State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Orlando v. Reliable Construction Services et al.

CASE NO. 4791 CRB-8-04-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 6, 2005

KRIS ORLANDO

CLAIMANT-APPELLEE

v.

RELIABLE CONSTRUCTION SERVICES

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

and

BROWNSTONE CONSTRUCTION CO., INC.

EMPLOYER

and

MAC RISK MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul J. Dorsi, Esq., Donahue, Votto & DeGennaro, P.C., 415 Main St., P.O. Box 411, West Haven, CT 06516-0411.

The respondents Reliable Construction Services and Hartford Insurance Group were represented by John Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

The respondents Brownstone Construction Co. and MAC Risk Management were represented by Clayton Quinn, Esq., Cotter, Cotter & Quinn, LLC, 6515 Main Street, Suite 10, Second Floor, Trumbull, CT 06611.

These Petitions for Review from the February 20, 2004 Finding and Award of the Commissioner acting for the Eighth District were heard 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, Jr.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Reliable Construction Services (hereinafter “Reliable”) and its insurer Hartford Insurance Group (hereinafter “Hartford”), and the respondent Brownstone Construction Co., Inc. (hereinafter “Brownstone”) and its insurer MAC Risk Management (hereinafter “MAC”) have each petitioned for review from the February 20, 2004 Finding and Award of the Commissioner acting for the Eighth District. The only claims of error raised on appeal are those of Reliable and Hartford, who contend that the trier erred by failing to find that the claimant’s symptoms constituted a new injury within the meaning of the law, thereby requiring liability to rest with Brownstone and MAC.1 We find no error, and affirm the trial commissioner’s decision.

The claimant sustained a compensable back injury on January 16, 2001, while working for the respondent Reliable. Dr. Sabshin, his treating physician, performed disc surgery for this injury on March 13, 2001, and benefits were paid by Reliable’s workers’ compensation insurer, the respondent Hartford. Dr. Sabshin opined on October 17, 2001 that the claimant had reached maximum medical improvement with a 15% permanent partial disability of his back. The claimant experienced symptoms of increasing back pain afterward, with pain in his right leg and numbness in his right foot. On January 17, 2002, Dr. Sabshin ordered another MRI. On April 19, 2002, the claimant underwent an MRI scan that revealed a residual disc herniation at L4-L5, the same level where surgery had been performed.

Meanwhile, due to a change in his shop’s unionization policy, the claimant had become an employee of the respondent Brownstone in late January of 2002. He had been actively treating for his deteriorating back condition since that time, and testified that the pain had been getting worse in late June and July of 2002. On July 28, 2002, the claimant was lifting a 40-pound portion of a conveyor belt with two other Brownstone employees when he felt pain. He did not complete work on that date. On July 30, 2002, he attended a previously scheduled office visit with Dr. Sabshin, who totally disabled him from employment. Another MRI was performed and paid for by Brownstone’s Insurer, MAC, in 2003. Dr. Sabshin testified that there was no significant difference between the results of that MRI and the ones performed prior to July 28, 2002. He opined that the claimant had no increase in terms of neurological injuries or new injuries. The respondents requested that the claimant be examined by Dr. Torrey, who saw the claimant and issued a report on July 22, 2003. Dr. Torrey stated that there was a degree of new injury in July 2002, and that the claimant’s subjective symptoms were worse after the July 28, 2002 incident.

Based on these facts, Reliable contended that the July 28, 2002 incident had resulted in a new injury, or was at least a substantial contributory factor to the claimant’s current medical condition. The trial commissioner disagreed. He found the testimony and opinion of Dr. Sabshin to be more credible and persuasive than that of Dr. Torrey, and found that there were no significant physiological changes in the claimant as a result of the July 28, 2002 incident. He therefore dismissed the claim against Brownstone and MAC, and directed that Reliable and Hartford accept responsibility for paying the claimant’s total disability benefits and medical care from July 28, 2002 forward. That ruling is now before us on appeal.

The appellants frame their allegation of error around the denial of their Motion to Correct, wherein they sought the addition of certain findings to the trier’s decision. They had cited testimony by the claimant where he stated that, during the four to six weeks prior to July 28, 2002, he had been experiencing more and more pain each day, making it harder to recover for work the following day. August 22, 2003 Transcript, p. 14. They had also directed the commissioner’s attention to several statements made by Dr. Sabshin that were supportive of the notion that something of significance had happened to the claimant 2’s back on July 28, 2002. In his August 1, 2002 report, Dr. Sabshin had referred to an injury history of “major lifting of some type of cash register” that led to “acute exacerbation of back pain.” Claimant’s Exhibit L. He also opined that the claimant was not at maximum medical improvement as of September 9, 2002, due to “an exacerbation and continuation of his original injury.” Claimant’s Exhibit M. At his deposition, Dr. Sabshin acknowledged that the claimant was not totally disabled prior to July 28, 2002, and reasoned that “something happened that day,” though he could not provide a precise physiological explanation for the claimant’s sharply increased pain. Respondent’s Exhibit 7, pp. 50-51.

