DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.

Opinion

The sole issue raised by this certified appeal is whether the Appellate Court properly reversed the decision of the compensation review board (board) upholding the decision of the workers’ compensation commissioner for the third district (commissioner), who awarded the plaintiff, Evana DiNuzzo, survivor’s benefits under General Statutes § 31-306 (a). 1 The Appellate Court concluded that there were insufficient subordinate facts in the record to support the commissioner’s finding that the death of the plaintiffs husband, James DiNuzzo (decedent), was causally related to a compensable injury and, therefore, that the plaintiff was not entitled to survivor’s benefits. DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 337, 913 A.2d 483 (2007). We agree and, accordingly, affirm the judgment of the Appellate Court.

*134 The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “Following the decedent’s death, the plaintiff . . . submitted a claim for dependent widow’s benefits pursuant to ... § 31-306. . . . The decedent was employed by the [named] defendant [Dan Perkins Chevrolet Geo, Inc.] 2 and sustained a compensable injury to his cervical spine when he was involved in a motor vehicle accident on June 26,1997. As a result of the injury, the decedent experienced radiculopathy into his left side and [left arm]. He underwent [surgery, after which he] continued to experience [pain in his neck and the left side of his body, as well as numbness and tingling in] his left arm.

“Prior to his death on January 12, 2002, the decedent had suffered from injuries and illnesses that were unrelated to his compensable injury. He had chronic bilateral shoulder and low back pain that [was] the result of a bicycle accident [that] he had in 1974. Since before 1982, the decedent had been treated for a chronic hepatitis C infection, a result of his intravenous drug use. The decedent was diagnosed with adult onset diabetes in 1995. In 1994 or 1995, he was diagnosed with hypertension and high cholesterol. The decedent’s diabetes, hypertension and high cholesterol [all of which are risk factors for atherosclerotic heart disease] were controlled by medication. On December 1, 2001, the decedent was hospitalized with complaints of dizziness, [excessive perspiration] and pain. The symptoms were caused by the effect [that] Interferon, a medicine he took [for his] hepatitis C infection, had on his blood sugar level.

“On the evening of January 11, 2002, the plaintiff observed that the decedent was mumbling and incoher *135 ent. [The decedent] complained that he had severe lower back pain, [that] his stomach was bothering him, and [that] he was constipated. At midnight [on January 12, 2002], the decedent struggled successfully to have a bowel movement, after which he said that he felt better. The plaintiff last saw the decedent [alive] at 2 a.m. on January 12, 2002. Because the plaintiff and the decedent slept in separate rooms, the plaintiff was unaware of the decedent’s activities between 2 and 8 a.m. when she discovered his body. Members of the Milford police department responded to the plaintiffs call for assistance. . . . [T]he decedent was declared dead at 8:50 a.m. on January 12, 2002, and . . . [his] body was not examined by the medical examiner.

“Cosmo Filiberto, a board certified family practitioner and expert in preventive medicine and care, prepared the decedent’s death certificate. Filiberto stated that the cause of death was heart disease, secondary to atherosclerotic heart disease. Filiberto had treated the decedent for twenty years and had seen him days before his death but did not examine his body postmortem. No autopsy was performed on the decedent’s body. The record is silent as to why no postmortem examination or autopsy was done. Filiberto opined at the hearing before the commissioner that the decedent’s death was brought about by the curtailment of his physical activities. His weight sometimes exceeded 300 pounds. [In Filiberto’s view, the decedent’s] weight gain and resulting inactivity, along with the heavy doses of narcotics [that] he was required to take to control his pain, made it ‘medically probable and certain that the stress’ of [his] compensable injury and its treatment substantially contributed to his death . . . because they severely limited his ability to maintain his physical fitness and aerobic conditioning. Prior to [sustaining] the . . . compensable injury, [the decedent] was able to control his pain [from] prior accidents with over- *136 the-counter medication and muscle relaxants. Relief from the pain of the decedent’s 1997 accident, however, required high doses of narcotics, eventually reaching 3200 milligrams [each] day.

“Jonathan Alexander, a cardiologist at Danbury Hospital and clinical faculty member of Yale University School of Medicine, testified for the defendant. Alexander based his opinion and report on a review of the decedent’s medical records, including Filiberto’s records. Alexander found no evidence of atheroscle-rotic heart disease in the decedent’s medical records. Alexander concluded, therefore, that neither the treatment the decedent received as a result of his cervical injury nor his inactivity nor his weight gain [was a factor] in his death.

