author: WEST, J.

text:
    MARY BERZINS v. DAVID BERZINS
    (AC 28041)
    Bishop, DiPentima and West, Js.
    Argued October 10, 2007
    officially released February 5, 2008

      Linda C. Lehmann, for the appellant (defendant).

      Susan Boyan, with whom was Elizabeth Foran, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, David Berzins, appeals from the trial court’s judgment of dissolution following the denial of his motion to open the judgment rendered upon default. On appeal, the defendant claims that the court improperly determined that he failed to satisfy the requirements set forth in General Statutes § 52-212 (a) for granting a motion to open a default judgment. We disagree with the defendant and affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The plaintiff, Mary Berzins, commenced this action for a legal separation and other relief by a complaint dated May 23, 2005. A copy of the writ of summons and complaint was served in hand on the defendant on May 24, 2005. The defendant did not file an appearance, and the matter was placed on the uncontested list for January 26, 2006. On January 26, 2006, the plaintiff appeared and filed a motion to amend her complaint, requesting a dissolution of the marriage rather than a legal separation. The defendant did not appear at the hearing, and a judgment of dissolution was rendered by the court, Hon. Lawrence C. Klaczak, judge trial referee.

In December, 2005, the defendant brought a separate action for dissolution of his marriage to the plaintiff. At some point after January 26,2006, the plaintiff moved to dismiss the defendant’s dissolution action because a judgment dissolving their marriage had been entered already, and the court dismissed the case on February 14, 2006. On February 23, 2006, the defendant filed a motion to open the judgment of dissolution. On August 18, 2006, the court, Swords, J., denied the defendant’s motion to open the judgment of dissolution. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court incorrectly determined that he failed to satisfy the requirements of § 52-212 (a) for granting a motion to open a default judgment. We disagree.

The following additional facts are relevant to our analysis of the defendant’s claim. In his motion to open the judgment, the defendant acknowledged that he was served with the writ of summons and complaint. He claimed, however, that after being served, the plaintiff informed him that she had withdrawn the action and no longer wanted to proceed. As a result, the defendant claimed, he was not aware of the pendency of the matter. If he had been aware of the pendency of the matter, he claimed, he would have filed an appearance and would have defended the action accordingly. On August 17, 2006, the court heard testimony with regard to the defendant’s motion to open the dissolution judgment. In her testimony, the plaintiff denied that she ever had misled the defendant or represented to him that she did not intend to pursue the matter.

We first set forth the legal principles that guide our review. “[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of discretion.” (Internal quotation marks omitted.) Triton Associates v. Six New Corp., 14 Conn. App. 172, 175, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 284, 925 A.2d 451 (2007).

Pursuant to § 52-212 (a), “ [a]ny judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” See also Practice Book § 17-43. In other words, “[t]here must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.” (Internal quotation marks omitted.) Triton Associates v. Six New Corp., supra, 14 Conn. App. 175.

In his motion to open the judgment of dissolution, the defendant argued that subsequent to being served with the complaint, he had been told by the plaintiff that she had withdrawn the action and no longer wanted to proceed. He then argued that if he had been aware of the pendency of the action, he would have filed an appearance and put forth a defense. The court was unpersuaded by the defendant’s argument. It found the plaintiff more credible than the defendant with regard to whether the plaintiff had made the representation to the defendant that she no longer intended to pursue the claim. The plaintiff denied that she had represented to the defendant that she was no longer pursuing the claim, and the court found her credible. Further, it determined that the defendant received notice of the action and simply chose not to appear. Finally, the court pointed out that, even if the defendant had relied on any statements made by the plaintiff, his subsequent negligence “supersedes his purported reliance on the plaintiffs actions.” Indeed, the defendant had filed an action for dissolution in December, 2005, and, therefore, would have visited the courthouse at different times to obtain blank copies of a writ of summons and complaint, to pay the filing fees and to file the executed writ. The court indicated that the defendant could have asked court personnel, on any of those occasions, to determine the status of the action filed by the plaintiff. Furthermore, the court noted, the defendant could have called the court at any point to inquire about the status of the action. The court correctly concluded that the defendant’s failure to appear in the present action was due to negligence. Furthermore, it stated that because mistake, accident or other reasonable cause did not prohibit the defendant from appearing in the present case, it did not have to consider whether the defendant had a good defense.

We agree with the court and conclude that it did not abuse its discretion in refusing to grant the defendant’s motion to open the judgment of dissolution. The defendant’s failure to appear in this action was due to his negligence and not to any mistake, accident or other reasonable cause. The defendant was served with notice of this action and did nothing. Had he filed an appearance, he would have received notice of the January 26, 2006 hearing list. The court correctly concluded that the defendant’s inaction in this case was “nothing short of complete and utter negligence.” “Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence.” (Internal quotation marks omitted.) Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).

Further, we agree that the court did not have to decide whether the defendant had a good defense. It is well settled that “to obtain relief from a judgment rendered after a default, two things must concur. There must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause. . . . Since the conjunctive ‘and’ meaning ‘in addition to’ is employed between the parts of the two-prong test, both tests must be met.” (Citation omitted; internal quotation marks omitted.) Postemski v. Landon, 9 Conn. App. 320, 324-25, 518 A.2d 674 (1986). In the present case, the court held that the defendant was not prevented from appearing as a result of mistake, accident or other reasonable cause. Therefore, the court did not have to decide whether the defendant had a good defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the court lacked personal jurisdiction over him when it rendered the dissolution judgment, improperly allowed the plaintiff, Mary Berzins, to proceed on her amended complaint seeking dissolution of marriage without first adjudicating her claim for legal separation raised in her original complaint and improperly failed to make a finding that distribution of the marital property was “fair and equitable” when rendering the judgment of dissolution. Pursuant to Practice Book § 63-1 (a), an appeal must be filed within twenty days of the date notice of the judgment or decision is given. When a party fails, however, to file a motion to open within the appeal period, the appeal from the denial of that motion can test only whether the court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995).
      In the present case, the judgment of dissolution was rendered on January 26, 2006. The defendant did not file his motion to open until February 23, 2006, which was more than twenty days from the date the dissolution judgment was rendered. As a result, because the defendant did not file his motion to open within twenty days from the date of the judgment, the appeal from the denial of that motion can test only whether the court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. Therefore, these claims raised by the defendant are not reviewable by this court.
      With respect to the defendant’s claim that the court has to review the issue of personal jurisdiction regardless, we are not persuaded. The defendant relies on Pinder v. Pinder, 42 Conn. App. 254, 258, 679 A.2d 973 (1996), which he cites for the proposition that any time personal jurisdiction is brought to the attention of the court, the court must address it prior to proceeding with the case. More recently, however, in Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002), our Supreme Court indicated that personal jurisdiction can be obtained by waiver. The court held that a party may contest the court’s jurisdiction either prior to making an appearance or by filing a motion to dismiss within thirty days of filing an appearance. In Connor, our Supreme Court held that the fact that the defendant had failed to file a motion to dismiss within thirty days of filing an appearance constituted a waiver of its right to contest the court’s personal jurisdiction over the defendant. Id.


