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Bourgeois v. Meadow Lawn Care

CASE NO. 4463 CRB-6-01-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 18, 2002

JASON BOURGEOIS

CLAIMANT-APPELLANT

v.

MEADOW LAWN CARE

EMPLOYER

and

NATIONWIDE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Joseph P. Quinn, Jr., Esq., Furniss & Quinn, 248 Hudson Street, Hartford, CT 06106.

The respondents were represented by Frederick Monahan, Esq., Law Office of John F. Della Jacono, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the November 5, 2001 Finding and Award of the Commissioner acting for the Sixth District was heard May 31, 2002 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro, and Commissioners Amado J. Vargas and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in the instant matter appeals from the November 5, 2001 Finding and Award of the Commissioner acting for the Sixth District. In that Finding and Award the trial commissioner awarded the claimant temporary partial and permanent partial benefits as a result of the claimant’s hearing loss. The trier awarded the claimant permanent partial disability benefits for the 35.7% loss of hearing in his left ear. It is from this part of the trier’s Finding and Award that the claimant appeals. The issues presented for review are (1) whether the trial commissioner erred in his conclusion that the claimant sustained a 35.7% permanent partial disability to his left ear and (2) whether the trier erred in failing to conclude that the claimant suffered from an autoimmune disease which pre-existed the June 9, 1998 injury. The pertinent facts are as follows. The claimant on June 9, 1998 was employed by the respondent, Meadow Lawn Care. As part of his employment duties the claimant operated a commercial lawn mower. On June 9, 1998, while operating the mower, the claimant reached down to move a newspaper out of the mower’s path. As he reached down the mower’s engine backfired. When the engine backfired the claimant’s left ear was approximately 18 inches from the motor. The claimant described the backfiring as “unbelievably loud.”

On the evening of the backfiring incident, the claimant was uncomfortable walking and vomited. The claimant continued to experience vertigo, tinnitus and nausea for some period of time following the incident. The claimant sought medical treatment and was ultimately, terminated by the employer as the claimant was unable to perform his job duties. The claimant’s symptoms continued and in November, 1998 the claimant sought medical treatment with Dr. Robert Gryboski.

In this appeal the claimant challenges the legal conclusions of the trier and posits that it was error for the trial commissioner not to grant the claimant’s Motion To Correct the trier’s factual findings. We begin by reviewing the primary issue raised, whether the trial commissioner erred in concluding that the claimant sustained a 35.7% loss to his left ear. The claimant contends that the trial commissioner misinterpreted the testimony of Dr. Gryboski.

The claimant contends that the testimony of Dr. Gryboski was, inter alia, that the claimant sustained a 35.7% total hearing loss and not just a 35.7% loss to the left ear. Our review of the testimony of Dr. Gryboski concurs with claimant’s. At the May 3, 2001 formal hearing session, Dr. Gryboski testified in pertinent part:

Dr. Gryboski: The American Academy of Otolaryngology many decades ago established guidelines for determining hearing disability and we in the specialty have long known that the guidelines that they established are really terrible and always tend to underestimate the severity and the degree of the disability for several reasons, number one they are based upon pure tone thresholds purely on a patient’s ability to hear a sound at threshold, the very, very quietest level. They have nothing to do with speech reception, the ability to hear speech let alone to understand it. Therefore, a person can hear certain tones at certain levels of loudness but yet have absolutely useless hearing in the ear if that ear is incapable of understanding human speech. Dr Perkins referred to this in his deposition, he said it’s a totally useless ear. I think he said he had a 2% discrimination score that means that even if sounds are made as loud as they could possibly be so that Jason could hear them in that ear he’s still only going to understand 2% of what he hears. He’ll hear pure tones and beeps but he’ll only understand 2% of spoken speech. That notwithstanding, the guidelines are what we use to determine disability and there are certain formulae that we use and plug numbers into them and I have here four audiograms of Jason, the four most recent ones that we have done in our office dated August 22, 2000, September 12, 2000, April 10, 2001 and today May 3, 2001 and except for the one in April where his hearing was down because of a head cold that he had, the other three audiograms are really very, very consistent within a few tenths of a percent of each other. Today, May 3rd, based upon these numbers, his total disability is 31.9% now that is based upon the fact that the guidelines indicate that he has 23% useful hearing in his left ear, in no way does he have 23% useful hearing in that left ear. He has 0% useful hearing in that left ear because he cannot discriminate speech and things have to be so loud but this is what the guidelines say, if we assume that that ear is 100% gone rather than 77% gone then his total disability is 35.7% instead of 31.9%. The figures from the other three audiograms are really very close within one tenth of a percent or so. Now the autoimmune process involves both ears and we can assume that it’s involving both ears equally. In his left ear, Jason has an additional component to this hearing loss that’s caused by the blast injury and we should be able to reasonably determine how much of the hearing loss in this left ear is due to the blast injury by subtracting out that amount of sensorineural hearing loss that he has in the right ear, subtract that out from the left ear so that all we’re left with is the amount of hearing loss due to the blast injury and this comes out to approximately 12 or 13% total hearing disability as a result of the blast injury.

