State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Briggs v. American Medical Response

CASE NO. 4302 CRB-3-00-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 24, 2001

EDWARD BRIGGS

CLAIMANT-APPELLEE

v.

AMERICAN MEDICAL RESPONSE

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT

APPEARANCES:

The claimant was represented by Roger J. Frechette, Esq., Frechette & Frechette, Attorneys at Law, 12 Trumbull Street, New Haven, CT 06511-6301.

The respondents were represented by Timothy D. Ward, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund did not file a brief or appear before the board as the issues on appeal did not involve the Fund. Notice sent to Mee Carolyn Wong, Esq., Assistant Attorney General, 55 Elm Street, Hartford, CT 06106.

This Petition for Review from the September 19, 2000 Finding and Award of the Commissioner acting for the Third District was heard May 18, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the September 19, 2000 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trier erred by assigning the claimant a 40% permanent partial disability of the heart despite the presence of speculative medical records, the absence of an opinion that the claimant had reached maximum medical improvement, and their own continuing attempts to obtain hospital records and to complete an independent medical examination. We disagree with the respondents’ assertions of error, and affirm the trial commissioner’s decision.

The claimant suffered a compensable heart attack on November 21, 1998, and underwent a cardiac catheterization and a quadruple coronary artery bypass six days later. His authorized treating cardiologist, Dr. Setaro, assessed a 30 to 40% permanent partial impairment as a result of the heart attack. Subsequently, a 20% permanency rating was assessed by Dr. Dougherty, a cardiologist whom the claimant visited at the respondents’ request. Dr. Setaro based his 30-40% permanency estimate upon the claimant’s reduced heart function at the time of the myocardial infarction. After reviewing Dr. Dougherty’s report, Dr. Setaro reiterated his opinion. The trial commissioner accepted this diagnosis as credible, and found that it was based upon a sufficient degree of certainty to place it within the “reasonable degree of medical probability” standard articulated in past cases, such as Struckman v. Burns, 205 Conn. 542 (1987). She thus ordered the respondents to pay the claimant benefits for a 40% permanent partial disability rating of the heart, which ruling they now appeal.

We begin our review by addressing the respondents’ Motion to Submit Additional Evidence, which ties in with their claim that they were not accorded due process pursuant to § 31-298 C.G.S. On December 30, 1999 Dr. Setaro issued his initial report diagnosing the claimant with a 30-40% permanency rating of the heart. Claimant’s Exhibit A. On February 7, 2000, Dr. Dougherty issued his opinion prescribing a 20% rating after examining the claimant and reviewing “all available records related to his prior heart attack and subsequent heart surgery.” He described the most recent of this data as an April 7, 1999 letter from Dr. Setaro, and a November 30, 1999 letter from the respondents’ attorney to himself. Respondents’ Exhibit 1. Dr. Dougherty noted that the ejection fraction tests taken after the heart attack were normal, as recorded by Dr. Alexander on January 28, 1999. At the formal hearing on July 21, 2000, the respondents requested an opportunity to take the deposition of Dr. Dougherty in light of test results that they had recently received. These were allegedly necessary in order for the doctor to complete his report regarding the origin of any permanency. Transcript, pp. 7-8. The trial commissioner refused this request, stating that the respondents had known about the relevant permanency ratings since January or February, and had waited too long to gather the necessary information.

The respondents’ Motion to Submit Additional Evidence seeks to introduce five separate exhibits into evidence: a letter from the respondents’ attorney to claimant’s counsel dated May 3, 2000 that sought additional medical records for Dr. Dougherty, a response dated May 18, 2000 detailing, among other things, a week’s worth of efforts to contact the respondents by telephone; a reply dated May 25, 2000 reiterating the respondents’ request for copies of the stress and ejection fraction tests; a response dated May 30, 2000, explaining that no such test records were available, and enclosing a signed medical authorization for the release of records; and a letter from Dr. Dougherty dated October 26, 2000, reflecting that he had received copies of a cardiac stress test performed on January 12, 1999, and a nuclear ventriculogram done on December 1, 1998, which demonstrated that the claimant’s heart function had essentially returned to normal following surgery. Administrative Regulation § 31-301-9 allows this board to admit additional evidence where a party alleges that said evidence is material, and that there were good reasons for their failure to present it in the proceedings before the trial commissioner. Generally, such a motion will be denied if the evidence was discoverable at the time of trial, and was not produced merely because of inadvertence or the failure to diligently anticipate its utility. Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000); Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999).

