Story v. Woodbury ( 2015 )

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THOMAS STORY v. TOWN OF WOODBURY ET AL.
(AC 37111)
DiPentima, C. J., and Mullins and Bear, Js.
Argued May 14—officially released September 15, 2015
(Appeal from Workers’ Compensation Review Board.)
Colette S. Griffin with whom was Chris Holland, for
the appellants (defendants).
Robert S. Kolesnik, Sr., with whom was Stephanie
E. Cummings, for the appellee (plaintiff).
Opinion
MULLINS, J. The defendant town of Woodbury1
appeals from the decision of the Workers’ Compensa-
tion 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 con-
clude that the board properly determined that the evi-
dence 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 plain-
tiff 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 trans-
ported 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 exhib-
ited normal neck contour and posture and a full range
of motion in his neck, without apparent pain or discom-
fort. 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 diag-
nosed him with vertigo syndrome3 and tinnitus.4 Gotay
ordered a hearing test, which showed high frequency
hearing loss in both of the plaintiff’s ears. Gotay also
ordered an electronystagmogram5 that was performed
on February 5, 2004, and showed abnormal results.
Gotay opined to a reasonable degree of medical proba-
bility that the plaintiff’s hearing loss and loss of balance
were caused by the accident when he sustained a laby-
rinthine 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 Wil-
liam 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 examina-
tion by ear, nose, and throat specialist John Kveton.
On the basis of his review of records provided by coun-
sel and his evaluation of the plaintiff, Kveton opined,
to a reasonable degree of medical probability, that the
plaintiff did not suffer a labyrinthine concussion as 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 concussion would occur
with some type of head trauma and [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 admit-
ted 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 Kvet-
on’s testimony, opinions, and reports or Lehmann’s con-
clusion to be ‘‘fully credible and persuasive.’’
The defendant filed a motion to correct the commis-
sioner’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 tribu-
nal 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. . . .
‘‘This court’s review of decisions of the board is simi-
larly limited. . . . The conclusions drawn by [the com-
missioner] 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 unrea-
sonably drawn from them. . . . [W]e must interpret
[the commissioner’s finding] with the goal of sustaining
that conclusion in light of all of the other supporting
evidence. . . . Once the commissioner makes a factual
finding, [we are] bound by that finding if there is evi-
dence in the record to support it.’’ (Internal quotation
marks omitted.) Jones v. Connecticut Children’s Medi-
cal Center Faculty Practice Plan, 131 Conn. App. 415,
423–24, 28 A.3d 347 (2011).
I
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 commission-
er’s reliance on Gotay’s opinion was improper for two
interrelated reasons: the opinion was grounded in spec-
ulation and conjecture, and it was not supported by
subordinate facts. We disagree.
‘‘To recover under the [Workers’ Compensation Act,
General Statutes § 31-275 et seq.], an employee must
[prove] that the injury claimed arose out of the employ-
ee’s employment and occurred in the course of the
employment. . . . [I]n Connecticut traditional con-
cepts of proximate cause constitute the rule for
determining . . . causation [in a workers’ compensa-
tion case]. . . . An actual cause that is a substantial
factor in the resulting harm is a proximate cause of
that harm.’’ (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).
‘‘If supported by evidence and not inconsistent with
the law, the . . . [c]ommissioner’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 . . . [c]ommissioner is fac-
tually questionable.’’ (Internal quotation marks omit-
ted.) Sapko v. State, 305 Conn. 360, 385, 44 A.3d 827
(2012).
‘‘When . . . it is unclear whether an employee’s
[condition] is causally related to a compensable injury,
it is necessary to rely on expert medical opinion. . . .
