Story v. Town of Woodbury
| Decision Date | 15 September 2015 |
| Docket Number | No. 37111.,37111. |
| Citation | 124 A.3d 907,159 Conn.App. 631 |
| Court | Connecticut Court of Appeals |
| Parties | Thomas STORY v. TOWN OF WOODBURY et al. |
Colette S. Griffin, Hartford, with whom was Chris Holland, for the appellants (defendants).
Robert S. Kolesnik, Sr., Waterbury, with whom was Stephanie E. Cummings, for the appellee (plaintiff).
The defendant town of Woodbury1appeals from the decision of the Workers' Compensation Review Board (board) affirming the finding and decision of the Workers' Compensation Commissioner for the Fifth District (commissioner). On appeal, the defendant claims that there was insufficient evidence to support the commissioner's finding that the hearing loss suffered by the plaintiff, Thomas Story, arose out of his work related injury, and, consequently, the board erred in affirming the commissioner's decision. We conclude that the board properly determined that the evidence was sufficient. Accordingly, we affirm the decision of the board.
The record reveals the following relevant facts and procedural history. On October 21, 2002, the plaintiff, who at the time was a police officer employed by the defendant, was directing traffic at a construction site. While doing so, he was struck by a car and injured. Specifically, the car's right front fender struck his right knee and lower torso. When the impact spun the plaintiff around, the car's passenger side mirror struck his right elbow. The car continued moving, and the plain-tiff's head and neck “violently twisted side to side” as he spun along the side of the car, remaining on his feet.
Once the car had stopped, the plaintiff had a brief exchange with the driver before calling for another officer and an ambulance. At that point, the plaintiff was beginning to feel dizzy and to feel pain in his lower back, neck, elbow, and knees. An ambulance transported the plaintiff to the emergency room, where he reported neck, back, knee, and elbow injuries but did not complain to medical personnel of dizziness. Both of the plaintiff's knees eventually required surgery.2
Four days after the accident, when the plaintiff saw his primary care physician, Charles McNair, he exhibited normal neck contour and posture and a full range of motion in his neck, without apparent pain or discomfort. Approximately two months later, on December 17, 2002, the plaintiff again saw McNair and denied feeling any dizziness at that time. Sometime after the accident, the plaintiff began receiving complaints from his wife and friends about his hearing. Thereafter, the plaintiff reported to McNair that he had been experiencing a high-pitched buzzing in his ears and dizziness. As a result, although McNair did not record the plaintiff's report in writing, McNair did refer the plaintiff to Victor Gotay, an ear, nose, and throat specialist.
On January 8, 2004, the plaintiff met with Gotay. The plaintiff told Gotay that since the accident, he had experienced ringing in both ears, being off balance, and hearing loss. Gotay evaluated the plaintiff and diagnosed him with vertigo syndrome3and tinnitus.4Gotay ordered a hearing test, which showed high frequency hearing loss in both of the plaintiff's ears. Gotay also ordered an electronystagmogram5that was performed on February 5, 2004, and showed abnormal results. Gotay opined to a reasonable degree of medical probability that the plaintiff's hearing loss and loss of balance were caused by the accident when he sustained a labyrinthine concussion.6
At the defendant's request, the plaintiff submitted to independent medical examinations by two ear, nose, and throat specialists. The first was performed by William Lehmann. After Lehmann examined the plaintiff, he opined that “there is no plausible reason why one would attribute [the plaintiff's hearing loss and tinnitus] to the accident in question.”7
When Lehmann subsequently retired, the plaintiff submitted to the second independent medical examination by ear, nose, and throat specialist John Kveton. On the basis of his review of records provided by counsel and his evaluation of the plaintiff, Kveton opined, to a reasonable degree of medical probability, that the plaintiff did not suffer a labyrinthine concussionas a result of the accident, nor was the accident a significant factor in the plaintiff's claims of hearing loss, ringing in the ears, or vertigo.
Kveton testified at his deposition that it “would play a role in [his] assessment” of causation if medical records closest in time to such an accident did not contain reports of ringing in the ears, dizziness, or vertigo, which are symptoms that he would expect a primary care physician to note in a patient's chart. Kveton opined that “[a] labyrinthine concussionwould occur with some type of head traumaand [the plaintiff] did not indicate that he had fallen on his head.” He also stated that the type of mild high frequency hearing loss the plaintiff exhibited usually is caused by chronic noise exposure rather than the orthopedic injury the plaintiff had sustained. Kveton's examination of the plaintiff indicated that his inner ear's balance mechanism was functioning properly.
On September 24, 2012, and October 10, 2012, the commissioner presided over a formal hearing at which the plaintiff appeared and testified. The reports and deposition testimony of Gotay and Kveton were admitted into evidence. The commissioner issued a finding and decision in which he concluded that the plaintiff suffered a compensable hearing loss as a result of the work related injury sustained on October 21, 2002. The commissioner found the plaintiff's testimony to be “fully credible and persuasive.” The commissioner found Gotay's testimony, opinions, and reports to be “fully credible and persuasive,” but did not find Kveton's testimony, opinions, and reports or Lehmann's conclusion to be “fully credible and persuasive.”
The defendant filed a motion to correct the commissioner's finding and decision, which the commissioner denied. The defendant then appealed to the board, arguing that the commissioner improperly relied on Gotay's opinion because it was “mere speculation or conjecture and not supported by the subordinate facts.” The board affirmed the commissioner's finding and decision. The board concluded that Gotay's deposition testimony “reflects a number of statements and answers by ... Gotay that could support the [commissioner's] inference that ... Gotay's opinion as to causation was not merely speculative or based in conjecture....” (Footnote omitted.) The board also concluded that Gotay's opinion was based on his examination of the plaintiff, the plaintiff's history, various tests, and Gotay's expertise and experience. This appeal followed. Additional facts will be provided as necessary.
The defendant makes two claims on appeal: (1) that the commissioner improperly relied on Gotay's expert opinion, and (2) that the commissioner should have relied on Lehmann and Kveton's expert opinions instead of on Gotay's expert opinion. We are not persuaded.
We begin by setting forth the applicable standard of review. “The principles that govern our standard of review in workers' compensation appeals are well established.... The board sits as an appellate tribunal reviewing the decision of the commissioner.... [T]he review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts.... [T]he power and duty of determining the facts rests on the commissioner.... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses.... Where the subordinate facts allow for diverse inferences, the commissioner's selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them....
(Internal quotation marks omitted.) Jones v. Connecticut Children's Medical Center Faculty Practice Plan,131 Conn.App. 415, 423–24, 28 A.3d 347 (2011).
The defendant first claims that the commissioner's finding that the plaintiff's hearing loss resulted from the accident was neither legally correct nor supported by the evidence because the commissioner relied on Gotay's expert opinion. It argues that the commissioner's reliance on Gotay's opinion was improper for two interrelated reasons: the opinion was grounded in speculation and conjecture, and it was not supported by subordinate facts. We disagree.
(Citation omitted; footnote omitted; internal quotation marks omitted.) Marandino v. Prometheus Pharmacy,294 Conn. 564, 591–92, 986 A.2d 1023 (2010). “This causal connection must be based [on] more than conjecture and surmise.” (Internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet GEO, Inc.,294 Conn. 132, 142, 982 A.2d 157 (2009).
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...if there is evidence in the record to support it ." (Emphasis added; internal quotation marks omitted.) Story v. Woodbury , 159 Conn. App. 631, 636–37, 124 A.3d 907 (2015). In the context of an administrative appeal, "the sufficiency of the evidence to support a finding ... clearly presents......