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THOMAS STORY v. TOWN OF WOODBURY ET AL.

(AC 37111)

DiPentima, C. J., and Mullins and Bear, Js.

Argued May 14—officially released September 15, 2015

(Appeal from Workers’ Compensation Review Board.)
Colette S. Griffin with whom was Chris Holland, for

the appellants (defendants).

Robert S. Kolesnik, Sr., with whom was Stephanie

E. Cummings, for the appellee (plaintiff).
Opinion

MULLINS, J. The defendant town of Woodbury1

appeals from the decision of the Workers’ Compensation Review Board (board) affirming the finding and

decision of the Workers’ Compensation Commissioner

for the Fifth District (commissioner). On appeal, the

defendant claims that there was insufficient evidence

to support the commissioner’s finding that the hearing

loss suffered by the plaintiff, Thomas Story, arose out

of his work related injury, and, consequently, the board

erred in affirming the commissioner’s decision. We conclude that the board properly determined that the evidence was sufficient. Accordingly, we affirm the

decision of the board.

The record reveals the following relevant facts and

procedural history. On October 21, 2002, the plaintiff,

who at the time was a police officer employed by the

defendant, was directing traffic at a construction site.

While doing so, he was struck by a car and injured.

Specifically, the car’s right front fender struck his right

knee and lower torso. When the impact spun the plaintiff around, the car’s passenger side mirror struck his

right elbow. The car continued moving, and the plaintiff’s head and neck ‘‘violently twisted side to side’’ as

he spun along the side of the car, remaining on his feet.

Once the car had stopped, the plaintiff had a brief

exchange with the driver before calling for another

officer and an ambulance. At that point, the plaintiff

was beginning to feel dizzy and to feel pain in his lower

back, neck, elbow, and knees. An ambulance transported the plaintiff to the emergency room, where he

reported neck, back, knee, and elbow injuries but did

not complain to medical personnel of dizziness. Both

of the plaintiff’s knees eventually required surgery.2

Four days after the accident, when the plaintiff saw

his primary care physician, Charles McNair, he exhibited normal neck contour and posture and a full range

of motion in his neck, without apparent pain or discomfort. Approximately two months later, on December 17,

2002, the plaintiff again saw McNair and denied feeling

any dizziness at that time. Sometime after the accident,

the plaintiff began receiving complaints from his wife

and friends about his hearing. Thereafter, the plaintiff

reported to McNair that he had been experiencing a

high-pitched buzzing in his ears and dizziness. As a

result, although McNair did not record the plaintiff’s

report in writing, McNair did refer the plaintiff to Victor

Gotay, an ear, nose, and throat specialist.

On January 8, 2004, the plaintiff met with Gotay.

The plaintiff told Gotay that since the accident, he had

experienced ringing in both ears, being off balance, and

hearing loss. Gotay evaluated the plaintiff and diagnosed him with vertigo syndrome3 and tinnitus.4 Gotay

ordered a hearing test, which showed high frequency
hearing loss in both of the plaintiff’s ears. Gotay also

ordered an electronystagmogram5

that was performed

on February 5, 2004, and showed abnormal results.

Gotay opined to a reasonable degree of medical probability that the plaintiff’s hearing loss and loss of balance

were caused by the accident when he sustained a labyrinthine concussion.6

At the defendant’s request, the plaintiff submitted to

independent medical examinations by two ear, nose,

and throat specialists. The first was performed by William Lehmann. After Lehmann examined the plaintiff,

he opined that ‘‘there is no plausible reason why one

would attribute [the plaintiff’s hearing loss and tinnitus]

to the accident in question.’’7

When Lehmann subsequently retired, the plaintiff

submitted to the second independent medical examination by ear, nose, and throat specialist John Kveton.

On the basis of his review of records provided by counsel and his evaluation of the plaintiff, Kveton opined,

to a reasonable degree of medical probability, that the

plaintiff did not suffer a labyrinthine concussion as a

result of the accident, nor was the accident a significant

factor in the plaintiff’s claims of hearing loss, ringing

in the ears, or vertigo.