Unless the medical testimony by itself establishes a
causal relation, or unless it establishes a causal relation
when it is considered along with other evidence, the
commissioner cannot reasonably conclude that the
[condition] is causally related to the employee’s employ-
ment. . . . [E]xpert opinions must be based [on] rea-
sonable probabilities rather than mere speculation or
conjecture if they are to be admissible in establishing
causation. . . . To be reasonably probable, a conclu-
sion must be more likely than not. . . . Whether [a]n
expert’s testimony is expressed in terms of a reasonable
probability that an event has occurred does not depend
[on] the semantics of the expert or his use of any partic-
ular term or phrase, but rather, is determined by looking
at the entire substance of the expert’s testimony.’’ (Cita-
tions omitted; internal quotation marks omitted.)
DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294
Conn. 142–43.
The defendant claims that Gotay’s opinion was based
on speculation and conjecture because Gotay admitted
that he had not reviewed McNair’s records or the Water-
bury Hospital medical records even though those
records, which documented the plaintiff’s symptoms
closest in time to the accident, might have included
ear, nose, and throat related complaints.
The defendant’s argument boils down to this: The
medical records closest in time to the accident do not
show that the plaintiff complained of dizziness and hear-
ing loss at that time. Because these records do not
show complaints of dizziness and hearing loss, those
symptoms did not exist then and only developed later.
Furthermore, according to Kveton, the absence of such
symptoms immediately following the accident would
be significant to a conclusion regarding causation.
Therefore, because Gotay did not review those records,
his opinion that the plaintiff’s hearing loss resulted from
a labyrinthine concussion caused by the accident could
only be speculative. We are not persuaded.
The defendant argues that the present appeal is con-
trolled by DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.,
supra, 294 Conn. 132. In DiNuzzo, the plaintiff’s expert
opined that the weight gain and use of pain medication
of the plaintiff’s decedent following a work related acci-
dent had prevented him from exercising and, therefore,
hastened his death. The expert attributed the death to
a heart attack caused by atherosclerotic heart disease.
DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn.
App. 336, 339–40, 913 A.2d 483 (2007), aff’d, 294 Conn.
132, 982 A.2d 157 (2009). Neither an autopsy nor a
postmortem examination had been performed on the
decedent’s body. Id., 339. The testimony of the plaintiff’s
expert, therefore, was the only evidence that the dece-
dent had atherosclerotic heart disease. Id., 344 n.3.
On cross-examination, the plaintiff’s expert in
DiNuzzo was shown records of the decedent’s hospital-
ization, one month before his death, for side effects
of the drug Interferon. Id., 346. The plaintiff’s expert
admitted that he did not know that the plaintiff was
taking Interferon or that he had been hospitalized. Id.,
346 n.5. Upon reviewing the hospital records, he con-
ceded that the decedent’s symptoms on the night of his
death could have been attributable to the drug, that a
number of other possible causes of death existed, and
that it was impossible to pinpoint the actual cause of
the decedent’s death. Id., 344–45.
This court reversed the board’s decision affirming
the commissioner’s award of widow’s benefits to the
plaintiff. Id., 347. We concluded that ‘‘[t]he reality is
that it was not possible to determine with any reason-
able degree of probability the cause of the decedent’s
death given the factual gaps in the record.’’ Id., 346.
Therefore, ‘‘there were insufficient subordinate facts
before the commissioner from which he reasonably
could make . . . a finding [that the decedent’s death
was the result of a work related injury].’’ Id., 337.
The Supreme Court affirmed our decision, noting that
‘‘[t]he inadequacy of [the] testimony [of the plaintiff’s
expert] is compounded by the fact that . . . [he]
acknowledged . . . that when he gave his opinion . . .
he was not aware that the decedent had been hospital-
ized approximately one month before his death for cer-
tain side effects of Interferon.’’ (Citation omitted.)
DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294
Conn. 145. Moreover, even prior to being shown the
decedent’s hospital records, the plaintiff’s expert had
admitted that he could testify only as to how the dece-
dent’s symptoms on the night of his death might ‘‘ ‘con-
ceivably’ ’’ be consistent with a heart attack. Id.
