author: DiPENTIMA, C. J.

text:
    JANEL J. JONES v. CONNECTICUT CHILDREN’S MEDICAL CENTER FACULTY PRACTICE PLAN
    (AC 32486)
    DiPentima, C. X, and Bear and Espinosa, Js.
    Argued May 20—officially
    officially released September 13, 2011

      John D. Palermo, for the appellant (plaintiff).

      Colette S. Griffin, with whom was Melissa A. Federico, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Janel J. Jones, appeals from the decision of the workers’ compensation review board (board) reversing the decision of the workers’ compensation commissioner for the first district (commissioner). On appeal, the plaintiff claims that the board improperly (1) concluded there was insufficient evidence to support the finding that the plaintiffs work-related motor vehicle accident was a substantial factor in the development of her psychiatric injury and impairment and (2) permitted the defendant Connecticut Children’s Medical Center Faculty Practice Plan (employer) to contest the compensability of her injuries and disability rating. We disagree and, accordingly, affirm the decision of the board.

The following history is necessary for the resolution of this appeal. The plaintiff is an advanced practice registered nurse who began working for the employer in December, 2002. The plaintiffs work duties included basic management and human resource functions and clinical supervision of mid-level and administrative staff. On February 27, 2006, the plaintiff, as part of her employment, traveled from a medical office in Windsor to one located in Bloomfield. During this trip, the rear tire of a truck driving in front of the plaintiff fell off and crashed onto the roof of her motor vehicle. As a result, the plaintiff pulled off to the side of the road.

A police officer drove the plaintiff home. Later that day, after she developed a headache, neck and shoulder soreness, and nausea, the plaintiff received treatment from the emergency department at the University of Connecticut (emergency department), where she was diagnosed with “cervical/thoracic strain, with complaints of right-sided headache and upper back pain/ neck pain.” At this time, neither the physician at the emergency department nor the plaintiff believed that she had hit her head in the accident. The plaintiff again received a medical examination in the emergency department on March 3, 2006, and the records indicate a “normal exam.”

Following medical advice, the plaintiff consulted Sarah Dainiak, a physician, and shortly thereafter began a course of physical therapy. On March 28, 2006, the plaintiff again went to the emergency department, complaining of worsening headaches, constant dizziness and nausea, blurred vision and photosensitivity. At this time, she was diagnosed with post-concussive syndrome and instructed to see a neurologist. A computed tomography scan (CT scan) of her neck and cervical magnetic resonance imaging also were conducted, the results of which were normal.

At the request of her employer, the plaintiff saw Pietro A. Memmo, a physician. The plaintiff indicated that she suffered a loss of consciousness and some memory loss at the accident scene. Memmo suspected a “closed head injury” and recommended that she consult with a neurologist. That same day, the plaintiff was seen at the Hartford Hospital emergency department and received treatment from Isaac Silverman. After learning that the result of the plaintiffs CT scan of her head and brain were normal, Silverman diagnosed the plaintiff with typical post-concussive syndrome and concurrent anxiety. Later, the plaintiff was treated by an ear, nose and throat (ENT) specialist to evaluate her complaints of aural pressure, dizziness, nausea, blurry vision, otalgia and bilateral tinnitus. In recounting her history, the plaintiff stated that she had lost consciousness for a minute or two following her accident. The ENT tests were normal. At some point, the plaintiff, fearing that she was having a stroke, went to the emergency department at St. Francis Hospital. An angiography was performed and the results were normal. The plaintiff also saw Marlene A. Murphy-Setzko, a urologist, who diagnosed the plaintiff with a neurogenic bladder and prescribed her medication to treat the urinary symptoms.

In June, 2006, the parties entered into a voluntary agreement. The employer accepted a claim for injury as a result of the motor vehicle accident. The body parts listed as injured were as follows: “Concussion, Cervical, Thoracic and Lumbar Strain.”

On July 17, 2006, Robert H. Berland, a physician, performed an independent medical examination of the plaintiff. Berland indicated that “although there appeared to be a direct relationship between the [plaintiffs] injury and her symptoms, anxiety also played a role in precipitating many of her symptoms.” The plaintiff subsequently saw John A. Crouch, a neuropsychologist, who indicated that the plaintiff “reportedly sustained a traumatic brain injury” and recommended “aggressive mental health treatment . ...” In February and May of 2007, Kimberlee J. Sass, a neuropsychologist, examined the plaintiff and determined that it was unlikely that she lost consciousness or was amnesic for even a brief period of time. Sass further opined that the plaintiff would not reach maximum medical improvement unless she underwent psychological treatment and that “the primary neuropsychological impediment to [the plaintiffs] return to employment is the disruption of the family system that had existed prior to [the accident].”

