury to his back and groin while at his workplace. As a result of this undisputed injury, he came under the care of Michael Craig, an orthopedist. Subsequently, on December 20, 1993, Keenan, while standing at the top of a staircase at his residence, experienced a weakness in and "giving out" of his leg, and he fell down the stairs, hitting his head. Because it was his opinion that Keenan had suffered a traumatic brain injury as a result of the fall on December 20, 1993, Craig referred him to Neil Culligan, a neurologist. ¹ In a letter to Craig dated January 20, 1994, and in subsequent letters to Liberty Mutual Insurance Company dated January 27 and September 9, 1994, Culligan opined that Keenan had suffered a traumatic brain injury as a result of his fall on December 20, 1993, and that this fall had been caused by leg weakness that resulted from the workplace injury of September, 1993. ² The defendant Union Camp Corporation (Union), Keenan's employer, denied responsibility for Keenan's traumatic brain injury, arguing that Keenan's fall down the stairs on December 20, 1993, was not causally related to his compensable back injury of September 20, 1993. On October 25, 1995, the commissioner rendered a finding and award in favor of Keenan. Union then appealed to the board, which reversed the commissioner's decision, concluding that the decision was not premised on competent evidence. This appeal followed.

It is well settled in workers' compensation cases that the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but also that such proof must be established by competent evidence. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151, 291 A.2d 743 (1972). Further, "[t]he power and duty of determining the facts rests on the commissioner, the trier of facts.... The conclusions drawn by [the commissioner] 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." (Citation omitted; internal quotation marks omitted.) Fair v. People's Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); see also Rogers v. Laidlaw Transit, Inc., 45 Conn.App. 204, 206, 695 A.2d 1071 (1997).

"[I]n determining whether a particular injury arose out of and in the course of employment, the [commissioner] must necessarily draw an inference from what [she] has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by [§ 31-301-8 of the Regulations of Connecticut State Agencies]. If supported by evidence and not inconsistent with the law, the [commissioner's] inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable." ³ (Internal quotation marks omitted.) Fair v. People's Savings Bank, supra, 207 Conn. at 539-40, 542 A.2d 1118; see also Epps v. Beiersdorf, Inc., 41 Conn.App. 430, 434, 675 A.2d 1377 (1996).

According to the specific provisions of § 31-301-8 of the Regulations of Connecticut State Agencies, the board "cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses." Our review of the board's May 2, 1997 decision reveals that, despite the board's assertion that the nature, or competency, of the evidence in this case is at issue, the board's decision focuses on the issues of the weight of the evidence and the credibility of witnesses. Specifically, the board concedes in its decision of May 2, 1997, that both Craig and Culligan agreed that Keenan's fall down the stairs resulted from his work injury in September, "which caused back pain, leg weakness and imbalance." The board improperly concluded that because "the [commissioner] did not cite any of Dr. Culligan's reports in her findings, [the board] cannot rely on those reports as a basis for her award." ⁴ Although the board maintains that the evidence that was considered by the commissioner in this case was incompetent, we are not persuaded.

A workers' compensation award must be based on competent evidence. Cooke v. United Aircraft Corp., 152 Conn. 214, 215, 205 A.2d 484 (1964); Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 116, 176 A.2d 578 (1961). In determining whether evidence is competent in such a context, our Supreme Court has held that "the opinions of experts [are] to be received and considered as in other cases generally but that the opinion of a physician which is based wholly or partly on statements and symptoms related to the physician by the patient on a personal examination is inadmissible where the examination was made for the purpose of qualifying the physician to testify as a medical expert." (Internal quotation marks omitted.) Cooke v. United Aircraft Corp., supra, at 216, 205 A.2d 484, quoting Zawisza v. Quality Name Plate, Inc., supra, at 119, 176 A.2d 578. In Zawisza, the testimony of a medical expert who had not been consulted by the plaintiff for treatment, but, in fact, examined the plaintiff only for purposes of testifying, was deemed incompetent evidence for purposes of the commissioner's consideration. Zawisza v. Quality Name Plate, Inc., supra, at 116, 176 A.2d 578. Conversely, the testimony from medical experts in Cooke was deemed competent where the experts based their testimony regarding the plaintiff's condition on medical reports that were made at the time of consultation as well as diagnoses for the plaintiff's treatment. Cooke v. United Aircraft Corp., supra, at 216, 205 A.2d 484. ⁵

Here, Craig and Culligan both examined Keenan for the purposes of diagnosis and treatment. Significantly,...