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    ROBERT J. GILLON, JR., ET AL. v. SUSAN BYSIEWICZ ET AL.
    (AC 27879)
    McLachlan, Gruendel and Berdon, Js.

      Argued October 15, 2007
    officially released February 5, 2008

      Daniel W. Moger, Jr., for the appellants (plaintiffs).

      Robert W. Clark, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      William T. Blake, Jr., with whom, on the brief, was Stephen P. Wright, for the appellee (defendant R.S. Silver Enterprises, Inc.).
   Opinion

BERDON, J.

The plaintiffs, Robert J. Gillon, Jr., Nicholas DeLuca and Signature Group, LLC, appeal from the judgment of the trial court dismissing their application for a writ of mandamus against one of the defendants, Susan Bysiewicz, the secretary of the state (secretary), for lack of subject matter jurisdiction. Specifically, the plaintiffs argue that the court improperly concluded that they lacked standing to challenge the secretary’s corporate reinstatement of R.S. Silver & Company, Inc. We conclude that the court properly dismissed the plaintiffs’ complaint because the plaintiffs lacked standing and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the complaint, and procedural history are relevant to our resolution of the plaintiffs’ appeal. On October 25, 1991, a corporation known as R.S. Silver & Company, Inc., was administratively dissolved for failure to file reports required by law. Thereafter, on September 20, 2001, the secretary accepted articles of organization for R.S. Silver & Company, LLC, a limited liability company that had acquired “all rights in the name of ‘R.S. Silver & Co.’ and any variation of the name . . . .” On February 9, 2006, pursuant to General Statutes § 33-892, the secretary issued a certificate of reinstatement and name change for R.S. Silver & Company, Inc., which reinstated the administratively dissolved corporation and changed the name of the company to R.S. Silver Enterprises, Inc. The plaintiffs thereafter filed an action in the Superior Court seeking a writ of mandamus to compel the secretary to revoke the reinstatement of R.S. Silver Enterprises, Inc., and to correct the state’s corporation records. In their complaint, the plaintiffs alleged that the secretary lacked statutory authority to reinstate R.S. Silver & Company, Inc., under General Statutes § 33-995 because that authority applies only to corporations that were in existence on January 1, 1997, and that R.S. Silver & Company, Inc., was not in existence on that date.

Subsequently, the secretary and R.S. Silver Enterprises, Inc., filed separate motions to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction. In the memoranda in support of their motions to dismiss, the defendants argued, inter alia, that the plaintiffs lacked standing to maintain this action because they had failed to demonstrate that they had been classically or statutorily aggrieved by the secretary’s reinstatement decision. The court granted the defendants’ motions to dismiss. In rendering its decision, the court first referenced the reasoning set forth in the secretary’s memorandum in support of her motion to dismiss. Thereafter, pursuant to Practice Book §§ 64-1 (a) and 6-1, the court issued a supplemental decision, which adopted the “recital of facts and legal reasoning” set forth in the defendants’ trial memoranda.

On appeal, in support of their claim, the plaintiffs refer to allegations in their complaint, which allege that in reliance on their understanding of the scope of the secretary’s powers under the Connecticut Business Corporation Act (act), General Statutes § 33-600 et seq., an agreement was entered into wherein “[a]ll rights in the name ‘R.S. Silver & Co.’ and any variation of the name were assigned to a new limited liability company,” R.S. Silver & Company, LLC, and, in further reliance, Gillon and DeLuca invested more than $800,000 in this company. The plaintiffs maintain that these allegations are sufficient to establish their standing to challenge the secretary’s reinstatement decision. The plaintiffs also claim that because the act was intended to protect the interests of third parties, they have statutory standing. In response, the secretary argues that the plaintiffs have failed to allege any facts establishing that her reinstatement decision directly injured any of the plaintiffs’ personal or legal interests and that the act does not provide the plaintiffs with an express statutory right to challenge a corporate reinstatement decision. Furthermore, the secretary argues that the plaintiffs do not fall within the zone of interests that the statutes in question were designed to protect. We agree with the secretary.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 287, 933 A.2d 256 (2007).

“The concept of standing as presented ... by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate interest can [pursue] an [action in court].” (Internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, 221 Conn. 46, 54-55, 602 A.2d 566 (1992). “Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, supra, 284 Conn. 288. “Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Id. “Furthermore, [i]t is settled that the existence of statutory standing [also] depends on whether the interest sought to be protected by the [plaintiffs] is arguably within the zone of interests to be protected or regulated by the statute . . . .” (Internal quotation marks omitted.) Id., 289.

In the present case, we conclude that the plaintiffs have failed to establish that they are classically or statutorily aggrieved. On appeal, the plaintiffs have asserted that they are aggrieved because the secretary’s reinstatement of R.S. Silver & Company, Inc., adversely affected their private contractual rights. Although the plaintiffs may possess such a contractual interest, any breach of the alleged agreement was not proximately caused by the secretary’s reinstatement of R.S. Silver & Company, Inc. Because any harm was necessarily occasioned by the alleged breach of a contractual provision allegedly entered into between the plaintiffs and R.S. Silver & Company, Inc., any harm to the plaintiffs resulting from the secretary’s reinstatement of R.S. Silver & Company, Inc., was indirect and, therefore, cannot provide an adequate basis for finding aggrievement. See id., 288 (“[t]he requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant ... is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue” [internal quotation marks omitted]).

Moreover, as to the plaintiffs’ assertion that they are statutorily aggrieved because they are a contract purchaser of rights to the name R.S. Silver & Company and any derivative names, we note that the dissolution and reinstatement provisions of the act do not provide enforcement rights to third parties. “If the legislature had intended to grant such a broad right, it easily could have done so expressly. See, e.g., General Statutes § 22a-16 (‘any person . . . [or] corporation . . . may maintain an action . . . for declaratory and equitable relief against the state . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction’); General Statutes § 13a-50 (‘any person may appear and be heard in relation to [the] application [to discontinue a highway]’).” Missionary Society of Connecticut v. Board of Pardons & Paroles, 278 Conn. 197, 203-204, 896 A.2d 809 (2006). In reaching our conclusion, we also are persuaded by the fact that the legislature, in General Statutes § 33-893, provided the administratively dissolved corporation with a right to appeal from the secretary’s refusal to reinstate it but did not provide this right of appeal to third parties.

Furthermore, the plaintiffs have failed to demonstrate that they are within the zone of interests sought to be protected by § 33-892. “Applying this doctrine to challenges of official government action or inaction, the relevant question would not be simply whether the official or agency violated the law, but rather whether the official or agency violated any duty to the plaintiff.” (Internal quotation marks omitted.) Lewis v. Swan, 49 Conn. App. 669, 677, 716 A.2d 127 (1998). Here, our review reveals that there is nothing in the plain language of the statute, its legislative history or the policy considerations underlying the statute suggesting that the dissolution and reinstatement provisions of the act were intended to protect the private contractual interests of third parties. See United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 346, 663 A.2d 1011 (1995) (“[a]n existing competitor [that is] not . . . within the zone of interests protected [by a statute] has no standing to raise claims as to the general fitness of an applicant”); see also New Liberty Medical & Hospital Corp. v. E. F. Hutton & Co., 474 S.W.2d 1, 4 (Mo. 1971) (“[t]he general rule is that on grounds of sovereignty and public policy the legal existence of a corporation cannot be attacked collaterally by private suitors, but only in a direct proceeding instituted by the [s]tate” [internal quotation marks omitted]). Accordingly, we conclude that the plaintiffs lack standing to contest the reinstatement of R.S. Silver & Company, Inc., and, therefore, cannot maintain their action for mandamus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The corporation formerly known as R.S. Silver & Company, Inc., R.S. Silver Enterprises, Inc., also was named as a defendant in this action.