Peter Wade, a neurologist, determined, contrary to some of the physicians who had examined the plaintiff, that there was a period of amnesia and confusion consistent with the plaintiff having sustained a concussion. He further indicated that the plaintiff had sustained a 10 percent permanent partial disability to her brain and that she had reached maximum medical improvement. He concluded that the plaintiff currently was not capable of gainful employment, was not a candidate for retraining and her ability to return to work was “nonexistent.”

In December, 2007, James O. Donaldson, a neurologist, conducted another independent medical examination. Donaldson opined that the plaintiff did not lose consciousness, suffer a concussion or post-concussive syndrome or a traumatic brain injury, but did experience some strain and muscle spasms. Donaldson further concluded that the plaintiffs bladder condition was not related to the accident, and that the “most likely cause of . . . the symptoms was psychological distress which is unrelated to the motor vehicle accident.”

In March, 2008, the plaintiff saw Walter A. Borden, a psychiatrist. He diagnosed the plaintiff as suffering from a somatization disorder associated with her underlying depression and anxiety. He believed that the plaintiff did not suffer from a traumatic brain injury or post-traumatic stress disorder and that her issues originate from anxiety and depression that predated the motor vehicle accident.

The commissioner, charged with the arduous task of reconciling the various contradictory medical opinions, found that there was insufficient evidence to support a finding that the plaintiff “had experienced a loss of consciousness, an altered state of mind, or an amnesic period during the motor vehicle accident of February 27, 2006.” The commissioner further determined that the plaintiff had provided the various medical providers with inconsistent histories. As a further result of these inconsistent histories, the commissioner discredited the diagnoses of post-concussive syndrome or post-traumatic stress disorder. He also specifically discredited the opinion of Wade with respect to post-concussive syndrome and work capacity. The commissioner also noted the lack of objective evidence from the various medical tests that had been performed on the plaintiff. The commissioner then found: “[T]he only issues keeping the [plaintiff] from returning to full-duty work in her prior position are emotional and psychological. . . . Other than [these] issues . . . she has a full-duty work capacity.”

The commissioner also made the following findings: “Most of the physicians involved in this case (including Crouch, Sass, Donaldson, and Wade) have concluded that the [plaintiff] has significant emotional and psychological issues and the [physicians] vary only in their opinions as to causation. There are, obviously, significant underlying emotional and psychological issues unrelated to the motor vehicle accident. However, the fact remains that the {plaintiff] had no problem performing her work duties prior to the accident on February 27,2006. Therefore, the accident was a substantial factor in her subsequent emotional and psychological sequelae.” (Emphasis added.) Additionally, the commissioner found Murphy-Setzko’s opinions regarding the causation of the plaintiffs neurogenic bladder to be persuasive. Ultimately, the commissioner concluded that the plaintiff sustained a 10 percent permanent partial disability of her brain as a result of the motor vehicle accident and determined that her employer would not be hable for prospective indemnity benefits until she complied with the treatment plan set forth by Crouch.

The employer unsuccessfully moved to correct certain findings made by the commissioner and then filed an appeal to the board. The employer first challenged the commissioner’s finding that the motor vehicle accident was a substantial factor in the development of the plaintiffs psychological issues. The board stated that it was “unable to discern from the evidentiary record a medical basis for the trier’s conclusion that the motor vehicle accident was a substantial contributing factor in the development of the [plaintiffs] subsequent psychological issues . . . .” The board also rejected the commissioner’s findings with respect to the plaintiffs neurogenic bladder, reasoning that Murphy-Setzko’s diagnosis was predicated largely on her understanding of the diagnosis from Wade as conveyed to her by the plaintiff.

