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Wilson-Shirley v. Yale University

CASE NO. 3355 CRB-3-96-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 4, 1997

YVONNE WILSON-SHIRLEY

CLAIMANT-APPELLEE

v.

YALE UNIVERSITY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by David A. Shaw, Esq., Early, Ludwick & Sweeney, L.L.C., One Century Tower, 265 Church St., P. O. Box 1866, New Haven, CT 06508.

The respondents were represented by Kristen Falls, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Woodbridge, CT 06525.

This Petition for Review from the June 7, 1996 Finding and Award of the Commissioner acting for the Third District was heard February 28, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the June 7, 1996 Finding and Award of the Commissioner acting for the Third District. It argues on appeal that the commissioner erred by concluding that the claimant’s right hip degenerative disease and her need for a hip replacement were related to a compensable injury. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was struck in the groin and in the thigh/anterior hip area with a 65-75 pound pan of stuffing while working in a dinner serving line on Friday, February 15, 1991. She felt pain in her groin and above her knee as soon as she was hit, but did not fall to the floor, and completed the rest of her work shift without seeking medical attention. She was sore over the weekend, and had severe hip and back pain within 15 to 30 minutes of beginning her next scheduled work shift the following Monday. She sought medical treatment the next day. The notes from her urgent care visit reflect complaints of right hip pain. After a follow-up visit two days later, Dr. Van Rhijn noted that the claimant’s pain was centered in her right lumbosacral area, and that she also had pain with internal and external rotation of her hip. Dr. Van Rhijn prescribed a cane for the claimant, and totally disabled her.

The claimant’s pain lasted through several more follow-up visits, and she remained totally disabled through April 27, 1991, when she was released for light duty. Reports continued to mention hip pain as well as pain in the low back and groin area. Dr. Goodman ordered a hip x-ray for the claimant on May 13, 1991, to make sure she was not suffering from primary hip disease. The radiologist found no fracture or significant arthritic changes. At a follow-up exam on June 10, 1991 the claimant still manifested discomfort with left hip manipulation. However, Dr. Goodman felt she had reached sufficient improvement to discontinue physical therapy. He did not think she was suffering from any major underlying structural or functional abnormality of the spine or hips. By August 1, 1991, the claimant was back on full duty.

Dr. Shine, an orthopedic surgeon, first saw the claimant on March 17, 1992. She was then having right groin pain, and had a lurch over her right hip, which was rotating about a third less than her left hip. He took an x-ray, and noted significant narrowing of the joint space from the June 6, 1991 x-ray, with osteophytes on the femoral head suggesting early, preexisting degenerative changes. He stated that the claimant had no symptoms in her right hip before being injured at work, and estimated that she had a 25% right hip impairment as of October 28, 1992, which was mostly due to her work injury. By October 1994, this had increased to 45%. A car accident that the claimant was involved in on January 27, 1993, played no part in worsening the hip condition, according to Dr. Shine. He clearly distinguished the lower back pain she suffered from the pain caused by her degenerating hip, and opined that the claimant’s hip condition and need for a total hip replacement primarily related to the February 15, 1991 work injury.

The trier noted the opinions of two other doctors. Dr. Goodman, who had acted as the claimant’s treating physician in mid-1991, examined her again at the respondent’s request on December 11, 1992. He ordered a new x-ray of the claimant’s hips and pelvis, which showed degenerative arthritis of the right hip (and possibly early stages of the same condition in the left hip). He acknowledged that the claimant’s symptoms when he treated her in 1991 were probably due in part to those arthritic changes and not totally to a low back problem. He did not believe that the claimant’s work injury affected her right hip disability or her need for a total hip replacement, as any trauma suffered at that time would not have been sufficient to bring about such a result.

Dr. Sumner also examined the claimant at the request of the trial commissioner. He reviewed the other doctors’ notes, but not the actual x-ray films themselves. In a February 7, 1995 report, he opined that the claimant’s bilateral degenerative hip arthritis was not substantially caused or accelerated by her compensable injury involving the pan of stuffing. He did not think that this incident could have bruised the hip joint, as “there [was] not enough torque [forceful twisting motion] to do damage to the joint.”