The defendant in the present case urges that DiNuzzo
is controlling because ‘‘a primary reason that the Appel-
late and Supreme Courts found the medical opinion at
issue in DiNuzzo unreliable was that the witness relied
upon by the . . . commissioner did not consult rele-
vant medical records prior to issuing his opinion on
causation . . . .’’ (Internal quotation marks omitted.)
For similar reasons, the defendant relies on Jones v.
Connecticut Children’s Medical Center Faculty Prac-
tice Plan, supra, 131 Conn. App. 415.
In Jones, the commissioner credited the opinion of
the plaintiff’s expert that the plaintiff’s neurogenic blad-
der condition was the result of a work related motor
vehicle accident. We affirmed the board’s conclusion
that this credibility determination could not stand in
light of the commissioner’s contradictory finding that
a neurologist’s diagnosis of the plaintiff, which was
the principal basis for the expert’s opinion, was not
credible. As the board reasoned, ‘‘[h]ad the . . . com-
missioner found . . . [the neurologist’s] opinion per-
suasive, it might have been possible to uphold the trier’s
finding relative to the credibility of . . . [the plaintiff’s
expert] regarding the causation of the [plaintiff’s] neuro-
genic bladder. However, the . . . commissioner ulti-
mately determined . . . [the neurologist’s] opinion
was not persuasive and, further, that the evidentiary
record was insufficient to determine that the [plaintiff]
suffered from a concussion, post-concussive syndrome,
or any other neurological deficits. [Accordingly] . . .
we are unable to affirm the . . . commissioner’s find-
ing that . . . [the plaintiff’s expert] was credible rela-
tive to her conclusion that the [plaintiff] developed a
neurogenic bladder as a result of the motor vehicle
accident.’’ (Emphasis omitted; internal quotation marks
omitted.) Id., 431.
The commissioner’s reason for discrediting the neu-
rologist’s underlying diagnosis in Jones is particularly
pertinent to the present case. Specifically, we observed
that ‘‘the commissioner expressly discredited [the neu-
rologist’s] opinions on the basis of the flawed medical
history that he had received from the plaintiff.’’ Id., 424
n.7. Indeed, ‘‘[t]he commissioner . . . found that the
plaintiff provided [her] various physicians with incon-
sistent histories regarding her motor vehicle accident
and that the credibility and persuasiveness of each phy-
sician was directly related to the accuracy of the history
given by the plaintiff.’’ (Internal quotation marks omit-
ted.) Id., 426.
In Jones, we found it significant that on cross-exami-
nation, the plaintiff’s expert conceded that she had not
reviewed emergency room records or reports of the
plaintiff’s independent medical examinations. Never-
theless, we emphasized that the commissioner’s credi-
bility determination was undermined principally by his
finding relating to the neurologist’s reliance on the
plaintiff’s flawed medical history and its adverse impact
on the neurologist’s credibility. Id., 431. Furthermore,
we noted the expert’s express concession that her opin-
ion would change if she discovered that either the neu-
rologist or the plaintiff had provided inaccurate
information. Id., 432. Because the commissioner’s other
credibility determinations suggested the strong possi-
bility that the expert’s review of medical records would
undermine her opinion, we concluded that her opinion
was based on speculation and conjecture. Id., 432.
Both of the foregoing cases are distinguishable from
the facts presented here. In the present case, Gotay,
unlike the expert in DiNuzzo, based his opinion on
his own examination of the plaintiff and the results of
medical tests that he had commissioned. In addition,
although Gotay conceded that he did not review the
reports of McNair and Waterbury Hospital before for-
mulating his opinion, the fact that they contained no
complaints of dizziness or hearing loss did not cause
him to waver in his opinion. Rather, Gotay explained
the general insignificance of the timing of the plaintiff’s
symptoms as it related to causation.8 He likewise
explained the insignificance of McNair’s reports, testi-
fying that because McNair is a ‘‘general practitioner
. . . not an [ear, nose, and throat] specialist . . . he
is not going to dwell on dizziness, tinnitus, or hearing
loss [and] . . . his records are not going to be of any
value, whatsoever, when we’re dealing with this issue
. . . .’’ He also testified that the record of ‘‘[o]ne emer-
gency room visit’’ was ‘‘not enough’’ to sway his opinion.