Turning to the issue of whether the finding of the 10 percent permanent partial disability of the brain was improper, the board noted that the commissioner had taken administrative notice of an agreement, approved on June 26, 2006, indicating a concussion as “an accepted body part.” The board also observed that although the employer had issued a voluntary agreement awarding the plaintiff a 10 percent permanent partial disability rating of the brain with a maximum improvement as of April 29,2007, the plaintiff had failed to execute it. The board could not discern the rationale for this order given the commissioner’s rejection of Wade’s diagnosis of post-concussive syndrome and his opinion of the plaintiff’s work capacity. It concluded that, given the commissioner’s findings as to Wade, the agreement was moot. Finally, it declined to construe the agreement as a judicial admission. Accordingly, the board reversed the decision of the commissioner. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the general legal principles behind the workers’ compensation statutory scheme. “The purpose of the [workers’] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer .... The Workers’ Compensation Act [(act), General Statutes § 31-275 et seq.] compromise^] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation. . . . 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. . . . Further, our Supreme Court has recognized that the state of Connecticut has an interest in compensating injured employees to the fullest extent possible . . . .” (Citations omitted; internal quotation marks omitted.) Healey v. Hawkeye Construction, LLC, 124 Conn. App. 215, 219-20, 4 A.3d 858 (2010), cert. granted on other grounds, 299 Conn. 927, 12 A.3d 570 (2011); see also Deschenes v. Transco, Inc., 288 Conn. 303, 314-15, 953 A.2d 13 (2008); Roy v. Bachmann, 121 Conn. App. 220, 224, 994 A.2d 676 (2010) (purpose of statutes is to compensate workers for work-related injuries without regard to fault by imposing strict liability on employer). In order to recover pursuant to this act, “a plaintiff must prove that the claimed injury is connected causally to the employment by demonstrating that the injury (1) arose out of the employment and (2) occurred in the course of the employment.” (Internal quotation marks omitted.) McFarland v. Dept. of Developmental Services, 115 Conn. App. 306, 310, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).

I

The plaintiff first claims that the board improperly concluded that there was insufficient evidence in the record to support the finding that the plaintiffs work-related motor vehicle accident was a substantial factor in the development of her psychiatric injury and impairment. Specifically, she argues that (1) the opinions of Sass and Wade support the commissioner’s finding that the accident was causally connected to the subsequent psychiatric sequelae and (2) there was sufficient evidence that her neurogenic bladder was a result of the accident. We disagree.

“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 or from 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.” (Citations omitted; internal quotation marks omitted.) Williams v. State, 124 Conn. App. 759, 763-64, 7 A.3d 385 (2010); see also Marandino v. Prometheus Pharmacy, 294 Conn. 564, 572, 986 A.2d 1023 (2010); Cervero v. Mory’s Assn., Inc., 122 Conn. App. 82, 89-90, 996 A.2d 1247, cert. denied, 298 Conn. 908, 3 A.3d 68 (2010).

The employer claims that the record does not support the commissioner’s conclusion that because the plaintiff was able to perform her work duties prior to the February 27, 2006 accident, that event was a substantial factor in her subsequent emotional and psychological issues. The plaintiff argues that Wade and Crouch determined that her psychological issues were caused by the accident and that Berland concluded that the motor vehicle accident was directly related to her subsequent symptoms. She also contends that Sass concluded that the plaintiffs condition was caused by the disruption in her family life as a result of the accident. The plaintiff maintains that this evidence supports the commissioner’s ultimate conclusion that her symptoms were causally related to the accident.

“[I]n Connecticut traditional concepts of proximate cause constitute the rule for determining . . . causation [in workers’ compensation cases]. . . . [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. . . .

“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 [injury] is causally related to the employee’s employment. . . . 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 expert’s testimony.” (Citations omitted; internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132, 141-43, 982 A.2d 157 (2009).

The commissioner specifically found that the plaintiff provided the 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. The commissioner also expressly found that the plaintiff presented “significant underlying emotional and psychological issues unrelated to the motor vehicle accident.” Additionally, there is a finding that there was no persuasive, objective evidence to show that the plaintiff suffered from any soft tissue, skeletal, or neurological issues.

The plaintiff argues that Sass’ report provides the necessary evidence to support the commissioner’s finding that the accident was a substantial factor in her subsequent emotional and psychological sequelae. Specifically, Sass’ report states: “Injury incurred during physical therapy, emotional distress, and longstanding features of this patient’s personality were likely to have been other causes of her symptoms. Her course was relatively benign until her neck was strained in physical therapy. . . . [The plaintiffs] history is consistent with the conclusions that [she] incurred no clinically significant brain injury on 27 February [2006]. She incurred an injury during physical therapy on 27 March. That led to increased pain, the onset of severe negative emotions and a breakdown of thought processes. The nature of the injury that [the plaintiff] incurred during physical therapy and its sequelae, if any, are not within my expertise to identify, evaluate or quantify. However, psychological factors that contributed to her reaction to that injury, the nature of her current emotional difficulties, and the status of her current cognitive functioning are issues that I can address.”

Sass further noted that the plaintiff exhibited a longstanding quality of emotional robustness that was in fact a “manifestation of denial and dependence” and that she minimized and denied problems to maintain an appearance of confidence and competence. According to Sass, the plaintiff successfully had adapted to these features of her personality as evidenced by attaining a graduate education and a successful marriage. This success was based on her relationship with her husband, whose confidence in her led her to be confident in herself. Following the motor vehicle accident, the concerns of the plaintiffs husband regarding her functioning “eroded” her confidence and this situation continued to the time of Sass’ report. Sass concluded: “[The actions of the plaintiffs husband], however well intended, have undermined her recovery.” As a result, the plaintiff viewed herself as “substantially compromised and disabled.”