       “The affairs of Connecticut corporations are governed by the Connecticut Business Corporation Act (CBCA), codified in General Statutes §§ 33-600 to 33-998.” Giulietti v. Giulietti, 65 Conn. App. 813, 871, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

       After filing articles of organization, R.S. Silver & Company, LLC, changed its name to Signature Group, LLC.

       General Statutes § 33-892 provides in relevant part: “(a) A corporation administratively dissolved may apply to the Secretary of the State for reinstatement after the effective date of dissolution. . . .
      “(b) If the Secretary of the State determines that the application contains the information required by subsection (a) of this section and that the information is correct, he shall prepare a certificate of reinstatement that recites his determination and the effective date of reinstatement and file the original of the certificate.
      “(c) When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.”

       General Statutes § 33-995 provides: “Sections 33-600 to 33-998, inclusive, apply to all domestic corporations in existence on January 1, 1997, that were incorporated under any general statute of this state providing for incorporation of corporations with capital stock if power to amend or repeal the statute under which the corporation was incorporated was reserved.”

       In its brief on appeal, R.S. Silver Enterprises, Inc., argues that, in light of the plaintiffs’ failure to complete the record by way of a motion for articulation of the court’s judgment granting the defendants’ motions to dismiss, the record is inadequate for our review. “We have noted in the past that the wholesale adoption by the Superior Court of a party’s reasoning in its legal memoranda as the basis for the court’s own decision is not a sound practice because it does not afford an appellate court a clear understanding of the reasons underlying the trial court’s decision.” Wendover Financial Services Corp. v. Connelly, 61 Conn. App. 244, 247, 763 A.2d 670 (2000). In the present case, however, the issue presently before us is whether the court properly dismissed the plaintiffs’ application for a writ of mandamus on the basis of a lack of subject matter jurisdiction due to lack of standing. Whether a party has standing, on the basis of undisputed facts, is a question of law. Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579-80, 833 A.2d 908 (2003). Our review is therefore plenary. See West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 12, 901 A.2d 649 (2006). Because our review is plenary, “the precise legal analysis undertaken by the trial court is not essential to [our] consideration of the issue on appeal.” Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 396, 757 A.2d 1074 (2000).

       The secretary further maintains that the plaintiffs’ proper remedy is a breach of contract action against R.S. Silver Enterprises, Inc., and Robert S. Silver, individually. We note that the plaintiffs have filed such a lawsuit. See Gillon v. Silver, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5001203-S.

       Moreover, the plaintiffs’ reliance on Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987), is unavailing. In Connecticut State Medical Society, our Supreme Court held that a licensed physician had standing to challenge the validity of an administrative action that enlarged the area of the body that fell within the practice of podiatry by permitting podiatrists to treat ankles. Id., 303. Such enlargement, the court held, could constitute unfair and illegal competition because it could evidence an illegal interference with the physician’s practice. Id., 303-304. Connecticut State Medical Society, however, is distinguishable from the present case in that the plaintiff physician in that case possessed a property interest that was allegedly harmed by the challenged action, a governmental license to practice medicine. See id., 300.
      In the present case, the plaintiffs have alleged neither a statutory right to the name R.S. Silver & Company, nor a property interest in the entity currently doing business as R.S. Silver Enterprises, Inc., or R.S. Silver & Company, Inc., the corporation that was reinstated by that entity. Rather, the plaintiffs have alleged that they entered into a contract with R.S. Silver & Company, Inc., wherein they acquired the exclusive right to conduct business as R.S. Silver & Company. It is undisputed, however, that this alleged contractual right remains unaffected by the secretary’s action.


author: WEST, J. LAVERY, J.,

text:
    THERESA SOKAITIS v. ROSE BAKAYSA
    (AC 28099)
    Flynn, C. J., and Lavery and West, Js.
    Argued November 28, 2007
    officially released February 5, 2008

      Samuel M. Pollack, with whom was Sean R. Higgins, for the appellant (plaintiff).

      William J. Sweeney, Jr., for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Theresa Sokaitis, appeals from the judgment of the trial court rendered in favor of the defendant, Rose Bakaysa, following the granting of the defendant’s motion for summary judgment. On appeal, the plaintiff claims that the court improperly held that General Statutes § 52-553 was applicable to the written agreement between the plaintiff and the defendant. We agree and, therefore, reverse the judgment of the trial court.

The following factual and procedural history is relevant to our disposition of the plaintiffs claim. On April 12,1995, the plaintiff and the defendant, who are sisters, created and signed a written agreement. The agreement stated: “This is a letter of agreement between [the defendant] and [the plaintiff]. This letter is dated on 4/12/95. This letter states that we are partners in any winning we shall receive, to be shared [equally]. (Such as slot machines, cards, at Foxwoods Casino, and [lottery] tickets, etc.).” On June 20, 2005, a winning Powerball lottery ticket, worth $500,000, from the June 18, 2005 drawing was presented to the Connecticut lottery officials for payout. The winning ticket was presented by Joseph F. Troy, Sr., the brother of the parties, who indicated that he held the ticket jointly with the defendant. Lottery officials paid Troy and the defendant each $249,999, less federal tax withholding. The defendant did not provide the plaintiff with any portion of the lottery winnings.

As a result, on August 19, 2005, the plaintiff brought an action against the defendant for breach of contract. The plaintiff sought money damages equal to half of the defendant’s Powerball winnings plus interest. On August 17, 2006, the defendant filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that the agreement on which the plaintiff was suing was unenforceable under § 52-553, thereby entitling the defendant to judgment as a matter of law. On September 14, 2006, the court granted the defendant’s motion for summary judgment and rendered judgment in the defendant’s favor. This appeal followed. Additional facts will be set forth as necessary.

“As a preliminary matter, we set forth the appropriate standard of review. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007).

In the present case, the court held that it could not enforce the contract between the plaintiff and the defendant. The court found that § 52-553 applied to the agreement made between the parties. Section 52-553 provides in relevant part: “All wagers, and all contracts and securities of which the whole or any part of the consideration is money or other valuable thing won, laid or bet, at any game, horse race, sport or pastime, and all contracts to repay any money knowingly lent at the time and place of such game, race, sport or pastime, to any person so gaming, betting or wagering, or to repay any money lent to any person who, at such time and place, so pays, bets or wagers, shall be void . . . The court found that “[t]he agreement between [the plaintiff] and [the defendant], if indeed it is a contract at all, is one in which each promised to give the other half of her gambling winnings in return for a mutual promise from the other to do the same.” The court then found that “[t]he consideration for their contract is ‘money . . . won ... at any game.’ ”

In her brief, the plaintiff argues that “the parties’ agreement is not a ‘wagering contract’ for purposes of § 52-553 because it is a mutual exchange of promises to share profits from legal forms of gambling in Connecticut.” Furthermore, the plaintiff argues that “money . . . won ... at any game” was not the consideration for the agreement. Because the “money . . . won . . . at any game” was not in existence at the time the parties entered into the agreement, it could not have been the consideration. In contrast, the plaintiff argued that the consideration was, in fact, the exchange of promises to share equally in the proceeds from the legal activity. We agree with the plaintiff.