Atty. Quinn: But in combination with the other your opinion is that it would be 35.7% total?

Dr. Gryboski: Thirty-five point seven.

May 3, 2001 Transcript, pp. 16-17 (emphasis ours)

We are most reluctant to strike a commissioner’s factual finding but where, as here, the evidence does not support the trier’s finding we must. Uttenweiler v. General Dynamics Corp., 3110 CRB-8-95-6 (January 8, 1997). Cf. Dengler v. Special Attention Health Services, 62 Conn. App. 440 (2001)(finding of causal relationship could not be sustained where there was no evidence offered by a medical expert to support trier’s finding). We therefore remand the instant matter to the trier for a determination of the percentage of permanent loss of hearing sustained by the claimant as a result of the June 9, 1998 incident.

The second issue presented for review by the claimant, i.e. whether the trial commissioner erred in failing to find that the claimant suffered from an autoimmune disease process which pre-existed the June 9, 1998, we find no error. The claimant argues in Paragraph V, the trier specifically stated that he found the opinion of Dr. Gryboski to be more credible and persuasive on the issue of causation and permanency.1

The claimant argues that as the trier found Dr. Gryboski more credible and persuasive the trial commissioner should also have accepted that part of Dr. Gryboski’s testimony stating the claimant’s hearing loss was made worse by the existence of an underlying autoimmune disease process. We think the claimant reads the trier’s finding in Paragraph V too narrowly. We believe that the trier’s finding in Paragraph V is not inconsistent with the lack of a finding on the existence of an autoimmune disease process and its causative role in the claimant’s hearing loss.

The claimant contends that the trier’s statement that he finds Dr. Gryboski more credible and persuasive on the issue of causation and permanency requires the trial commissioner’s adoption of the doctor’s opinions on the role or existence of an autoimmune disease process. We believe that the trier was referring to causation in the sense that the claimant’s hearing loss was proximately caused by the June 9, 1998 work injury.

Additionally, as the fact finder the trier is permitted to accept or reject parts of the evidence. The trier is not bound to accept a physician’s opinion in toto.

It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). The trier may accept or reject, in whole or in part, the testimony of an expert. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).

Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999).

The legal conclusions drawn by a commissioner must have a basis in the evidence. In this case we believe the trier’s finding and conclusion on the issue of the claimant’s permanency rating is not founded in the testimony provided by Dr. Gryboski.

As the trier clearly concluded that the claimant is entitled to permanent partial disability benefits we remand the matter for the trier’s determination of the permanent partial disability benefits to be awarded to the claimant for which foundation in the evidentiary record exists.

We therefore remand this matter to the trial commissioner for a determination of the permanent partial disability benefits to which the claimant is entitled.

Commissioners Amado J. Vargas and Jesse M. Frankl concur.

1 Paragraph V of the November 5, 2001 Finding and Award states: “I find and conclude that the medical opinions of Drs. Gryboski and Bernstein on the issue of causation and permanency to be more credible and persuasive than those of Dr. Perkins. In addition I find Dr. Gryboski’s treatment reasonable and necessary.” BACK TO TEXT

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