Kveton testified at his deposition that it ‘‘would play a

role in [his] assessment’’ of causation if medicalrecords

closest in time to such an accident did not contain

reports of ringing in the ears, dizziness, or vertigo,

which are symptoms that he would expect a primary

care physician to note in a patient’s chart. Kveton

opined that ‘‘[a] labyrinthine concussion would occur

with some type of head trauma and [the plaintiff] did

not indicate that he had fallen on his head.’’ He also

stated that the type of mild high frequency hearing loss

the plaintiff exhibited usually is caused by chronic noise

exposure rather than the orthopedic injury the plaintiff

had sustained. Kveton’s examination of the plaintiff

indicated that his inner ear’s balance mechanism was

functioning properly.

On September 24, 2012, and October 10, 2012, the

commissioner presided over a formal hearing at which

the plaintiff appeared and testified. The reports and

deposition testimony of Gotay and Kveton were admitted into evidence. The commissioner issued a finding

and decision in which he concluded that the plaintiff

suffered a compensable hearing loss as a result of the

work related injury sustained on October 21, 2002. The

commissioner found the plaintiff’s testimony to be

‘‘fully credible and persuasive.’’ The commissioner

found Gotay’s testimony, opinions, and reports to be

‘‘fully credible and persuasive,’’ but did not find Kveton’s testimony, opinions, and reports or Lehmann’s conclusion to be ‘‘fully credible and persuasive.’’

The defendant filed a motion to correct the commis-
sioner’s finding and decision, which the commissioner

denied. The defendant then appealed to the board,

arguing that the commissioner improperly relied on

Gotay’s opinion because it was ‘‘mere speculation or

conjecture and not supported by the subordinate facts.’’

The board affirmed the commissioner’s finding and

decision. The board concluded that Gotay’s deposition

testimony ‘‘reflects a number of statements and answers

by . . . Gotay that could support the [commissioner’s]

inference that . . . Gotay’s opinion as to causation was

not merely speculative or based in conjecture . . . .’’

(Footnote omitted.) The board also concluded that

Gotay’s opinion was based on his examination of the

plaintiff, the plaintiff’s history, various tests, and

Gotay’s expertise and experience. This appeal followed.

Additional facts will be provided as necessary.

The defendant makes two claims on appeal: (1) that

the commissioner improperly relied on Gotay’s expert

opinion, and (2) that the commissioner should have

relied on Lehmann and Kveton’s expert opinions instead

of on Gotay’s expert opinion. We are not persuaded.

We begin by setting forth the applicable standard of

review. ‘‘The principles that govern our standard of

review in workers’ compensation appeals are well

established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . .

[T]he review [board’s] hearing of an appeal from the

commissioner is not a de novo hearing of the facts.

. . . [T]he power and duty of determining the facts

rests on the commissioner . . . . [T]he commissioner

is the sole arbiter of the weight of the evidence and the

credibility of witnesses . . . . Where the subordinate

facts allow for diverse inferences, the commissioner’s

selection of the inference to be drawn must stand unless

it is based on an incorrect application of the law to

the subordinate facts or from an inference illegally or

unreasonably drawn from them. . . .

‘‘This court’s review of decisions of the board is similarly limited. . . . 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 orfrom an inference illegally or unreasonably drawn from them. . . . [W]e must interpret

[the commissioner’s finding] with the goal of sustaining

that conclusion in light of all of the other supporting

evidence. . . . Once the commissioner makes a factual

finding, [we are] bound by that finding if there is evidence in the record to support it.’’ (Internal quotation

marks omitted.) Jones v. Connecticut Children’s Medical Center Faculty Practice Plan, 131 Conn. App. 415,

423–24, 28 A.3d 347 (2011).

I

The defendant first claims that the commissioner’s

finding that the plaintiff’s hearing loss resulted from
the accident was neither legally correct nor supported

by the evidence because the commissioner relied on

Gotay’s expert opinion. It argues that the commissioner’s reliance on Gotay’s opinion was improper for two

interrelated reasons: the opinion was grounded in speculation and conjecture, and it was not supported by

subordinate facts. We disagree.

