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Desrosier v. Town of Newington

CASE NO. 3091 CRB-6-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 16, 1996

DEAN DESROSIER

CLAIMANT-APPELLANT

v.

TOWN OF NEWINGTON

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by William J. Bumster, Esq., 786 Silas Deane Highway, Wethersfield, CT 06109. Notice also sent to James Sweeney, Esq., 82 Ridge Crest Circle, Wethersfield, CT 06109.

The respondents were represented by Joseph Skelly, Esq., 55 Farmington Ave., Suite 500, Hartford, CT 06105.

This Petition for Review from the June 13, 1995 Findings of Facts and Dismissal of the Commissioner acting for the Sixth District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 13, 1995 Findings of Facts and Dismissal of the Commissioner acting for the Sixth District. He argues on appeal that the commissioner improperly relied on certain medical testimony in dismissing his claim. We affirm the trial commissioner’s decision.

The claimant, a teacher at an elementary school, injured his lower back in 1982 while lifting a wooden dolly onto a stage. This claim was accepted by the town of Newington in a 1983 voluntary agreement. The injury was initially diagnosed as a back sprain, and caused the claimant to miss five or six days of work. Due to continuing problems, the claimant began treating with an orthopedist, Dr. Spinella, in July 1982. Dr. Spinella diagnosed the claimant with a postural backache. He had a recurrence of his lower back problem in October 1982, which Dr. Spinella again diagnosed as a postural backache. The commissioner found that the claimant did not complain of pain in his lower back during a visit to Dr. Spinella on December 1, 1983, and that the doctor opined that his postural backache had completely resolved itself by that time.

The claimant visited Dr. Spinella’s office sporadically during the succeeding ten years. In 1986, he saw Dr. Turco, and complained that he had injured his back lifting a stroller out of a car. He was referred to Dr. Roberts, who diagnosed intermittent attacks of low back strain. A CT scan revealed no disc herniation, although spondylolysis was present at L-4. More than four years later, the claimant again visited Dr. Spinella for low back pain, for which the doctor prescribed medication and exercise. Finally, the claimant saw the doctor in early 1993 after he experienced back pain while pulling a grocery cart. The doctor ordered an MRI, and discussed operative and non-operative treatment with the claimant. The claimant chose to obtain a back brace, along with a second opinion. This was given by Dr. Roberts, who again found that the claimant suffered from bilateral spondylolysis at L-4, and agreed with Dr. Spinella that a spinal fusion was a reasonable option. He also recommended that the claimant get a second orthopedic evaluation.

This second evaluation was made by Dr. Becker, a spine surgery specialist. He reviewed the doctors’ notes, the CT scans, and the MRIs, and concluded that the claimant’s condition was, within a reasonable medical probability, the result of an aggravation of his pre-existing spondylolysis by his 1982 work injury. As the claimant’s condition worsened, he was placed on total disability by Dr. Becker. Meanwhile, Dr. Spinella testified that the claimant’s low back strain had been completely resolved by December 1, 1983, and that it was not reasonably medically probable that his 1993 low back condition was caused by his 1982 work-related injury. Instead, he attributed the claimant’s condition to a combination of pre-existing spondylolysis and the 1993 shopping cart incident that the claimant reported. The doctor believed that the claimant has a congenital low back condition that was exacerbated from time to time by incidents such as lifting relatively light objects, and that each temporary exacerbation was independent of the previous ones.

The commissioner decided that the claimant’s sporadic treatments with Dr. Spinella supported this diagnosis. He also noted that neither Dr. Spinella nor Dr. Roberts corroborated Dr. Becker’s diagnosis of pre-existing spondylolisthesis or his opinion that the claimant’s present condition was traceable to his 1982 work injury. Therefore, the commissioner concluded that the claimant’s present condition is related to his spondylolysis and not his 1982 work injury, and he dismissed the instant claim. The claimant has appealed that decision, along with the denial of his Motion to Correct.1

All of the claimant’s arguments and requested corrections focus on the same theme, and can be distilled into one question: did the trial commissioner commit error by relying on the testimony given by Dr. Spinella in his deposition of July 21, 1994? It is thoroughly settled that this board does not retry the facts of a workers’ compensation case on appeal, and that the trial commissioner is the one person charged with making findings of fact by evaluating the credibility of the witnesses and evidence, including conflicting medical testimony. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Thus, in order to prevail on appeal, the claimant would have to demonstrate that Dr. Spinella’s testimony was somehow legally unreliable, or that it did not say what the commissioner found that it said. (And, even in that case, the claimant would still have the burden of proving a causal link between the accepted injury and his current physical condition.)

