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Beaudry v. Uniroyal

CASE NO. 4505 CRB-5-02-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 5, 2003

ESTATE OF ROGER BEAUDRY

CLAIMANT-APPELLANT

v.

UNIROYAL

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ross T. Lessack, Esq.,Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Cheshire, CT 06410.

The respondent employer and insurer were represented by Michael Finn, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, Glastonbury, CT 06033.

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

This Petition for Review from the February 21, 2002 Finding and Dismissal of the Commissioner acting for the Fifth District was heard September 20, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in the instant matter is the spouse of the deceased employee, Roger Beaudry. The claimant appeals from the February 21, 2002 Finding and Dismissal of the Commissioner acting for the Fifth District.

The ultimate issue presented for review is whether the trial commissioner erred in failing to conclude that the deceased employee’s death was causally related to surgery performed as a result of several compensable injuries sustained by the decedent. The pertinent facts are as follows. The decedent was a long time employee of the respondent employer Uniroyal. Over the course of his employment with the respondent the decedent sustained several compensable back injuries. Among them were back injuries occurring March 14, 1990, October 10, 1992 and an injury May 19, 1998.

Liability for the March 14, 1990 injury was transferred to the Second Injury Fund. The decedent and the claimant, Dale Beaudry were married July 11, 1997. On July 1, 1999 the decedent died as a result of a pulmonary embolism following surgery performed June 29, 1999. The trial commissioner found, inter alia, that the surgery performed on June 29, 1999 was causally related to the March 14, 1990 compensable lower back injury. However, the commissioner also found that the decedent’s surgery was not reasonable or necessary and dismissed the instant claim. In addition the commissioner found that the claimant was not married to or supported by the decedent on March 14, 1990 and therefore she was not entitled to benefits as a surviving spouse or dependent in fact.

The claimant filed the instant appeal and presents the following issues on appeal: (1) whether the trial commissioner erred in finding that the decedent’s June 29, 1999 surgery was not reasonable or necessary, (2) whether the trial commissioner erred in concluding that the decedent’s June 29, 1999 surgery was related to a material and substantial degree to the March 14, 1990 injury, (3) whether the trial commissioner erred in concluding that the claimant was not entitled to benefits as a dependent spouse and (4) whether the trial commissioner erred in denying the claimant-appellant’s Motion to Correct.

We begin our review with consideration of the primary issue, whether the trial commissioner erred in finding that the decedent’s back surgery performed on June 29, 1999 was not reasonable or necessary. The consideration of all but the last issue noted above, the appropriateness of the trier’s ruling denying the appellant’s Motion to Correct, are made unnecessary if we affirm the commissioner’s conclusion as to the first issue raised.

Whether the decedent’s surgery was reasonable or necessary is a factual determination and as such it is squarely within the purview of the trial commissioner. Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154 (1989). In determining whether a particular course of medical treatment is reasonable pursuant to § 31-294d a commissioner is permitted to note the attendant factual circumstances.

This question is not necessarily a medical matter only, on which expert testimony would be necessary, but may also be affected by a consideration of the surrounding circumstances as the trier of fact finds them. See Lamont v. New Hartford, 4 Conn. App. 303, 305-306, 493 A.2d 298 (1985). Such circumstances may include the plaintiff’s age, medical history, previous course of treatment and its success or failure, and whether the proposed medical procedure “involves real danger and suffering without fair assurance of effecting an improvement or restoration of health.” Acquarulo v. Botwinik Bros., Inc., 139 Conn. App. 684, 690 (1953), (Baldwin, J., concurring).

Id. p. 159.

The record that was before the trial commissioner reflects that two physicians Dr. Gerald Becker and Dr. Aris Yannopoulos, both orthopedic surgeons opined that the decedent was a poor surgical candidate. Dr. Yannopoulos opined that the decedent’s lack of good physical conditioning and obesity made him a poor surgical candidate. Additionally, Dr. Yannopoulos notes in his report of October 29, 1998

As is very well known and is very well documented in our literature and in our personal experience, with fusion surgery which has an unfortunately high failure rate, the history, physical exam and radiologic studies all have to correlate in order to suggest that the patient will have a good outcome. In this particular case both the history and physical exam do not correlate well with the patient’s complaints of pain. Therefore, to simply operate because there is evidence of degenerative change by the MRI is not recommended. I highly recommend that the patient return to his normal work duties and his normal life . . . .

Respondent’s Exhibit 5. Likewise, Dr. Becker pointed to the decedent’s abdominal obesity and smoking habit as reasons that the decedent was a poor surgical candidate. We find, therefore, that the trier’s conclusion that the surgery was not reasonable is amply supported by the record.

As to the appellant’s challenge to the trier’s denial of her Motion To Correct, the corrections sought even if granted would not compel the trier to reach a different outcome therefore the trier’s denial of the Motion To Correct was not legally inappropriate. Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002). On appeal we do not engage in de novo review. Where, as here, the trial commissioner’s findings and conclusion are not contrary to law, without evidence or based on unreasonable or impermissible factual inferences, they stand. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). As the trier of fact, the commissioner is accorded the duty of weighing the evidence presented and making determinations as to credibility. The conclusion reached by the trier are a proper exercise of that role. Hayes v. Total Fulfillment Services Ltd., 4482 CRB-4-02-1 (February 5, 2003). Concluding as we have as to the issue of whether the decedent’s surgery was reasonable or necessary, we need not consider any of the other issues raised in this appeal.

We affirm the Commissioner acting for the Fifth District’s February 21, 2002 Finding and Dismissal.

Commissioners Amado J. Vargas and Jesse M. Frankl concur.

Workers’ Compensation Commission

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