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Nasinka v. Ansonia Copper and Brass

CASE NO. 1592 CRB-5-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 27, 1995

MICHAEL NASINKA

CLAIMANT-APPELLEE

v.

ANSONIA COPPER AND BRASS

EMPLOYER

and

E.S.I.S. INSURANCE CO.

INSURER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Robert G. Montstream, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the December 4, 1992 Amended Finding and Award of the Commissioner acting for the First District was heard June 24, 1994 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Nancy A. Brouillet and Michael S. Miles.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The respondents have petitioned for review from the December 4, 1992 Amended Finding and Award of the Commissioner for the First District. They contend that the commissioner improperly apportioned responsibility for the claimant’s disability among three compensable injuries. We affirm the trial commissioner’s decision.

The claimant suffered compensable back injuries in 1973, 1981 and 1986. The commissioner originally concluded that the claimant had sustained a thirty percent permanent partial impairment of his back divided equally among the three incidents. On appeal, we remanded the matter to the commissioner in order to permit the reports of an independent medical examination that had been ordered by the commissioner to be properly introduced into evidence. Nasinka v. Ansonia Copper and Brass, 10 Conn. Workers’ Comp. Rev. Op. 85, 1153 CRD-5-90-12 (April 20, 1992). This was done by the commissioner in his December 4, 1992 Amended Finding and Award and his December 9, 1992 Corrected and Amended Finding and Award.

The respondents now contend that inadequate evidence existed to support the commissioner’s decision regarding apportionment. Dr. Robinson, the claimant’s treating physician, opined on November 17, 1986 that the claimant had suffered a 30 percent permanent partial disability of the back because of three herniated discs. He also stated that it was “virtually impossible” for him to apportion permanency among the claimant’s several back injuries because the claimant’s history was vague. On June 2, 1987, Dr. Fromm concurred in Dr. Robinson’s evaluation of 30 percent disability due to the herniated discs without mentioning the issue of apportionment.

The commissioner subsequently ordered an independent medical examination of the claimant by Dr. Craig. On August 2, 1990, Dr. Craig diagnosed the claimant with an 11 percent impairment of the whole person. In a follow-up letter dated October 10, 1990, the doctor added that he would divide responsibility for the eleven percent permanent partial impairment equally between the three significant injuries that the claimant had suffered. On August 25, 1992, however, Dr. Craig stated at a deposition that his reports had been wrong, as he had meant to diagnose the claimant with a seven percent permanent partial disability of the whole person. He also stated that he had not based his apportionment of the claimant’s impairment rating on the claimant’s examination or on review of his medical records, but rather on the fact that the patient filled out a form describing the injuries he had sustained, and “seemed to give equal weight to the three injuries of 1973, 1981 and 1986.” Nevertheless, Dr. Craig reaffirmed his prior conclusion on apportionment when asked whether he still stood by his diagnosis.

The respondents contend that Dr. Craig’s conclusion regarding apportionment was inherently unreliable because it was based on the claimant’s representations of his own prior injuries. They further contend that the commissioner was not entitled to accept the 30 percent disability rating of the claimant’s treating physicians while simultaneously relying on Dr. Craig’s conclusion regarding apportionment. We disagree.

The commissioner was required to make a factual determination as to the cause of the claimant’s disability in determining whether liability should be apportioned. See, e.g., Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 106-07, 836 CRD-8-89-3 (June 6, 1990). The power to determine the facts rests with the commissioner, who is the trier of fact. The conclusions drawn by the commissioner must stand if they are supported by the facts found and if they do not result from an incorrect application of the law to the facts. Crochiere v. Board of Education, 227 Conn. 333, 346-47 (1993), citing Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988). The commissioner was similarly entitled to determine the credibility of the doctors and other witnesses who testified and the weight to be given their testimony. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Phelan v. Donald Benson d/b/a Benson Construction Co., 1583 CRB-3-92-12 (decided Dec. 20, 1994).

Here, the commissioner chose to credit Dr. Craig’s opinion with respect to apportionment of the disability even though the doctor testified that his opinion was based primarily on the medical history provided by the claimant. The respondents cite Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961), in support of their argument that Dr. Craig’s testimony regarding apportionment was inadmissible. In Zawisza, a commissioner found that a claimant’s disability was compensable based on the opinion of a physician who had examined the claimant for the purpose of qualifying as an expert witness. That physician had relied principally on the history provided by the claimant in concluding that the disability was work-related. Four treating physicians had testified that the claimant’s symptoms were not attributable to an accident she had suffered on the job, however. In reversing the commissioner’s decision, our Supreme Court held that “the opinion of a physician which is based wholly or partly on statements and symptoms related to the physician by the patient on a personal examination is inadmissible where the examination was made for the purpose of qualifying the physician to testify as a medical expert.” Id., 119. The respondents argue that the reasoning in Zawisza is applicable here.

We recognize that there is a degree of similarity between Dr. Craig’s testimony in the case at bar and the testimony of the medical expert in Zawisza, insofar as both physicians based conclusions on statements made by the claimant instead of empirical evidence. Upon closer examination of the two situations, however, we are convinced that the commissioner properly exercised his discretion in choosing to credit the challenged testimony in this case. Other than the statements of Dr. Craig, the only evidence before the commissioner regarding apportionment was the single remark in the report of Dr. Robinson stating that the could not apportion the claimant’s disability because his history was too vague. This is scant evidence compared to the testimony of the claimant’s four treating physicians in Zawisza. There, it was quite clear that the claimant had sought a medical expert who would support her allegation of a compensable impairment in the face of overwhelming medical testimony to the contrary. The Court sensibly objected to the claimant’s introduction of expert testimony that was based solely on the self-serving declarations of the claimant, as the potential danger in admitting such testimony had become a reality in that case. Zawisza v. Quality Name Plate Inc., supra, 119.

In contrast, Dr. Craig’s examination of the instant claimant was ordered by the commissioner instead of being sought by the claimant in contemplation of pending litigation. The claimant was not attempting to transform a noncompensable injury into a compensable one by shopping for a more favorable diagnosis. Moreover, apportionment is an issue that has no impact on the amount of the claimant’s recovery. Unlike the question of compensability addressed in Zawisza, the determination of which insurer will ultimately pay the claimant’s benefits is not one that would affect the claimant’s entitlement to compensation. Thus, there would have been no motivation for the claimant to twist the relevant facts in describing his medical history to Dr. Craig. The existence of such a temptation was the primary motivation behind the Court’s decision to bar the medical expert’s opinion in Zawisza. Id., 119-20. As no such temptation existed in this case, we hold that it was not improper for the commissioner to admit and credit the testimony of Dr. Craig detailing the apportionment of the claimant’s disability.

The respondents also contend that the commissioner should not have adopted the permanent partial impairment rating in the treating physicians’ reports while simultaneously accepting Dr. Craig’s conclusion regarding apportionment. It is well-settled, however, that “the acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind. . . . [a] trier may accept part of the testimony of an expert and reject other parts . . . at least if the part accepted is not dependent on the parts rejected.” National Folding Box Co. v. New Haven, 146 Conn. 578, 586 (1959) (citations omitted); see also Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 476 (1987). The issue of apportionment clearly was not dependent on the issue of the claimant’s permanent partial impairment rating in any of the physicians’ opinions. The commissioner was therefore entitled to accept portions of the different experts’ testimony.

The trial commissioner’s decision is affirmed.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

Workers’ Compensation Commission

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