‘‘To recover under the [Workers’ Compensation Act,

General Statutes § 31-275 et seq.], an employee must

[prove] that the injury claimed arose out of the employee’s employment and occurred in the course of the

employment. . . . [I]n Connecticut traditional concepts of proximate cause constitute the rule for

determining . . . causation [in a workers’ compensation case]. . . . An actual cause that is a substantial

factor in the resulting harm is a proximate cause of

that harm.’’(Citation omitted; footnote omitted; internal

quotation marks omitted.) Marandino v. Prometheus

Pharmacy, 294 Conn. 564, 591–92, 986 A.2d 1023 (2010).

‘‘This causal connection must be based [on] more than

conjecture and surmise.’’ (Internal quotation marks

omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.,

294 Conn. 132, 142, 982 A.2d 157 (2009).

‘‘If supported by evidence and not inconsistent with

the law, the . . . [c]ommissioner’s inference that an

injury did or did not arise out of and in the course of

employment is conclusive. No reviewing court can then

set aside that inference because the opposite one is

thought to be more reasonable; nor can the opposite

inference be substituted by the court because of a belief

that the one chosen by the . . . [c]ommissioner is factually questionable.’’ (Internal quotation marks omitted.) Sapko v. State, 305 Conn. 360, 385, 44 A.3d 827

(2012).

‘‘When . . . it is unclear whether an employee’s

[condition] is causally related to a compensable injury,

it is necessary to rely on expert medical opinion. . . .

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

[condition]is causally related to the employee’s employment. . . . [E]xpert 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 [a]n

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 particularterm or phrase, butrather, is determined by looking

at the entire substance of the expert’s testimony.’’ (Citations omitted; internal quotation marks omitted.)

DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294

Conn. 142–43.
The defendant claims that Gotay’s opinion was based

on speculation and conjecture because Gotay admitted

that he had notreviewed McNair’s records orthe Waterbury Hospital medical records even though those

records, which documented the plaintiff’s symptoms

closest in time to the accident, might have included

ear, nose, and throat related complaints.

The defendant’s argument boils down to this: The

medical records closest in time to the accident do not

show thatthe plaintiff complained of dizziness and hearing loss at that time. Because these records do not

show complaints of dizziness and hearing loss, those

symptoms did not exist then and only developed later.

Furthermore, according to Kveton, the absence of such

symptoms immediately following the accident would

be significant to a conclusion regarding causation.

Therefore, because Gotay did not review those records,

his opinion that the plaintiff’s hearing loss resulted from

a labyrinthine concussion caused by the accident could

only be speculative. We are not persuaded.

The defendant argues that the present appeal is controlled by DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.,

supra, 294 Conn. 132. In DiNuzzo, the plaintiff’s expert

opined that the weight gain and use of pain medication

of the plaintiff’s decedent following a work related accident had prevented him from exercising and, therefore,

hastened his death. The expert attributed the death to

a heart attack caused by atherosclerotic heart disease.

DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn.

App. 336, 339–40, 913 A.2d 483 (2007), aff’d, 294 Conn.

132, 982 A.2d 157 (2009). Neither an autopsy nor a

postmortem examination had been performed on the

decedent’s body. Id., 339. The testimony of the plaintiff’s

expert, therefore, was the only evidence that the decedent had atherosclerotic heart disease. Id., 344 n.3.

On cross-examination, the plaintiff’s expert in

DiNuzzo was shown records of the decedent’s hospitalization, one month before his death, for side effects

of the drug Interferon. Id., 346. The plaintiff’s expert

admitted that he did not know that the plaintiff was

taking Interferon or that he had been hospitalized. Id.,

346 n.5. Upon reviewing the hospital records, he conceded that the decedent’s symptoms on the night of his

death could have been attributable to the drug, that a

number of other possible causes of death existed, and

that it was impossible to pinpoint the actual cause of

the decedent’s death. Id., 344–45.

This court reversed the board’s decision affirming

the commissioner’s award of widow’s benefits to the

plaintiff. Id., 347. We concluded that ‘‘[t]he 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.’’ Id., 346.

