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Ivan-Marrotte v. State of Connecticut/DMR Region 3/MTS

CASE NO. 3599 CRB-02-97-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 28, 1998

MURIELLE IVAN-MARROTTE

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT DMR REGION 3/MTS

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Jennifer Hock, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the April 23, 1997 Finding and Award of the Commissioner acting for the Second District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the April 23, 1997 Finding and Award of the Commissioner acting for the Second District. In that decision, the trial commissioner concluded that the claimant’s phlebitis in her right leg was caused by an injury which occurred at work on July 6, 1994. In support of its appeal, the respondent contends that the medical evidence does not support the trial commissioner’s conclusion. Specifically, the respondent contends that no physician opined with reasonable medical certainty that the claimant’s right leg condition was related to her left leg condition. Additionally, the respondent contends that the trial commissioner erroneously allowed into evidence the deposition and medical reports of Dr. Gallagher.

The trial commissioner found that on July 6, 1994, the claimant was in the course of her employment when she chased a group home client over a wall, landing on her left leg. The respondent does not dispute this occurrence. However, the respondent disputes the claimant’s contention that she developed right leg problems as a result of the left leg injury on July 6, 1994. The issue at the formal hearing was “whether the subsequent right leg phlebitis suffered by the Claimant was related to [the July 6, 1994] incident.” (Finding No. 6).

In the instant case, the trial commissioner’s conclusion that the claimant’s right leg condition was caused by the July 6, 1994 accident is not supported by the medical evidence. Specifically, the record does not include an opinion from a physician which states with reasonable medical probability that the claimant’s right leg condition was caused by the July 6, 1994 accident. The trial commissioner found the opinion of Dr. Gallagher to be the most persuasive. (Finding A). Dr. Gallagher did not opine with reasonable medical certainty that the claimant’s right leg phlebitis was caused by the July 6, 1994 accident. (See 3/4/97 Depo. at p. 29-35).1

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). When the trial commissioner’s conclusion “is not sustainable by the underlying facts or reasonably supported by the evidence” that conclusion may be disturbed on appeal. Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 434 (1996). In order to establish causation, we have consistently required a standard of “reasonable medical probability.” Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 2, 936 CRD-6-89-11 (March 19, 1991). “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Hoffman v. Platinum Vacations of New England, 8 Conn. Workers’ Comp. Rev. Op. 174,176, 867 CRD-7-89-5 (Nov. 30, 1990) (citations omitted).

The burden of proving a causal relationship between a claimant’s employment and her injuries is on the claimant, and “can only be met by competent medical evidence that established such a connection within a reasonable degree of medical probability.” Kincaid-Ross v. State of Connecticut, 3350 CRB-1-96-5 (decided Dec. 4, 1997), citing Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). “Although the words ‘reasonably medically probable’ need not be recited verbatim in the evidence, the substance of the medical opinion of at least one doctor must reach that degree of strength.” Kincaid-Ross, supra, citing Smith v. UTC/Pratt & Whitney, 3134 CRB-3-95-6 (decided April 4, 1997).

In the instant case, as the trial commissioner’s conclusion that the claimant’s right leg condition was caused by the July 6, 1994 accident is not supported by a medical opinion based upon reasonable medical probability of at least one doctor, we must reverse the decision. Because Dr. Gallagher’s deposition does not provide a medical opinion regarding causation with reasonable medical probability, we need not address the issue of whether said deposition was improperly admitted into evidence.

The trial commissioner’s decision is reversed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 ATTORNEY HIXON-SMITH: Isn’t it fair to say that it’s difficult if not impossible for any doctor to know exactly what medically caused the claimant’s right leg symptoms in the summer of 1994?

DR. GALLAGHER: I’m not sure what you mean by what caused it. What lead up to it; that’s a correct statement. As far as whether or not it was a phlebitis or lympangitis, I would say it probably is possible to tell that in most circumstances. Not all, but most. If you’re question was: What lead up to that, I would have to say that there certainly is a lot of room for speculation.

ATTORNEY HIXON-SMITH: Would you agree that reasonable minds even among those doctors trained in vascular conditions might disagree on the medical cause of the claimant’s 1994 right leg symptoms?

DR. GALLAGHER: Yes.

ATTORNEY HIXON-SMITH: Is it your opinion, Doctor, that it can not be determined within a reasonable degree of medical certainty what caused the claimant’s right leg symptoms to develop in the summer of 1994?

DR. GALLAGHER: I need some clarification on that question. As far as what caused it, do you mean jumping off the wall; or what was the disease process that was ongoing when they saw her?

ATTORNEY HIXON-SMITH: What caused it in terms of jumping off the wall.

DR. GALLAGHER: That’s correct. It would be very difficult to tell.

(3/4/97 Depo. at p. 29-31). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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