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Story v. Town of Woodbury

Appellate Court of Connecticut

September 15, 2015

THOMAS STORY
v.
TOWN OF WOODBURY ET AL

Argued May 14, 2015

Page 908

[Copyrighted Material Omitted]

Page 909

Appeal from the decision of the Workers' Compensation Commissioner for the Fifth District awarding benefits to the plaintiff, brought to the Workers' Compensation Review Board, which affirmed the commissioner's decision, and the defendants appealed to this court.

SYLLABUS

The defendants, the town of Woodbury and its workers' compensation insurer, appealed to this court from the decision of the Workers' Compensation Review Board affirming the decision of the Workers' Compensation Commissioner finding that the plaintiff police officer had suffered a compensable hearing loss as a result of a work related injury and awarding certain disability benefits. The plaintiff was injured when he was struck by a car while directing traffic for the town. At the hearing before the commissioner, the plaintiff testified and reports and deposition testimony were admitted into evidence from the plaintiff's expert, G, who opined that, to a reasonable degree of certainty, the plaintiff's hearing loss resulted from a concussion caused by the accident. The defendants presented testimony from expert witnesses who disagreed with G's opinion. On appeal, the defendants claimed that there was insufficient evidence to support the commissioner's finding that the plaintiff's hearing loss arose out of the accident, and, therefore, the board improperly affirmed the commissioner's finding and award.

 Held :

1. The defendants could not prevail on their claim that the commissioner's finding that the plaintiff's hearing loss arose out of the accident was legally incorrect and not supported by the evidence because the commissioner had improperly relied on G's opinion, which they alleged was based on speculation and conjecture, and was not supported by the subordinate facts: although the defendants found it significant that G conceded that he did not review certain medical reports from the plaintiff's primary care physician and the hospital where the plaintiff was treated immediately following the accident because the records did not indicate that the defendant complained of dizziness or hearing loss, the commissioner found credible G's testimony that the fact that the reports did not mention those conditions was insignificant and that reviewing them would not have changed his opinion; furthermore, G's expert opinion was based on the plaintiff's account of the accident, which the commissioner also found credible, as well as G's own examination of the plaintiff and the results of tests G conducted on the plaintiff, which G interpreted according to his training and experience as a specialist in the subject medical field; moreover, although the parties presented different versions of the accident and their experts had conflicting opinions concerning the medical issues involved, the commissioner was well within his authority to credit G's testimony and to accept or reject certain evidence, and this court would not second-guess the commissioner's factual determinations.

2. The defendants' claim that the commissioner should have relied of their experts' opinions instead on G's opinion was unavailing; although the parties' experts offered opposing opinions as to whether the plaintiff's hearing loss was caused by the accident, it was the province of the commissioner to weigh the evidence, and, therefore, he was entitled to determine that G provided the more credible and persuasive expert opinion.

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).

DiPentima, C. J., and Mullins and Bear, Js.

OPINION

Page 910

[159 Conn.App. 632] MULLINS, J.

The defendant town of Woodbury[1] appeals 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.

[159 Conn.App. 633] 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

Page 911

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 plaintiff'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.

[159 Conn.App. 634] 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 syndrome[3] 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 electronystagmogram[5] that 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]

Page 912

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 ...


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