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Phaiah v. Danielson Curtain (C.C. Industries)

CASE NO. 4409 CRB-2-01-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 7, 2002

JAMES PHAIAH

CLAIMANT-APPELLANT

v.

DANIELSON CURTAIN (C.C. INDUSTRIES)

EMPLOYER

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by William J. Shea, Esq., 44 Capitol Avenue, Hartford, CT 06106.

The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 7, 2001 Finding and Dismissal of the Commissioner acting for the Second District was heard January 25, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 7, 2001 Finding and Dismissal of the Commissioner acting for the Second District. He contends on appeal that the trier erred by denying his request for back surgery as a remedy for the long-term effects of a 1963 compensable injury. We find no error, and affirm the trial commissioner’s decision.

The claimant sustained an injury to his back on April 8, 1963, while working in the shipping and receiving department of the respondent Danielson Curtain. He underwent fusion surgery on April 3, 1966. Following that surgery, the claimant worked for the United Food and Commercial Workers Union for three years, but left that job in the summer of 1969 to try his hand at professional baseball. See January 27, 1999 Findings of Facts and Dismissal, ¶ 4. Between 1969 and 1981, he worked as a construction laborer, and then returned to work for the union as a business agent in 1982. He was elected to a three-year term as vice-president of that union in 1995, but left the job in January 1996 for reasons related to hypertension, a separate medical condition. According to the claimant, his back problems flared up again about a year later.

In a 1999 award, a trial commissioner found that the claimant had a permanent lifting restriction of 15 pounds and a restriction against repetitive bending, based on the report of Dr. Krompinger, who examined the claimant on July 25, 1997. The claimant was found to have undergone a failed fusion, thereby leaving him with a sedentary work capacity. The trier then ordered that a formal hearing be held on the issue of temporary partial disability compensation. In the proceedings below, the claimant testified that he had not conducted any work searches, as he was in the process of writing a book at the time of the February 8, 2001 formal hearing. He was taking eight different medications as prescribed by Dr. Klare, his treating physician. He testified that his back had never been the same since the 1966 fusion, and that he has clicking and rubbing of bones in his spinal column. He currently wears a brace most of the time, which mildly alleviates his pain symptoms. He seeks back surgery, which he hopes will enable him to return to work for the union.

The commissioner noted in her findings that Dr. Klare referred the claimant to an orthopedic surgeon, Dr. Halperin, for back treatment. Dr. Halperin was the claimant’s treating orthopedic surgeon from July 15, 1998 to August 12, 1999, when he wrote a report concluding that it would not be wise to operate on the claimant. The doctor explained, “He does have some stenosis at L4-5, but I do not think that it is all that severe. As the patient’s pain seems to be more in the back than in the leg, I wonder whether or not surgery would offer a whole lot of relief.” Findings, ¶ 18, quoting Respondent’s Exhibit 1. Dr. Krompinger also evaluated the claimant several times between July 1997 and May 1999, and had served as the claimant’s treating orthopedic surgeon before Dr. Halperin took over that role in July 1998. He testified that the claimant’s chance of being helped by a laminectomy was fairly low, and said that he would try to sway the claimant against having such an operation. “In this particular situation with thirty years of back pain, many years of using narcotic medications, having symptoms that don’t respond to mechanical measures to alleviate them. Given all the clinical scenarios, my experience is these patients don’t get better with spinal operations.” Findings, ¶ 25, quoting Respondent’s Exhibit 3. Dr. Krompinger also described it as “very debatable” whether surgery would help the claimant’s functional status. Id., quoted in Findings, ¶ 27.

A § 31-294f commissioner’s examination was performed on June 7, 2000 by Dr. Druckemiller. He determined that the claimant currently had the capacity to fulfill the duties of a union representative without undergoing additional surgery, and concluded that a back operation would not increase his work capacity. He testified that he did not intend to perform surgery on the claimant, as it was neither emergent nor urgent for him. Instead, Dr. Druckemiller characterized this surgery as elective. If successful, it might reduce his pain, without affecting his work capabilities at all. The trial commissioner concluded that the opinions of Drs. Halperin and Krompinger were “more compelling” than Dr. Druckemiller’s conclusion that the claimant might obtain pain relief from surgery, though she accepted the latter’s opinion that work capacity would not be affected. Findings, ¶ 34, 35. Thus, she denied the claimant’s request for back surgery as neither reasonable nor necessary medical care. The claimant has appealed that decision.

When this board reviews the decision of a trial commissioner, our role is not to retry the facts of the case by weighing the evidence anew, and by recording our own measurements of its relative merit. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). That function belongs solely to the trier of fact. It is her duty to resolve all issues that concern the credibility of the evidence, including both documentary exhibits and the testimony of lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Mosman, supra. This factfinding discretion entitles the trier to credit all, part or none of any doctor’s testimony, and to reject evidence that superficially appears to be uncontradicted. Tartaglino, supra; Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002). It also allows her to omit facts from her decision that would not affect its outcome given her assessments of credibility. Admin. Reg. § 31-301-3.

