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Rogers v. Laidlaw Transit, Inc.

CASE NO. 2154 CRB-3-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 1996

MARGARET ROGERS

CLAIMANT-APPELLEE

v.

LAIDLAW TRANSIT, INC.

EMPLOYER

and

CRAWFORD & CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Thomas F. Keyes, Jr., Esq., 215 Church St., New Haven, CT 06510.

The respondents were represented by Jonathan F. Reik, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the September 15, 1994 Findin and Award of the Commissioner acting for the Third District was heard August 25, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 15, 1994 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the trial commissioner erroneously found that the claimant’s knee replacement surgery was related to an earlier compensable injury. We reverse the trial commissioner’s decision.

The claimant sustained a compensable injury to her left knee on September 16, 1992, which was accepted by the respondents via voluntary agreement. The injuries listed in the agreement were a torn medial meniscus and a left anterior cruciate ligament tear. The claimant underwent arthroscopic surgery on the knee in June of 1993, and had a full knee replacement performed in February 1994. The claimant also had pre-existing arthritis in both knees. The trial commissioner noted that the claimant’s treating physician, Dr. Bradburn, was of the opinion that the compensable injury materially and substantially increased the severity of the left knee disability. He also noted that an independent medical examiner opined that the arthritis and knee replacement were unrelated to the September 1992 injury, while another IME reported that the injury was unrelated to the pre-existing arthritic condition. Relying on the opinion of Dr. Bradburn, the commissioner found that the claimant’s knee replacement was causally related to her compensable injury, and ordered the respondents to pay all applicable workers’ compensation benefits. The respondents have appealed from that decision.1

The respondents argue that the commissioner was not provided with sufficient medical evidence to link the total knee replacement to the compensable injury of September 16, 1992. The claimant disagrees, maintaining that Dr. Bradburn’s reports establish that the 1992 injury is either completely or partially responsible for the knee replacement, thus making the respondents liable for payment of related benefits.

Whenever this board reviews the factual findings of the trial commissioner, we are cognizant that he or she is entitled to find the facts and to determine the weight and credibility of the evidence and testimony presented. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995). The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include admitted and undisputed material facts. Id., citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994). Similarly, the conclusions drawn by the commissioner from the facts must stand unless they result from an incorrect application of the law to the facts or from an illegal or unreasonable inference drawn from the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.

In this case, the commissioner relied on the reports of Dr. Bradburn in finding that the knee replacement surgery was work-related. None of the other doctors’ reports could arguably support such a finding. The burden of proving the causal relationship between the compensable injury and the knee replacement was on the claimant, and had to be established by competent evidence. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). In order for Dr. Bradburn’s reports to qualify as competent evidence, they had to establish said relationship as a reasonable medical probability. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 2, 936 CRD-6-89-11 (March 19, 1991). There are no formulaic “magic words” required to make a conclusion reasonably probable; rather, the entire substance of the physician’s testimony must be examined. Struckman, supra, 555; Prescott v. Echlin, Inc., 14 Conn. Workers’ Comp. Rev. Op. 191, 2029 CRB-3-94-4 (July 13, 1995).

Dr. Bradburn’s medical reports (Claimant’s Exhibit B) initially note an “anterior cruciate medial meniscus tear” (Report of 10/21/92) for which conservative treatment was unsuccessful, thereby requiring arthroscopic surgery (Report of 2/24/93). Subsequent to the June 24, 1993 arthroscopy, the doctor stated that the surgery did not appear to have been effective, and that the claimant would probably need a total knee replacement arthroplasty. (In fact, he opined that she would need one in the right knee as well due to degenerative change in the medial compartment, but that the left knee should be done first.) (Report of 9/1/93, Respondents’ Exhibit 1). He later stated that the claimant had degenerative arthritis of the knee at the time of the injury, and that the injury increased the difficulty she had with the knee. (Report of 1/26/94). Dr. Bradburn added that the claimant’s arthritis “has materially and substantially increased the time it has taken her to get over this injury.” Id. The claimant then underwent a left knee replacement on February 10, 1994, which Dr. Bradburn did not specifically attribute to the September 1992 injury. Rather, he opined that “the fall in September of 1992 materially and substantially increased the severity of the disability that she was beginning to entail from her arthritic condition in the left knee.” (Report of 3/15/94).

Despite the trial commissioner’s considerable authority to evaluate the credibility of the evidence, we do not think that Dr. Bradburn’s reports established a sufficient probability that the knee surgery was causally related to the September 1992 injury. There is a significant leap between the existence of a meniscal tear and the need for a knee replacement, and Dr. Bradburn’s reports did not make that leap. His statement that the 1992 injury “materially and substantially increased the severity” of the pre-existing disability due to the arthritic condition is primarily a legal conclusion couched in the language of § 31-349 C.G.S. There are no medical conclusions in the doctor’s reports to explain the basis for that statement, however, or to explain how the knee surgery was caused in any part by the medial meniscus tear. Thus, we are unable to find that the medical evidence supports the challenged factual finding in this case.

The trial commissioner’s decision is reversed.

Commissioners Roberta Smith Tracy and Michael S. Miles concur.

1 We note that this board denied a motion by the claimant to produce further evidence in support of the trial commissioner’s decision, as the claimant failed to show that the medical report offered could not have been obtained earlier, and that it was not merely cumulative evidence. See Rogers v. Laidlaw Transit Inc., 2154 CRB-3-94-9 (decided May 4, 1995). BACK TO TEXT

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