“The commissioner was not persuaded by Alexander’s opinions. [The commissioner] found, on the basis of Filiberto’s twenty year[s] [of] treatment of the decedent and familiarity with [the decedent’s] ongoing medical conditionfs], that there was a relationship between the compensable injury and the decedent’s death. He concluded that the plaintiff was entitled to benefits pursuant to § 31-306. The defendant thereafter filed a motion to correct the findings and award, which the commissioner denied .... The defendant [thereafter] appealed to the board.” Id., 338-40. “The board concluded that the commissioner’s award was not contrary to law, without evidence or based on unreasonable or impermissible inferences. The board, therefore, affirmed the commissioner’s award. The defendant appealed.” Id., 341.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the board improperly had affirmed the commissioner’s findings for two interrelated reasons, namely, that those “findings were predicated on expert medical testimony grounded in con *137 jecture, speculation or surmise,” and that “the expert medical testimony was not supported by the subordinate facts . . . .” Id., 338. The Appellate Court agreed with both of the defendant’s contentions. Id. In doing so, the Appellate Court first observed that the commissioner, in concluding that the plaintiff was entitled to survivor’s benefits, had credited the testimony of Filiberto, the decedent’s personal physician. Id., 343. The Appellate Court stated: “We accept the commissioner’s credibility determination for purposes of our analysis, but the testimony of even the most persuasive expert witness cannot be credited if it is not based on facts. The determinative question, therefore, is not whether Filiberto was credible but whether there are sufficient subordinate facts in the record to support his opinion that the decedent’s death was causally related to his compensable injury.” Id., 343-44. The Appellate Court then concluded that the record was devoid of such facts, explaining: “Filiberto testified before the commissioner on May 5, 2004, and a copy of his deposition testimony was placed into evidence. Our review of the transcripts reveals that the decedent was morbidly obese in 1982 and that he gained twenty to thirty pounds after the 1997 accident and thirty to thirty-five more pounds after his [surgery]. Due to the decedent’s weight and the drugs [that the decedent] took to control his pain, Filiberto opined that the decedent was unable to exercise and that he would have lived longer had he exercised. According to Filiberto, the decedent died of a heart attack caused by atherosclerotic disease, although he never ordered tests to determine whether the decedent, in fact, had atherosclerotic heart disease. 3 Filiberto also opined that Oxycontin, which the decedent was taking for pain, can cause constipation. *138 According to Filiberto, straining to have a bowel movement can cause changes in the body’s system that can produce cardiac arrest. [Filiberto testified, however, that he could not state to a reasonable medical probability that the decedent’s constipation was connected to his work-related injury or to his death.]

“Filiberto also testified that he did not examine the decedent’s body [postmortem] . . . and that no autopsy had been performed. Filiberto did not know whether the decedent had a congenital heart defect that could have caused a heart attack and acknowledged that a ruptured aneurysm, pulmonary embolism, stroke or sudden arrhythmia can cause sudden death. 4 He conceded that, without an autopsy, there [was] no way [of] know[ing] the exact cause of the decedent’s death.

“On cross-examination before the commissioner, the defendant’s counsel presented Filiberto with a copy of the . . . records [from the decedent’s admission to Milford Hospital on December 1, 2001], which he previously had not seen. 5 6[Those records indicated that a] *139 gastroenterologist [had been] treating the decedent’s chronic hepatitis C infection, and Filiberto [testified that he] was unaware that the decedent had [started] taking Interferon [before his admission to the hospital]. Filiberto conceded that the symptoms [that] the decedent complained of on January 11, 2002, [the evening before his death] could have resulted from taking Interferon. . . . The reality is that it was not possible to determine with any reasonable degree of probability the cause of the decedent’s death given the factual gaps in the record. [The Appellate Court concluded] [o]n the basis of [its] examination of Filiberto’s testimony and *140 opinion . . . that there were insufficient subordinate facts to support his opinion that the decedent’s death was causally related to the compensable injury or to remove the cause of death from the realm of conjecture.” 6 (Citation omitted.) Id., 344-46.

*139 “[Filiberto]: If he had gotten it close to that time frame. The doctor there said four days.

*140 We granted the plaintiffs petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly reverse the decision of the . . . board, upholding the . . . commissioner’s finding and award of survivor’s benefits, under ... § 31-306?” DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 281 Conn. 929, 918 A.2d 277 (2007). We answer the certified question in the affirmative.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. *141 The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts.” (Citation omitted; internal quotation marks omitted.) Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006).

To recover under the Workers’ Compensation Act (act), an employee must meet the two part test embodied in General Statutes § 31-275, 7 namely, that the injury claimed arose out of the employee’s employment and occurred in the course of the employment. E.g., Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 243-44, 902 A.2d 620 (2006). “[I]n Connecticut traditional concepts of proximate cause constitute the rule for determining . . . causation [in workers’ compensation cases].” McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118, 527 A.2d 664 (1987); accord Solonick v. Electric Boat Corp., 111 Conn. App. 793, 799, 961 *142 A.2d 470 (2008) (same), cert. denied, 290 Conn. 916, 965 A.2d 555 (2009). “[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based [on] more than conjecture and surmise. ... An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . The finding of actual cause is thus a requisite for any finding of proximate cause.” (Citation omitted; internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).

