Perrelli v. Yale University

The claimant was represented by Giancarlo Rossi, Esq., Albert R. Annunziata, P.C. & Associates, 22 Trumbull Street, P.O. Box 1716, New Haven, CT 06507.

The respondent was represented by Neil Ambrose, Esq., Letizia, Ambrose & Cohen, P.C., One Church Street, New Haven, CT 06510.

This Petition for Review from the January 25, 2001 Finding and Award of the Commissioner acting for the Third District was heard August 24, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro, Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the January 25, 2001 Finding and Award of the Commissioner acting for the Third District. It contends on appeal that the trier erred by finding that a pneumothorax1 suffered by the claimant was caused by a compensable lifting injury. We affirm the trial commissioner’s decision.

As of July 24, 1997, the claimant was a college student who was working for the respondent Yale University during the summer. His duties included cleaning dorm rooms, waxing floors and moving furniture. On that date, he strained to move a heavy wooden bed in one of the dormitory rooms and felt a sharp pain in his left shoulder and traveling through his chest down his left side. He did not seek medical attention immediately, but over the course of the next week, he developed left-side chest pains and breathing difficulties. He sought initial treatment and filed an injury report on July 31, 1997. An x-ray led Yale University Health Services to diagnose him with a left-side pneumothorax, and the claimant was taken to the emergency room, where a tube was inserted into his chest.

Dr. Federico, a cardiothoracic surgeon, began treating him on August 4, 1997. He indicated that the claimant was totally disabled from August 1, 1997 through August 8, 1997. The claimant returned with more shoulder and chest pain about two months later, and was again x-rayed. Dr. Federico opined that the claimant had developed a left-sided pneumothorax on September 2, 1997. He explained that this phenomenon could occur spontaneously without any associated stress, and thus he could not determine conclusively if the claimant’s condition was work-related. He did state that a physical strain while lifting could cause a pneumothorax within a reasonable degree of medical probability, however. On May 22, 1998, after reviewing the claimant’s medical records, he opined that “it was reasonably probable to conclude that the Claimant’s pneumothorax could have occurred because of straining and lifting at work.” Findings, ¶ 39. Dr. Godar, meanwhile, said that such a causal link was possible, but not probable. The trier concluded that some of Dr. Federico’s testimony indicated that it was more probable than not that the claimant’s pneumothorax was substantially precipitated by his work activities on July 24, 1997, and found the condition compensable. The respondent has appealed that decision to this board.

In a workers’ compensation case, the claimant carries the burden of proving that he has sustained a compensable injury. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001). The trial commissioner, in turn, possesses the exclusive discretion to evaluate the credibility of the evidence, including both the testimony of lay witnesses and the opinions of medical professionals. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). In order to prevail, the claimant must offer evidence sufficient to persuade the trier of fact that his injuries and/or disability arose out of and in the course of his employment. Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (Sept. 12, 2001); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Where the nature of an injury is relatively simple to determine, and could be inferred by a layperson as being causally connected to work activity (for example, a back sprain occurring while lifting heavy boxes), a doctor’s opinion demonstrating such a connection is not essential to a finding of compensability. Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574 (1945); Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). Where the theory of injury is more complex, however, benefits cannot be paid unless a physician confirms within a reasonable degree of medical probability that there is a causal connection between injury and employment. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449 (2001); Garofalo, supra.

The instant case involves an internal injury that does not have a simple etiology. Therefore, a doctor’s opinion is essential to establishing the requisite causal connection. The question before us today is whether Dr. Federico stated his opinion with sufficient certainty to satisfy the “reasonable degree of medical probability” standard articulated in cases such as Struckman v. Burns, 205 Conn. 542, 554-55 (1987). According to Struckman, “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Id. The respondent argues that Dr. Federico refused to say that the claimant’s pneumothorax was caused by the workplace lifting incident within a reasonable degree of medical probability, opting instead to describe the lifting incident as a “possible cause” that “could have” precipitated the pneumothorax. Brief, p. 2. Thus, it contends that his testimony was insufficient to qualify as a basis for the trier’s finding of compensability.

The Struckman Court has made it clear that no formulaic “magic words” regarding “reasonable probability” are required in order to sufficiently substantiate an expert’s opinion. Id., 555. “To be reasonably probable, a conclusion must be more likely than not. 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 or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Id. “As long as it is clear that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for the [trier’s] consideration.” Id. Therefore, irrespective of the manner in which the term “reasonable degree of medical probability” was implemented by Dr. Federico, we must review his testimony and determine whether the totality of his diagnosis amounts to an opinion that the claimant’s injury was more likely than not caused by the lifting incident, in light of the subordinate facts found regarding that incident.