There are few circumstances where this board can say that a medical expert’s opinion is unreliable as a matter of law, and cannot be believed by a fact-finder. See Nasinka v. Ansonia Copper and Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335, 1592 CRB-5-92-12 (April 27, 1995), distinguishingZawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961) (Supreme Court ruled that a physician’s opinion based wholly on a patient’s statements was inadmissible where examination was made for purposes of qualifying physician to testify as an expert). This is because a trier of fact may accept an opinion unless it is so unreasonable that no rational person could believe it. Nasinka, supra, 335-36, citing National Folding Box Co. v. New Haven, 146 Conn. 578, 586 (1959). Further, the commissioner is entitled to accept part of an expert’s testimony and reject other parts, and is never required to believe any particular medical opinion. Nasinka, supra, 336.

After reviewing Dr. Spinella’s deposition and medical reports in accordance with these principles, we believe that the commissioner was entitled to rely on the deposition testimony in dismissing the claimant’s claim. Contrary to the claimant’s allegations that the doctor completely reversed his opinion, Dr. Spinella’s medical reports spanning the years 1982 to 1993 do not say that the claimant’s back condition was undeniably caused by his 1982 work injury. Instead, the July 23, 1991 report states next to the patient’s history, “? related to ‘82 incident lifting wood,” and merely notes that the patient has had “recurrent episodes” since the 1982 injury. (Respondents’ Exhibit B.) The one document that actually attempts to link the work injury with the claimant’s current condition is a letter that the doctor wrote on the claimant’s behalf to the town of Newington stating that his back problem “is probably the result of his 1982 back injury superimposed upon a spondylolysis which was either congenital or acquired in very early youth.” (Claimant’s Exhibit 1.) However, the doctor only states this conclusion in the form of a hypothesis, and would certainly have been entitled to revise or clarify his opinion after further study.

In his deposition, Dr. Spinella stated that the claimant did not complain of any low back pain when he visited the doctor on December 1, 1983, and that in his opinion, the claimant’s postural backache had completely resolved itself by then. (Deposition, p. 12.) He did not attribute the claimant’s later visits to the 1982 injury in any way; instead, he noted that there was some sort of “precipitating event” before each of the claimant’s subsequent visits, e.g. the 1993 shopping cart incident, and that these incidents and the preexisting spondylolysis were the causes of his recurring back condition. (Id., p. 23-24.) This is consistent with the commissioner’s factual findings. The fact that Dr. Spinella did not assign a temporal limit to the effects of the 1982 injury in his letter to the town of Newington does not render his subsequent clarifying testimony unbelievable as a matter of law. (See Id., p. 39-40.) The commissioner was clearly entitled to accept Dr. Spinella’s explanation of his diagnosis, and did not commit error by relying on it in his dismissal order. As Dr. Spinella’s opinion provides sufficient support for the dismissal of the instant claim, we must affirm the trial commissioner’s decision.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 We note that the claimant filed a letter, a 21-page brief, a rebuttal, and a copy of Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996), on May 29, 1996, five days after oral argument on this case. The respondents have objected to this filing. Just as is the situation with any current controlling case law, the parties must presume that this board is well aware of the Epps case and any potential impact it might have on our decision here. As for the rest of the appellant’s post-argument filing, we do not think that it would be appropriate to consider these documents, as they are procedurally inappropriate according to the rules of this forum, and the respondents have no opportunity to rebut them. Thus, we will not take the claimant’s belatedly briefed arguments into account in the preparation of our decision. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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