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Safford v. Owens Brockway

CASE NO. 4335 CRB-4-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 9, 2002

EDITH SAFFORD

CLAIMANT-APPELLEE

v.

OWENS BROCKWAY

EMPLOYER

and

GAB ROBINS

ADMINISTRATOR

and

AIG INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Steven Cousins, Esq., 324 Elm Street, Suite 201B, Monroe, CT 06468.

The respondent employer, GAB Robins and AIG Insurance Co. were represented by Joseph Passaretti, Jr., Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The respondent employer and Hartford ITT Insurance Group were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the December 21, 2000 Finding and Award of the Commissioner acting for the Fourth District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer and its claims administrator have petitioned for review from the December 21, 2000 Finding and Award of the Commissioner acting for the Fourth District. They contend on appeal that the trier’s award of permanent partial disability benefits under § 31-308(b) was improperly determined in light of the medical evidence. We find no error of law, and affirm the decision of the trial commissioner.

The claimant worked for the respondent Owens Brockway on September 18, 1997, when she suffered rotator cuff tears in her right and left shoulders. The respondents accepted liability for those injuries by issuing a voluntary agreement. Dr. Brown, the claimant’s treating orthopedic surgeon, performed surgery on the claimant’s shoulders, and issued a report indicating that she had a 20% permanent partial impairment of each shoulder. Counsel for the respondents wrote to Dr. Brown and asked him to consider adjusting each of those ratings to 12% based upon AMA guidelines concerning the upper extremity, as the shoulder is not a listed body part on § 31-308(b)’s schedule. Instead, § 31-308(b) presumably incorporates each shoulder into the upper extremity, most precisely that part of the arm “at or above [the] elbow.” Dr. Brown replied that a 20% shoulder permanency could be equated to a 12% upper extremity permanency. Meanwhile, the respondents’ independent medical examiner, Dr. Glass, had diagnosed a 15% permanent partial impairment rating of each upper extremity.

Instead of relying upon Dr. Brown’s reply letter, the trial commissioner cited Dr. Brown’s September 30, 1999 diagnosis of a 20% permanency in each of the claimant’s shoulders. He explained in his conclusions that this permanent partial impairment should be considered a loss of the arm in accordance with § 31-308(b), and awarded the claimant a 20% permanency in each shoulder. The respondents have now petitioned for review from that decision, along with the trier’s denial of their Motion to Correct.

Section 31-308(b) C.G.S. entitles a claimant to receive compensation for the permanent loss of or loss of use of specified bodily parts and organs. Losses to unscheduled body parts have not been individually compensable under the statute since the passage of Public Act 93-228, § 19 in 1993. There is no mention of the shoulder as a separate scheduled body part in § 31-308(b). However, a claimant is entitled to receive 208 weeks of compensation for the complete loss of, or loss of use of, his master arm at or above the elbow, and 194 weeks of benefits for the other arm at or above the elbow. Where an injury results in a permanent partial loss, the claimant is awarded compensation for the percentage of the organ or body part that has been lost. For example, a claimant who sustained a 50% permanent loss of or loss of use of his master arm would be entitled to 104 weeks of benefits under § 31-308(b).

In the event of a permanent loss of or loss of use of an unscheduled body part (such as the shoulder), that injury may be compensated under § 31-308(b) to the extent that it relates to the loss of or loss of use of a scheduled body part (such as the arm). Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 809 (1999). The claimant’s injury here illustrates this principle. Though the shoulder is not itself a scheduled body part, she is entitled to permanent partial disability benefits insofar as her shoulder impairments affect her ability to use her arms. The essential question before us today is, what sort of evidence is necessary to support such a determination? May a commissioner himself extrapolate the effect of a shoulder injury on the overall arm function if based on competent medical evidence, or must he rely on a doctor’s express translation from shoulder rating to arm rating? A trial commissioner, of course, is empowered to weigh all of the evidence presented in a case, and may rely on none, part, or all of an expert’s medical testimony as long as that expert’s diagnosis has been offered with a reasonable degree of medical probability. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). On review, this board may not override a commissioner’s rejection of a given diagnosis, whether or not the doctor’s opinion might have appeared credible to a different factfinder. Id.

The trial commissioner in this case relied upon one medical opinion in assessing permanent partial disability: Dr. Brown’s September 30, 1999 report that found the claimant to have a 20% permanent partial impairment of each shoulder. Respondents’ Exhibit 1. He apparently placed less weight on Dr. Brown’s follow-up letter of December 30, 1999. The appellants contend that this was erroneous, for Dr. Brown’s December 30, 1999 opinion so clearly demonstrates that he employed the conversion method advocated by the AMA guidelines that there was no room to conclude that his earlier report implied a 20% permanent partial impairment rating of the entire arm. See Respondents’ Brief, pp. 12-13. Ironically, it is this very argument that illustrates the distinction between Dr. Brown’s first report and his second report, and enables one to evaluate those two opinions separately. Though the AMA guidelines are a well-established source of authority for many doctors; Bilotta v. Connecticut Natural Gas Corp., 4106 CRB-1-99-8 (Oct. 5, 2000); we have often stated that a physician is not required by law to adhere to those guidelines when preparing a medical diagnosis, including an opinion as to permanent partial disability. Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000); Ricigliano v. Rex Forge, 3476 CRB-6-96-11 (April 8, 1998), aff’d, 53 Conn. App. 158 (1999). A doctor may implement an alternate method of assessing permanency that a trial commissioner could reasonably adopt.