Therefore, ‘‘there were insufficient subordinate facts
before the commissioner from which he reasonably

could make . . . a finding [that the decedent’s death

was the result of a work related injury].’’ Id., 337.

The Supreme Court affirmed our decision, noting that

‘‘[t]he inadequacy of [the] testimony [of the plaintiff’s

expert] is compounded by the fact that . . . [he]

acknowledged . . . that when he gave his opinion . . .

he was not aware that the decedent had been hospitalized approximately one month before his death for certain side effects of Interferon.’’ (Citation omitted.)

DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294

Conn. 145. Moreover, even prior to being shown the

decedent’s hospital records, the plaintiff’s expert had

admitted that he could testify only as to how the decedent’s symptoms on the night of his death might ‘‘ ‘conceivably’ ’’ be consistent with a heart attack. Id.

The defendant in the present case urges that DiNuzzo

is controlling because ‘‘a primary reason that the Appellate and Supreme Courts found the medical opinion at

issue in DiNuzzo unreliable was that the witness relied

upon by the . . . commissioner did not consult relevant medical records prior to issuing his opinion on

causation . . . .’’ (Internal quotation marks omitted.)

For similar reasons, the defendant relies on Jones v.

Connecticut Children’s Medical Center Faculty Practice Plan, supra, 131 Conn. App. 415.

In Jones, the commissioner credited the opinion of

the plaintiff’s expert that the plaintiff’s neurogenic bladder condition was the result of a work related motor

vehicle accident. We affirmed the board’s conclusion

that this credibility determination could not stand in

light of the commissioner’s contradictory finding that

a neurologist’s diagnosis of the plaintiff, which was

the principal basis for the expert’s opinion, was not

credible. As the board reasoned, ‘‘[h]ad the . . . commissioner found . . . [the neurologist’s] opinion persuasive, it might have been possible to uphold the trier’s

finding relative to the credibility of . . . [the plaintiff’s

expert]regarding the causation ofthe [plaintiff’s] neurogenic bladder. However, the . . . commissioner ultimately determined . . . [the neurologist’s] opinion

was not persuasive and, further, that the evidentiary

record was insufficient to determine that the [plaintiff]

suffered from a concussion, post-concussive syndrome,

or any other neurological deficits. [Accordingly] . . .

we are unable to affirm the . . . commissioner’s finding that . . . [the plaintiff’s expert] was credible relative to her conclusion that the [plaintiff] developed a

neurogenic bladder as a result of the motor vehicle

accident.’’ (Emphasis omitted; internal quotation marks

omitted.) Id., 431.

The commissioner’s reason for discrediting the neurologist’s underlying diagnosis in Jones is particularly

pertinent to the present case. Specifically, we observed

that ‘‘the commissioner expressly discredited [the neu-
rologist’s] opinions on the basis of the flawed medical

history that he had received from the plaintiff.’’ Id., 424

n.7. Indeed, ‘‘[t]he commissioner . . . found that the

plaintiff provided [her] various physicians with inconsistent histories regarding her motor vehicle accident

and that the credibility and persuasiveness of each physician was directly related to the accuracy of the history

given by the plaintiff.’’ (Internal quotation marks omitted.) Id., 426.

In Jones, we found it significant that on cross-examination, the plaintiff’s expert conceded that she had not

reviewed emergency room records or reports of the

plaintiff’s independent medical examinations. Nevertheless, we emphasized that the commissioner’s credibility determination was undermined principally by his

finding relating to the neurologist’s reliance on the

plaintiff’s flawed medical history and its adverse impact

on the neurologist’s credibility. Id., 431. Furthermore,

we noted the expert’s express concession that her opinion would change if she discovered that either the neurologist or the plaintiff had provided inaccurate

information. Id., 432. Because the commissioner’s other

credibility determinations suggested the strong possibility that the expert’s review of medical records would

undermine her opinion, we concluded that her opinion

was based on speculation and conjecture. Id., 432.

