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Thomas v. Mohegan Sun Casino et al.

CASE NO. 4754 CRB-2-03-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 18, 2005

EUGENE THOMAS

CLAIMANT-APPELLEE

v.

MOHEGAN SUN CASINO

EMPLOYER-APPELLANT

and

SANITARY EQUIPMENT COMPANY

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

and

CONNECTICUT STONE SUPPLIES, INC.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

and

SUPERIOR SPRING & MANUFACTURING CO.

EMPLOYER

and

TRAVELERS PROPERTY CASUALTY CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondent Mohegan Sun Casino was represented by Mark Oberlatz, Esq., Murphy & Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

The respondents, Connecticut Stone Supplies, Inc. and the Hartford Insurance Group, were represented by John Greiner, Esq., Mathis & Associates, 55 Farmington Avenue, Hartford, CT 06105.

The respondents Superior Spring & Manufacturing Company and Travelers Property Casualty Company were represented by Donald Babiyan, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473, who did not appear at oral argument.

The respondents Sanitary Equipment, Inc. and Zurich North America were represented by John Cantarella, Esq., D’Attelo & Shields, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067, who did not appear at oral argument.

This Petition for Review from the November 17, 2003, Finding and Award of the Commissioner acting for the Second District was heard on September 24, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Donald H. Doyle.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Mohegan Sun Casino, has appealed from the November 17, 2003, Finding and Award of the Commissioner acting for the Second District.1 We affirm the determination of the trial commissioner.

The pertinent facts are as follows. The claimant had a history of work-related low back injuries prior to working for respondent Mohegan Sun. He had sustained the following accepted injuries: a low back injury on January 28, 1991 while working for Connecticut Stone, a low back injury on October 27, 1993 while working for Sanitary Equipment, and a low back injury on May 4, 1995 while working for Superior Spring. As a result of the May 1995 injury at Superior Spring the claimant underwent physical therapy, steroid injections and missed several months of work. The prior work-related injuries resulted in minimal lost work time and nominal medical treatment.

On October 8, 1996 the claimant began working at Mohegan Sun where he was employed as a card dealer as of the November 17, 2003 Finding and Award. During his employment with the respondent Mohegan Sun the claimant sustained low back injuries on November 29, 1998, April 28, 2001, August 2, 20012 and November 2, 2001 for which the respondent filed a Form 43.

The primary issue at the formal hearings was the claimant’s request to have Dr. Bruce Chozick authorized to perform an IDET procedure.3 The respondent alleged that the IDET procedure was not reasonable and necessary and questioned whether the claimant was a good candidate for that procedure. Furthermore, the respondent alleged that the low back injuries the claimant sustained while employed at Mohegan Sun were not significant enough individual traumas to trigger its liability for the claim. Alternatively, the respondent contended that if the IDET procedure was performed the liability should fall on the claimant’s prior employers and their accepted low back injuries.

The trial commissioner determined the claimant had established that the IDET procedure was reasonable and authorized Dr. Chozick to perform it. The trial commissioner further found the injuries the claimant incurred while working at Mohegan Sun were new traumatic injuries and that Mohegan Sun was solely responsible for all of the claimant’s medical treatment by Dr. Chozick, including the IDET procedure.

The respondent Mohegan Sun has appealed the Finding and Award. The primary issue on appeal is whether the record supports the trial commissioner’s finding that the IDET procedure is a reasonable and necessary medical treatment.

Whether a medical treatment is reasonable and necessary is a factual determination made by the trial commissioner. Covert v. Patterson, 4094 CRB-3-99-8 (September 29, 2000); Rodenbaugh v. F.R. Tetro Enterprises, 3823 CRB-5-98-5 (August 18, 1999). In the instant case there is contradicting medical evidence in the record regarding whether the IDET procedure constitutes reasonable medical treatment. In cases where there are opposing medical opinions the trier must weigh the evidence in order to make credibility determinations. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); Rodenbaugh, supra. On review we will not disturb a trial commissioner’s factual finding where there is adequate evidence in the record below to uphold it. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In this case we believe the medical evidence supports the trier’s determination that the IDET procedure is reasonable and necessary. Dr. Chozick opines that the claimant was a good candidate for the procedure. Findings, ¶ 23. Dr. Patrick F. Doherty, the claimant’s treating physician, concurs that the claimant should have the IDET procedure. Findings, ¶¶ 36, 40, Claimant’s Exhibit B. Although the respondent specifically contends that there is no evidence that Dr. W. Jay Krompinger, the commissioner’s examiner, accepts the IDET procedure as reasonable, we disagree. Dr. Krompinger opines that the procedure was not unreasonable. Respondent’s Exhibit 9, Claimant’s Exhibit A, August 15, 2002 Commissioner’s Medical Evaluation; October 28, 2002 Deposition of Dr. W. Jay Krompinger, p. 32. He states that although he believes the claimant’s prognosis after undergoing the IDET procedure was not good, he defers to Dr. Chozick’s decision to perform the procedure. Id., p. 13.

In Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001), we affirmed the trial commissioner’s determination to authorize a course of epidural injections for a claimant despite the fact that the injection’s effective rate was low. In that case we stated, “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.” Id. Similarly, here Dr. Krompinger testified that, “it [the claimant’s condition] is not so far gone that the procedure would have no hope to help him.” Respondent’s Exhibit 9, Claimant’s Exhibit A, August 15, 2002 Commissioner’s Medical Evaluation; October 28, 2002 Deposition of Dr. W. Jay Krompinger Id., p. 33.