Furthermore, unlike in Jones, here there is no under-
lying adverse credibility determination by the commis-
sioner to undermine Gotay’s opinion regarding
causation. On the contrary, the commissioner here fully
credited the plaintiff’s testimony regarding his medical
history, which is consistent with the history the plaintiff
gave to Gotay. Indeed, another significant distinguish-
ing feature in the present case is that Gotay did not
merely rely on the history provided by the plaintiff or
on another physician’s prior diagnosis. Rather, as he
testified, he formulated an opinion only after conduct-
ing his own examination of the plaintiff, performing
tests, and interpreting the results in light of his training
and experience.
Finally, we note that the defendant assumes, incor-
rectly, that the plaintiff’s symptoms must not have
existed since the accident because they were not
reflected in McNair’s and Waterbury Hospital’s records.
The plaintiff testified before the commissioner, how-
ever, that he ‘‘had been experiencing ringing and buzz-
ing . . . from the time of the accident, but it was
secondary to all my other problems. It wasn’t a primary
concern of mine. . . . I was expecting it to go away.
I never brought it up to . . . McNair because I always
thought it would just disappear.’’
Thus, this is not a case in which, as in DiNuzzo, the
only evidence linking the plaintiff’s hearing loss to the
accident is the expert’s opinion, or, as in Jones, the
expert’s opinion rests on a foundation the commis-
sioner determined was unsound. To the contrary,
Gotay’s opinion was based on the plaintiff’s account
of the accident, which the commissioner found to be
credible, as well as his own examination of the plaintiff
and the results of tests he conducted on the plaintiff. We
cannot, therefore, conclude that Gotay’s expert opinion
was based on speculation and conjecture.
The second of the defendant’s two interrelated argu-
ments is that Gotay’s opinion was not supported by
subordinate facts in evidence.9 As noted, ‘‘there must
be subordinate facts from which the conclusion that
there is a causal connection between the employment
and the injury can be drawn.’’ (Internal quotation marks
omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.,
supra, 294 Conn. 143. The defendant contends that there
is no evidence to support Gotay’s opinion that the
impact on the plaintiff’s head was severe enough to
cause a labyrinthine concussion. It also contends that
Gotay’s opinion was not supported by subordinate facts
because he was unable to justify or explain his belief
that head trauma is not necessary to cause a labyrin-
thine concussion. We disagree.
At his deposition, Gotay maintained that a labyrin-
thine concussion does not require a head injury.10 He
testified that ‘‘any shaking of the head or trauma to the
head [that] makes that labyrinth move the fluid inside
in a certain way . . . can damage either the hearing
part of it or the vestibular system, which is the balance
part of it. And if the vestibular system gets damaged,
then the patient will present with balance issues like
dizziness. If the cochlea or the hearing part gets dam-
aged, and it’s all connected, the patient will present
with hearing loss and with tinnitus, or noise in the
ear.’’ Gotay concluded that ‘‘that’s why, with reasonable
medical probability, I made my statement about the
relation between the accident and [the plaintiff’s] three
complaints [of dizziness, hearing loss, and tinnitus].’’
We disagree with the defendant that Gotay’s opinion
lacks sufficient factual support because of his alleged
failure to ‘‘justify’’ his opinion that the shaking and
spinning experienced by the plaintiff caused a labyrin-
thine concussion in the absence of a direct blow to the
head. ‘‘[T]he facts on which an expert relies for his
medical opinion is relevant to determining the admissi-
bility of the expert opinion, but once determined to be
admissible, there is no rule establishing what precise
facts must be included to support an expert opinion.’’
Marandino v. Prometheus Pharmacy, supra, 294
Conn. 594.
