CASE NO. 4383 CRB-7-01-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 1, 2002
Estate of MICHAEL DRIVAS
JOANN DRIVAS, Dependent Widow
FAIR AUTO PARKS
FIREMAN’S FUND INSURANCE CO.
The claimant was represented by Lawrence Peck, Jr., Esq., 30 Mason Street, Torrington, CT 06790.
The respondents were represented by David Chapman, Esq., Genovese, Vehslage & Chapman, 500 Enterprise Drive, Rocky Hill, CT 06067.
This Petition for Review from the April 20, 2001 Finding and Dismissal of the Commissioner acting for the Seventh District was heard November 16, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant (the estate of the deceased) has petitioned for review from the April 20, 2001 Finding and Dismissal of the trial commissioner acting for the Seventh District.1 In that decision, the trial commissioner found that the deceased and his widow were unable to meet the minimum burden of proof to show that work stress, or any other work factors, caused the decedent’s myocardial infarction which occurred at work on May 28, 1994. In support of its appeal, the claimant estate contends that the trial commissioner applied the wrong legal standard in determining that the heart attack of May 28, 1994 was not compensable. Specifically, the claimant contends that a heart attack which occurs at work must be compensable without regard to whether it is caused by work stress or any other work factor. We find no error.
In the instant case, the trial commissioner found the following relevant facts. The decedent was employed in the retail automobile sales industry from 1962 through the end of May 1994. The decedent commenced working for the respondent employer in 1993. He suffered from severe coronary artery disease which required bypass graft surgeries in 1980 and 1984. Additionally, he had a family history of heart disease and smoked one pack of cigarettes per day. Both the decedent and his widow testified about the severe pressure and stress involved in his job. The decedent was experiencing fatigue for two weeks prior to May 28, 1994, and as a result went to Dr. Arberatta, who recommended a follow-up examination with a cardiologist. While at work on May 28, 1994, the decedent experienced fatigue and pressure in the chest. He went to Dr. Zaman, a cardiologist, on May 31, 1994, and was admitted to the hospital with a diagnosis of acute anterior wall myocardial infarction and left ventricular dysfunction.
He was subsequently admitted to a medical center for further cardiac work-up, “with a history of myocardial infarction on May 28, 1994, at rest, with angina for many years and exertional dyspnea for the past year that progressively worsened.” Findings, ¶ 22. A cardiac catheterization was performed on June 7, 1994, which revealed “severe heart disease with 100% blockage of the left main coronary artery and its branches and 100% blockage of the right main coronary artery.” Findings, ¶ 23. The decedent did not return to work after May 31, 1994, and was awaiting a heart transplant when he had a fatal one-car accident on April 24, 1995.
Dr. Cohen, board certified in cardiology, and a professor of medicine at the Yale School of Medicine with an endowed chair, testified as the respondents’ medical expert. He testified that the decedent suffered from significant heart muscle damage prior to 1994, and that he suffered from severe pre-existing heart disease. He further testified that the decedent sustained a heart attack during the weekend of May 28, 1994 due to his severe and chronic degree of coronary artery narrowing. Dr. Cohen testified with a reasonable degree of medical probability that the decedent’s work stress was not a significant contributing factor to the May 28, 1994 heart attack, and noted the absence in the medical history of any acute work-related emotional and/or stress event on or about May 28, 1994.
The trial commissioner noted that as a result of his cardiac condition, the decedent applied for disability benefits, and that Dr. Zaman indicated in the disability benefits application that the cardiac condition did not arise out of his employment. The trial commissioner also reviewed the medical opinion of Dr. Ramahi, who opined that the claimant did indeed suffer a heart attack but that “whether the high degree of stress to which Mr. Drivas was subjected to at work precipitated the heart attack, this question cannot be answered with the same certainty.” Findings, ¶ 39. He opined, “Although a causative relation can be difficult to prove unequivocally, in my opinion, there is a very high likelihood that the high level of stress experienced by Mr. Drivas at work might have contributed to the occurrence of his heart attack while at work on Saturday May 28, 1994.” Findings, ¶ 39 (emphasis added).
The trial commissioner concluded that the decedent and claimant widow failed to meet the burden of proof that the heart attack was substantially caused by work stress or stressors. In fact, the trial commissioner found that as the medical evidence did not meet the necessary burden of proof, he did not even need to rely on the “clear and contrary” opinion of Dr. Cohen. Findings, ¶ C.
The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] 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.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it . . . .” Id., 349 (citations omitted).
“Our cases have held that traditional proximate cause concepts apply in cases involving the compensability of heart attacks.” Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998)(per curiam), citing McDonough, supra. Indeed, regarding heart attacks, we have consistently held that a claimant bears the burden of proving that a work factor such as work stress or exertion was “a substantial factor in producing his myocardial infarction.” Benlock, supra, citing Thompson v. State of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 178, 180, 2206 CRB-6-94-11 (March 22, 1996)[aff’d, 44 Conn. App. 924 (1997) per curiam)]; Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op. 163, 165, 972 CRD-3-90-1 (June 28, 1991).
In Thompson, supra, 180 we explained as follows:
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, [supra, at 117]. 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. . . .
Furthermore, the claimant’s burden to prove causation in heart attack cases was reviewed by the state Supreme Court in McDonough, supra, which held:
Heart stress cases differ only in degree from other compensation cases involving causation in myriad differing fact patterns. Only the factual nuances and difficulties of expert medical testimony distinguish such cases. In order to recover, the claimant must prove causation by a reasonable medical probability.
Id., 118 (emphasis added).
In the instant case, the trial commissioner concluded that the decedent and claimant widow did not meet this burden of proof. Certainly, the trial commissioner was entitled to accept the opinion of Dr. Cohen, who opined with reasonable medical probability that the decedent’s work stress was not a significant contributing factor to the May 28, 1994 heart attack. Additionally, the record supports the trial commissioner’s conclusion that the medical evidence fails to establish causation with a reasonable degree of medical probability, including the opinion of Dr. Ramahi, who opined that “the high level of stress experienced by Mr. Drivas at work might have contributed to the occurrence of his heart attack while at work on Saturday May 28, 1994.” Findings, ¶ 39 (emphasis added).
As the conclusion of the trial commissioner is fully supported by his findings and by the evidence in the record, it may not be disturbed. Ferrara, supra.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 We note that the trial commissioner’s earlier decision denying the Motion to Preclude was affirmed in Drivas v. Fair Auto Park, 15 Conn. Workers’ Comp. Rev. Op. 366, 2279 CRB-7-95-1 (June 28, 1996). BACK TO TEXT