The respondent tries to distinguish this case from Cirrito by stating that the IDET procedure was a major surgery while the injections in Cirrito involved a minimally invasive procedure. The respondent contends this case is more analogous to Beaudry v. Uniroyal, 4505 CRB-5-02-3 (March 5, 2003) appeal dismissed, A.C. 24046 (June 6, 2003). In Beaudry, we affirmed a commissioner’s decision that a proposed back surgery was not reasonable where there was a medical opinion that the claimant was a poor candidate for the procedure due to his abdominal obesity and his smoking habit. However, the respondent fails to recognize that our determinations in both of these cases hinged on the fact that in each case there was some evidence to uphold that trial commissioner’s factual determination. Here there is evidence to support the trial commissioner’s determination that the IDET procedure is reasonable and we will not overturn that finding on appeal.

The respondent Mohegan Sun also alleges the trial commissioner erred in failing to include a finding regarding the claimant’s long term narcotics use. The respondent contend such a finding is necessary because all of the physicians agree that continual use of pain killers lessens the chance of a successful IDET procedure. The respondent contends that the trier therefore erred in failing to grant its Motion to Correct to add this finding. We do not agree. Although the claimant’s prior narcotics use is one factor used to determine whether the claimant might be a good candidate for the IDET procedure, it is not the only factor considered nor is it an overriding factor. Dr. Krompinger testified that although the narcotic use was one factor which weighs against the surgery there were also some factors regarding the claimant’s specific symptoms that might make him a good candidate for the surgery. Claimant’s Exhibit A, Respondent’s Exhibit 9, October 28, 2002 Deposition of Dr. W. Jay Krompinger, pp. 31-32. “A trier is expected to include ‘only the ultimate relevant and material facts’ in his findings, and should not add merely evidential facts, nor the reasons for his conclusions.” Maitland v. Home and Buildings Control, 4623 CRB-3-03-2 (January 13, 2004), citing Connecticut Administrative Regulation § 31-301-3; Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of final judgment, A.C. 24991 (May 5, 2004); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). We do not believe claimant’s narcotic use is a finding of fact necessary for the trial to reach his ultimate conclusion. Therefore we find no error in the trier’s refusal to grant the respondent’s Motion to Correct regarding the claimant’s prior narcotics use.

The respondent Mohegan Sun also contends that Dr. Doherty’s opinion does not support a finding that the IDET procedure was reasonable and necessary because Dr. Doherty did not have the claimant’s accurate medical history when he rendered his opinion. The respondent contends that Dr. Doherty did not know about the claimant’s narcotic history, however, the evidence shows that Dr. Doherty was aware that the claimant was on narcotics when he examined him. Claimant’s Exhibit C, Deposition of Dr. Patrick F. Doherty, pp. 11-12. Furthermore, he was aware that the narcotic use was a factor which might affect the likelihood of the IDET procedure’s successful outcome. Id. We think the doctor was sufficiently informed of the claimant’s history when he rendered his opinion. The respondent further contends Dr. Doherty’s opinion is negated by the fact that he did not know that the claimant exhibited Waddell signs which are contraindicated for the IDET procedure. Although the respondent maintains that the claimant exhibited Waddell signs, the evidence does not fully support that contention. Id., p. 14. Doctors Willet and Dr. Paggiolli mentioned that the claimant exhibited Waddell signs, however, Dr. Doherty testified that these may have been signs of an inconsistency rather than Waddell signs. Id. Furthermore, Dr. Krompinger did not note any Waddell signs in his examination of the claimant. Claimant’s Exhibit A, Respondent’s Exhibit 9, October 28, 2002 Deposition of Dr. W. Jay Krompinger, p. 9. Dr. Krompinger further testified that it is debatable whether the presence of Waddell signs would be a significant factor in determining whether a patient would have a favorable surgical result. Id., pp. 9-10. For these reasons we find no error in the trier’s reliance in Dr. Doherty’s opinion.

The last issue we will address is the respondent’s Motion to Submit Additional Evidence. The respondent Mohegan Sun seeks to admit a June 24, 2004 report from Dr. Chozick which states that the doctor will “continue to follow the patient conservatively.” The respondent alleges that this report renders the trier’s order for the IDET surgery moot. At oral argument on the appeal the claimant was asked whether the IDET procedure was still being considered and he responded that he was still interested in having the procedure. Presumably, if Dr. Chozick no longer feels the IDET procedure is appropriate for the claimant he will not perform such. It is unclear whether the report stands for the proposition that Dr. Chozick is not going to perform the IDET procedure, therefore, we see no reason to admit such evidence on appeal.

Therefore, we affirm the November 17, 2003, Finding and Award of the Commissioner acting for the Second District.

Commissioners Charles F. Senich and Donald H. Doyle concur.

1 We note that extensions of time were granted during the course of the appellate process. BACK TO TEXT

2 The August 2, 2001 incident also resulted in an injury to the claimant’s right leg. BACK TO TEXT

3 The IDET is a surgical procedure which involves remodeling of the patient’s annulus. Claimant’s Exhibit C, Deposition of Dr. Patrick F. Doherty, p. 20. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 17, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4754crb3.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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