After carefully reviewing the record, we agree with the board’s conclusion that there is no evidence to support the commissioner’s conclusion that the accident was a substantial factor in the plaintiffs subsequent emotional and psychological sequelae. While Sass’ report notes that the disruption to the plaintiffs family system is the primary impediment to her return to employment, it fails to establish the required causal link between the accident and the plaintiffs symptoms. Contrary to the arguments of the plaintiff, it appears that Sass determined that the actions of the plaintiffs husband following a physical therapy injury, and not the motor vehicle accident, caused her subsequent emotional and psychological sequelae.

The plaintiff also relies on the January 16,2007 report of Crouch, a neuropsychologist who examined her following a referral from Wade. The report states at the outset: “In [the motor vehicle accident the plaintiff] reportedly sustained a traumatic brain injury (TBI). The current assessment was ordered to determine her current cognitive strengths/weaknesses and emotional status.” After setting forth the results of the testing and examination of the plaintiff, Crouch wrote: “Regarding causality, given [the plaintiffs] unremarkable history, the most likely cause of her functional issues is the [February 27, 2006 motor vehicle accident]. Within a reasonable degree of neuropsychological probability, the most likely explanation of these deficits is a Mild TBI sustained in the [February 27, 2006] incident. Although further improvement could occur in her functioning given the amount of time since the incident, future capability for employment is unclear. Although she tends to deny the presence of emotional/psychologicai difficulties, there is evidence of irritability, depression, and somatic preoccupation. Such issues appear to be causing stress in her family, although supports remain good. These issues, as well as her physical problems (e.g., pain) could also impact her cognition and are likely secondary to the [February 27, 2006] accident.”

As noted previously, the commissioner expressly found that the credibility and persuasiveness of each medical provider in this case is directly related to the accuracy of the history given to them by the plaintiff. The commissioner also found that there was insufficient evidence to support a finding that the plaintiff suffered a loss of consciousness, an altered state of mind or amnestic period, a concussion, post-traumatic stress disorder or post-concussion syndrome. Crouch’s report fails to provide the required evidentiary support for the commissioner’s finding that the accident was a substantial factor in the plaintiffs subsequent emotional and psychological sequelae. His report states that a mild traumatic brain injury caused the plaintiffs issues; however, the commissioner expressly found insufficient evidence to support such an event. Further, Crouch’s report appears to rely on the plaintiff or Wade for the fact that a traumatic brain injury occurred. Again, the commissioner found that neither the plaintiff nor Wade was credible with respect to the events of the motor vehicle accident. We therefore are not persuaded by this argument.

The plaintiff next argues that sufficient evidence exists in the record to support the commissioner’s finding that she suffered from a neurogenic bladder caused by the motor vehicle accident. Specifically, the plaintiff argues that the board improperly disregarded the deposition testimony of Murphy-Setzko. We disagree.

The plaintiff saw Murphy-Setzko on October 20,2006, for two issues: “A chronic feeling of urgency and urge incontinence, including nocturnal uresis, which the [plaintiff] denied having prior to the accident [and] [¶] acial flushing and tingling in the [plaintiffs] face as a warning that she needed to void. She had loss of normal cues in the pelvis with the need to void.” Murphy-Setzko testified at her deposition that the plaintiff suffered from a neurogenic bladder and that the motor vehicle accident was the cause of these symptoms. The commissioner found that Murphy-Setzko was credible on her opinion on causation.

The board, in reversing the commissioner’s findings regarding the issue of the neurogenic bladder, noted that Murphy-Setzko defined this term as “a bladder that’s been affected by a neurologic insult or injury.” Murphy-Setzko conceded that she had not reviewed Wade’s records and assumed that he had referred the plaintiff to her because of a head injury. Murphy-Setzko also acknowledged during cross-examination that her diagnosis was predicated largely on her understanding of Wade’s diagnosis as conveyed by the plaintiff. Finally, Murphy-Setzko indicated that she “could not formulate an opinion based on a reasonable degree of medical certainty without reviewing the [plaintiffs] other medical records.”

