Dumont v. Southern Connecticut State University/State of Connecticut

CASE NO. 1320 CRD-3-91-10

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

JUNE 16, 1993

CARLA DUMONT, Dependent Spouse of Jean-Louis Dumont (Deceased)

CLAIMANT-APPELLEE

v.

SOUTHERN CONNECTICUT STATE UNIVERSITY/STATE OF CONNECTICUT

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Jeremy Zimmerman, Esq., and Neil J. Ambrose, Esq., both of Wiggin and Dana, One Century Tower, P.O. Box 1832, New Haven, CT 06508-1832.

The respondent was represented by Robin L. Wilson, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.

This Petition for Review from the October 3, 1991 Finding and Award of the Commissioner for the Third District was heard September 25, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Frank Verrilli and James Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The respondent-employer, State of Connecticut has petitioned for review from the October 3, 1991 Finding and Award of the Commissioner for the Third District. In that Finding and Award the trial commissioner awarded the claimant, dependent-spouse, benefits pursuant to Sec. 31-306 for the death of her spouse due to a heart attack which arose out of and in the course of the decedent’s employment.

The pertinent facts are as follows. The decedent was employed by Southern Connecticut State University as a French professor. In previous years the decedent led study tours of Europe. For the summer of 1987, the decedent agreed to lead two study tours of Europe, one in France and one in Spain. Each tour group consisted of approximately 20 students.

As tour leader the decedent was responsible for all details in the organization of the tour and was on duty at all times during the tour. During the tour of France, the decedent was upset by the group members’ complaints about food and accommodations, upset by one particular student’s behavior. On the night between the conclusion of the French tour and the beginning of the Spanish tour, the decedent did not sleep. Accommodations were a problem during the Spanish tour and the group was required to spend a night in Madrid as opposed to the university in Salamanca, Spain. The decedent warned the tour participants about the crime possibilities around their Madrid hotel. Shortly thereafter, an elderly couple who were on the tour were robbed outside the Madrid hotel.

Problems with the tour of Spain and accommodations continued. The weather during the trip was hot and humid and at times the temperature was over 100° Fahrenheit. As with any tour, there was a substantial amount of walking and on August 16, 1987 the decedent collapsed while walking up an incline to a place where the tour group was to have lunch. The decedent was transported by ambulance to a local hospital and pronounced dead due to a coronary thrombosis, cardio-respiratory arrest.

The decedent had a history of coronary disease. In 1973 and 1979, respectively, the decedent suffered 2 prior myocardial infarctions. In 1979, Dr. Richard Shaw performed four vessel coronary bypass surgery.

The respondent took the instant appeal and presented the following issue for review; whether the trial commissioner erred in concluding that the decedent’s death arose out of and in the course of his employment. Specifically, the respondent challenges the trial commissioner’s finding that mental stress, physical exertion and extreme heat were substantial factors in producing the decedent’s heart attack. The respondent contends that the medical opinion upon which the trial commissioner’s factual findings and conclusion are based is “speculative”. The respondent contends that as there was no reading taken of the decedent’s epinephrine levels at the time of death, and Dr. Kluger’s theory of causation is premised on a theory, the conclusion of the trial commissioner is not legally supported by the evidence.

The factual findings of the trial commissioner indicate that Dr. Jeffrey Kluger, a specialist in internal medicine and cardiovascular disease reviewed the decedent’s medical records. Dr. Kluger stated that in his opinion the decedent had pre-existing coronary artery disease prior to his death, but based on the decedent’s exercise tolerance tests, the decedent could engage in normal activity. See Paragraph #37, Deposition of Dr. Jeffrey Kluger, July 9, 1990 at 7, 11. (Claimant’s Exhibit 2). Dr. Kluger additionally stated that in his opinion based on reasonable medical probability, the decedent’s stress and physical activity during the European trip triggered his sudden cardiac death. See Deposition of Jeffrey Kluger, M.D., July 9, 1990 at 21-22.

We profoundly disagree with the contentions raised by the respondent on appeal. The respondent seizes upon a few phrases in the testimony of Dr. Jeffrey Kluger and Dr. James Dougherty and quotes the following respectively:

A: The progression of the arteriosclerotic plaque may not be affected by the stress, but an acute event that leads to obstruction of the coronary artery by thrombosis appears to be precipitated by stress hormones such as epinephrine, and that has been found to be associated with both the occlusion of a coronary artery as well as rhythm problems that occur after an occlusion of a coronary artery.

Q: What does epinephrine do?

A: It does several things. The most important, as far as the precipitation of an acute myocardial infarction, is it makes platelets which are the particles in the blood that make the blood sticky, makes the platelets clump together and predisposes formation of a thrombus which is responsible for the closure of the artery.

Q: But you don't know for a fact Doctor, if the stress caused Professor Dumont’s epinephrine level to increase, do you? Do you know that for a fact?

A: Without taking a sample at the time, I would not know it for a fact.

Q: What process takes place when the epinephrine level rises?

A: Well, the hypothesis is that epinephrine creates platelets, which are the sticky part of the blood, to potentially clog up. And this is felt to be a mechanism wherein running down the street may well create a heart attack for example. And obviously there is no objective way to define that other than in animal models or in a theoretical sense. But that is the basis of the epinephrine theory.

Claimant’s Exhibit 2, Deposition of Dr. Jeffrey Kluger, July 9, 1990 at 13 and August 7, 1990 at 7, and Respondent’s Exh. 2 Depo. of Dr. James Dougherty, 9/10/90, pg. 9 (Emphasis added) as quoted in Respondent-Appellant’s Brief (Brief of the State of Connecticut) at 6-7).

Clearly the respondents have quoted the above portions out of context. Further, our courts had held that the opinion of an expert witness,

[m]ust be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. Healy v. White, 173 Conn. 438, 443-46 (1977). To be reasonably probable, a conclusion must be more likely than not. Id., 444. Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert on his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. Aurora v. Miami Plumbing and Heating, Inc., 6 Conn. App. 45, 46 (1986).

Struckman v. Burns, 205 Conn. 542, 554-55 (1987). See also, Charette v. Jensen Mobile Home. 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (1991).

We note that at various times in his deposition Dr. Kluger’s testimony refers to the standard of reasonable medical probability. See Deposition of Dr. Jeffrey Kluger July 9, 1990 at 18-24, and Deposition of Dr. Jeffrey Kluger, August 7, 1990 at 24-25. We therefore think that the trial commissioner quite permissibly relied on the opinion of Dr. Kluger in drawing his ultimate conclusion. See also, McDonough v. Conn. Bank & Trust Co., 204 Conn. 104 (1987)

Finally we will not disturb the conclusions of a trial commissioner where the medical evidence is conflicting. Damelio v. Anaconda, Inc., 4 Conn. Workers’ Comp. Rev. Op. 31, 281 CRD-5-83 (1987) no error 15 Conn. App. 805 (1988) (per curiam) cert. denied 208 Conn. 814 (1988). The conclusion reached by the commissioner is dependent upon the weight and the credibility accorded the evidence below and thus, will not be disturbed unless contrary to law or based on unreasonable or impermissible factual inferences. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975)

We therefore affirm the October 3, 1991 Finding and Award of the Commissioner for the Third District.

Additionally, pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal.

Commissioner Frank Verrilli and James Metro concur.