According to Dr. Federico, the claimant sustained a “spontaneous pneumothorax,” which tends to occur “in and of its own right” during any given situation, including rest. Respondent’s Exhibit 3, supra, pp. 5-6. They most frequently occur in young adult males, and are facilitated by weaknesses that occur in most human lungs. Id., 7-8. Sometimes, the raising of one’s arms or elevation of one’s chest seems to correspond with the onset of symptoms, and smokers have a markedly increased risk. Id., 8-11. Because of the proximity between the claimant’s first symptoms of pain and shortness of breath and his lifting activity, Dr. Federico thought one could conclude that the straining and the Valsalva maneuver2 that are produced by lifting a heavy box brought on the conditions that allowed the claimant’s lung to rupture. Id., 13. He described the claimant as someone who could develop a spontaneous pneumothorax while exerting himself, or while at rest (as occurred the following year). Id., 13-14. He then explained that one could not “clearly determine” if the pneumothorax was work-related or whether it just happened to occur at that particular time. Id., 14. He described it as a “possible cause,” but agreed that he could not say that it was the probable cause within reasonable medical probability. Id., 15, 37. On the other hand, he said that it was within reasonable medical probability that a straining incident in general could cause a pneumothorax. Id., 25.

When asked to elaborate on his degree of certainty, the doctor opined that the parties were debating over semantics that he thought made the situation “absurd.” Id., 26. He clarified that the straining was indeed a possible cause, but that “there is no scientific way that one can conclude, other than the patient’s given history, that the pneumothorax occurred for any of a variety of reasons.” Id. (emphasis added). “I can’t go back in time, and I can’t say . . . hey, I was there, and I watched him get a pneumothorax when he was lifting this bed. Did he strain enough to allow the lung to rupture, and have air rush outside of his lung to collapse his lung at that time? That is a possible cause, yes, okay? I cannot put a number on the probability, though. I can’t say it’s 70% probability, it’s 10% probability, or whatever.” Id., 26-27. He added, “If the patient is telling you, ‘I lifted the bed, and two seconds later I developed pain and shortness of breath,’ then I think it’s . . . reasonable to assume that that straining maneuver . . . brought on conditions that allowed the lung to rupture.” Id., 28. He further added, “[B]y the patient’s given history, . . . he could very well have developed a shortness of breath and pneumothorax at that time, from the increased pressure that’s generated from straining.” Id., 30.

The trier clearly accepted the claimant’s testimony that he was straining to move a heavy bed by himself when he felt sharp pain in his left shoulder and side. Findings, ¶ D. Accepting this subordinate fact as true, one reading Dr. Federico’s opinion could conclude that it was more likely than not that the claimant’s pneumothorax occurred as a direct result of that lifting incident, due to the timing of the claimant’s pain symptoms. Normally, the claimant in a workers’ compensation case seeks to obtain an opinion in which the doctor uses the phrase “reasonable degree of medical probability” to describe his quantum of confidence in his diagnosis, and this board can reliably cite such language in reviewing a trier’s decision to credit such evidence. As the Struckman Court observed, however, this phrase does not serve as a substitute for the diagnosis itself. See also, Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (August 31, 1999).

Every doctor’s interpretation of the phrase “reasonable medical probability” is not necessarily the same. Certain doctors might be reluctant to adopt this terminology unless they can assign a percentage of probability to the alleged cause of a claimant’s injury. Nevertheless, not all diagnoses can be reduced to mathematics, especially where the nature of an injury makes it difficult to assign probability percentages. A claimant need not be denied compensation for a particular type of serious physical injury because of such numerical imprecision, or because other possibilities regarding causation cannot conclusively be ruled out. See Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (Jan. 28, 1998) (opinion sufficed to apportion permanency though doctor thought it “difficult if not impossible” to assign percentages of disability among various back injuries), aff’d, 65 Conn. App. 46 (2001); see also O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) (Appellate Court overturned CRB’s reversal of trier’s finding of compensable lung cancer where board had been troubled by doctor’s use of the word “possible” rather than “probable”).

In this forum, a commissioner may choose to credit the opinion of a doctor even if he declines to state that a particular ailment was caused by a given workplace incident within “a reasonable degree of medical probability,” as long as the trier could reasonably conclude that, in light of the subordinate facts of the case, the physician’s opinion makes it more likely than not that the compensable injury occurred in the manner alleged. Here, Dr. Federico essentially stated that, as far as one could be certain in the case of a spontaneous pneumothorax, he believed that the claimant’s lung collapse was precipitated by his moving of a heavy bedframe at work. The trier believed the claimant’s description of the incident, and proceeded to accept Dr. Federico’s opinion as sufficient to prove compensability. We would be overstepping our role on review if we were to substitute our own inferences regarding the doctor’s opinion for those of the trial commissioner.

The trial commissioner’s decision is hereby affirmed.

Commissioners Ernie R. Walker and Amado J. Vargas concur.

1 Stedman’s Medical Dictionary defines “pneumothorax” as an “[a]ccumulation of air or gas in the pleural cavity, occurring as a result of disease or injury or as a treatment of tuberculosis and other lung diseases.” In lay terms, it refers to a collapsed lung. Respondent’s Exhibit 3, Deposition of Dr. Federico, p. 25. BACK TO TEXT

2 According to Stedman’s Medical Dictionary, a “Valsalva maneuver” is one’s “[e]xpiratory effort when the mouth is closed and the nostrils are pinched shut, which forces air into the eustachian tubes and increases pressure on the inside of the eardrum,” as well as the expiratory effort against a closed glottis, which “increases pressure within the thoracic cavity and thereby impedes venous return of blood to the heart.” BACK TO TEXT