Both of the foregoing cases are distinguishable from

the facts presented here. In the present case, Gotay,

unlike the expert in DiNuzzo, based his opinion on

his own examination of the plaintiff and the results of

medical tests that he had commissioned. In addition,

although Gotay conceded that he did not review the

reports of McNair and Waterbury Hospital before formulating his opinion, the fact that they contained no

complaints of dizziness or hearing loss did not cause

him to waver in his opinion. Rather, Gotay explained

the general insignificance of the timing of the plaintiff’s

symptoms as it related to causation.8 He likewise

explained the insignificance of McNair’s reports, testifying that because McNair is a ‘‘general practitioner

. . . not an [ear, nose, and throat] specialist . . . he

is not going to dwell on dizziness, tinnitus, or hearing

loss [and] . . . his records are not going to be of any

value, whatsoever, when we’re dealing with this issue

. . . .’’ He also testified that the record of ‘‘[o]ne emergency room visit’’ was ‘‘not enough’’ to sway his opinion.

Furthermore, unlike in Jones, here there is no underlying adverse credibility determination by the commissioner to undermine Gotay’s opinion regarding

causation. On the contrary, the commissioner here fully

credited the plaintiff’s testimony regarding his medical

history, which is consistent with the history the plaintiff

gave to Gotay. Indeed, another significant distinguishing feature in the present case is that Gotay did not

merely rely on the history provided by the plaintiff or
on another physician’s prior diagnosis. Rather, as he

testified, he formulated an opinion only after conducting his own examination of the plaintiff, performing

tests, and interpreting the results in light of his training

and experience.

Finally, we note that the defendant assumes, incorrectly, that the plaintiff’s symptoms must not have

existed since the accident because they were not

reflected in McNair’s and Waterbury Hospital’s records.

The plaintiff testified before the commissioner, however, that he ‘‘had been experiencing ringing and buzzing . . . from the time of the accident, but it was

secondary to all my other problems. It wasn’t a primary

concern of mine. . . . I was expecting it to go away.

I never brought it up to . . . McNair because I always

thought it would just disappear.’’

Thus, this is not a case in which, as in DiNuzzo, the

only evidence linking the plaintiff’s hearing loss to the

accident is the expert’s opinion, or, as in Jones, the

expert’s opinion rests on a foundation the commissioner determined was unsound. To the contrary,

Gotay’s opinion was based on the plaintiff’s account

of the accident, which the commissioner found to be

credible, as well as his own examination of the plaintiff

and the results of tests he conducted on the plaintiff. We

cannot, therefore, conclude that Gotay’s expert opinion

was based on speculation and conjecture.

The second of the defendant’s two interrelated arguments is that Gotay’s opinion was not supported by

subordinate facts in evidence.9 As noted, ‘‘there must

be subordinate facts from which the conclusion that

there is a causal connection between the employment

and the injury can be drawn.’’ (Internal quotation marks

omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.,

supra, 294 Conn. 143. The defendant contends that there

is no evidence to support Gotay’s opinion that the

impact on the plaintiff’s head was severe enough to

cause a labyrinthine concussion. It also contends that

Gotay’s opinion was not supported by subordinate facts

because he was unable to justify or explain his belief

that head trauma is not necessary to cause a labyrinthine concussion. We disagree.

At his deposition, Gotay maintained that a labyrinthine concussion does not require a head injury.10 He

testified that ‘‘any shaking of the head or trauma to the

head [that] makes that labyrinth move the fluid inside

in a certain way . . . can damage either the hearing

part of it or the vestibular system, which is the balance

part of it. And if the vestibular system gets damaged,

then the patient will present with balance issues like

dizziness. If the cochlea or the hearing part gets damaged, and it’s all connected, the patient will present

with hearing loss and with tinnitus, or noise in the

ear.’’ Gotay concluded that ‘‘that’s why, with reasonable

medical probability, I made my statement about the
relation between the accident and [the plaintiff’s] three

complaints [of dizziness, hearing loss, and tinnitus].’’

We disagree with the defendant that Gotay’s opinion

lacks sufficient factual support because of his alleged

failure to ‘‘justify’’ his opinion that the shaking and

spinning experienced by the plaintiff caused a labyrinthine concussion in the absence of a direct blow to the

head. ‘‘[T]he facts on which an expert relies for his

medical opinion is relevant to determining the admissibility of the expert opinion, but once determined to be

admissible, there is no rule establishing what precise

facts must be included to support an expert opinion.’’