The November 30, 1999 letter from the respondents’ attorney to Dr. Brown cites the AMA guidelines, and asks Dr. Brown to give an opinion on whether his 20% permanency rating of the claimant’s shoulders “should be adjusted to equal a 12% permanency to the upper extremity,” as per the AMA guidelines. Respondents’ Exhibit 1. In his response, Dr. Brown clearly acknowledged that this was the effect of the AMA formula, as he agreed that a 20% permanency of the shoulder equates to a 12% permanent partial impairment of the entire upper extremity. The trial commissioner thus had two different opinions by Dr. Brown: one that relied on the AMA formula, and one that did not. The trier was not required to accept the report that relied on the AMA formula, no more than he would be required to adopt the AMA formula himself as a legal standard for assessing permanent partial disability.

The September 30, 1999 report of Dr. Brown is capable of standing alone in terms of its medical foundation. By adopting that report, and then awarding the claimant a 20% rating to each arm, the commissioner was merely relying on an alternate method of extrapolating the effect of the claimant’s shoulder injuries on her ability to use her arms (from shoulder to wrist) as a whole. As the finder of fact, he had the right to make his own determination as to the impact that permanency in an unscheduled subsidiary body part (the shoulder) had on a related scheduled body part (the arm). There is no one right way to accomplish this task, and the medical reports offer alternate methods of making such an assessment.

In particular, the report of Dr. Glass explains that “the usual ratings following rotator cuff repair . . . [have] been to assign a 10% impairment of the upper extremity to an Excellent result, 15% to a Fair or Good result and 20% to a Poor or Fair result.” Claimant’s Exhibit B. Though Dr. Glass believed that the claimant structurally had a good result from her surgery, the trier may not have concurred with that opinion. The findings do not discuss the claimant’s post-surgical progress, but Dr. Brown’s May 16, 2000 opinion states that the claimant’s shoulder has become more painful, which would support an inference that her surgery was not completely successful. Claimant’s Exhibit A. His reports from October and August 1999 also note significant pain. As the trial commissioner is not required to explain the reasons behind his conclusions; Admin. Reg. § 31-301-3; the fact that evidence in the record supports those conclusions is enough to require this board to affirm his decision on review.

In that respect, this case resembles Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998), in which this board had reversed a trial commissioner’s conclusion that an injury was compensable. In her findings, the trier had specifically discussed the treating physician’s opinion, which did not by itself establish compensability within a reasonable degree of medical probability, in the judgment of this board. However, the record also contained the opinion of a second doctor whose reports contained a more detailed and well-founded diagnosis supporting compensability, which the trier did not explicitly discuss in her findings. This board had reversed the trier’s decision because the treating physician’s testimony did not satisfy the medical probability standard. Keenan, 16 Conn. Workers’ Comp. Rev. Op. 174, 3202 CRB-4-95-11 (May 2, 1997). The Appellate Court then overturned our ruling, and directed this board to reinstate the trier’s decision. The court explained, “It is of no moment that the commissioner’s finding and award did not patently state every piece of credible evidence or testimony that contributed to the rendering of her decision. No such requirement has ever been imposed on the commissioner. The commissioner had before her various medical reports and opinions, medical records, and testimony from which she could properly determine whether Keenan’s fall of December 20, 1993, was causally related to his prior, compensable back and groin injury. . . . [I]t was properly within the commissioner’s discretion to rely on all or part of [the second doctor’s] medical evaluations as well as those of [the treating physician].” Keenan, supra, 285-86.

To answer our own “essential” question, therefore, a trial commissioner cannot simply “pull numbers out of thin air” in extrapolating the effect of permanency to an unscheduled body part on the loss of or loss of use of a related, scheduled body part. He must rely on competent medical evidence. Yet, he is not restricted to the AMA formula in making his assessment; if there is medical evidence in the record that supports various methods of assigning permanency, the commissioner may adopt one of those alternate methods as well. See Ricigliano, supra (multiple methods of analyzing high-frequency hearing loss were proposed); Piscitelli v. Connecticut Coke/Eastern Gas & Fuel, 6 Conn. Workers’ Comp. Rev. Op. 94, 96, 575 CRD-3-87 (Jan. 26, 1989) (commissioner has discretion to consider “whole man” ratings in calculating permanent loss of or loss of use of function of a body part, though benefits are not available for “whole man” rating in and of itself). Here, there were multiple methods presented by which the trier could translate a shoulder disability into an upper arm disability. His conclusions are consistent with one of those methods. Thus, the trier made his decision based upon evidence in the record, and there is no error.

Commissioner Ernie R. Walker concurs.

JAMES J. METRO, COMMISSIONER, DISSENTING. I have no objection to the majority’s interpretation of the law, or its reasoning regarding the discretion generally available to a trial commissioner in evaluating the reports of doctors. I also agree with the majority’s observations that neither a commissioner nor a doctor is required to adhere to the AMA guidelines in assessing a claimant’s percentage of permanent partial impairment, and that the trier may rely on an alternate method of determining a rating as long as it has some basis in the evidence. In considering the facts here, however, I cannot help but agree with the respondents’ position regarding the December 30, 1999 opinion of Dr. Brown. The wording of his letter clearly states that a 20% shoulder permanency is equal to a 12% upper extremity permanency, and this letter cannot be taken as anything other than a clarification and a partial negation of his earlier opinion. I do not believe that the trier could reasonably adopt Dr. Brown’s September 30, 1999 diagnosis without acknowledging the import of his follow-up letter. Accordingly, I dissent.

Workers’ Compensation Commission

Page last revised: December 17, 2004

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