When, as in the present case, it is unclear whether an employee’s death is causally related to a compensable iiyuiy, it is necessary to rely on expert medical opinion. See, e.g., Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 152, 291 A.2d 743 (1972). “Unless the medical testimony by itself establishes a causal relation, or unless it establishes a causal relation when it is considered along with other evidence,” the commissioner cannot reasonably conclude that the death is causally related to the employee’s employment. (Internal quotation marks omitted.) Id. “Expert opinions must be based [on] reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. ... 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 [on] 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 *143 expert’s testimony.” (Citations omitted.) Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987).

Finally, although “an award must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them . . . there must be subordinate facts from which the conclusion that there is a causal connection between the employment and the injury can be drawn. . . . [Thus] [t]he right of a claimant to compensation must be based [on] more than speculation and conjecture.” (Citations omitted.) D’Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 508, 152 A.2d 636 (1959); see also Nash v. Hunt, 166 Conn. 418, 426, 352 A.2d 773 (1974) (“the jury must reject the opinion of an expert to the extent that it is based on subordinate facts which [the jury does] not find proven” [internal quotation marks omitted]); Fur-man v. National Dairy Products Corp., 123 Conn. 327, 329,195 A. 182 (1937) (“the finding of the commissioner cannot be sustained unless supported by the subordinate facts”).

On appeal, the plaintiff claims that the Appellate Court improperly concluded that there were insufficient subordinate facts in the record to support the commissioner’s finding, predicated on Filiberto’s expert testimony, that the decedent’s death was causally related to his back injury because the back injury severely limited his ability to exercise, which, in turn, caused him to suffer a fatal heart attack. The plaintiff contends that, although the decedent never had been formally diagnosed with atherosclerotic heart disease, Fili-berto’s opinion that he died from the disease was adequately supported by circumstantial evidence, namely, that the decedent suffered from many of the risk factors for the disease, including hypertension, diabetes and morbid obesity. The plaintiff maintains, therefore, that, contrary to the determination of the Appellate Court, it is of no moment that the decedent never was formally *144 diagnosed with atherosclerotic heart disease, that no one witnessed his death and that no autopsy was performed. According to the plaintiff, the fact that the decedent exhibited certain risk factors for atheroscle-rotic heart disease was sufficient to establish, to a reasonable degree of medical certainty, that the decedent had died of a cardiac event triggered by the disease, and that, if the decedent had been able to improve his physical fitness, which he could not do because of his compensable injury, “he would have been less of a candidate for a cardiac event.”

There are several problems with the plaintiffs claim, not the least of which is that, apart from the fact that the decedent had suffered from certain risk factors associated with atherosclerotic heart disease—factors that, according to the record, were all fully under control at the time of the decedent’s death 8 —the plaintiff produced no evidence linking the decedent’s death to a heart attack. We agree with the Appellate Court that, without such evidence, either in the form of an autopsy report, an eyewitness account of what appeared to be a heart attack; see Stier v. Derby, 119 Conn. 44, 48-51, 174 A. 332 (1934) (affirming commissioner’s finding that decedent had suffered heart attack in course of his employment based, in part, on witness’ testimony that decedent was pale, sweating and complaining of chest pain shortly before his death); or an actual diagnosis of atherosclerotic heart disease, the evidence simply was insufficient to support Filiberto’s testimony as to the cause of the decedent’s death. 9

*145 The inadequacy of Filiberto’s testimony is compounded by the fact that, as the Appellate Court noted; see DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 345-46; Filiberto acknowledged at the hearing before the commissioner that when he gave his opinion on direct examination, he was not aware that the decedent had been hospitalized approximately one month before his death for certain side effects of Interferon. See footnote 5 of this opinion. After reading the hospital record, Filiberto further acknowledged that the symptoms that the decedent had exhibited on the night of his death could have been the result of his use of Interferon. 10 When asked, however, whether the symptoms also were consistent with a heart attack, Filiberto could only speculate as to how they “conceivably” might be connected. In the end, Filiberto was forced to concede that he did not “actually know whether there was a heart attack that precipitated the [decedent’s] death, as opposed to some other event, such as a stroke or brain embolism, or an aortic burst or something like that. ...” He also acknowledged in his deposition testimony that, even if it could be established conclusively that the decedent had died of a heart *146 attack, without an autopsy, it would be impossible to know whether the heart attack could have been prevented if the decedent had been able to exercise more because some heart attacks are caused by congenital heart defects that are not amenable to improvement through exercise. Specifically, Filiberto testified in relevant part at his deposition:

“[The Defendant’s Counsel]: Now, as matter of fact, you don’t know whether, if [the decedent] had been in perfect shape, he might [not] have dropped dead of a heart attack, because you don’t know what the heart defect was that killed him; isn’t that true?