We conclude that § 52-553 was not applicable to the agreement between the plaintiff and the defendant. The statute makes void any wager or contract “of which the whole or any part of the consideration” is “money . . . won ... at any game . . . .” General Statutes § 52-553. In the present case, the plaintiff and the defendant promised to share equally in any winnings they received from various forms of legalized gambling, including the lottery. They did not make promises that were induced by the consideration of “money . . . won ... at any game . . . .” Therefore, the consideration for the agreement was not the money that they won but rather their mutual promises to one another to share in any winnings they received. Consideration is “a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . . . An exchange of promises is sufficient consideration to support a contract.” Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). Therefore, § 52-553 does not apply to the agreement between the plaintiff and the defendant because the consideration was not “money . . . won ... at any game . . . .”

Because § 52-553 did not apply to the agreement between the plaintiff and the defendant, the defendant was not entitled to summary judgment as a matter of law. Therefore, the court improperly granted the defendant’s motion for summary judgment and improperly rendered judgment in favor of the defendant.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion FLYNN, C. J., concurred.

LAVERY, J.,

dissenting. I respectfully disagree with the majority’s conclusion that General Statutes § 52-553 was improperly applied to the written agreement between the parties because the consideration for the agreement consisted of mutual promises to each other to share in any winnings either received. The consideration in this case was “money . . . won ... at any game” and therefore prohibited. I would affirm the judgment of the trial court.

“Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made.” (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn. App. 14, 23, 804 A.2d 865 (2002), quoting Finlay v. Swirsky, 103 Conn. 624, 631, 131 A. 420 (1925). Consideration is defined as “the reason, motive, or inducement, by which a man is moved to bind himself by an agreement.” Black’s Law Dictionary (7th Ed. 1999). As the trial court properly held, the motive for the promises exchanged by the parties was to split “money . . . won ... at any game.”

The plaintiff, Theresa Sokaitis, argues that § 52-553 is contrary to Connecticut’s public policy because gambling has been legalized to a great degree within Connecticut. She cites the establishment of the division of special revenue in the early 1970s and the authorization of the state lottery in 1996, as evidence of the “erosion” of Connecticut’s policy against gambling. The legislative history of § 52-553, however, tells a different story. Not only is it possible to trace the relevant part of this statute back to 1902, but alterations were made to this statute subsequent to the institution of the Connecticut Lottery Corporation. As a tenet of legislative interpretation, “[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or nonaction will have upon any one of them.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 431, 927 A.2d 843 (2007). Because of this, we must assume that it was the intent of the legislature to continue to prohibit wagering contracts like the one at issue in this case.

Accordingly, I respectfully dissent and would affirm the judgment of the trial court.

       The plaintiff also made additional arguments as to why General Statutes § 52-553 was inapplicable to the agreement between her and the defendant. For instance, the plaintiff argued that the statute was inapplicable to the agreement because “the gaming activity that forms its subject matter is authorized by statute and is not contrary to Connecticut’s public policy.” Additionally, the plaintiff argued that the statute did not apply to the agreement because the statute had been repealed partially by subsequent legislation relating to legal forms of gambling in Connecticut. We find it unnecessary to reach those additional arguments because we conclude that the statute did not apply to the agreement on the ground that the consideration in the agreement was not “money . . . won ... at any game,” as is prohibited by the statute.

       General Statutes § 52-553 provides in relevant part: “All wagers, and all contracts and securities of which the whole or any part of the consideration is money or other valuable thing won, laid or bet, at any game, horse race, sport or pastime, and all contracts to repay any money knowingly lent at the time and place of such game, race, sport or pastime, to any person so gaming, betting or wagering, or to repay any money lent to any person who, at such time and place, so pays, bets or wagers, shall be void . . . .”

       I am adopting some of the reasoning of the Virginia Supreme Court in Hughes v. Cole, 251 Va. 3,465 S.E.2d 820 (1996) (holding that statute voiding contracts where part or all of consideration is money is still valid even after legislature had decriminalized bingo games and lotteries).

       See General Statutes (1902 Rev.) § 4531.

       Number 03-60 of the 2003 Public Acts updated the language of the statute, designated subsection (1) as such and added subsection (2) of the statute allowing an exception for the sale of a raffle ticket.


author: GRUENDEL, J. MIHAIAKOS, J.,

text:
    SUSAN MARANDINO v. PROMETHEUS PHARMACY ET AL.
    (AC 28146)
    Gruendel, Lavine and Mihalakos, Js.

      Argued October 16, 2007
    officially released February 5, 2008

      Jason M. Dodge, with whom, on the brief, was Douglas L. Drayton, for the appellants (defendants).

      Angelo Paul Sevarino, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendants, Prometheus Pharmacy and CNA Risk Services, Inc., appeal from the decision of the workers’ compensation review board (board) affirming the finding and award of the workers’ compensation commissioner (commissioner) in favor of the plaintiff, Susan Marandino, and dismissing the defendants’ appeal. The defendants claim that the board (1) improperly sustained the commissioner’s finding that the plaintiffs knee injury causally was related to her master right elbow injury and, as such, was compen-sable, and (2) improperly sustained the commissioner’s finding that the plaintiff is totally incapacitated and entitled to compensation under General Statutes § 31-307. We affirm in part and reverse in part the decision of the workers’ compensation review board.

The following facts are relevant to the defendants’ appeal. In February, 1999, while employed by Prometheus Pharmacy, the plaintiff fell at her place of work and sustained an injury to her master right elbow. Beginning in July, 1999, the plaintiff underwent surgeries and received treatment for her arm injury from Andrew Caputo, an orthopedic surgeon. Specifically, on July 12, 1999, the plaintiff underwent an open reduction internal fixation of her right radial head fracture with left iliac crest bone graft, which was secured by a titanium plate, as well as a right carpal tunnel release. In December 1999, Caputo discovered that there was a crack in the titanium plate and that surgery was required to fix it. Therefore, on January 19, 2000, the plaintiff underwent a right radial head replacement and release of her right elbow contracture.

On March 1, 2001, the plaintiff underwent her final arm surgery, a right anterior subcutaneous ulnar nerve transposition and excision of deep sutures on her right lateral elbow. Thereafter, the plaintiff underwent an independent medical evaluation with Andrew Nelson, a physician. He diagnosed the plaintiff with, among other things, right upper extremity chronic regional pain syndrome, which he opined was directly and causally related to the injury sustained when the plaintiff fell at her place of work and that the plaintiffs prognosis was poor to fair. He also opined that she was significantly impaired, requiring ongoing narcotic medication and that “[a]t best she would only be able to utilize her right upper extremity as a sedentary assistant unless additional evaluation and possible intervention provided her function by way of range of motion, strength, and decreased pain.” Nelson opined that the plaintiff would reach maximum medical improvement in March, 2002, approximately twelve months after her final surgery on March 1, 2001. In 2002, Nelson authored a second independent medical evaluation in which he indicated that there was no significant change in the plaintiffs complaints or physical evaluation since the November 9, 2001 independent medical examination and that the plaintiff suffered from a permanent partial impairment of 41 percent of the right upper extremity.