The board then concluded: “The foregoing indicates quite clearly that . . . Murphy-Setzko’s diagnosis was primarily derived from her assumption, based in part on her prior working relationship with . . . Wade and in part on the history of the motor vehicle accident given to her by the [plaintiff], that the [plaintiff] had sustained a head injury in the accident. The record does indicate that . . . Wade in fact believed the [plaintiff] has sustained a concussion and was suffering from post-concussive syndrome. Had the . . . commissioner found . . . Wade’s opinion persuasive, it might have been possible to uphold the trier’s finding relative to the credibility of . . . Murphy-Setzko regarding the causation of the [plaintiffs] neurogenic bladder. However, the . . . commissioner ultimately determined . . . Wade’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. As such, given the degree to which . . . Murphy-Setzko’s opinion was demonstrably dependent upon . . . Wade’s diagnosis, we are unable to affirm the . . . commissioner’s finding that . . . MurphySetzko was credible relative to her conclusion that the Yplaintiff] developed a neurogenic bladder as a result of the motor vehicle accident.” (Emphasis added.)

After reviewing the record, we agree with the conclusion of the board that the commissioner’s finding regarding the medical opinion of Murphy-Setzko cannot stand in light of the commissioner’s other findings, particularly those relating to Wade. Murphy-Setkzo specifically indicated that she relied on the history provided by the plaintiff. She did not review the emergency department records or the independent medical examinations of the plaintiff. As noted, she did not review Wade’s treatment records of the plaintiff, but she acknowledged that her diagnosis was based on his diagnosis of a neurologic trauma. She also conceded that if a neurologist found that there was no head trauma type injury with no neurological deficit, then she would need to take that into consideration with respect to her opinion. Further, Murphy-Setzko noted that her conclusions would be subject to change if information from the plaintiff later was revealed to be inaccurate. Last, she agreed to the following question posed by counsel: “And it would also be fair to say that you really can’t formulate an opinion, based on a reasonable degree of medical certainty, without reviewing records other than what you understand to be the case, because you haven’t reviewed those actual records?” On the basis of the foregoing, we conclude that Murphy-Setzko’s opinion is not based on reasonable probabilities but on mere speculation and conjecture. See DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294 Conn. 142.

II

The plaintiff next claims that the board improperly permitted the employer to contest the compensability of her injuries and disability rating. Specifically, she argues that because the employer entered into an agreement that the plaintiff suffered, inter aha, a concussion and subsequently proposed an agreement with a 10 percent permanent partial disability rating issued by Wade, it was precluded from later challenging the causal connection.

We decline to review this claim for two reasons. First, the plaintiff failed to raise this issue before either the commissioner or the board. As a general matter, we do not decide issues raised for the first time on appeal. See Donaldson v. Continuum of Care, Inc., 94 Conn. App. 334, 340, 892 A.2d 332 (2006), cert. denied, 282 Conn. 921, 925 A.2d 1103 (2007); Rinaldi v. Enfield, 82 Conn. App. 505, 517, 844 A.2d 949 (2004). Second, “[o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. Ill, 122, 971 A.2d 17 (2009); see also Rinaldi v. Enfield, supra, 517. During the proceedings before the commissioner and the board, the plaintiff failed to argue that the employer was precluded from contesting the issues of the concussion or the 10 percent disability rating. Were we to consider the plaintiffs claim at this juncture, we would be endorsing her tactic of utilizing one strategy at trial and a different one on appeal. See Falkenstein v. Falkenstein, 84 Conn. App. 495, 505, 854 A.2d 749 (“[t]o allow [a party] to seek reversal now that [her] trial strategy has failed would amount to allowing [her] to induce potentially harmful error, and then ambush [the trial court] with that claim on appeal” [internal quotation marks omitted]), cert. denied, 271 Conn. 928, 859 A.2d 581 (2004). For these reasons, we decline to review this claim.

The decision is affirmed.

In this opinion the other judges concurred.

       Webster Risk Services, Inc., was also a party in the proceedings before the commissioner and the board but has not participated in this appeal.

       Section 17b-262-830 (1) of the Regulations of Connecticut State Agencies provides: “Advanced practice registered nurse or APRN means an advanced practice registered nurse as defined in section 20-87a of the Connecticut General Statutes . . . .” (Internal quotation marks omitted.) See also General Statutes § 20-87a (b).

       “Otalgia” is a medical term for an earache. See Stedman’s Medical Dictionary (28th Ed. 2006) p. 1394. “Tinnitus” is defined as “[pjerception 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.” Stedman’s Medical Dictionary (28th Ed. 2006) p. 1992.

       “Angiography” is defined as “[Radiography of vessels after the injection of a radiopaque contrast material; usually requires percutaneous insertion of a radiopaque catheter and positioning under fluoroscopic control.” Stedman’s Medical Dictionary (28th Ed. 2006) p. 86.

       Murphy-Setzko defined “neurogenic bladder” as “a bladder that’s been affected by a neurologic insult or injury.”

       “Sequelae” is defined as a “condition following as a consequence of a disease.” Stedman’s Medical Dictionary (28th Ed. 2006) p. 1752.

