CASE NO. 498 CR9-5-86Workers’ Compensation Commission
SEPTEMBER 19, 1988
The claimant was represented by Serge Mihaly, Esq. and Bruce Levin, Esq., Mihaly Mihaly.
There is no record of appearance by the respondent-employer.
The respondent-Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the July 11, 1986 Finding and Award of the Commissioner for the Fifth District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and A. Thomas White, Jr.
FINDING AND AWARD
1-3. Paragraphs 1 through 3 of the trial Commissioner’s Finding and Award are affirmed and adopted as paragraphs through 3 of this Division’s Finding and Award.
4. It is found that there is evidence presented that proves within the parameters of reasonable medical probability that the claimant suffered permanent partial disability to his brain as a result of the accident of July 21, 1981.
OPINION
JOHN ARCUDI, Chairman.
Claimant sustained a compensable injury July 21, 1981 to his head and other parts of the body. The Fifth District Commissioner ruled July 11, 1986 that the claimant suffered post-traumatic headaches subsequent to the accident. However, he also found, “there is no evidence presented that proves within the parameters of reasonable medical probability that the claimant suffered permanent partial disability of his brain as a result of the accident of December 29, 1982” (sic) and therefore dismissed a claim for permanent partial disability of the brain. We have corrected the date of the accident in that sentence to read July 21, 1981.
On appeal, claimant argues it was clearly erroneous for the trial Commissioner to find that, “there is no evidence presented that proves within the parameters of reasonable medical probability that the claimant suffered permanent partial disability of the brain as a result of the accident of December 29, 1982”. The date of the accident stated in the Finding, paragraph #4, was clearly erroneous, but the Finding, paragraph #1, establishes the correct date for the accident, and we do not find the mistaken date in paragraph to be a reversible error.
The real issue to be decided is that relating to the existence or non-existence of a permanent partial disability of the brain. The Commissioner’s finding was “there was no evidence presented”. Dr. L.M. Davey, a New Haven neurosurgeon, stated in a January 28, 1985 report that “on a psychological basis, it might be fair to apply the 5 to 10 percent rating to the brain”. That was certainly evidence on which the Commissioner could have found a partial permanent disability of the brain. But the Commissioner did not conclude that such testimony satisfied the “parameters of reasonable medical probability”.
“An expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert’s opinion, if not stated in terms of the certain, is at least stated in terms of the probable and not merely the possible.”
Healy v. White, 173 Conn. 438, 443 (1977).
See also, Aurora v. Miami Plumbing Heating, Inc., 6 Conn. App. 45
(1986) (per curiam), aff’g, 2 Conn. Workers’ Comp. Rev. Op. 113, 238 CRD-7-83 (1984).
Whether to accept or reject Dr. Davey’s statement was solely in the province of the trial Commissioner, McGrath v. New London, 38 Conn. Sup. 324 (1982). “The conclusions drawn . . .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.”, Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Based on the Fair criterion, we cannot disturb the trial Commissioner’s conclusions.
We, therefore, affirm the dismissal of permanent partial benefits for brain loss and dismiss the appeal.
Commissioners Robin Waller and A. Thomas White, Jr. concur.