Beginning in June, 2000, and through the time of the hearings before the commissioner, the plaintiff was treated by a pain specialist, Steven Beck, for her arm injury. Beck’s notes indicate an increase in pain, sensitivity and immobility over time, as well as an increase in narcotic medication over time to control the plaintiffs arm pain. Beck testified at his deposition that the plaintiff suffers from complete regional pain syndrome and reflex sympathetic dystrophy.

On April 24, 2002, the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, in accordance with General Statutes § 31-308, on the basis of a 41 percent permanent partial impairment of her right upper extremity. The plaintiff received benefits in accordance with that agreement for 85.28 weeks.

In the meantime, in January, 2000, between the plaintiffs first and second arm surgeries, she suffered an injury to her right knee. The plaintiff was in her home and hurriedly was ascending her basement stairs to answer a telephone that was ringing on the first floor when she felt herself fall backward. To secure her balance, and fearful about the crack in the plate in her right arm, the plaintiff reached out for the railing, located on her right side, with her left arm. In doing so, she jerked her body and twisted her right knee. The plaintiff was treated by Vincent Santoro, an orthopedic surgeon, for her knee injury and underwent two surgeries for an osteochondral lesion.

At some point, after the voluntary agreement was entered into, a hearing was scheduled before the commissioner in which the plaintiff sought to receive benefits for total incapacity. Hearings were held before the commissioner on the matter, and he made several findings, specifically, that the plaintiff had a compensable 41 percent permanent partial disability of her master right arm, that her knee injury was compensable and that she was totally incapacitated and entitled to benefits in accordance with § 31-307. The defendants appealed to the board, challenging the commissioner’s findings that the plaintiffs knee injury was compensa-ble and that the plaintiff was totally incapacitated and entitled to benefits in accordance with § 31-307. The defendants do not challenge the commissioner’s finding that the plaintiff has a compensable 41 percent permanent partial disability of her master right arm. The board affirmed the findings of the commissioner and dismissed the defendants’ appeal. This appeal followed. Additional facts will be set forth as necessary.

I

The defendants claim that the board acted improperly in sustaining the commissioner’s finding that the plaintiffs knee injury was compensable. The defendants first claim that the reports on which the commissioner relied, in part, to make this finding should not have been admitted into evidence. Second, the defendants claim that there was insufficient evidence in the record on which the commissioner could rely to find that the plaintiffs knee injury was causally related to the prior compensable arm injury. We address each argument in turn.

A

The defendants argue that the medical report authored by Santoro in which he opined that the plaintiffs knee injury was causally related to her arm injury was not a medical report for purposes of General Statutes § 52-174 (b) and, as such, should not have been admitted into evidence. Two reports matching that description were before the commissioner. Because the defendants do not specify which report they take issue with, we address them both.

During the hearings before the commissioner, the plaintiff sought to enter into evidence the plaintiffs medical records authored by Santoro. Among the records were a note and a letter that both contained an opinion that the knee injury was causally related to the arm injury. The letter, dated, April 5, 2002, stated: “I am responding to your . . . correspondence regarding your client and my patient, [the plaintiff]. Please be advised that we have recommended surgery and this dates back to [February, 2002], I talked specifically with the patient that she had an osteochondral lesion. This is a direct result of her previous work-related trauma and as such is a continuation of her ongoing problems. This does not represent a new condition.” (Emphasis added.) The defendants did not object to this letter during the hearing, and, therefore, they can not raise the propriety of its admission into evidence for the first time on appeal. See Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 699, 931 A.2d 348 (“[t]his court does not review claims raised for the first time on appeal”), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).

The plaintiff also sought to introduce into evidence a note from her medical records that was authored by Santoro. The note, dated November 28, 2000, stated: “I met with [the attorneys] in the case of [the plaintiff]. I feel that there is a direct related cause of the knee injury to the right elbow pre-existing problem.” (Emphasis added.) The defendants objected to the note and argued that it was not a medical report in accordance with § 52-174 (b). Over the defendants’ objection, the commissioner admitted the note into evidence.

In the commissioner’s findings and award, he found that “Dr. Santoro reported that there is direct related cause of the [plaintiffs] knee injury to her right elbow preexisting problem” and further found that “[t]he opinion of Dr. Santoro with respect to the cause of the [plaintiffs] injury to her right knee being uncontra-dicted is persuasive.” It is not clear whether the commissioner made these findings on the basis of the November 28, 2000 note, or rather, whether he found these facts on the basis of the April 5, 2002 letter. Because the defendants cannot claim that the April 5, 2002 letter was before the commissioner improperly and because it contained the same opinion of causation regarding the knee and arm injury as the November 28, 2000 note, we need not address the defendants’ claim that the November 28, 2000 note should not have been admitted. Put another way, the November 28, 2000 note was cumulative of the opinion contained in the April 5, 2002 letter. Therefore, even if the November 28, 2000 note was admitted improperly, the commissioner could have relied on the April 5, 2002 letter for the very same proposition. Cf. State v. Williams, 30 Conn. App. 654, 656, 621 A.2d 1365 (1993) (“We do not reach the issue of whether the trial court’s ruling was proper. ... It is well established that a judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has also been placed before the jury.” [Citation omitted.]); State v. Farnum, 275 Conn. 26, 31 n.4, 878 A.2d 1095 (2005) (“[i]n light of our conclusion that there was sufficient evidence to affirm the defendant’s conviction in the absence of this evidence, we need not address this claim”).

B

The defendants next claim that the board improperly sustained the commissioner’s finding that the plaintiffs knee injury causally was related to her master right arm injury. We agree and conclude that there were insufficient subordinate facts in the record from which the commissioner reasonably could have concluded that the knee injury causally was related to the master right arm injury.

“The commissioner is the sole trier of fact and [t]he 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. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of the actions of the [board] is [similarly] . . . limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence .... Our role is to determine whether the review [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.” (Citation omitted; internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 342-43, 913 A.2d 483, cert. granted on other grounds, 281 Conn. 929, 918 A.2d 277 (2007).

“Our workers’ compensation scheme 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 [benefits]. ... To recover under the Workers’ Compensation Act [General Statutes § 31-275 et seq.], 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.” (Citation omitted; internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 341. Furthermore, “[i]t is well settled in workers’ compensation cases that the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but that such proof must be established by competent evidence.” (Emphasis in original; internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447, 774 A.2d. 992 (2001).

“ [Traditional concepts of proximate cause furnish the appropriate analysis for determining causation in workers’ compensation cases. . . . [T]he test for determining whether particular conduct is the proximate cause of an injury [is] whether it was a substantial factor in producing the result.” (Internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 342. “The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” (Internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 546, 542 A.2d 1118 (1988).