Marandino v. Prometheus Pharmacy, supra, 294

Conn. 594.

The defendant did not challenge the admissibility of

Gotay’s expert testimony. Furthermore, when deposing

Gotay, the defendant was able to, and did, challenge

his credibility and the weight to be given to his opinion

by presenting its own experts’ opposing conclusions

regarding the issue of causation. Once Gotay’s report

and testimony were admitted into evidence, the commissioner was entitled to determine the weight to give

that evidence. See id.

Moreover, ‘‘it is proper to consider medical evidence

along with all other evidence to determine whether

an injury is related to the employment.’’ (Emphasis in

original.) Id., 595; see also DiNuzzo v. Dan Perkins

Chevrolet Geo, Inc., supra, 294 Conn. 142 (if ‘‘medical

testimony by itself . . . or . . . considered along with

other evidence’’ establishes causation, commissioner

may reasonably conclude that plaintiff’s condition is

causally related to his employment [internal quotation

marks omitted]).

The plaintiff’s account of the accident included a

description of severe spinning and shaking of his head

and neck that closely resembles Gotay’s description of

the type of force that causes a labyrinthine concussion.

Specifically, the plaintiff testified that when he was

struck by the car, his head and neck were ‘‘violently

twisted side to side as I spun around and around. . . .

It was like one of those bobblehead things you put on

your windshield . . . .’’ He also testified that ‘‘I’ve seen

a lot of . . . rear-end accidents where people get hit

and get whiplash from back and forth motions. I know I

got the same thing from side to side.’’ The commissioner

found the plaintiff’s testimony ‘‘fully credible and persuasive.’’ Thus, considering the plaintiff’s testimony

along with Gotay’s expert opinion, the commissioner

reasonably concluded that the plaintiff’s hearing loss

resulted from a labyrinthine concussion caused by

the accident.

The defendant also challenges the sufficiency of the

factual support for Gotay’s opinion on the ground that

Gotay was required to ‘‘quantify or conclusively
describe the amount of force or shaking that is necessary to cause a labyrinthine concussion without head

trauma’’ in order to provide a sufficient factual basis

for his opinion. We disagree. ‘‘[S]uch an exacting standard of proof, as urged by the [defendant], is not

required. . . . Rather, the commissioner need only be

convinced that it was reasonably probable that [a causal

connection existed between the plaintiff’s employment

and his condition].’’ (Citation omitted; internal quotation marks omitted.) Estate of Haburey v. Winchester,

150 Conn. App. 699, 716, 92 A.3d 265, cert. denied, 312

Conn. 922, 94 A.3d 1201 (2014); see also Marandino v.

Prometheus Pharmacy, supra, 294 Conn. 594–95 (commissioner properly determined that it was reasonably

probable that plaintiff’s injury was causally related to

her employment).

At Gotay’s deposition, the defendant’s counsel questioned him extensively as to what force would be sufficient to cause the fluid in the labyrinth to move in a

way that would cause the plaintiff’s symptoms. Gotay

responded that spinning, shaking, or other movement

‘‘that could move the fluids inside the ear vigorously

enough to affect the different organs that are hiding’’

would be sufficient. He characterized such force as

‘‘significant.’’ The commissioner was entitled to determine that Gotay’s responses were credible and to conclude from them, in conjunction with all the other

evidence, that the force of the accident was sufficient

to cause a labyrinthine concussion.

Finally, the defendant points to the following evidence in the record to cast doubt on the factual basis

for the commissioner’s conclusion: witnesses to the

accident described the plaintiff as having been merely

‘‘bumped’’ or ‘‘brushed’’ by the car; Kveton testified

that the type of whiplash injury sufficient to cause a

labyrinthine concussion would knock an individual off

his feet; and there are no contemporaneous complaints

by the plaintiff of dizziness, tinnitus, or hearing loss

to corroborate the history he provided to Gotay. We

disagree with the defendant that any of this evidence

demonstrates a lack of subordinate facts to support the

commissioner’s conclusion.

