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Zito v. Stop & Shop

CASE NO. 3929 CRB-03-98-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 17, 2000

AUDREY ZITO

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

STOP & SHOP

EMPLOYER

(SELF-INSURED)

RESPONDENT-APPELLEE

CROSS-APPELLANT

APPEARANCES:

The claimant was represented by Alphonse J. Balzano, Jr., Esq., Moss, Cirillo & Kessler, 35-37 Audobon Street, New Haven, CT 06511.

The respondent was represented by Robert Bystrowski, Esq., Morrison, Mahoney & Miller, 100 Pearl Street, Hartford, CT 06103.

This Petition for Review from the November 2, 1998 Finding and Award of the Commissioner acting for the Third District was heard June 18, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Stephen B. Delaney, and Ernie R. Walker.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has petitioned for review from the November 2, 1998 Finding and Award of the trial commissioner acting for the Third District, and the respondent employer has filed a cross-appeal. In that decision the trial commissioner found that the claimant, who suffered a compensable back injury on June 10, 1989, ceased being temporarily totally disabled effective August 15, 1996. The trial commissioner further found that the claimant was capable of sedentary work and thus awarded benefits pursuant to § 31-308(a) effective August 15, 1996.1 In support of her appeal, the claimant argues that the trial commissioner erred in denying her request for authorization for further surgeries. Additionally, the claimant argues that the trial commissioner erred in relying upon the opinion of Dr. Druckemiller, who conducted a trial commissioner’s examination of the claimant. In support of its cross-appeal, the respondent contends that the trial commissioner erred in failing to accept the opinion of the trial commissioner’s examiner that the claimant had reached maximum medical improvement as of August 15, 1996. In addition, the respondent contends that there is no medical opinion which supports the trial commissioner’s award of temporary partial disability benefits.

The trial commissioner found the following relevant facts. On June 10, 1989, the claimant sustained a compensable injury to her back while employed by the respondent employer. The claimant underwent a laminectomy at the L4-5 level in September of 1991. Thereafter the claimant’s back pain became worse, and in February of 1992 she was referred to Dr. Taub, a pain specialist. Dr. Taub prescribed pain medication, including Percocet-5, sleeping medication, and anti-depressants. On September 12, 1995 Dr. Taub indicated that the claimant was taking ten tablets of Percocet-5 a day as well as other medication (see Finding ¶ 18) and he recommended treatment at the Spaulding Rehabilitation Hospital. Dr. Taub agreed with the evaluation of Dr. Suppe, who found that the claimant suffered from depression and would need ongoing psychiatric treatment and counseling.

On December 4, 1995, the claimant was evaluated by Dr. Loder of the Spaulding Rehabilitation Hospital, who found that the claimant was significantly disabled as a result of chronic back pain. The claimant was admitted to the Spaulding Rehabilitation Hospital on December 18, 1995 and discharged on January 27, 1996. Dr. Loder noted that the claimant had made significant gains while at Spaulding, but that the claimant “would need continuing psychological support to preserve these gains because she still maintained a notable focus that medication was the solution….” (Finding ¶ 28 and ¶ 26). On March 15, 1996, Dr. Loder opined that the claimant had reached maximum medical improvement, and reported that the claimant had “completed the Spaulding Multidisciplinary Program with emphasis on gaining physical functional restoration, psychosocial support, tapering and cessation of addictive medications and occupational therapy.” (Finding ¶ 30) (emphasis added). However, when the claimant returned to Dr. Taub after leaving Spaulding, he reinstated the Percocet, and subsequently in April of 1997 switched the claimant to Methadone.

Based upon Dr. Loder’s March 15, 1996 report, the respondent filed a Form 36 (Notice to Discontinue or Reduce Compensation Benefits) on April 4, 1996. The claimant contested the Form 36, and a trial commissioner ordered an examination of the claimant by Dr. Druckemiller. On August 15, 1996, Dr. Druckemiller examined the claimant and opined that the claimant had reached maximum medical improvement. Dr. Druckemiller assessed a ten percent permanent partial disability of the lumbar spine, and concluded that the claimant was not in need of any further medical treatment. In contrast, Dr. Taub did not believe that the claimant had reached maximum medical improvement, and he recommended two to three surgical procedures. (See Finding ¶ 38).

In support of her appeal, the claimant argues that the trial commissioner erred in denying her request for further surgeries which were recommended by Dr. Taub. The “determination of whether medical care is reasonable and necessary, including whether the medical care is palliative care or a curative remedy, is a factual issue to be decided by the trial commissioner.” Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995) (citing Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994)). In the instant case, it was within the discretion of the trial commissioner to accept Dr. Druckemiller’s opinion that further surgeries would not help the claimant. (See Findings ¶ 53-58).

In further support of her appeal, the claimant contends that the trial commissioner erred in accepting Dr. Druckemiller’s assessment of a ten percent permanent partial disability rating because that assessment was not based upon the AMA guidelines. We disagree, as the trial commissioner is the “sole arbiter of the weight of the evidence and the credibility of the witnesses.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998). Moreover, we have stated that strict reliance upon the AMA guidelines is not required. Ricigliano v. Rex Forge, 3476 CRB-6-96-11 (April 8, 1998), aff’d., 53 Conn. App. 158 (1999).