In the present case, the plaintiffs knee injury occurred outside the workplace and approximately nine months after her original arm injury. She twisted and injured her knee when, while hurriedly ascending a flight of stairs, she felt herself fall backward and grabbed a railing, located on her right side, with her left arm because she was concerned she might reinjure her right arm. Although the commissioner credited the testimony of the plaintiff, it was not sufficient by itself to establish proximate causation between the arm injury and the knee injury. Whether the plaintiffs work-related arm injury was a proximate cause of her subsequent knee injury or, rather, whether it was caused by some other source, is not “a matter within the common knowledge of the commissioner, the board or this court. Such a theory of cause and effect is not so in accord with ordinary human experience . . . that it obviates the need for expert medical evidence.” (Citation omitted; internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., supra, 62 Conn. App. 449; see also Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 152, 291 A.2d 743 (1972) (“[w]here ... it is difficult to ascertain whether or not the [injury] arose out of the employment, it is necessary to rely on expert medical opinion” [internal quotation marks omitted]). The plaintiff, therefore, bore the burden to provide the commissioner with competent expert medical evidence regarding causation. Although the plaintiff provided the commissioner with expert medical evidence in an attempt to demonstrate that her knee injury proximately was caused by her arm injury, we conclude that the evidence was not competent evidence on which the commissioner could rely.

Expert testimony can be competent evidence “[a]s long as it is clear that the expert’s opinion was based on more than mere conjecture .... [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. An expert’s testimony as to the reasonable probability of the occurrence of an event does not depend on semantics or the use of any particular term or phrase, but rather, is determined by looking at the entire substance of the testimony. . . . The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . . Inferences [made by the commissioner, however] may only be drawn from competent evidence. Competent evidence does not mean any evidence at all. It means evidence on which the trier properly can rely and from which it may draw reasonable inferences.” (Citations omitted; internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 343.

In the present case, the commissioner found that because Santoro’s report was uncontradicted, it was persuasive. That finding is improper for two reasons. First, it incorrectly suggests that the burden of proof shifts to the defendant once the plaintiff has provided some evidence of causation. Under Connecticut law, the burden remains on the plaintiff to show through competent evidence that the subsequent injury is causally related to the prior compensable injury. See Dengler v. Special Attention Health Services, Inc., supra, 62 Conn. App. 447. Second, “testimony of even the most persuasive expert witness cannot be credited if it is not based on facts.” DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 344. We conclude that Santoro’s reports were not competent evidence on which the commissioner could rely, but rather were grounded in speculation and conjecture. See id.

Santoro concluded that the knee injury was causally linked to the prior compensable arm injury without demonstrating the causal connection. There is nothing in Santoro’s reports, or in the record, to suggest that the arm injury, rather than some other source, was a substantial factor in bringing about the knee injury. See Murchison v. Skinner Precision Industries, Inc., supra, 162 Conn. 152 (“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 conclude that the [subsequent injury] arose out of the employment. Madore v. New Departure Mfg. Co., 104 Conn. 709, 714, 134 A. 259 [1926].” [Internal quotation marks omitted.]). Put another way, Santoro’s reports provided a determination of causation without any supporting medical facts from which medical causation could reasonably be inferred. Because Santoro’s opinion regarding causation is merely a statement devoid of a basis in fact, we conclude that it was not competent evidence, but rather speculation and conjecture and, as such, could not, without more, be relied on to determine whether legal causation existed between the arm and leg injury. See DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 344. As the commissioner could not properly have relied on Santoro’s opinion and, as the plaintiffs testimony by itself was not sufficient to establish proximate cause, the commissioner improperly found the knee injury to be causally related to the arm injury and, thus, compensable. The commissioner’s finding that the knee injuiy was compensable must be set aside, as there was insufficient evidence in the record from which the commissioner could have made this finding.

II

The defendants’ second claim is that the plaintiff is not entitled to total incapacity benefits under § 31-307. The defendants first argue that because the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, she is unable to request total incapacity benefits without demonstrating a change in medical condition since entering into the agreement. The defendants explain that this is because the workers’ compensation statutoiy scheme “numerically progress [es] by statute number.” As such, once the plaintiff reached maximum medical improvement and voluntarily accepted an agreement to receive permanent partial disability benefits under § 31-308, she is able to request further benefits under General Statutes § 31-308a only, unless she files a motion asking the commissioner to open or modify her award on the basis of a change in her condition. Second, the defendants argue that even if the plaintiff can demonstrate a medical change sufficient to seek modification of her award, she is not entitled to total incapacity benefits as she has not exercised reasonable diligence in securing employment and, as such, has not demonstrated a diminished earning capacity in accordance with § 31-307. We address each argument in turn.

General Statutes § 31-315 provides in relevant part: “An award of, or voluntary agreement concerning, compensation . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased . . . .” See also Hunt v. Naugatuck, 273 Conn. 97, 103, 868 A.2d 54 (2005) (“[p]ursuantto General Statutes § 31-315, a workers’ compensation award is always limited to a claimant’s current condition and [is] always subject to later modification upon the request of either party . . . if the complainant’s condition changes” [internal quotation marks omitted]). The defendants concede as much in their brief where they state: “ The [plaintiff] was not without remedy for some change in her physical condition after accepting permanent partial disabilities .... The commissioner had continuing jurisdiction under § 31-315 to modify an award or voluntary agreement if there had been a change in her condition.” The defendants, however, argue that the plaintiff has not suffered a change in her condition that would warrant a modification under § 31-315. Our review of the record before the commissioner, however, persuades us that there was sufficient evidence presented to the commissioner from which he could have determined that the plaintiffs condition had worsened from the time that she had entered into the voluntary agreement.

After the voluntary agreement was entered into by the plaintiff and the defendants, the plaintiff continued to be treated by Beck, her pain specialist. At the hearing, the commissioner was presented with Beck’s notes dating from August 16, 2000, through April 1, 2004. The notes reveal that over time, the pain, sensitivity and lack of mobility in the plaintiffs master right aim increased. The plaintiffs first two visits to Beck after entering into the agreement are not notable for any change. On December 3, 2002, however, the plaintiff reported that she was having persistent pain and burning in her right forearm and a substantial limitation of function. Beck noted that in addition to her original problem, she had a “trigger point in the right [extensor digitorum communis].” Beck recommended an injection to alleviate the pain. Next, in January, 2003, Beck reported that the injection did not work, that the plaintiff suffered an increase in immobility of the arm due to pain and that her symptoms seemed to have intensified for more than one week. In July, 2003, Beck noted that the plaintiff suffered from “persisting significant neuralgia on her present dosing of Norco and Neu-rontin.” To alleviate her pain, Beck increased her dose of Neurontin. In September, 2003, the plaintiff returned to Beck and reported continued pain as well as new pain radiating from her neck into her arm. In November, 2003, although the plaintiff seemed to be suffering less from the pain that radiated from her neck to her arm, she continued to suffer an increased amount of pain since the agreement was entered into. In January, 2004, she experienced the same increased pain, and her prescription for Norco was increased. The last record authored by Beck and presented to the commissioner is dated April 1, 2004. Notably, Beck reported that “[the plaintiff] has exacerbation of what appears to be predominantly sympathetic medicated pain right side.” Beck suggested that she see her orthopedic surgeon so that he might perform an X ray to check the position of the radial head implant. Beck’s medical notes, therefore, reveal sufficient evidence that the plaintiff was suffering an increased level of both pain and immobility in her master right arm after the time the voluntary agreement was entered into. The commissioner was entitled to rely on this evidence to determine that the plaintiff suffered a change in medical condition sufficient to warrant a modification of the voluntary agreement.