As we repeatedly have noted, the commissioner

found the plaintiff’s testimony to be ‘‘fully credible and

persuasive.’’ In addition to testifying that his head and

neck had ‘‘violently twisted side to side’’ in the accident,

the plaintiff testified that he had been experiencing

hearing problems, ringing in his ears, and dizziness

since that time. Consequently, when presented with

differing versions of the accident or the question of

whether the plaintiff experienced dizziness and hearing

loss immediately afterward, the commissioner was well

within his authority to choose which evidence he found

persuasive and which evidence he found unpersuasive,

and adjudicate the claim accordingly. ‘‘As the fact
finder, the commissioner may reject or accept evidence

. . . . It is not the province of this court to secondguess the commissioner’s factual determinations. . . .

This court, like the board, is precluded from substituting

its judgment for that of the commissioner with respect

to factual determinations.’’ (Citations omitted; internal

quotation marks omitted.) Estate of Haburey v. Winchester, supra, 150 Conn. App. 717.

After reviewing the record, we conclude that Gotay’s

opinion was neither the product of speculation and

conjecture nor insufficiently supported by facts in the

record. Accordingly, the board properly concluded that

the commissioner’s finding that the plaintiff’s hearing

loss arose out of his work related injury was not legally

incorrect, unsupported by the evidence, or the product

of unreasonable inferences.

II

The defendant also claims that the commissioner

should have relied on Lehmann and Kveton’s expert

opinions instead of on Gotay’s expert opinion. We

disagree.

‘‘Our role is to determine whether the [board’s] decision results from an incorrect application of the law to

the subordinate facts or from an inference illegally or

unreasonably drawn from them. . . . This standard

clearly applies to conflicting expert medical testimony.

It [is] the province of the commissioner to accept the

evidence which impress[es] him as being credible and

the more weighty.’’ (Internal quotation marks omitted.)

Hummel v. Marten Transport, Ltd., 114 Conn. App.

822, 844, 970 A.2d 834, cert. denied, 293 Conn. 907, 978

A.2d 1109 (2009).

In this case, the parties’ experts offered opposing

opinions as to whether the plaintiff’s accident caused

his hearing loss. We already have determined that the

commissioner’s conclusion regarding causation, which

he reached after considering this conflicting expert testimony and other evidence in the record, was neither

legally incorrect nor the product of unreasonable inferences. The commissioner was entitled to determine that

Gotay’s opinion was the more credible and persuasive

expert opinion.

The decision of the Workers’ Compensation Review

Board is affirmed.

In this opinion the other judges concurred.

1 PMA Management Corporation of New England, the town of Woodbury’s

workers’ compensation insurance carrier, is also a defendant and a party

to this appeal. For convenience, we refer to the town of Woodbury as

the defendant.

2

In voluntary agreements, the parties stipulated that the plaintiff suffered

various injuries as a result of the accident.

3 Vertigo syndrome is defined as ‘‘[a] sensation of spinning or whirling

motion.’’ Stedman’s Medical Dictionary (27th Ed. 2000) p. 1958.

4

‘‘Tinnitus is defined as [p]erception of a sound in the absence of an

environmental acoustic stimulus. The sound can be a pure tone or noise

including (ringing, whistling, hissing, roaring, or booming) in the ears.’’
(Internal quotation marks omitted.) Jones v. Connecticut Children’s Medical

Center Faculty Practice Plan, 131 Conn. App. 415, 418 n.3, 28 A.3d 347 (2011).

5 Electronystagmography is defined as ‘‘[a] method of nystagmography

. . . [in which] skin electrodes are placed at outer canthi to register horizontal nystagmus or above and below each eye for vertical nystagmus.’’

Stedman’s Medical Dictionary (27th Ed. 2000) p. 576. Nystagmus is defined as

‘‘[i]nvoluntary rhythmic oscillation of the eyeballs . . . .’’ Stedman’s Medical

Dictionary, supra, p. 1246. Gotay testified that an electronystagmogram is

‘‘a balance test.’’