       As we previously have discussed, the commissioner expressly discredited Wade’s opinions on the basis of the flawed medical history that he had received from the plaintiff. Accordingly, we disagree with the plaintiffs statement that Wade’s opinion supported the commissioner’s finding. We further conclude that as a result of this finding, the board properly concluded that there was no evidence to support the award of a 10 percent permanent partial disability to the plaintiffs brain.

       Berland’s report set forth his diagnosis as follows: “The [plaintiff] appears to have sustained a head and neck injury in a motor vehicle accident and now has persistent post-traumatic symptoms.” He further opined that there “seem[ed] to be a direct relationship between her injury and her symptoms.” The commissioner, however, specifically found that there was insufficient evidence to support such a diagnosis. We also note that aside from the assertion regarding Berland, the plaintiffs brief does not address his report in detail.

       Sass discussed several instances where the actions of the plaintiffs husband negatively impacted the plaintiffs recovery. For example, after the plaintiff expressed an interest in working as a nurse consultant by telephone, he dissuaded her by mentioning her lapses in concentration. Similarly, during the first session with Sass, the plaintiff returned from a lunch break in tears after her husband reminded her of the “difficulties” she experienced.

        It must be noted that Sass also indicated that “[a]fter interviewing [the plaintiffs husband], I formed the impression that he was not deliberately undermining [the plaintiffs] recovery. To the contrary, he acted out of concern and with a genuine intent to do what was in her best interest.”

       We note that the commissioner appears to have applied a causation in fact standard, that is, because the plaintiff had no problems before the accident, and developed emotional and psychological sequelae after, the two events are related. See, e.g., Vaillancourt v. Latifi, 81 Conn. App. 541, 546, 840 A.2d 1209 (2004) (causation in fact is purest legal application of legal cause where test is would injury have occurred were it not for initial event). This is not the correct standard under our law. Our workers’ compensation jurisprudence requires the application of the proximate cause standard. See Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219, 237-38, 875 A.2d485 (2005); Voronuk v. Electric Boat Corp., 118 Conn. App. 248, 253, 982 A.2d 650 (2009); Hummel v. Marten Transport, Ltd., 114 Conn. App. 822, 844, 970 A.2d 834, cert. denied, 293 Conn. 907, 978 A.2d 1109 (2009).

       We note again that, although the parties entered into an agreement in June, 2006, the plaintiff failed to accept the agreements offered by the employer regarding the maximum medical improvement and 10 percent permanent partial disability rating of the plaintiffs brain.

       Although both the commissioner and the board briefly mention the June, 2006 agreement in their respective decisions, the specific issue of preclusion was not raised by the plaintiff during the proceedings below.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NEMIAH ALLAN
    (AC 32125)
    DiPentima, C. J., and Alvord and Espinosa, Js.

      Argued April 12
    officially released September 20, 2011

      Katherine C. Essington, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James R. Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Nemiah Allan, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). On appeal, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal. Specifically, he argues that the evidence was insufficient to sustain his conviction, and, therefore, he was deprived of his federal due process rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of April 15, 2009, the defendant was under surveillance by the Meriden police department, which was working in conjunction with agents of a Drug Enforcement Agency task force. The law enforcement officers, in unmarked cars, observed the defendant on Maple Street engaging in drug related activity. The officers also observed the defendant make a specific drug transaction with a man in a white van where money was provided to the defendant, who then entered the “stash house” on Maple Branch before returning to the van. The police followed the van and stopped its driver, Humberto Zarabozo, who told police that he had purchased crack cocaine from the defendant. The police recovered the crack cocaine from the van and subsequently arrested Zarabozo. The officers returned to their posts in the Maple Street area to observe the defendant further and again saw him engaged in activity consistent with drug dealing.

The law enforcement officers observed the defendant talking on a cell phone. Thereafter, they observed an Acura pull up outside 10 Maple Branch. The Acura flashed its lights, after which the defendant crossed the street and approached the passenger side of the vehicle. The defendant opened the door, causing the dome light to illuminate, so that he could lean into the vehicle through the open door to talk to the driver. After the defendant spoke to the Acura’s driver for several minutes, the Acura departed Maple Branch. The officers followed the Acura and returned to the scene approximately one to two hours later to arrest the defendant.