The defendants next argue that the plaintiff is not entitled to total incapacity benefits, as she failed sufficiently to demonstrate a diminished earning capacity because she did not actively seek employment. A review of our case law indicates that a plaintiff is not necessarily required to seek employment actively in order to demonstrate a diminished earning capacity sufficient to secure benefits under § 31-307. In order to receive total incapacity benefits under § 31-307, a plaintiff bears the burden to demonstrate a diminished earning capacity by showing either that “she has made adequate attempts to secure gainful employment or that she truly is unemployable.” (Emphasis added.) Bidoae v. Hartford Golf Club, 91 Conn. App. 470, 483, 881 A.2d 418, cert. denied, 276 Conn. 921, 888 A.2d 87 (2005), cert. denied, 547 U.S. 1112, 126 S. Ct. 1916, 164 L. Ed. 2d 665 (2006). Whether the plaintiff makes this showing of unemployability by demonstrating that she actively sought employment but could not secure any, or by demonstrating through a nonphysician vocational rehabilitation expert or medical testimony that she is unemployable, as the plaintiff did in the present case, as long as there is sufficient evidence before the commissioner that the plaintiff is unemployable, the plaintiff has met her burden.

In the present case, the commissioner was presented with the testimony of nonphysician vocational rehabilitation experts for both the defendants and the plaintiff as well as medical evidence on which he could rely to find the plaintiff totally incapacitated based solely on the 41 percent permanent partial disability of her master right arm. The commissioner credited the testimony of the plaintiffs expert over that of the defendants’ expert, as the commissioner is entitled to do. See DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 99 Conn. App. 343 (“ [i]t [is] the province of the commissioner to accept the evidence which impresses] him as being credible and more weighty” [internal quotation marks omitted]). From the testimony of the plaintiffs vocational expert, the commissioner found, inter alia, that the plaintiff could not meet the physical requirements of her previous job as a pharmacy technician and that she did not have transferable skills from her previous job because of the limited use of her master arm. In addition, the commissioner was presented with Beck’s deposition testimony in which he opined that, because of her arm injury, it was doubtful that “[the plaintiff] could hold a job . . . because of the pain level and its interference with the way she focuses and functions.” The commissioner was also presented with the opinion of Nelson that the plaintiffs ability to work was significantly impaired because she required ongoing narcotic medication in addition to the functional impairment of her right upper extremity.

As there was sufficient evidence before the commissioner in the form of expert testimony that the plaintiffs arm injury rendered her unemployable, the commissioner did not act improperly in finding that the plaintiff demonstrated a diminished earning capacity on the basis of the 41 percent permanent partial disability of her master right arm and, as such, was eligible to receive total incapacity benefits under § 31-307.

The decision of the workers’ compensation review board is reversed with respect to the finding that the plaintiffs knee injury is compensable. The decision is affirmed in all other respects.

In this opinion LAVINE, J., concurred.

MIHAIAKOS, J.,

dissenting in part. Although I agree with the majority’s analysis and conclusions in parts I A and II, I respectfully dissent from the majority’s conclusion in part II B that the plaintiff, Susan Maran-dino, failed to prove causation. My disagreement with the majority is twofold. First, I believe that the report by Vincent Santoro, the plaintiffs orthopedic surgeon, is competent evidence on which the workers’ compensation commissioner (commissioner) could rely. Second, I believe that the record reveals a sufficient factual basis for Santoro’s conclusion.

I

It is well settled that the injured employee bears the burden of proof on causation, which must be met through competent evidence. See, e.g., Keenan v. Union Camp Corp., 49 Conn. App. 280, 282, 714 A.2d 60 (1998). In this case, expert medical evidence on causation was necessary because the cause and effect relationship of the work-related arm injury and the subsequent knee injury was not a matter within the common knowledge of the fact finder. The plaintiff, therefore, was required to produce expert evidence establishing causation.

The plaintiff attempted to meet her burden by introducing Santoro’s report. The defendants, Prometheus Pharmacy and CNA Risk Services, Inc., do not dispute that Santoro was an expert qualified to provide expert medical evidence establishing causation. The majority contends, citing DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 913 A.2d 483, cert. granted, 281 Conn. 929, 918 A.2d 277 (2007), that Santoro’s opinion failed to establish causation because it provided only an ultimate conclusion on that issue without also providing the supporting medical facts from which the conclusion was drawn. I disagree with the majority’s belief that the report was required to include the supporting medical facts.

In workers’ compensation cases, “the opinions of experts [are] to be received and considered as in other cases generally . . . .” (Internal quotation marks omitted.) Keenan v. Union Camp Corp., supra, 49 Conn. App. 284. While I am mindful of the fact that the commissioner is not bound by ordinary common-law or statutory mies of evidence or procedure; see General Statutes § 31-298; a general review of the law concerning the admissibility of expert testimony nevertheless is warranted.

“The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed. ... In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . Some facts must be shown as the foundation for an expert’s opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. ... It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony.” (Citations omitted; internal quotation marks omitted.) Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 93, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994); see also Dixon v. United Illuminating Co., No. 03543 CRB-04-97-03 (April 9,1998) (“[an] expert must demonstrate a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue” [internal quotation marks omitted]).

“The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of the expert’s opinion. . . . Where the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value.” (Citation omitted; emphasis added; internal quotation marks omitted.) Glaser v. Pullman & Comley, LLC, 88 Conn. App. 615, 624, 871 A.2d 392 (2005). “Whether sufficient facts are shown as the foundation for the expert’s opinion is a preliminary question to be decided by the trial court.” Conn. Code Evid. § 7-4 (a), commentary, citing Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d 86 (1985).

In the present case, Santoro’s report was received by the commissioner without any challenge by the defendants as to the factual basis on which the report rested. If the defendants wanted to challenge the foundation for Santoro’s opinion, they were required to object to the report’s introduction. The majority’s assertion that Santoro’s report was not competent evidence because “testimony of even the most persuasive expert witness cannot be credited if it is not based on facts” relieves the defendants of their burden of objecting to the foundation of Santoro’s opinion. Whether Santoro’s opinion was based on facts is a preliminary question of admissibility. Once Santoro’s report was properly received, the commissioner was entitled to rely on the conclusions set forth in the report if he found it credible. See Chesler v. Derby, 96 Conn. App. 207, 218, 899 A.2d 624 (“It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” [Internal quotation marks omitted.]), cert. denied, 280 Conn. 909, 907 A.2d 88 (2006). Deeming the report not competent because it fails to include the supporting medical facts relieves the defendants of their burden to object to the foundation for the introduction of the report.