The trier noted that Dr. Sumner did not accept the claimant’s description of the pan that fell on her as weighing 75 pounds, and substituted his own estimate of the pan’s weight as 30-35 pounds based on personal experience that he had working as a butcher and in a restaurant. However, the commissioner found that he had been under the misimpression that the claimant was struck by an oven pan filled with turkey breasts rather than the one with the stuffing. She also noted Dr. Sumner’s opinion that, if pain had indeed been a factor, accelerated development of arthritic symptoms would have occurred in the claimant’s left hip rather than her right, as she would have borne more weight on her left side because of the pain. The trier found that these opinions were inconsistent with the findings of Dr. Shine noting progressive narrowing of the joint space in the claimant’s right hip, as well as the December 1992 opinion of Dr. Goodman.

The commissioner concluded that the claimant had pre-existing arthritis in her right hip, and that her traumatic injury on February 15, 1991 aggravated that condition, and resulted in her permanent disability and her need for a hip replacement. She specifically credited the opinion of Dr. Shine over Dr. Sumner, noting that Sumner’s opinions were somewhat inconsistent with the claimant’s description of her injury and her complaints of right hip and groin pain. The trier ordered the respondent to assume liability for the claimant’s hip condition. The respondent has appealed that decision.

The first issue we address on appeal is the denial of the respondent’s Motion to Correct. After reviewing each of the denied corrections the respondent raised as error in its brief, we feel confident that the trial commissioner properly declined to amend her findings. Not one of these corrections is material to the outcome of this case. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). Most are already hinted at in the award with less elaboration, and are simply attempts by the respondent to stress different aspects of the same facts (e.g. Issues B1, B2, B3, B4, B6); one is the subject of conflicting evidence (B7); and one is simply wrong (B5). These corrections were appropriately denied by the trial commissioner.

The next issue we address is whether the trier properly disregarded Dr. Sumner’s testimony. As the trier of fact, the commissioner was entitled to draw her own inferences from the evidence, and judge the credibility of the witnesses based on her own observations. See Webb, supra, 70. This includes the right to choose among conflicting medical witnesses, even if one of them is a commissioner’s examiner. See Nieves v. SCM Company, 3317 CRB-6-96-4 (decided July 9, 1997); Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995)aff’d., 40 Conn. App. 918 (1996). “Although we have stressed that a commissioner should articulate the reasons behind his decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always his. . . . We disagree with the respondents’ insinuation that an independent medical examiner’s opinion automatically reaches the apex of credibility simply because the commissioner chose him to see the claimant.” Nieves, supra.

The trier’s decision not to credit Dr. Sumner’s medical opinion in this case was perfectly permissible. The respondent’s complaint that his testimony was misconstrued by the commissioner presupposes that there is only one possible reading of the record. See Respondent’s Exhibit 3. In fact, the doctor did not “clearly testify” that the weight of the pan was irrelevant to his determination; rather, he brought up that subject himself, see p. 34, and said it was a “significant finding” to him that the tray did not weigh 75 pounds. Id., 35. The fact that he went on to say something mildly contradictory afterward does not make his prior statement legally invisible. The commissioner was entitled to discredit his testimony on the grounds that she listed in her decision.

The bottom line issue in this case is whether the claimant proved that her hip condition was related to her compensable injury. This required at least one doctor to testify to that fact within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Dr. Shine’s reports were the linchpin of the claimant’s case here. He stated that her hip impairment was related directly to her injury both before and after she was involved in the abovementioned car accident in January 1993. Claimant’s Exhibits P, Q. There was no indication of doubt as to causation in his reports. As we have stated many times, a doctor is not required to use the specific words “reasonable degree of medical probability” in order to provide a sufficiently definite opinion. Smith v. UTC/Pratt & Whitney, 3134 CRB-3-95-6 (decided April 4, 1997); see also Struckman v. Burns, 205 Conn. 542, 555 (1987). Dr. Shine’s reports here meet the substance of the legal standard of causation.

In this case, the trial commissioner prepared a very thorough and detailed Finding and Award that explained the basis of her reasoning carefully and clearly. Sufficient evidence exists to support her decision. Therefore, we dismiss the respondent’s appeal.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

Page last revised: June 13, 2005

Page URL: http://wcc.state.ct.us/crb/1997/3355crb.htm

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