We now turn to the respondent’s arguments on appeal. The respondent contends that the trial commissioner was obligated to either accept the opinion of Dr. Druckemiller that the claimant had reached maximum medical improvement or to articulate his reason for not doing so, citing Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995). The respondent thus argues that it was error to award partial disability benefits pursuant to § 31-308(a) because the trial commissioner should have found that the claimant reached maximum medical improvement and ordered that payments for permanent partial disability commence as of August 15, 1996. We disagree.

Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998); Meredina v. Anderson Insurance Co., 3460 CRB-3-96-11 (April 8, 1998). Similarly, the question of whether a claimant has a light duty work capability is a factual decision for the commissioner. Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). The trial commissioner is the “sole arbiter of the weight of the evidence and the credibility of the witnesses.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998). His conclusions must stand unless they result from an incorrect application of the law to the facts found, or from an illegally drawn inference from the subordinate facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In the instant case, the medical evidence supports the trial commissioner’s conclusion that the claimant had a limited work capacity. Specifically, Dr. Druckemiller testified that the claimant had a limited work capacity, and that the claimant’s condition should not prevent a person from doing sedentary work with freedom of motion. (Finding ¶ 57 and 60). Moreover, Dr. Druckemiller testified that a back condition such as the claimant’s could be improved with back exercises and a job which required mild manual labor. (Finding ¶ 62). Thus, the trial commissioner’s conclusion that the claimant was no longer temporarily totally disabled as of August 15, 1996 is fully supported by the record.

In the instant case, the trial commissioner chose to accept Dr. Druckemiller’s opinion that the claimant was capable of sedentary work, but chose not to accept his opinion that the claimant had reached maximum medical improvement. We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion. Nasinka v. Ansonia Copper and Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). We have also recognized that the parties generally expect that an examination performed at the direction of a trial commissioner pursuant to § 31-294f will provide the trier with strong guidance. Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995). “As the assessor of the weight to be accorded all medical evidence, however, the trial commissioner is not absolutely bound to credit any given report.” Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997) (citations omitted). The board explained in Nieves, supra, that “(a)lthough we have stressed that a commissioner should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner.” Id., citing Iannotti, supra. Moreover, nothing in § 31-294f requires the commissioner to articulate a reason for disregarding the opinion of the commissioner’s examiner.

Contrary to the argument made by the respondent, the trial commissioner did in fact articulate his reasons for concluding (in opposition to Dr. Druckemiller’s opinion) that claimant had not yet reached maximum medical improvement and was in need of continuing medical care. Specifically, the trial commissioner found that the staff at Spaulding, including Dr. Loder, were of the opinion that in order to preserve the claimant’s gains made during her stay at Spaulding, the claimant would need ongoing psychological, social, and medical support, and that she was at risk of returning to medication instead of the modalities taught at Spaulding for dealing with her pain. (Finding ¶ K). The staff at Spaulding specifically recommended that the claimant be treated at Gaylord Hospital for pain management and occupational physical therapy in order to insure her gains and to prevent regression. However, the claimant was not offered treatment at Gaylord Hospital, and indeed did not receive any psychological counseling or psychiatric treatment. (Finding ¶ L, M and Y). Thus, the trial commissioner found that Dr. Loder’s opinion that the claimant “had reached maximum medical improvement was predicated upon the institution of this treatment. Since it did not occur I find that the Claimant did not reach maximum medical improvement on August 15, 1996.” (Finding ¶ Y) (emphasis added).

As the record amply supports the factual findings and conclusions of the commissioner, we will not disturb them. Fair, supra.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioner Ernie R. Walker concurs.

STEPHEN B. DELANEY, COMMISSIONER, DISSENTING. I respectfully dissent. I agree with the majority’s decision insofar as a trial commissioner may choose to believe some, but not all, of a medical expert’s testimony. I further agree that the trial commissioner adequately articulated his reason for not accepting Dr. Druckemiller’s opinion that the claimant had reached maximum medical improvement. However, in my opinion, the facts as found by the trial commissioner do not adequately support a determination that the claimant was eligible to receive partial disability benefits pursuant to § 31-308(a), as the facts do not indicate whether the claimant adequately pursued light duty work.

Although our statutes do not require a claimant to perform a work search, it has been accepted as one evidentiary basis to demonstrate willingness to work and the availability of suitable light duty employment. Simon v. International Brotherhood of Boilermakers, 3645 CRB-5-97-7 (August 12, 1998) (citing Shimko v. Ferro Corp., 40 Conn. App. 409, 414 (1996)). In the instant case, the trial commissioner did not make any finding regarding the claimant’s willingness to work or the availability of light duty employment. Thus, I would remand the issue of § 31-308(a) benefits to the trial commissioner.

1 We note a typographical error on page 12 of the Finding and Award, which states August 16, 1998 rather than August 16, 1996. The parties agreed at oral argument that this was a typographical error. BACK TO TEXT

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