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Carter v. Aramark Corporation

CASE NO. 4785 CRB-2-04-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 28, 2005

JOAN T. CARTER

CLAIMANT-APPELLEE

v.

ARAMARK CORPORATION

EMPLOYER

and

SPECIALTY RISK SERVICES INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Robert Keville, Esq., Suisman, Shapiro, Wool, Brennan, Gray, & Greenberg, Suite 200, 2 Union Plaza, P.O. Box 1591, New London, CT 06320.

The respondents were represented by Kevin Blake, Esq., and Robert J. Sciglimpaglia, Esq., Shepro & Blake, LLC, 2051 Main Street, Stratford, CT 06615.

This Petition for Review from the February 10, 2004 Finding and Award of the Commissioner acting for the Second District was heard September 24, 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Aramark Corporation and Specialty Risk Services, Inc., have appealed from the February 10, 2004 Finding and Award of the Commissioner acting for the Second District.1 We affirm the decision of the trial commissioner.

The pertinent facts are as follows. On October 25, 2001 the claimant twisted her right knee during the course of her employment with the respondent employer. The resulting knee injury was accepted as compensable and was the subject of an August 4, 2003 Voluntary Agreement. The claimant was initially treated at the Memorial Health Center where x-rays taken of her knee revealed a degenerative change. On December 3, 2001 the claimant had her knee evaluated by Dr. Robert Jung, a surgeon who had previously performed a hip replacement on her in 1999. Dr. Jung opined that the x-rays confirmed a loss of medial joint space consistent with osteoarthritis and was approaching bone on bone contact.

On December 24, 2001 the claimant underwent an MRI which revealed a degenerative change with slight bone bruises and a tear of the medial meniscus. At that time, the claimant was referred to Dr. James Kelly who examined the claimant on January 3, 2002 and diagnosed her with a tear in the medial meniscus superimposed on degenerative arthritis. Dr. Kelly recommended that the claimant undergo arthroscopic surgery which he ultimately performed on February 13, 2002. During the surgery Dr. Kelly found a significant degenerative change of the femoral condyle and tibial plateau as well as a tear of the posterior horn of the meniscus which he repaired.

The claimant experienced unremitting pain in her right knee post arthroscopic surgery. Dr. Kelly injected Cortisone in the claimant’s knee in an attempt to relieve this discomfort. Unfortunately, the claimant’s knee pain persisted, therefore, on May 10, 2002 Dr. Kelly recommend that the claimant undergo a total right knee replacement.

On June 14, 2002 the claimant sought a second opinion from Dr. Christopher Hutchins who suggested the claimant was suffering from end stage medial compartment arthritis. Dr. Hutchins concurred with Dr. Kelly’s recommendation for a total knee replacement. On April 8, 2003 Dr. Hutchins performed a right total knee replacement on the claimant and as a result the claimant was totally disabled from April 1, 2003 through July 14, 2003.

The claimant testified that prior to the October 25, 2001 injury she had not experienced problems or pain in her right knee. She testified that before that injury she routinely walked six miles a day, played golf, was active with her grandchildren and was able to perform work activities without any discomfort.

Dr. Kelly opined the claimant’s right torn meniscus injury was related to the October 25, 2001 incident. Dr. Hutchins opined that due to the fact that the claimant had not experienced prior knee pain, the work related injury was likely a substantial contributing factor which led to the claimant’s end stage arthritis and total knee replacement.

Dr. David Burnstein evaluated the claimant on July 30, 2002 at the respondent’s request. Dr. Burnstein suggested the claimant’s significant degenerative arthritis caused the claimant’s pain and subsequent need for surgery. He further opined that although the October 25, 2001 injury was a contributing factor to the claimant’s need for a knee replacement, it was not a primary factor. Dr. Burnstein indicated that the work related injury caused the claimant’s torn meniscus and accelerated the necessity for a total knee replacement.

On March 4, 2003 Dr. Gordon Zimmerman performed a Commissioner’s Examination on the claimant. As a result of this examination, Dr. Zimmerman opined the claimant’s severe medial compartment degenerative joint disease caused the claimant to require a knee replacement. He further suggested that the claimant’s October 25, 2001 injury did not specifically cause her torn meniscus. Dr. Zimmerman testified that the arthroscopic procedure the claimant underwent accomplished nothing and actually worsened the claimant’s condition. In his view, although it was medically possible that the claimant had not experienced right knee pain prior to the October 25, 2001 injury, given the claimant’s stage of degeneration it was unlikely.

The trial commissioner determined that “the October 25, 2001 injury was a new discrete identifiable event which was the agent of the exacerbation of the claimant’s underlying degenerative condition and along with the unsuccessful arthroscopic surgery necessitated, precipitated, and accelerated the need for the right total knee replacement.” Findings, ¶ F. Therefore, the trier ordered the respondents to pay all reasonable and necessary medical expenses that resulted from the claimant’s total knee replacement surgery. Additionally, the trier ordered the respondents to pay the claimant total disability benefits from April 1, 2003 through July 14, 2003. The respondents filed a Motion to Correct the findings which the trial commissioner denied in its entirety.