As Dr. Dougherty’s October 26, 2000 revision of his medical opinion is based solely on records of test results that have existed since January 1999, it would be inaccurate to state that his revised report could not have been obtained prior to the time of the formal hearing. The respondents apparently did not anticipate needing those records until sometime in the spring of 2000, and did not make an attempt to obtain them until May of that year. Though Dr. Dougherty’s report clearly meets the standard of materiality, the respondents unfortunately failed to provide him with the claimant’s actual test results until sometime shortly before the formal hearing. Then, at the hearing itself, they requested for the first time that they be allowed to depose him, which would have entailed that the proceedings be continued. This set of circumstances does not justify the granting of the respondents’ Motion to Submit Additional Evidence under § 31-301-9.

With respect to the trial commissioner’s denial of the respondents’ request to depose Dr. Dougherty, we respect the discretion afforded the trier of fact under § 31-298, which states that the commissioner “shall not be bound by the ordinary common law or statutory rules of evidence and procedure, but shall 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 this chapter.” This statute gives the trier broad discretion to determine the admissibility of evidence, and to decide whether a party has acted with sufficient diligence in gathering evidence to support or refute a given claim. Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998); Pantanella v. Enfield Ford, Inc., 3377 CRB-1-96-7 (Jan. 28, 1998), aff’d, 65 Conn. App. 46 (2001). Only an abuse of that discretion would give this board license to set the commissioner’s evidentiary ruling aside. Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997). Given the importance of resolving workers’ compensation claims in an expeditious manner; see, e.g., Driscoll v. General Nutrition Corp., 252 Conn. 215, 221 (2000); it is normally desirable for a trier to place time constraints on the length of trial proceedings. These constraints must be balanced, however, with the employer’s right to independently examine a claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing in an appropriate case. Pietraroia v. Northeast Utilities, 254 Conn. 60, 72 (2000). “Each party has the right to produce relevant evidence and to offer rebuttal evidence.” Bailey v. State, 65 Conn. App. 592, 604 (2001).

To illustrate the importance of this right, in the recent case of Bailey, supra, our Appellate Court held that a trial commissioner abused his discretion in refusing to allow an independent medical examination of a claimant, even though the trier had found that the respondent had not prepared its case in a diligent manner, and that the claimant’s tenuous psychological state weighed against allowing such an examination. The court held that such findings did not permit the trier to deny the respondent’s right to an examination under § 31-294f. “Given the statutory mandate, the commissioner should have worked with the parties to ensure that the [respondent] obtained the examination with all deliberate speed, so as not to unduly delay the proceedings, and with consideration for the [claimant]’s psychological condition. By precluding the [respondent] from requesting an examination that the statute permits the defendant to request ‘at any time,’ the commissioner deprived the [respondent] of its right to a fair hearing.” Id., 605. This holding suggests that a respondent must be given a generous opportunity to obtain such an examination, as this right is explicitly granted by statute.

Though Bailey is friendly to the respondents’ position in the instant appeal, it does not govern our analysis of this case. The respondents were not denied the opportunity to examine the claimant; rather, they obtained an independent medical examination in the instant case with Dr. Dougherty, whom the claimant visited at their request on February 7, 2000. After receiving their doctor’s opinion, the respondents determined that they wanted another chance at the examination, this time with Dr. Dougherty reviewing the actual test results that had been obtained by the claimant’s initial treaters during the month or two following his 1998 heart attack. We do not believe that either Bailey or the applicable statutes mandate that the commissioner’s duty to allow the respondent in a workers’ compensation action an opportunity to gather evidence entitles said respondent to hold a case open indefinitely by requesting multiple examinations, as long as a sufficiently meaningful opportunity to examine the claimant was afforded the respondents at the time of the first independent medical examination. Such an opportunity was granted here.

Here, the trier determined that the respondents had squandered at least several months before attempting to organize the claimant’s medical records and present them to Dr. Dougherty, and declined to allow the respondents to extend the length of the proceedings in order to obtain a deposition that, in her judgment, could have been secured prior to trial. Transcript, pp. 8-9. The record does not refute her interpretation of these circumstances, whether or not one takes into account the dialogue between the parties that spanned most of May 2000. Due process considerations do not prevent a party from waiving certain rights, or at least circumscribing them to a degree, by failing to act in a reasonably timely manner on its own behalf. See Pantanella, supra. The appellants were not deprived of a meaningful opportunity to offer evidence pertaining to the primary issue in this case. The trier simply found, based on the nature of the evidence in question, that they did not act seasonably in obtaining their revised opinion. Her assessment of their conduct was not an abuse of her discretion given the amount of time that elapsed between the claimant’s injury and the closing of the record, as well as the time period between Dr. Dougherty’s February 7, 2000 report and the July 21, 2000 formal hearing. Thus, we find no error with regard to the trier’s evidentiary ruling.

