DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.

CASE NO. 4911 CRB-3-05-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 13, 2006

EVANA DiNUZZO, Dependent Widow of JAMES DiNUZZO

CLAIMANT-APPELLEE

v.

DAN PERKINS CHEVROLET GEO, INC.

EMPLOYER

and

UTICA MUTUAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John Spielman, Esq., Owens, Schine & Nicola, 799 Silver Lane, Trumbull, CT 06611.

The respondents were represented by G. Randall Avery, Esq., Avery, Crone & Cassone, 25 Third Street, Stamford, CT 06905.

This Petition for Review from the January 5, 2005 Finding and Award of the Commissioner acting for the Third District was heard July 15, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents appeal from the January 5, 2005 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award the trial commissioner concluded the decedent’s death was causally related to the decedent’s June 26, 1997 compensable accident. The pertinent facts in this matter are as follows.

The claimant is the dependent spouse of the decedent. The decedent suffered a compensable injury to his cervical spine as a result of a June 26, 1997 motor vehicle accident. Following that injury the decedent suffered neck pain and radiculopathy into the left side and left upper extremity. Ultimately, the decedent underwent surgery consisting of a three level fusion and foraminectomy. Following the surgery the decedent continued to have neck pain, left-sided body pain and paresthesias into the left arm. Essentially, the decedent did not return to work following the surgery. Finding ¶ 5.

On the morning of January 12, 2002 at around 8:00 a.m. the claimant found the decedent in an unresponsive state. The evening prior to the decedent’s demise, the claimant observed the decedent was “wasn’t making sense; he was just mumbling.” Finding ¶ 12. He also complained that his lower back was very painful, of pain in his stomach and constipation. Around midnight the decedent’s constipated state resolved and he informed the claimant he was feeling better. The decedent and the claimant did not sleep in the same room. The claimant last observed the decedent at 2:00 am.

Upon discovery of the decedent the next morning, the local police department was called and the decedent was declared dead. However, the decedent was not physically examined by the medical examiner nor was an autopsy performed. The death certificate was signed by Dr. Cosmo Filiberto who was the decedent’s treating physician for over twenty years. The cause of death was given as “‘heart disease’ secondary to atherosclerotic heart disease.” See Finding ¶ 18.

Prior to his death, the decedent suffered from chronic bilateral shoulder and low back pain due to accidents dating back to 1974. At the time of decedent’s death he was undergoing treatment for a chronic Hepatitis C infection. That condition was being treated by Interferon and was believed to relate to intravenous drug use prior to 1982. Between 1994 and 1995 the decedent was diagnosed with hypertension, adult onset diabetes and high cholesterol. All of these conditions were subsequently controlled by medications.

The trial commissioner found that prior to the 1997 compensable accident the decedent was able to control his pain through the use of over the counter Tylenol and muscle relaxants. Following the decedent’s 1997 injury high doses of narcotics were required to control his pain. Dr. Filiberto attributed the decedent’s death to the decedent’s morbid obesity resulting from limitations on his physical activity due to the decedent’s use of narcotics to control his pain. Medical records reflected that, at times, the decedent’s weight exceeded 300 pounds. Dr. Filiberto opined the curtailment of the decedent’s physical activity “made it medically probable and certain that the stress of the decedent’s work injury and its treatment substantially contributed to his death . . . .” Finding ¶ 21.

The respondents’ examiner, Dr. John Alexander, a hospital based cardiologist reviewed the decedent’s medical records from Dr. Filiberto and concluded “neither the treatment received by the [decedent] as a result of his cervical injury, nor his inactivity, nor his weight gain, were a factor in the decedent’s death.” Finding ¶ 26. Whether the claimant’s decedent’s death was causally related to the decedent’s compensable injury is a question of fact to be determined by the trial commissioner. The trier’s determination rests on the weight and credibility he assigns to the testimony of the expert witnesses.

In the instant matter the trial commissioner gave greater weight to the opinion of the decedent’s treating physician, Dr. Filiberto. As noted above, Dr. Filiberto treated the decedent for more than twenty years and Dr. Filiberto saw the decedent just a few days prior to this death. Finding ¶ 18.

The assessment of the weight and credibility to be accorded the evidence is a matter solely within the purview of the trial commissioner. Findings and conclusions drawn from those assessments will not be disturbed unless they are contrary to law, without evidence or based on unreasonable or impermissible inferences.

The commissioner may base his or her findings on circumstantial evidence; see Gaul v. Noiva, 155 Conn. 218, 224, 230 A.2d 591 (1967); and may rely on expert testimony. See State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). 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. Discuillo v. Stone & Webster, 43 Conn. App. 224, 226, 682 A.2d 145 (1996), aff’d, 242 Conn. 570, 698 A.2d 873 (1997). (Emphasis ours)

Paternostro v. Arborio Corp., 56 Conn. App. 215, 219 (1999).

We therefore affirm the January 5, 2005 Finding and Award of the Commissioner acting for the Third District.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.