6 The labyrinth is defined as ‘‘[t]he internal or inner ear, composed of the

semicircular ducts, vestibule, and cochlea.’’ Stedman’s Medical Dictionary

(27th Ed. 2000) p. 957. Gotay testified that ‘‘a concussion of the labyrinth

is something that actually shakes it to a point where the patient presents

. . . with . . . hearing loss, tinnitus, or dizziness.’’

7 Although Lehmann was neither deposed nor his report entered into

evidence, Gotay was presented with and refuted Lehmann’s conclusion in

his deposition testimony. Gotay’s deposition testimony was admitted into

evidence. See footnote 8 of this opinion. Therefore, Lehmann’s conclusion

was before the commissioner.

8 For example, the following exchange occurred between the defendant’s

counsel and Gotay at his deposition:

‘‘Q. Earlier I read to you the report of Doctor Lehmann in which Doctor

Lehmann states that he estimated that the bilateral high-pitched humming,

tinnitus began approximately six months post motor vehicle accident.

‘‘A. That’s his statement, yes.

‘‘Q. Yes. And I had asked whether that was consistent with your understanding of [the plaintiff’s] history.

‘‘A. I cannot say yes to that, because the facts I have [say] ringing in the

ears, lightheadedness, and hearing loss since the accident.

‘‘Q. Okay.

‘‘A. October [2002]. So, it doesn’t—I don’t have here six months after, one

month, one day. This says since the accident. That’s what I have on my—

and that’s what I have to—those are the facts (indicating).

‘‘Q. Yes, I understand that.

‘‘A. Okay?

‘‘Q. Would that timing make a difference with respect to your addressing

the issue of causation?

‘‘A. No. I’ll tell you why.

‘‘Q. Okay.

‘‘A. Very simple. You can get hit in the head today and you can get dizzy

a year from now, ten years from now and it could be from that. Okay? So,

you don’t have to be dizzy the day of the injury. You could be dizzy weeks,

months, years after. And it all could be from that accident.

‘‘Q. Okay. So, how is a medical provider, is it that you can opine as to

the event when you get six months, a year, two years out?

‘‘A. You do testing, like I did, and then you, based on experience you

come to conclusions.

‘‘Q. Okay.

‘‘A. And based on your training.’’

9 The defendant characterizes the Supreme Court’s decision in DiNuzzo

as establishing a two-pronged ‘‘threshold standard for expert medical evidence’’—namely, ‘‘(1) expert opinions must be based on reasonable probabilities rather than mere speculation or conjecture and (2) expert opinions

must be supported by subordinate facts.’’ In accord with this reading of

DiNuzzo, the defendant argues that the board, in affirming the commissioner’s decision, failed to apply the second prong of the standard. We disagree

with the defendant’s characterization of DiNuzzo.

It is true that, to be admissible, an ‘‘[e]xpert [opinion] must be based [on]

reasonable probabilities . . . .’’ (Internal quotation marks omitted.)

DiNuzzo v. Dan Perkins Chevrolet Geo,Inc., supra, 294 Conn. 142. Nevertheless, we read the requirement of sufficient subordinate factual support—

the so-called second prong—to apply to the commissioner’s conclusion that

a causal connection exists between the injury and the claimant’s employment, not to the admissibility of the expert opinion on which the commissioner relies in reaching that conclusion. See id., 143 (‘‘the finding of the

commissioner cannot be sustained unless supported by the subordinate

facts’’ [internal quotation marks omitted]). In any case, both of the defendant’s interrelated arguments—that Gotay’s opinion was based on speculation or conjecture and that it was not supported by subordinate facts—are

relevant to our determination of the issue on appeal—whether there was
sufficient factual support in the record for the commissioner’s conclusion

regarding causation. As a result, we consider both arguments.

10 Specifically, Gotay explained: ‘‘You know, naturally if the patient falls,

hits the head on the ground, then there’s not reasonable medical probability.

You have a certainty. . . . But when there has not been an actual fall or a

patient has been struck on the head, it’s just either spinning or shaking, or

anything that could move the fluids inside the ear vigorously enough to

affect the different organs that are hiding, or being inside this labyrinth,

that would be enough.’’