The defendant did not challenge the admissibility of
Gotay’s expert testimony. Furthermore, when deposing
Gotay, the defendant was able to, and did, challenge
his credibility and the weight to be given to his opinion
by presenting its own experts’ opposing conclusions
regarding the issue of causation. Once Gotay’s report
and testimony were admitted into evidence, the com-
missioner was entitled to determine the weight to give
that evidence. See id.
Moreover, ‘‘it is proper to consider medical evidence
along with all other evidence to determine whether
an injury is related to the employment.’’ (Emphasis in
original.) Id., 595; see also DiNuzzo v. Dan Perkins
Chevrolet Geo, Inc., supra, 294 Conn. 142 (if ‘‘medical
testimony by itself . . . or . . . considered along with
other evidence’’ establishes causation, commissioner
may reasonably conclude that plaintiff’s condition is
causally related to his employment [internal quotation
marks omitted]).
The plaintiff’s account of the accident included a
description of severe spinning and shaking of his head
and neck that closely resembles Gotay’s description of
the type of force that causes a labyrinthine concussion.
Specifically, the plaintiff testified that when he was
struck by the car, his head and neck were ‘‘violently
twisted side to side as I spun around and around. . . .
It was like one of those bobblehead things you put on
your windshield . . . .’’ He also testified that ‘‘I’ve seen
a lot of . . . rear-end accidents where people get hit
and get whiplash from back and forth motions. I know I
got the same thing from side to side.’’ The commissioner
found the plaintiff’s testimony ‘‘fully credible and per-
suasive.’’ Thus, considering the plaintiff’s testimony
along with Gotay’s expert opinion, the commissioner
reasonably concluded that the plaintiff’s hearing loss
resulted from a labyrinthine concussion caused by
the accident.
The defendant also challenges the sufficiency of the
factual support for Gotay’s opinion on the ground that
Gotay was required to ‘‘quantify or conclusively
describe the amount of force or shaking that is neces-
sary to cause a labyrinthine concussion without head
trauma’’ in order to provide a sufficient factual basis
for his opinion. We disagree. ‘‘[S]uch an exacting stan-
dard of proof, as urged by the [defendant], is not
required. . . . Rather, the commissioner need only be
convinced that it was reasonably probable that [a causal
connection existed between the plaintiff’s employment
and his condition].’’ (Citation omitted; internal quota-
tion marks omitted.) Estate of Haburey v. Winchester,
150 Conn. App. 699, 716, 92 A.3d 265, cert. denied, 312
Conn. 922, 94 A.3d 1201 (2014); see also Marandino v.
Prometheus Pharmacy, supra, 294 Conn. 594–95 (com-
missioner properly determined that it was reasonably
probable that plaintiff’s injury was causally related to
her employment).
At Gotay’s deposition, the defendant’s counsel ques-
tioned him extensively as to what force would be suffi-
cient to cause the fluid in the labyrinth to move in a
way that would cause the plaintiff’s symptoms. Gotay
responded that spinning, shaking, or other movement
‘‘that could move the fluids inside the ear vigorously
enough to affect the different organs that are hiding’’
would be sufficient. He characterized such force as
‘‘significant.’’ The commissioner was entitled to deter-
mine that Gotay’s responses were credible and to con-
clude from them, in conjunction with all the other
evidence, that the force of the accident was sufficient
to cause a labyrinthine concussion.
Finally, the defendant points to the following evi-
dence in the record to cast doubt on the factual basis
for the commissioner’s conclusion: witnesses to the
accident described the plaintiff as having been merely
‘‘bumped’’ or ‘‘brushed’’ by the car; Kveton testified
that the type of whiplash injury sufficient to cause a
labyrinthine concussion would knock an individual off
his feet; and there are no contemporaneous complaints
by the plaintiff of dizziness, tinnitus, or hearing loss
to corroborate the history he provided to Gotay. We
disagree with the defendant that any of this evidence
demonstrates a lack of subordinate facts to support the
commissioner’s conclusion.
