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Artese v. Sikorsky Aircraft

CASE NO. 3621 CRB-04-97-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 30, 1998

JOANNE ARTESE

CLAIMANT-APPELLEE

v.

SIKORSKY AIRCRAFT

EMPLOYER

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Janine Becker, Esq., Willinger, Shepro, Tower & Bucci, P.C., 855 Main Street, Bridgeport, CT 06604.

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

This Petition for Review from the June 2, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard January 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 2, 1997 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the trial commissioner erred by authorizing the claimant to obtain a binding opinion from her treating physician regarding the necessity of surgery on her back and its relation to her 1987 compensable injury. We affirm the trial commissioner’s decision.

The trier found that the claimant worked for the respondent Sikorsky Aircraft on September 29, 1987, when she sustained an injury to her back while lifting a heavy object. She initially treated with a chiropractor, Dr. Gunn, but ultimately treated with Drs. Katz, Staub and Lipow. In a November 21, 1989 report, Dr. Lipow observed that an MRI revealed a herniated disc at L4-5. The claimant entered into a stipulation settling her claim for $43,800 on January 30, 1990. The stipulation provided that the respondent insurer Cigna would be responsible for any medical bills incurred if the claimant underwent lumbar surgery at the direction of Dr. Lipow, the authorized treating physician, as well as up to six months of temporary total disability payments subsequent to the surgery (assuming such disability was documented). Only one such procedure was authorized by the stipulation, and the lumbar procedure would have to be related to the compensable injury in order to be covered by the agreement. All other claims were released by the stipulation.

Dr. Lipow issued a report on July 1, 1996 in which he stated that “discopathy at the L4-5 level appears to be causally related and solely related to the injury of September 29, 1987.” He recommended surgery for the condition, and the claimant accordingly sought authorization for such surgery from the trial commissioner. She concluded that the stipulation between the parties was valid, and that the language clearly and unambiguously stated that if Dr. Lipow relates the claimant’s need for surgery to her 1987 injury, the respondent was liable for the cost of one surgical procedure. The commissioner authorized the claimant to return to Dr. Lipow for an opinion “as to whether surgery as a result of the September 29, 1987 injury is appropriate at this time. If he so indicates and if the Claimant desires said surgery, Dr. Lipow will be authorized to perform the surgery.” The respondents have appealed that decision, along with the denial of their subsequent Motion to Correct.

The respondents argue on appeal that the trial commissioner erred because she failed to make findings regarding the role that subsequent injuries suffered by the claimant played in her need for back surgery. They also contend that the claimant’s credibility was brought into question, but that the trier failed to make findings in that regard as well. It is well-settled that issues of credibility concerning lay witnesses, medical reports, and expert testimony are all within the discretion of the trial commissioner. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board cannot find on review that the trial commissioner should have given greater weight or interpreted differently the reports of Dr. Patria, Dr. Katz, or Dr. Sella that were introduced into evidence by the respondents. We also cannot draw our own inferences from any inconsistencies in the claimant’s testimony that the respondents have highlighted in their brief. All we can do is look at the record to decide whether the commissioner’s conclusions were supported by her findings, and whether those findings had substantial roots in the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.

A review of the transcript of the November 12, 1996 formal hearing reveals that the trial commissioner did not allow the claimant to introduce Dr. Lipow’s July 1, 1996 letter as a medical report per se because Dr. Lipow had reportedly not seen the claimant since 1989. Transcript, p. 7-9. The claimant then testified that she initially failed to have the surgery recommended by Dr. Lipow in 1989 because she was afraid of the procedure, but changed her mind several years later because of pain she had been having in her back. Id., 10-11, 37-42. She discussed several injuries she sustained between 1991 and 1995, explaining that her 1991 injury had further damaged her lower back, but the L4-L5 disc herniation from the 1987 injury remained the same. Id., 15. She stated that the automobile accidents she was involved in 1992, 1994 and 1995 did not exacerbate that particular back problem. Id., 40. Following the claimant’s testimony, the respondents introduced their medical reports into evidence. No mention was made on the record of deposing Dr. Lipow, or scheduling another examination with him.

Procedurally, it is clear that § 31-294f gave the trial commissioner the authority to direct the claimant to submit to another examination by Dr. Lipow, especially considering that the parties had earlier agreed that he would be the authorized treating physician, and that his opinion regarding surgery would be binding. In his November 21, 1996 report, Dr. Lipow discussed the claimant’s reactions to a sensory exam and a motor exam. He stated that the claimant needs a current MRI to evaluate her present need for surgery, “but her current examination is still compatible with the prior herniated disc at the L4-L5 level previously demonstrated on the 1989 and 1992 MRI.” Claimant’s Exhibit C. Attached to that report is a handwritten noted from Dr. Lipow dated January 9, 1997 simply stating that “I [recommend] she have surgery at the L4-L5 level.”

Given the apparent brevity of the claimant’s 1996 visit to Dr. Lipow as discussed in his report, and the fact that six months had passed between the formal hearing and the time Dr. Lipow wrote his note, we can understand why the trial commissioner did not want to order surgery for the claimant right away. At the same time, she was clearly not persuaded by the respondents’ evidence that the claimant’s condition was unrelated to her 1987 injury. As § 31-298 directs the trial commissioner to “make inquiry . . . in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of [the Workers’ Compensation Act],” we do not think it was incumbent upon the commissioner to make a decision here without first ordering one more examination by Dr. Lipow. The stipulation provides that the respondents will be liable if the claimant undergoes a lumbar surgery at the behest of Dr. Lipow, the authorized treating physician. The commissioner’s order authorizes the claimant to see Dr. Lipow again and to undergo the surgery if he thinks it is appropriate and related to the 1987 injury. That order substantially reflects what the parties agreed to in their settlement, and we do not believe the commissioner erred by failing to either authorize or deny the claimant’s request for surgery at the time she issued her Finding and Award.

Commissioner Michael S. Miles concurs.

DONALD H. DOYLE, JR., CONCURRING IN PART AND DISSENTING IN PART. Although I would not characterize the trial commissioner’s request for another examination by Dr. Lipow as error, I believe that the appropriate procedure in this case is to remand for further findings based on the results of his examination. As the majority notes, the trial commissioner is not required to make a decision based on insufficient evidence. The best way to satisfy the mandate of § 31-298 is for the commissioner to gather all of the necessary evidence and make her decision at that time. The trier’s order as it is currently worded will not give her the opportunity to review the results of Dr. Lipow’s examination. As the fact-finder, it is both the prerogative and the duty of the trial commissioner to pass upon the credibility of all of the relevant evidence. Thus, I would remand this matter to the Fourth District so that a commissioner could review the results of Dr. Lipow’s examination, once it is performed.

Workers’ Compensation Commission

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