When the police approached the defendant to arrest him, he resisted and attempted to flee the scene. The police subdued the defendant, arrested him, and read him his Miranda rights. The defendant subsequently told the police that the driver of the Acura went by the street name of “Fleet” and that Fleet had come to Maple Branch to “resupply” the defendant with crack cocaine, although he did not deliver the crack cocaine as promised. The police were familiar with the name Fleet, as he was a known drug supplier. The defendant also provided the police with Fleet’s cell phone number, which was the last outgoing call on a cell phone in the defendant’s possession. The defendant then led the police to a nearby gas station to identify Fleet’s girlfriend, Brandy Clayton. Using information gleaned from the defendant and Clayton, the police apprehended Fleet, whose real name is Kareem Thomas. The defendant was transported to the police station where he asked the booking officer what had happened to the “big fat white guy.” The booking officer testified that when he asked the defendant to whom he was referring, the defendant replied, “the one that I sold drugs to,” presumably meaning Zarabozo.

The state charged the defendant with illegal sale of narcotics by a person who is not drug-dependent, sale of narcotics within 1500 feet of a school, possession of narcotics, conspiracy to sell narcotics by a person who is not drug-dependent, and interfering with an officer. The case was tried before a jury on December 2 and 3,2009. Defense counsel made a motion to the trial court for a judgment of acquittal, which the court denied. The jury returned a verdict finding the defendant not guilty on the charges of sale of narcotics, sale of narcotics within 1500 feet of a school, and possession of narcotics and found him guilty of conspiracy to sell narcotics and interfering with an officer. Following the jury’s verdict, the court sentenced the defendant to a total effective term of twelve years incarceration. This appeal followed.

The defendant claims that the trial court should have granted his motion for a judgment of acquittal because there was insufficient evidence to allow the jury to find him guilty beyond a reasonable doubt of the crime of conspiracy to sell narcotics. First, he argues that there was insufficient evidence to prove that he and his coconspirator, Thomas, had an agreement to further distribute the narcotics. Second, he argues that the state failed to prove that he or his coconspirator committed an overt act in furtherance of the conspiracy. Both claims are without merit.

In reviewing sufficiency of the evidence claims, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jennings, 125 Conn. App. 801, 805-806, 9 A.3d 446 (2011). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Rodriguez, 93 Conn. App. 739, 749, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

“To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. . . . The state is also obligated to prove that the accused intended that conduct constituting a crime be performed. . . . [I]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands or uttered the words we have an agreement. . . . Indeed, [bjecause of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. ... [A] conspiracy can be inferred from the conduct of the accused.” (Citations omitted; internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 167-68, 726 A.2d 132 (1999), cert. denied, 248 Conn. 918, 734 A.2d 567 (1999).

Section 53a-48 (a) sets forth the elements of the crime of conspiracy. The state bore the burden of proving beyond a reasonable doubt that the defendant (1) with intent that conduct constituting a crime be performed, (2) agreed with one or more persons to engage in or cause the performance of such conduct, and (3) any one of them committed an overt act in pursuance of such conspiracy. See General Statutes § 53a-48 (a).

The defendant first claims that the evidence is insufficient because the state failed to prove beyond a reasonable doubt that he had an agreement with Thomas in the past to distribute narcotics or to distribute narcotics in the future. In other words, he argues that the state did not prove that the agreement provided some additional benefit to Thomas in his selling the drugs to the defendant. The defendant misunderstands the elements of the crime of conspiracy. Here, the defendant admitted that he called Thomas on a cell phone and made arrangements for Thomas to resupply him with crack cocaine, which the defendant intended to resell. Thomas then drove to Maple Branch to meet the defendant and, once he arrived, flashed the lights of the Acura to signal the defendant to approach the vehicle. The defendant’s statements show that he had intent to buy narcotics from Thomas and that the defendant made arrangements with Thomas to be resupplied with crack cocaine. That agreement, in concert with an overt act, which is the subject of the defendant’s second claim, is sufficient under Connecticut law to constitute a conspiracy. There are no elements enumerated in § 53a-48 (a) requiring the state to prove any future or past criminal acts in order to prove the crime of conspiracy.

Despite the fact that the state did not have a burden to prove that the defendant engaged in a past conspiracy or a future conspiracy to sell narcotics with Thomas, the defendant argues that we should adopt the so-called federal “buyer-seller exception” in evaluating charges of conspiracy to sell narcotics. Under the federal exception, “the seller cannot be considered to have joined a conspiracy with the buyer to advance the buyer’s resale unless the seller has somehow encouraged the venture or has a stake in it—an interest in bringing about its success.” United States v. Parker, 554 F.3d 230, 235-36 (2d Cir.), cert. denied sub nom. Baker v. United States, 558 U.S. 965, 130 S. Ct. 394, 175 L. Ed. 2d 301 (2009). The government must prove that there exists a “shared intention between the transferor and the transferee that further transfers occur.” (Emphasis in original.) Id., 236. The defendant has not provided a single Connecticut case endorsing the so-called “buyer-seller exception,” and we decline to apply such an exception in evaluating the defendant’s claim.