As we repeatedly have noted, the commissioner
found the plaintiff’s testimony to be ‘‘fully credible and
persuasive.’’ In addition to testifying that his head and
neck had ‘‘violently twisted side to side’’ in the accident,
the plaintiff testified that he had been experiencing
hearing problems, ringing in his ears, and dizziness
since that time. Consequently, when presented with
differing versions of the accident or the question of
whether the plaintiff experienced dizziness and hearing
loss immediately afterward, the commissioner was well
within his authority to choose which evidence he found
persuasive and which evidence he found unpersuasive,
and adjudicate the claim accordingly. ‘‘As the fact
finder, the commissioner may reject or accept evidence
. . . . It is not the province of this court to second-
guess the commissioner’s factual determinations. . . .
This court, like the board, is precluded from substituting
its judgment for that of the commissioner with respect
to factual determinations.’’ (Citations omitted; internal
quotation marks omitted.) Estate of Haburey v. Win-
chester, supra, 150 Conn. App. 717.
After reviewing the record, we conclude that Gotay’s
opinion was neither the product of speculation and
conjecture nor insufficiently supported by facts in the
record. Accordingly, the board properly concluded that
the commissioner’s finding that the plaintiff’s hearing
loss arose out of his work related injury was not legally
incorrect, unsupported by the evidence, or the product
of unreasonable inferences.
II
The defendant also claims that the commissioner
should have relied on Lehmann and Kveton’s expert
opinions instead of on Gotay’s expert opinion. We
disagree.
‘‘Our role is to determine whether the [board’s] deci-
sion results from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them. . . . This standard
clearly applies to conflicting expert medical testimony.
It [is] the province of the commissioner to accept the
evidence which impress[es] him as being credible and
the more weighty.’’ (Internal quotation marks omitted.)
Hummel v. Marten Transport, Ltd., 114 Conn. App.
822, 844, 970 A.2d 834, cert. denied, 293 Conn. 907, 978
A.2d 1109 (2009).
In this case, the parties’ experts offered opposing
opinions as to whether the plaintiff’s accident caused
his hearing loss. We already have determined that the
commissioner’s conclusion regarding causation, which
he reached after considering this conflicting expert tes-
timony and other evidence in the record, was neither
legally incorrect nor the product of unreasonable infer-
ences. The commissioner was entitled to determine that
Gotay’s opinion was the more credible and persuasive
expert opinion.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
PMA Management Corporation of New England, the town of Woodbury’s
workers’ compensation insurance carrier, is also a defendant and a party
to this appeal. For convenience, we refer to the town of Woodbury as
the defendant.
2
In voluntary agreements, the parties stipulated that the plaintiff suffered
various injuries as a result of the accident.
3
Vertigo syndrome is defined as ‘‘[a] sensation of spinning or whirling
motion.’’ Stedman’s Medical Dictionary (27th Ed. 2000) p. 1958.
4
‘‘Tinnitus is defined as [p]erception of a sound in the absence of an
environmental acoustic stimulus. The sound can be a pure tone or noise
including (ringing, whistling, hissing, roaring, or booming) in the ears.’’
(Internal quotation marks omitted.) Jones v. Connecticut Children’s Medical
Center Faculty Practice Plan, 131 Conn. App. 415, 418 n.3, 28 A.3d 347 (2011).
5
Electronystagmography is defined as ‘‘[a] method of nystagmography
. . . [in which] skin electrodes are placed at outer canthi to register hori-
zontal nystagmus or above and below each eye for vertical nystagmus.’’
Stedman’s Medical Dictionary (27th Ed. 2000) p. 576. Nystagmus is defined as
‘‘[i]nvoluntary rhythmic oscillation of the eyeballs . . . .’’ Stedman’s Medical
Dictionary, supra, p. 1246. Gotay testified that an electronystagmogram is
‘‘a balance test.’’