In a case such as this, where the trier has ruled that a claimant has not met his burden of proving that a particular surgical procedure should be authorized, this board is not empowered to look at the evidence and decide for itself whether the claimant has offered sufficient proof to satisfy his burden of showing that, within a reasonable degree of medical probability, surgery is the appropriate course of treatment. Id.; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). All we may do is review the trier’s findings to determine whether there is any evidence in the record to support them, and to determine whether the trier might have omitted from her findings material facts that are truly admitted or undisputed. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Similarly, we may disturb the legal conclusions of the trial commissioner only if they result from an incorrect application of the law to the facts found, or from an inference unreasonably or illegally drawn from those facts. Irizarry, supra; Mosman, supra; Warren, supra, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant asserts in his brief that the trial commissioner omitted “the heart of this case” from her findings by failing to discuss the extent of the claimant’s injury and his pain limitations, and the parts of the doctors’ opinions that would support the prospect of surgery for the claimant. Brief, p. 10. In his view, the trier presented an inaccurate view of the testimony of Drs. Halperin, Krompinger and Druckemiller by failing to specify that both treaters had considered the claimant to be an acceptable surgical candidate at one time, and that none of the doctors described the surgery as being contraindicated by the claimant’s symptoms. We disagree. The recitation of these facts in the findings would not have changed the outcome of this case, provided that the trier did not err by relying on the portions of the testimony that, according to her findings, did not favor surgery. Our review of the evidence shows that the inferences she drew from the testimony were reasonable, and she does not appear to have misconstrued anyone’s medical opinion.

Dr. Halperin’s reports show that he was reluctant to perform surgery on the claimant’s back “unless conservative measures were to fail.” Respondents’ Exhibit 1, August 7, 1998 report. As time passed, and the claimant began to urge his doctor to approve surgery, Dr. Halperin continued to recommend avoiding it if possible. “Although he does have stenosis, decompression may not relieve his back pain. . . . I probably would not proceed with any fusion, [as the spine] might potentially become unstable.” Id., December 16, 1998 report. At that time, he also noted that the claimant’s severe back pain was not radiating into his lower extremities. Though Dr. Halperin appeared to give in to the claimant’s request in March 1999 when he stated that his pain had gotten to the point where he could no longer tolerate it, he changed his mind again upon seeing the claimant in August. On both occasions, the doctor observed that the claimant was suffering from some leg pain, but that the back pain was worse. We find no error in the trier’s decision to credit this medical opinion, which constitutes adequate support for her conclusion.

We also note that, despite the assertions in the claimant’s brief, both Dr. Krompinger and Dr. Druckemiller offer reasons why surgery would not be an ideal option for the claimant. Dr. Krompinger described the claimant as having suffered 30 years of back pain, during which time he used many narcotic medications, and as having failed to respond to mechanical measures to alleviate his symptoms. “Given all the clinical scenarios, my experience is these patients don’t get better with spinal operations.” Respondent’s Exhibit 3, p. 22. The doctor wouldn’t say that surgery was contraindicated, but he made it clear that he would not recommend the surgery. As for Dr. Druckemiller, he did seem to recommend the surgery, though he consistently characterized it as a reasonable choice that the claimant could make, rather than an urgent necessity. See, e.g., Respondent’s Exhibit 2, pp. 14-15, 27. When he stated that the claimant had a 60 to 70 percent chance of improving with surgery, he clarified that he thought that he’d get good relief of his leg symptoms, but he was more skeptical regarding any prediction of relief from back pain due to the claimant’s subjective pain level and his inability to obtain relief by lying down and taking pressure off the back. Id., pp. 28-30. The trier explained in her findings, too, that she thought the opinions of the claimant’s treating physicians were more compelling than that of Dr. Druckemiller due to their familiarity with his condition and their involvement in his treatment over the years. Findings, ¶ 34. This was an acceptable reason for her to place less weight on Dr. Druckemiller’s opinion. Champagne v. O.Z. Gedney, 4425 CRB-5-01-8 (May 16, 2002).

It is true that we have explained in past cases that “reasonable or necessary” medical care is not limited to courses of treatment that will probably be successful. “If a doctor believes that, under the circumstances of a case, a particular type of treatment is worth attempting, the trial commissioner would normally be justified in approving such treatment.” Irizarry, supra, quoting Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001). We have also stated that alleviation of pain can be a reasonable basis for treatment. This does not mean, however, that a commissioner is required to approve any treatment that a doctor or a group of doctors is willing to consider. “Whether a proposed course of treatment is reasonable or necessary is a factual issue to be decided by the trier based on the medical opinions in the record.” Irizarry, supra. The issue remains a factual one, and if the evidence does not persuade the trier that a given surgical option is reasonable under the circumstances, this board cannot reassess that evidence and draw a different inference. Warren, supra.

As the trial commissioner was not persuaded by the evidence to approve surgery here, and as her findings were reasonably culled from the evidence in the record, we cannot reverse her decision on appeal. Therefore, the trial commissioner’s decision must be affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: December 17, 2004

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