CASE NO. 4684 CRB-6-03-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 28, 2004
J & G BELANGER CONCRETE CONSTRUCTION
The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.
The respondents were represented by Michael Buonopane, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the June 17, 2003 Finding and Award of the Commissioner acting for the Sixth District was heard January 23, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 17, 2003 Finding and Award of the Commissioner acting for the Sixth District. They argue on appeal that the trier erred by finding that the claimant’s requested surgery for a herniation at the L5-S1 level of his spine is attributable to a 1997 compensable injury, rather than an intervening noncompensable incident. We find no error, and affirm the trial commissioner’s decision.1
The trial commissioner found that the claimant suffered a compensable injury to his back on December 1, 1997 while in the employ of the respondent J & G Belanger Concrete Construction. Following that injury, the claimant was diagnosed with a herniated disc at L4-L5. Dr. Aferzon, a neurosurgeon, performed surgery on March 17, 1998 to correct the problem. The claimant reached maximum medical improvement on April 5, 1999, and was ascribed a 15% permanent partial disability of the back.
The trier also found that, at the time of his injury, the claimant was noted to have degenerative disc changes at multiple levels and a small disc bulge at L5-S1, as per a report by Dr. Bomar. From the date of his injury forward, numerous incidents led the claimant to experience back pain that required medical treatment. A 1998 MRI showed a left-side L5-S1 herniation, while an August 2001 MRI showed a right-side L5-S1 herniation. Dr. Aferzon indicated that the 1998 MRI revealed an annular tear in the L5-S1 disc, and that the claimant’s continuing back pain following the L4-L5 surgery represented a progression of the original injury with symptoms at the L5-S1 level.
Dr. Karnasiewicz, a neurosurgeon who examined the claimant on the respondents’ behalf, concluded that the claimant’s symptoms at L5-S1 were the result of an August 2001 occurrence that involved the claimant lifting his daughter out of a truck. Though he agreed with Dr. Aferzon that the claimant required surgery for this condition, he did not attribute this need to the 1997 compensable injury. With respect to this opinion, the trier took note of the claimant’s testimony that he had not lifted his three-year-old daughter into the truck, but had rather been standing by the truck in case she needed help when he heard his name called and turned his head, causing him to feel pain. See March 19, 2003 Transcript, pp. 11, 22.
The trial commissioner concluded that the testimony and reports of Dr. Aferzon were more credible than those of Dr. Karnasiewicz, and accepted the diagnosis that the claimant’s L5-S1 bulge was present in 1997 and was accompanied by a right-side annular tear that had now progressed to a herniated disc. He ordered another MRI to confirm that surgery should be performed, and ruled that if surgery were necessary, the respondents should pay for all medical treatment and related benefits. The respondents have appealed that decision to this board.
The gravamen of the respondents’ appeal is their claim that insufficient evidence exists to support a finding that the L5-S1 disc herniation was caused by the December 1, 1997 injury. They contend that the trier misinterpreted statements made by Dr. Karnasiewicz, and that he erroneously relied on a report by Dr. Aferzon that was written before the doctor was aware of the August 2001 incident, while ignoring Dr. Aferzon’s subsequent oral testimony clarifying that opinion. After reviewing the testimony and reports of Dr. Aferzon, we disagree with the respondents’ assertion that there is insufficient evidence to support the trial commissioner’s decision.
In a workers’ compensation case, it is well-established that the trial commissioner has the sole authority to judge the credibility of witness testimony and other evidence, including the relative persuasiveness of conflicting medical opinions. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). The trier of fact must decide whether a claimant has proven the occurrence of a compensable injury, and established a relationship between that injury and an alleged physical ailment or disability within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Duddy, supra. On appeal, this board does not have the power to retry the case by second-guessing the inferences drawn from the evidence by the commissioner. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Our role in reviewing a trier’s factual findings is to ascertain whether there is evidence in the record to support them, and whether the trier may have omitted undisputed material facts. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren, supra.
In this case, the trier explicitly credited the opinion of Dr. Aferzon over that of Dr. Karnasiewicz. Dr. Aferzon’s February 11, 1998 report noted three-level disc disease at L3-L4, L4-L5 and L5-S1, and both he and Dr. Bomar noted the presence of an L5-S1 annular tear and/or a small posterior disc protrusion at the time of the 1998 MRI. Claimant’s Exhibit A. Some right-side discomfort was also observed by Dr. Aferzon in a June 12, 1998 report, which postdated by several months the claimant’s successful left-side L4-L5 lumbar discectomy surgery. Id.
When the claimant returned to Dr. Aferzon in 2001 after a two-year hiatus in visits, he began to report right leg pain. Dr. Aferzon stated that it was “pretty clear” that the claimant was irritating his right-side S1 nerve, and that this problem appeared to be “spontaneous and not caused specifically by any activity.” Id., October 18, 2001 report. Dr. Aferzon added, “One could make a case that there has been a progression of disk degeneration from his prior injury that resulted in further herniation, particularly since there has been no specific event that caused this last exacerbation.” Id. Surgical intervention was mentioned as an option. On May 13, 2002, Dr. Aferzon wrote that a comparison between the 1998 MRI and a current MRI showed a progression of disc disease from a right-side annular tear that was present on January 27, 1998, and presumably related to his December 1, 1997 compensable injury, to a “more formed disk herniation with some evidence of the nerve compression that he is having now.” Id. He described this increase in symptoms as a continuation of the injury process that had been developing inside the claimant since 1997, and added that there was no clear-cut evidence of a new injury based on available information.