6
The labyrinth is defined as ‘‘[t]he internal or inner ear, composed of the
semicircular ducts, vestibule, and cochlea.’’ Stedman’s Medical Dictionary
(27th Ed. 2000) p. 957. Gotay testified that ‘‘a concussion of the labyrinth
is something that actually shakes it to a point where the patient presents
. . . with . . . hearing loss, tinnitus, or dizziness.’’
7
Although Lehmann was neither deposed nor his report entered into
evidence, Gotay was presented with and refuted Lehmann’s conclusion in
his deposition testimony. Gotay’s deposition testimony was admitted into
evidence. See footnote 8 of this opinion. Therefore, Lehmann’s conclusion
was before the commissioner.
8
For example, the following exchange occurred between the defendant’s
counsel and Gotay at his deposition:
‘‘Q. Earlier I read to you the report of Doctor Lehmann in which Doctor
Lehmann states that he estimated that the bilateral high-pitched humming,
tinnitus began approximately six months post motor vehicle accident.
‘‘A. That’s his statement, yes.
‘‘Q. Yes. And I had asked whether that was consistent with your under-
standing of [the plaintiff’s] history.
‘‘A. I cannot say yes to that, because the facts I have [say] ringing in the
ears, lightheadedness, and hearing loss since the accident.
‘‘Q. Okay.
‘‘A. October [2002]. So, it doesn’t—I don’t have here six months after, one
month, one day. This says since the accident. That’s what I have on my—
and that’s what I have to—those are the facts (indicating).
‘‘Q. Yes, I understand that.
‘‘A. Okay?
‘‘Q. Would that timing make a difference with respect to your addressing
the issue of causation?
‘‘A. No. I’ll tell you why.
‘‘Q. Okay.
‘‘A. Very simple. You can get hit in the head today and you can get dizzy
a year from now, ten years from now and it could be from that. Okay? So,
you don’t have to be dizzy the day of the injury. You could be dizzy weeks,
months, years after. And it all could be from that accident.
‘‘Q. Okay. So, how is a medical provider, is it that you can opine as to
the event when you get six months, a year, two years out?
‘‘A. You do testing, like I did, and then you, based on experience you
come to conclusions.
‘‘Q. Okay.
‘‘A. And based on your training.’’
9
The defendant characterizes the Supreme Court’s decision in DiNuzzo
as establishing a two-pronged ‘‘threshold standard for expert medical evi-
dence’’—namely, ‘‘(1) expert opinions must be based on reasonable probabil-
ities rather than mere speculation or conjecture and (2) expert opinions
must be supported by subordinate facts.’’ In accord with this reading of
DiNuzzo, the defendant argues that the board, in affirming the commission-
er’s decision, failed to apply the second prong of the standard. We disagree
with the defendant’s characterization of DiNuzzo.
It is true that, to be admissible, an ‘‘[e]xpert [opinion] must be based [on]
reasonable probabilities . . . .’’ (Internal quotation marks omitted.)
DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294 Conn. 142. Neverthe-
less, we read the requirement of sufficient subordinate factual support—
the so-called second prong—to apply to the commissioner’s conclusion that
a causal connection exists between the injury and the claimant’s employ-
ment, not to the admissibility of the expert opinion on which the commis-
sioner relies in reaching that conclusion. See id., 143 (‘‘the finding of the
commissioner cannot be sustained unless supported by the subordinate
facts’’ [internal quotation marks omitted]). In any case, both of the defen-
dant’s interrelated arguments—that Gotay’s opinion was based on specula-
tion or conjecture and that it was not supported by subordinate facts—are
relevant to our determination of the issue on appeal—whether there was
sufficient factual support in the record for the commissioner’s conclusion
regarding causation. As a result, we consider both arguments.
10
Specifically, Gotay explained: ‘‘You know, naturally if the patient falls,
hits the head on the ground, then there’s not reasonable medical probability.
You have a certainty. . . . But when there has not been an actual fall or a
patient has been struck on the head, it’s just either spinning or shaking, or
anything that could move the fluids inside the ear vigorously enough to
affect the different organs that are hiding, or being inside this labyrinth,
that would be enough.’’