Second, the defendant claims that we should find the evidence insufficient because the state failed to prove beyond a reasonable doubt that there was an overt act committed in furtherance of the conspiracy. The defendant claims that because the meeting between the defendant and Thomas resulted in the breakdown of their agreement, Thomas’ drive to Maple Branch and flashing of the Acura’s lights, and the defendant’s subsequent discussion with Thomas cannot qualify as overt acts in furtherance of the conspiracy. We disagree.

“In a conspiracy prosecution, the government is not limited to proof of only those overt acts charged in the indictment and in fact need not prove every overt act alleged.” (Internal quotation marks omitted.) State v. Forde, supra, 52 Conn. App. 169-70. “An overt act is an essential ingredient of the crime of conspiracy; it may be committed by either coconspirator.” State v. Elijah, 42 Conn. App. 687, 697, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996). Further, an overt act need not be a criminal act in and of itself. See State v. McLaughlin, 132 Conn. 325, 340, 44 A.2d 116 (1945).

“[T]he probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Moreover, [i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts at hand, to the end that their action may be intelligent and their conclusions correct.” (Citation omitted; internal quotation marks omitted.) State v. Jennings, supra, 125 Conn. App . 811.

In construing the evidence in the light most favorable to sustaining the verdict, the defendant’s own statements show that there was an agreement with Thomas by which Thomas would “resupply” the defendant with crack cocaine. The defendant told the police that his meeting with Thomas that evening was for the specific purpose of being resupplied with crack cocaine and that Thomas was his drug supplier from Waterbury. The defendant admitted calling Thomas on his cell phone, and, thereafter, Thomas drove to Maple Branch in his Acura, flashing his lights to signal the defendant to approach the vehicle. The defendant approached the Acura, and the two men spoke, with the defendant leaning in the Acura through the open door of the car. According to the defendant, Thomas failed to resupply him with crack cocaine as planned. Upon the facts so construed and the inferences reasonably drawn therefrom, the finder of fact reasonably could have concluded that Thomas’ drive to Maple Branch, his subsequent flashing of the Acura’s lights, the defendant’s walk to the Acura, and any discussion following between the defendant and Thomas were all overt acts in furtherance of the conspiracy. It is both reasonable and logical for the jury to have reached such conclusions.

The defendant’s argument that he and Thomas had a breakdown in their agreement, which occurred when Thomas failed to resupply the defendant with crack cocaine as planned, is irrelevant. Under Connecticut law, a breakdown of an agreement does not end the conspiracy. Section 53a-48 (b) provides that, once the state has proved the elements of the crime, the only defense to a conspiracy charge is renunciation, that is, “the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” The defendant made no argument that he attempted to thwart the conspiracy. Thus, even if a breakdown of the agreement did occur, such a breakdown would not disqualify the previously enumerated overt acts. Accordingly, the defendant’s final argument has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of illegal sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), and possession of narcotics in violation of General Statutes § 21a-279 (a). The defendant does not appeal his conviction on the charge of interfering with an officer in violation of General Statutes § 53a-167a, and, therefore, we do not address that conviction here.

       The defendant also claims that his rights were violated under article first, § 8, of the constitution of Connecticut, but fails to provide the analysis required by State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). We, herefore, do not review this claim. See State v. Knight, 125 Conn. App. 189, 194 n.6, 7 A.3d 425 (2010), cert. denied, 300 Conn. 927, 16 A.3d 704 (2011).

       Officer Michael Fonda testified that he was part of a team surveilling the defendant and that, based on his training and experience, he believed the defendant to be engaged in drug related activity. The surveillance team observed the defendant talking on a cell phone and pacing up and down the street. The team further observed as vehicles would pull up to the comer of Randolph Avenue and West Main Street, where the defendant was standing. Fonda testified that the defendant would approach a vehicle and engage in “some sort of transaction” with the driver. Subsequently, the defendant would enter a suspected stash house at 20 Maple Branch while the driver’s vehicle idled. The defendant would return to the vehicle, which, thereafter, would drive off, leaving the defendant to return to his position on the comer until the next vehicle approached.

       The police raided the stash house at 20 Maple Branch subsequent to the defendant’s arrest and found quantities of crack cocaine packaged for street sale as well as drug paraphernalia.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       On direct examination, Detective John Williams of the Meriden police department testified as follows:
      “[The Prosecutor]: Did [the defendant] indicate to you anything about the interaction on Maple Branch between him and Fleet?
      “[Detective Williams]: He stated that Fleet was supposed to resupply him. “[The Prosecutor]: Resupply him with what?
      “[Detective Williams]: Ah, crack cocaine.”