“[Filiberto]: That’s true.

“[The Defendant’s Counsel]: So you cannot say, because you do not know, what his heart defect was specifically; no autopsy having been performed, you cannot say that, had he maintained himself in better physical condition ... he would certainly have lived longer?

“[Filiberto]: Well, it certainly means more likely than not than—yeah, I can say that. . . .

“[The Defendant’s Counsel]: Because you don’t know what his heart defect was, you can’t say whether physical conditioning had anything to do with the heart defect that killed him; isn’t that true?

“[Filiberto]: Since we don’t know exactly what that defect was, that’s true.” 11

*147 Despite these evidentiary deficiencies, the plaintiff proffers several arguments in support of her claim that the judgment of the Appellate Court must be reversed. The plaintiff argues, first, that the decedent’s medical condition “should not be lost in cardio-semantics” and that it is unfair to penalize her because the decedent’s medical records “do not contain the magic words ‘ath-erosclerotic heart disease’ . . . .” We disagree that the evidentiary deficiencies in the plaintiffs case are merely semantical. To the contrary, as we have explained, the *148 plaintiffs claim to survivor’s benefits was predicated on a series of inferences, some of them quite attenuated, that the commissioner was required to draw from the fact that the decedent had suffered a compensable injury in 1997. These inferences included: (1) the decedent’s 1997 injury severely limited the decedent in his ability to exercise and therefore to maintain his physical fitness; (2) the decedent’s lack of exercise worsened an undiagnosed case of atherosclerotic heart disease or caused him to develop that disease in the first place; and (3) the decedent suffered a fatal heart attack as a result of the first two factors. Putting aside the lack of an evidentiary foundation to support the first inference; see footnote 11 of this opinion; we agree with the Appellate Court that, without some evidence establishing that the decedent in fact suffered a fatal heart attack or actually suffered from atherosclerotic heart disease, the causal link between his compensable injury and his alleged manner of death simply becomes too attenuated to support a reasonable inference that the two events were connected. 12

*149 The plaintiff also contends that Reynolds v. Rider Dairy Co., 125 Conn. 380, 5 A.2d 855 (1939), Russo v. Metropolitan Life Ins. Co., 125 Conn. 132, 3 A.2d 844 (1939), and Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 52 A. 490 (1902), support the proposition that when there is conflicting medical testimony as to the cause of death in a workers’ compensation action, and the employee’s death certificate is entered into evidence, the commissioner may rely on the death certificate as evidence of the facts asserted therein. Although we agree with the plaintiff that, as a general matter, a death certificate is evidence of the facts contained therein, the foregoing cases are all distinguishable: in those cases, in contrast to the present case, the physician who prepared the death certificate did not testify, as Filiberto testified in the present case, that he did not actually know what had caused the decedent’s death, that he had not conducted a postmortem examination of the decedent’s body and that an autopsy had not been performed. In light of Filiberto’s testimony, the evidentiary presumption that ordinarily would attach to a death certificate is unwarranted.

Finally, the plaintiff contends that, in keeping with the humanitarian and remedial purposes of the act, she *150 should not be penalized for failing to request an autopsy of her husband’s body at a time when she was overcome with grief and attending to the details of his funeral. The plaintiff asserts that, if the judgment of the Appellate Court is affirmed, it will place future widows in the unfortunate position of having to take steps to secure their survivor’s benefits before attending to the needs of loved ones.

It is well established that, in resolving issues of statutory construction under the act, “we are mindful that the act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation. . . . Accordingly, [i]n construing workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. . . . [T]he purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes.” (Citations omitted; internal quotation marks omitted.) Piz-zuto v. Commissioner of Mental Retardation, 283 Conn. 257, 265, 927 A.2d 811 (2007). The plaintiff has cited no authority, however, and we are aware of none, that would permit us to apply these general principles of interpretation to reheve her of the burden of establishing all of the elements of her claim by competent evidence. See, e.g., Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 151 (injured employee in workers’ compensation case bears burden of proof and “[s]uch proof must be established by competent evidence”). “[Although a court] may be sympathetic to the plight of injured workers who find it cost prohibitive to attempt to establish complicated theories of causation, whether medical or otherwise, the humanitarian spirit of [the act] does not entitle the [court] to *151 suspend the injured worker’s burden of proof, [or] to change the rules of our legal system so that the onus of disproving causation is thrust upon the [employer or the insurer].” 1 A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2008) § 10.19, p. 1545.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.