The respondents allege that Dr. Aferzon essentially retracted this opinion during his January 21, 2003 deposition in light of information the respondents provided about subsequent incidents, particularly the August 2001 occurrence involving the claimant’s daughter. The respondents characterize that incident as an intervening cause that constitutes a new injury, as exemplified by Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 1393 CRB-2-92-3 (November 18, 1993). In Mellor, a trial commissioner found that a claimant had aggravated his pre-existing back condition at the workplace when he turned while lifting lightweight vinyl siding, which caused him to suffer acute right-side back pain. The claimant had previously complained of left-side pain only. /p>
We think it important to stress that, on review, this board stated in Mellor that it is not the business of the CRB to retry the facts, and that “even if the evidence below was in conflict, there was sufficient evidence presented to support the commissioner’s findings.” Id. This board has also affirmed factual findings of a contrary nature where supported by evidence, such as in Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (November 1, 1995), aff’d, 43 Conn. App. 908 (1996)(per curiam). There, we upheld a trial commissioner’s ruling concerning a 1992 incident in which a claimant felt severe back pain after bending over to pick up a three-ounce piece of car molding. The trier concluded that this was not a new injury, but rather an insignificant occurrence that did not break the causal chain from a 1989 compensable injury that had caused the claimant to suffer a disc herniation, and later predisposed him to suffer another injury. We are obliged on review to give significant deference to the decisions of trial commissioners on whether or not a particular incident legally amounts to a substantial cause of a physical injury. Pothier v. Stanley-Bostitch/The Stanley Bostitch, 3411 CRB-3-96-8 (January 21, 1998). The instant case is not exempt from that principle.
Furthermore, we do not believe that the trial commissioner was constrained to read Dr. Aferzon’s testimony in this case as a revocation of the opinions contained within his previous written reports. The respondents attempted to bring two incidents to the doctor’s attention. First, they made mention of an August 24, 2000 incident that occurred while the claimant was putting on socks, and which resulted in his hospitalization for increased low back pain. The doctor referred to this as a “mechanism injury” that is common. Id., p. 36. “People can wake up with a back pain, people can cough and develop disc herniation, you can put on socks, you can misstep when you walk. It doesn’t take much.” Id., p. 37. The doctor then stated that he had no specific recollection of being informed about the sock incident, but that the claimant had been demonstrating a “pattern since surgery where he [would] come to me with exacerbation and he was advised to cut down his activity . . . maybe in my mind this fell into the same pattern.” Id. He agreed that it probably should have been included in his assessment in addressing causation.
The respondents then cited Dr. Karnasiewicz’ report, which reflected that the claimant had suffered low back pain on August 1, 2001 while lifting his daughter into a truck. This history had also been omitted from Dr. Aferzon’s report. He stated that this would also be relevant, and that it could be consistent with the mechanism of injury required to produce a herniation. Id., p. 38. Dr. Aferzon went on to state, however, that activities such as putting on a pair of socks and lifting one’s daughter (which, as noted above, the claimant testified was not actually what had occurred) are trivial, and beg the key question of whether or not the claimant’s L5-S1 disc had been damaged enough to weaken it to the point where he was susceptible to sustaining a herniation from a trivial incident. Id., pp. 39-40.
In Dr. Aferzon’s view, the claimant had issues with the disc to begin with, and never healed properly following the 1997 injury. Some evidence pointed to the L5-S1 disc being the one responsible, though there was no clear-cut nerve irritation that would rule out one of the other suspect lumbar discs. Id., p. 41. Though subsequent incidents such as the one involving the claimant’s daughter may have contributed to his condition; Id., p. 43; Dr. Aferzon did not characterize this incident or any of the others as a primary or superseding cause of the claimant’s current L5-S1 disc herniation. He summarized his opinion by stating, “I do believe that [the claimant] never truly healed his back nor [was] an objective of my surgical treatment to heal his back problem. The surgery was primarily to open the nerve. I think he persisted with a weakness in his back and with repetitive back pains. To my opinion as rendered this was an evolution of that process that led to [the] current situation.” Id., p. 46.
Insofar as Dr. Aferzon’s deposition offered a clear opinion, it continued to support his diagnosis that the claimant’s current symptoms were a natural progression from his 1997 compensable injury, rather than negating or clarifying that etiology in some material manner. Compare Safford v. Owens Brockway, 262 Conn. 526, 535 (2003)(physician’s report clarified earlier report and prevented it from being construed as a 20% impairment rating of upper extremity). Accordingly, the trial commissioner was not required to place great weight on Dr. Aferzon’s deposition in lieu of the reports that the doctor had previously issued. As we find that the medical evidence discussed above contains adequate support for the trier’s factual findings, we dismiss the respondents’ appeal.
The trial commissioner’s decision is hereby affirmed. Insofar as any monetary award may have been withheld from the claimant pending the outcome of this appeal, we direct that interest be paid on that amount as required by § 31-301c(b) C.G.S.
Commissioners A. Thomas White, Jr., and Charles F. Senich concur.
1 The claimant has filed a Motion to Dismiss the respondents’ appeal on the ground that their November 12, 2003 “Motion to Reverse the June 17, 2003 Finding & Award” and its accompanying “Memorandum of Law in Support of Appeal” do not constitute an appellate brief. This Commission has no rule in place requiring an appellant’s brief to be captioned in any particular manner, and it is not our practice to demand that parties strictly adhere to the terms of Practice Book § 67-4 and § 67-5. As the respondents’ 28-page memorandum of law adequately sets forth the grounds for the respondents’ appeal and apprises this board of their claims of error, we hold that this document substantively satisfies the requirement that an appellant file a brief. We also note that the remedy sought by the respondents is “reversal of the June 17, 2003 Finding and Award,” which is within the power of this board on review. See Memorandum of Law, p. 22. Accordingly, the claimant’s Motion to Dismiss Appeal is denied. span class="back">BACK TO TEXT