The respondents also argue that, notwithstanding the reports of Dr. Dougherty, those of Dr. Setaro are insufficient to establish either a maximum medical improvement date or a permanent partial disability rating within a reasonable degree of medical probability. The quintessential function of the finder of fact is, of course, to reject or accept evidence and to believe or doubt expert testimony. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999). Before a trier may rely on a particular medical opinion as a foundation for a medical diagnosis, however, that opinion must be expressed within a reasonable degree of probability, based upon the substance of the opinion rather than on the presence of a particular set of “magic words.” Struckman, supra; Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001). The respondents contend that Dr. Setaro’s opinion on permanency is based on conjecture and surmise because his rating is premised on the claimant’s reduced heart function at the time of his heart attack. They fault the doctor’s failure to rely on the stress test and ejection fraction tests, which allegedly reveal that the claimant suffered no major cardiac disabilities from his myocardial infarction.

Dr. Setaro’s first report is addressed to the claimant, and states, “Given your past cardiac history, including a myocardial infarction with bypass surgery after that event in December of 1998, it is my medical opinion that the resumption of work as an ambulance driver, particularly if it involves a double shift (16 straight working hours), would impose significant psychological and physical stress. Given the reduced heart function at the time of the myocardial infarction, one would estimate the permanent impairment as a result of the heart attack and surrounding events to be in the range of 30-40%.” Claimant’s Exhibit A. His second report was prepared three months later, after he had reviewed Dr. Dougherty’s February 7, 2000 letter. Dr. Setaro there restated his 30-40% diagnosis, acknowledging that it is somewhat higher than Dr. Dougherty’s rating, though he agreed with several of Dr. Dougherty’s points. Claimant’s Exhibit B. We note also that, in Dr. Dougherty’s initial report, he specifically stated that the claimant’s ejection fraction was recorded as normal and that a follow-up stress test revealed no signs of myocardial ischemia. Still, he also issued a permanency rating, albeit one of 20%, which he obtained pursuant to the AMA guidelines. Respondents’ Exhibit 1.

Though Dr. Setaro uses the word “estimate” in his opinion, one detects little uncertainty in the manner in which it is stated. Further, it has not been made apparent to this board that a doctor may not use the severity of reduced heart function at the time of a heart attack as a gauge in determining how severe a claimant’s ultimate permanent partial disability is. The respondents would have us draw conclusions regarding the methodology of diagnosing a heart impairment that require an advanced understanding of this type of testing and its limitations; yet, no evidence was introduced to demonstrate to the trier that there were errors in Dr. Setaro’s methodology. “Issues regarding the medical methodology that underlies a given diagnosis are generally factual in nature, and a trial commissioner is in a better position than is this board to obtain and evaluate information regarding the accuracy and reliability of a particular diagnostic theory.” Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). Also, Dr. Setaro’s failure to mention the ejection fraction and stress tests in his reports was not mirrored by Dr. Dougherty, who also prescribed a rather considerable permanency diagnosis. Thus, the respondents’ protestations that Dr. Setaro failed to take these tests into account seem unpersuasive, especially where Dr. Setaro acknowledged that he agreed with several (unspecified) points in Dr. Dougherty’s opinion.

As for the absence of a prescribed date of maximum medical improvement, we agree with the respondents that it is fundamental in Connecticut workers’ compensation law that a claimant cannot receive a specific indemnity award until maximum medical improvement is reached. Burr v. Hoffman Water Treatment Co., 14 Conn. Workers’ Comp. Rev. Op. 180, 2125 CRB-8-94-8 (June 29, 1995). However, where a physician prescribes a permanent partial impairment rating, one must infer that, in the doctor’s opinion, the claimant’s condition is not going to improve. Here, both Drs. Setaro and Dougherty offered permanency ratings at the parties’ behest. Indeed, the respondents’ attorney wrote to Dr. Dougherty on November 30, 1999, asking whether the myocardial infarction had resulted in any permanent impairment. Dr. Setaro had been treating the claimant since shortly after his heart attack (see Respondents’ Exhibit 3), and was presumably familiar with his progress throughout recovery. Moreover, the respondents did not request an articulation of the maximum medical improvement date in their Motion to Correct, implying that they did not dispute that the claimant had reached maximum medical improvement at some point before he was evaluated for permanency by both doctors. Thus, the trier’s omission of a maximum medical improvement date is not harmful under these circumstances, as we may presume that maximum medical improvement was reached on or before the date of the first diagnosis of permanency.

The trial commissioner’s decision is hereby affirmed in all respects. Insofar as any benefits may have remained unpaid pending appeal, interest is awarded pursuant to § 31-301c(b) C.G.S.

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

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