Furthermore, I disagree with the majority’s conclusion that Santoro’s report was based on speculation and conjecture because it did not include any supporting medical facts. I believe that characterization misconstrues our law. Our precedent holds that “[e]xpert opinions must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible .... To be reasonably probable, a conclusion must be more likely than not.” (Internal quotation marks omitted.) Card v. State, 57 Conn. App. 134, 138-39, 747 A.2d 32 (2000). Our case law concerning expert testimony grounded in speculation and conjecture concerns situations where an expert was unable to offer a firm conclusion and simply stated something to the effect that there was a fifty-fifty chance or causation was possible. See Aspiazu v. Orgera, 205 Conn. 623, 632, 535 A.2d 338 (1987) (“[a]ny expert opinion that describes a ‘condition’ as possible or merely fifty-fifty is based on pure speculation”).

The present case is not such a case. The conclusion reached by Santoro was unequivocal: “[The knee injury] is a direct result of her previous work-related trauma and as such is a continuation of her ongoing problems.” Santoro’s opinion was clear and conclusive. There simply is no indication that his opinion was based on speculation or conjecture, rather than on a reasonable probability. Whether he had a factual basis for making his conclusion is a different inquiry that is properly viewed as a preliminary question of admissibility. The defendants, however, did not question the factual basis for Santoro’s conclusion. Once Santoro’s report was admitted, the commissioner was entitled to give the report whatever weight he believed was appropriate in light of the report’s unknown foundation. See Chesler v. Derby, supra, 96 Conn. App. 218. I would find that Santoro’s clear and unequivocal conclusion was competent evidence on which the commissioner could rely.

II

My second disagreement is with the majority’s contention that there are insufficient facts in the record from which causation could be inferred. My review of the record does not support the majority’s belief that “[t]here is nothing in Santoro’s reports, or in the record, to suggest that the arm injury, rather than some other source, was a substantial factor in bringing about the knee injury.”

To prove causation in the present case, the plaintiff bore the burden of providing the commissioner with two distinct pieces of evidence. First, the plaintiff needed to provide the commissioner with competent evidence regarding causation. Second, because the causation at issue in this case is not a matter within the common knowledge or experience of the average person, she was required to provide expert testimony interpreting the evidence. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449, 774 A.2d 992 (2001). I believe that the plaintiff met her burden because evidence in the record satisfies the former and Santoro’s report satisfies the latter.

Competent evidence means “evidence on which the trier properly can rely and from which it may draw reasonable inferences.” Id., 451. My review of the record reveals at least two pieces of competent evidence that could establish causation. First, there are medical reports showing that the plaintiff has a limited range of motion in her right elbow and that she has “chronic limitation and pain in the right forearm.” These reports also state that “with any volitional movement, there is shakiness of the right hand and forearm.” Second, the plaintiff testified about the manner in which her knee injury occurred, namely, she was hurriedly running up a set of stairs and, because of fear of additional injury to her already injured right elbow, she reached across her body with her left arm to grab a railing located on her right side. Due to the cause and effect relationship of the injuries at issue, a medical expert was needed to draw the necessary inference regarding causation on the basis of the facts in the record. See id., 440.

Santoro certainly could conclude that a preexisting elbow injury that limited the plaintiffs range of motion in her right arm, combined with the manner in which the knee injury occurred, established, to a reasonable degree of medical certainty, that the plaintiffs knee injury was casually related to her preexisting elbow injury. The purpose of expert testimony is to draw inferences from the facts which the fact finder could not draw at all or as reliably. Although it is not entirely clear which facts Santoro relied on in making his conclusion, any attack of the factual basis for Santoro’s conclusion, as discussed in part I, is properly done as a preliminary matter challenging the opinion’s admissibility. That was not done. The evidence in the record establishes the extent of the preexisting elbow injury and manner in which the knee injury occurred and, consequently, provided the commissioner with sufficient facts from which causation could be inferred. Santoro’s report was an expert opinion making the necessary inference. It is outside this court’s competency to say that there are not sufficient facts in the record from which an expert could infer causation. Whether the plaintiffs knee injury was casually related to her preexisting elbow injury is a matter for an expert to decide. On the basis of the facts in the record as a whole, Santoro could make that conclusion.

Furthermore, while Santoro’s opinion was not a model of clarity because it provided only an ultimate conclusion without also providing supporting facts, the defendants were entitled to present their own evidence on causation. They could have deposed Santoro or produced their own expert rebutting Santoro’s conclusion. They also could have challenged the report’s admissibility in light of its omission of foundational facts. They did none of these. In light of the facts in the record and the remedial purpose of the workers’ compensation statutory scheme, I believe that the workers’ compensation review board properly upheld the factual determinations of the commissioner.

For the reasons given, I respectfully dissent.

       The defendants concede that the plaintiff is eligible for additional benefits in accordance with General Statutes § 31-308a.

       At oral argument, the defendants conceded that this court could sustain the board’s affirmance of (he commissioner’s finding that (he plaintiff was unemployable and, thus, totally incapacitated on the basis of the 41 percent permanent partial disability of the plaintiffs master right arm. In other words, sustaining the commissioner’s finding that the plaintiff is totally incapacitated would not require this court to sustain the commissioner’s finding that the knee injury is compensable.

       The defendants also claim that the admission of the November 28, 2000 note violated their procedural due process right to cross-examine Santoro. The defendants argue that because the note is not a medical record for purposes of General Statutes § 52-174 (b), it was hearsay that was inadmissible unless it could be admitted under an exception to the rule against hearsay and, as such, was inadmissible because Santoro had moved to Oregon and was not present to testify and be cross-examined by the defendants. We do not reach this claim for the same reason that we do not reach the claim of whether the November 28, 2000 note was admitted into evidence properly in accordance with § 52-174 (b).

       We do not hold that a subsequent injury, sustained after a work-related injury in the workplace, is never causally related. We also do not hold that expert medical evidence can never establish that a second injury causally is related to a prior compensable injury. We conclude only that the expert medical evidence regarding causation provided to the commissioner was devoid of any basis in fact and that it was not sufficient evidence from which he could conclude that the leg injury proximately was caused by the arm injuiy.

       Extensor digitorum communis is a muscle of the posterior compartment of the forearm. See T. Stedman, Medical Dictionary (27th Ed. 2000) p. 1145.

       I believe that DiNuzzo is easily distinguishable from the present case on the basis of the facts of each case. In DiNuzzo, the court found that there was no factual basis in the record for the expert’s opinion. DiNuzzo v. Dan Perkins Chevrolet, Geo, Inc., supra, 99 Conn. App. 346. The plaintiffs expert testified that 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. Id., 344. The court noted that a thorough review of the record disclosed no evidence, other than the expert’s opinion testimony, that the decedent had atherosclerotic hear), disease. Id. The expert also testified that he did not examine the decedent’s body, that no autopsy had been performed, and that he did not know whether the decedent had a congenital heart defect that could have caused a heart attack. Id. Finally, he concluded that without an autopsy, there was no way to know the exact cause of the decedent’s death. Id., 345. On this basis, the court concluded that there was no factual basis to infer causation. Id., 346.
      In the present case, and as discussed more fully in part II of my dissent, there was a factual basis from which an expert could infer causation because the record included evidence regarding the plaintiffs preexisting elbow injury and the limitations it bestowed on her range of motion and the facts and circumstances in which her knee injury occurred. From this evidence, an expert was entitled to provide an opinion that the injuries were casually related.