The respondents have appealed this award and contend that the trial commissioner erred in finding that the October 25, 2001 accident was a substantial factor which led to the claimant’s need for a total knee replacement. Specifically, the respondents argue the trial commissioner erred in finding that the claimant did not have prior knee pain because there was contradictory evidence in the record.

Whether an injury arose out of and in the course of a claimant’s employment is a factual determination to be made by the trial commissioner. Rampulla v. Fox Hill Nursing & Rehabilitation Center, 4696 CRB-1-03-7 (June 23, 2004); Drivas v. Fair Auto Parks, 4383 CRB-7-01-4 (March 1, 2002). We will not disturb a factual finding unless the trier has incorrectly applied the law or made an illegal or unreasonable inference from the subordinate facts. Bilsky v. Ansonia Copper & Brass, 4703 CRB-5-03-8 (August 23, 2004); Labadie v. Norwalk Rehabilitation Services, 4254 CRB-7-00-6 (June 21, 2001).

In workers’ compensation cases an “employer takes the employee in the state of health which it finds the employee.” Epps v. Beiersdorf, 41 Conn. App. 430, 435 (1996). If an employee’s pre-existing condition is substantially accelerated by an employment activity, the resulting injury may be compensable. Franco v. Dependable Motors Inc., d/b/a Branford Dodge, 4281 CRB-3-00-8 (July 17, 2001) citing Seeger v. Naugatuck, 15 Conn. Workers’ Comp. Rev. Op. 240, 2220 CRB 5-94-11 (May 9, 1996).

Here, there was medical evidence in the record which clearly supported the trial commissioner’s findings. Dr. Kelly and Dr. Hutchins both opined that the claimant’s work related injuries led to her need for subsequent surgeries. Dr. Burnstein, the respondents’ independent medical examiner, described the claimant’s fall as the “straw that broke the camel’s back” resulting in the claimant’s need for a total knee replacement. Joint Exhibit 1, September 24, 2003 Deposition of Dr. David Burnstein, p. 14.

The respondents suggest that the trier should have assigned greater weight to Dr. Zimmerman’s opinion because he examined the claimant at the request of a trial commissioner. While we recognize that the results of a Commissioner’s Examination performed pursuant to § 31-294f C.G.S. should provide strong guidance to the trier, a trial commissioner is not barred from disregarding that opinion if they believe there is good reason to do so. Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam); Champagne v. O.Z. Gedney, 4425 CRB-5-01-8 (May 16, 2002).

Here, the trial commissioner explained that he gave Dr. Zimmerman’s opinion less weight because it was based on the assumption that the claimant must have suffered from right knee pain prior to the work related injury. However, the trier explained that he found the claimant was credible when she testified that she had no right knee pain prior to the work related injury. Findings, ¶ H. We find this explanation reasonable and believe that the trier acted within his authority when he gave less weight to the Commissioner’s Examiner’s medical opinion.

The respondents also suggest that a notation from Dr. Jung’s June 6, 2001 medical record contradicts the trier’s finding that the claimant never experienced prior knee pain. In that note Dr. Jung states, “Joan Carter seen today with a history of having fallen six months ago and landing on her knees with soreness in her knees at the time and with subsequent pain in the buttock and thigh which happened originally and then seemed to disappear.” Claimant’s Exhibit A, report dated June 6, 2001. We do not think Dr. Jung’s notation specifically indicates any ongoing knee pain that might be attributable to the claimant’s degenerative condition. The claimant was not seeing Dr. Jung for knee pain at that time; she was seeing him for buttock and thigh pain. Furthermore, even if the trier found Dr. Jung’s note inconsistent with the claimant’s testimony at trial, inconsistencies in the evidence must be resolved by the trier. The trial commissioner “may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi, supra, citing, Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). For these reasons, we find no error in the trial commissioner’s determination that the claimant had not experienced prior knee pain.

The respondents further suggest the claimant should have produced testimony or a medical opinion from Dr. Jung because he had treated the claimant for a number of years and had specific detailed knowledge about the claimant’s medical history. Respondents’ Brief, p. 4. Although the claimant has the burden of proving her case, there is no specific requirement that she produce detailed medical opinions from every doctor that has treated her. Therefore, we do not think the trier’s findings are flawed based on the fact that there was no further evidence in the record regarding Dr. Jung’s treatment and/or medical opinion. However, if the respondents had questions or concerns about Dr. Jung’s treatment of the claimant they were free to inquire further and/or depose Dr. Jung in order to get this information into the record if they thought it to be necessary.

Therefore, we affirm the decision of the trial commissioner.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

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

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