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DeBarros v. Singleton

Court of Appeals of Connecticut

March 27, 1990

Henry DeBARROS
v.
A.L. SINGLETON et al.

Argued Nov. 8, 1989.

Bruce L. Levin, Orange, with whom, on the brief, was Serge G. Mihaly, Trumbull, for appellant (plaintiff).

Michael J. Belzer, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, Atty. Gen., and Charles Overend, Asst. Atty. Gen., for appellee (defendant Second Injury and Compensation Assurance Fund).

Before BORDEN, DALY and NORCOTT, JJ.

DALY, Judge.

The plaintiff appeals from the decision of the compensation review division affirming the workers' compensation commissioner's (commissioner) dismissal of the plaintiff's request for permanent partial disability benefits. The plaintiff claims that the review division erred in refusing to disturb the commissioner's conclusions. We disagree.

[21 Conn.App. 108] The issue Before the commissioner was whether the plaintiff had suffered permanent partial disability of the brain as the result of an accident that occurred on July 21, 1981, in which a fellow worker plummeted nine stories to his death, striking the plaintiff. [1] The medical reports of L.M. Davey, a neurosurgeon, constituted the only medical evidence in the case.

In the first of two reports, Davey stated that the plaintiff continued to complain of various symptoms as a result of the accident, including severe headaches and a fear of heights. [2] He stated that it would be

Page 70

difficult [21 Conn.App. 109] to estimate permanent partial disability, but that "considering the psychological problems" of the plaintiff, he offered an estimate of a 5 to 10 percent permanent partial disability of "the whole person." The plaintiff's attorney informed Davey that the Workers' Compensation Act requires that any disability be expressed in terms of a particular organ, and cannot be ascribed simply to the whole person. The doctor responded in his second report that, "since the [plaintiff's] main residual disability is on a psychological basis, it might be fair to apply the five to ten percent rating to the brain."

The commissioner found that the plaintiff suffered posttraumatic headaches, but concluded in a separate finding that there was "no evidence presented that proves within the parameters of reasonable medical probability that the claimant suffered permanent partial disability to his brain as a result of the accident of [July 21, 1981]." The compensation review division [21 Conn.App. 110] adopted the factual conclusions of the commissioner. The review division stated in its opinion that although there "was certainly evidence on which the commissioner could have found a partial permanent disability of the brain ... the commissioner did not conclude that such testimony satisfied the 'parameters of reasonable medical probability.' " The review division concluded that it could not disturb the commissioner's conclusions.

The plaintiff appeals from the decision of the compensation review division. See General Statutes § 31-301b. In reviewing the factual determinations of the commissioner, the review division's scope of review is limited. The review division may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Fair v. People's Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). Our scope of review of the actions of the review division is similarly limited. See Bucko v. New London, 13 Conn.App. 566, 570, 537 A.2d 1045 (1988). The decision of the review division must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed. Kevorkian v. Peter Paul, Inc., 3 Conn.App. 335, 488 A.2d 102 (1985) (per curiam). Moreover, no case under the Workers' Compensation Act should be finally determined when this court is of the opinion that through inadvertence or otherwise the facts have not been sufficiently found to render a just judgment. Dombach

Page 71

v. Olkon Corporation, 163 Conn. 216, 228, 302 A.2d 270 (1972).

The plaintiff had the burden of proving his claim of a permanent partial disability of the brain. See Dombach v. Olkon Corporation, supra, at 221, 302 A.2d 270. The only evidence[21 Conn.App. 111] he produced was Davey's two reports. Those reports were ambiguous and tentative with respect to that claim.

On the basis of this evidence, the commissioner concluded that the evidence did not bring the plaintiff's claimed disability within the realm of reasonable medical probability. The commissioner was entitled to make that conclusion, particularly since the opinion of the neurosurgeon was based largely on what he concluded was the psychological residue of the accident. The review division upheld the commissioner's conclusions in this case. We ...


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