CASE NO. 2206 CRB-6-94-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 22, 1996
STATE OF CONNECTICUT DEPARTMENT OF SPECIAL REVENUE
The claimant was represented by Thomas W. Donohue, Esq., Eagan & Donohue, 24 Arapahoe Road, West Hartford, CT 06107.
The respondent was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 4, 1994 Finding of Facts and Dismissal of Claim of the Commissioner acting for the Sixth District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 4, 1994 Finding of Facts and Dismissal of Claim by the Commissioner acting for the Sixth District. He argues on appeal that the trial commissioner erroneously dismissed his claim. We affirm the trial commissioner’s decision.
The trial commissioner found that the claimant had worked for the Department of Special Revenue since 1982 and continued to work there through the time of the formal hearing. On October 10, 1991, the claimant received a layoff notice effective November 1, 1991, which was withdrawn several months later after the claimant filed a grievance with his union. The claimant was then transferred to another part of the department, after which he began to experience headaches, insomnia, tinnitus, weight gain and hypertension. In March 1992, the claimant’s doctor warned him that his weight problem and high blood pressure placed him at risk of a heart attack. When the claimant reported for work on April 1, 1992, he exhibited symptoms of having a heart attack, and was taken to the hospital. He underwent a coronary artery bypass the next day; at that time, pre-existing coronary artery abnormalities were noted. He was out of work for 15 weeks due to the heart attack, along with 4.2 weeks of half-time duty.
The claimant contends he has a 30 percent permanent partial impairment of his heart because of the myocardial infarction. The commissioner concluded, however, that the claimant failed to establish a causal relation between his employment and the heart attack, especially considering his previous hypertension, smoking, and family history of coronary artery disease. The claimant has appealed from the dismissal of his claim.
The claimant essentially argues that the uncontroverted medical opinions of Dr. Landry and Dr. Nadelmann establish the compensability of the claimant’s heart attack and the existence of permanent partial disability, and that it was erroneous for the trial commissioner to find otherwise. As we have often stated, the power and duty of determining the facts rests on the trial commissioner, who possesses the authority to determine the weight of the evidence presented and the credibility of lay and expert witnesses. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994). The conclusions of the commissioner must stand on review unless they result from an incorrect application of the law to the subordinate facts or from an illegal or unreasonable inference drawn from those facts. Fair, supra, 539; Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). This board will not retry the case or consider further evidence on review, and the findings themselves may be changed only if they contain facts found without evidence or fail to include material, undisputed facts. Tovish, supra; Webb, supra.
The commissioner here made findings that the claimant had a medical history conducive to the development of heart trouble. He then mentioned Dr. Landry’s findings that the claimant had no significant symptoms of heart damage and noted the results of a 1992 EKG that showed no decline in the strength of his heart contractions. The commissioner cited Dr. Landry’s report stating that the primary cause of the myocardial infarction was “due to fixed obstructive abnormality of the coronary arterial circulation caused by many factors, including heredity, cigarette smoking in the past, elevated serum lipids, and hypertension.” He then noted that Dr. Landry had indicated that the stress and tension caused by the claimant’s employment situation could have caused an increase in his heart’s demands for oxygen, but that it was also possible that the heart attack would have occurred without the workplace stress. The commissioner declined to grant a Motion to Correct that cited statements by Dr. Nadelmann and other portions of Dr. Landry’s testimony more favorable to the claimant’s position.
Our caselaw has established that an internal injury such as a heart attack can be a compensable accidental injury within the meaning of the Workers’ Compensation Act, and that to establish a stress-related heart claim, a claimant need prove that a “sudden, unusual and unexpected employment factor was a substantial factor in causing the claimant’s condition.” McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 114, 117 (1987). The commissioner should not balance employment factors against nonemployment factors to determine the causation of a heart attack; instead, the claimant must prove that it is reasonably medically probable that the employment was a substantial factor in causing the injury. Id., 118. Using this test, therefore, the claimant possesses the burden of establishing that his employment was at least a substantial cause of his myocardial infarction, along with the existence of a permanent partial disability.
A review of the testimony and reports of Drs. Landry and Nadelmann reveals support for the commissioner’s findings that tests showed no permanent heart damage to the claimant and that he was free of significant symptoms while performing ordinary or moderately heavy physical activities. See August 11, 1993 Report of Dr. Nadelmann (Claimant’s Exhibit 5); May 20, 1994 Report of Dr. Landry (Claimant’s Exhibit 4); May 31, 1994 Transcript of Dr. Landry Deposition, p. 27-28. Although Dr. Landry attempted to explain these test results in a manner consistent with the assessment of a 30 percent permanent partial disability rating, the commissioner was not required to credit this testimony. Unlike the situation in McCurdy v. State, 227 Conn. 261, 267 (1993), where the decedent’s disability was undisputed, but the appropriate finding was omitted because of an error of law regarding the compatibility of temporary total and permanent partial disability, in this case the degree of the claimant’s permanent partial disability, if any, was still in dispute, and the accuracy of Dr. Landry’s report had not been conceded. Thus, the trial commissioner had the discretion to disregard that part of the testimony.
Similarly, the commissioner’s finding regarding Dr. Landry’s assessment of the causation of the myocardial infarction had roots in his testimony and reports as well. Although the paragraph quoted by the commissioner in his findings was culled from Dr. Landry’s initial report of September 10, 1992, he did not back away from those statements during cross-examination at his deposition. (Transcript, p. 22-27). It was reasonable for the trial commissioner to conclude from the doctor’s reports and testimony that doubt existed as to whether the causal effect of work stress on his myocardial infarction was reasonably medically probable, even though the ultimate opinion of the doctor was that work stress was “quite probably” a substantial cause of the heart attack. (Transcript, p. 14). Given his discretion to gauge the credibility of the evidence, we cannot say on review that the commissioner erred in ruling that the claimant’s heart attack was not substantially caused by work-related stress.
The trial commissioner’s decision is affirmed.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.