Via these requested corrections, the appellants hoped to factually establish that the claimant had suffered a new injury on July 28, 2002, or an otherwise significant event that constitutes a personal injury under § 31-275(16). In their brief, they rely on this board’s decision in Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001). They view Kisson as “appear[ing] to require that the commissioner go beyond the findings he made and address the evidence of the injured worker’s increasing pain in response to continued work for his employer as Brownstone Construction.” Brief, p. 5. The financial consequences to the respondents if a new injury is established are heightened in light of our Supreme Court’s recent decision in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). There, the Court confirmed that, in cases involving two separate and identifiable injuries that combine to produce incapacity, § 31-349 C.G.S. requires the insurer on the risk for the most recent injury to assume full liability for the resultant disability and medical care. No apportionment is available as a form of relief against the insurer on the risk for the prior injury, either by statute or common-law theory.

In a workers’ compensation case, the trial commissioner is the sole finder of fact, and has the exclusive authority to determine the credibility of witnesses and medical evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). A necessary component of that authority is the right to choose among conflicting medical reports, as well as the right to accept all, part or none of any given physician’s opinion. Tartaglino, supra; Champagne v. OZ/Gedney, 4425 CRB-5-01-8 (May 16, 2002). This board cannot reverse such factual inferences on review. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). In that light, we must consider the possibility that, by denying the appellants’ Motion to Correct, the trial commissioner was effectively stating that he did not find those portions of Dr. Sabshin’s testimony credible, or material to the outcome of the case. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

During the questioning of Dr. Sabshin by Brownstone’s attorney, the doctor testified that he thought the claimant had suffered an original injury in 2001. After showing some improvement, he was released to work, but didn’t seem to be tolerating it well. Pain in his right leg and back had increased. On July 28, 2002, the claimant had an “acute event” after which he was even worse. Respondent’s Exhibit 7, p. 40. Dr. Sabshin explained that the claimant would not have had the acute event had he not had the original injury. Counsel then asked him, “If Mr. Orlando had back pain on a specific day, that doesn’t necessarily mean that there was a new injury, reinjury, exacerbation or aggravation on that date, correct, it could be simply a continuation of a problem?” Id. To that question, Dr. Sabshin replied, “Yes.” As a follow-up, counsel asked, “And if he has good days and bad days, the back pain can be worse on some days and better on other days without there being an exacerbation or aggravation, correct?” Id. Again, the doctor answered in the affirmative. Dr. Sabshin then confirmed that there was no indication of any physiological change to the claimant’s back because of the July 28, 2002 incident.

The attorney for Reliable then asked the doctor whether, in his opinion, there had been subsequent trauma that had increased the claimant’s symptoms. He replied, “[The claimant] had what I called an acute exacerbation of pain in July of 2002. I don’t have any objective evidence at least at this point other than his clinical examination that there was trauma, per se. I don’t have a change on MR scan or a CAT scan or x-rays or any facet blocks which might show me a decrease in pain if I anesthetize those joints, but that doesn’t mean there hasn’t been trauma. The bottom line is I really can’t tell you.” Id., p. 43. Dr. Sabshin also thought that his disability rating in October 2002 may have been premature, as the claimant had gotten worse, and it was possible that his disability had increased. He did not say that the claimant had definitely undergone an acute event to trigger that increase in symptoms, however. Dr. Sabshin instead noted that the claimant had given him a history of an acute event on the day he saw him, which the doctor recorded on his chart. The claimant was indeed totally disabled after that, but Dr. Sabshin could not say with reasonable medical probability that an identifiable injury either had or had not occurred on July 28, 2002. The most he could say was that “something happened that day,” but he did not know whether it was physiological, a joint or nerve injury, a stretching, or a deterioration. Id., p. 51.

In relying on Dr. Sabshin’s testimony, the trial commissioner was entitled to consider the totality of that testimony and draw factual inferences as to its overall meaning. In doing so, there was ample room for the trier to place significance on the doctor’s statements that he was not able to identify a specific injury, aggravation or exacerbation within a reasonable degree of medical probability. Such a quantum of proof is required in order to constitute competent medical evidence. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” Id., 555. Because Dr. Sabshin could not say that the claimant’s employment with Brownstone contributed to a specific injury, exacerbation or aggravation, it was reasonable for the trier to rely on that opinion and to assign liability to Reliable and its workers’ compensation insurer.

In Kisson, on which the appellants seek to have us rely, the claimant’s treating physician was of the opinion that the claimant’s workload subsequent to a 1995 repetitive trauma injury had aggravated her condition of epicondylitis. The trial commissioner had relied upon that doctor’s opinion, but held that liability was attributable to the initial injury. This board held on review that the trier should have considered whether the case of Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996) (doctor’s testimony that workplace exposure was “aggravating factor” on preexisting respiratory condition brought it within § 31-275(1)(D)), had any legal implication on his holding, as the treating physician had identified an “aggravation.” See also, Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30, 1992) (workplace exposure aggravated underlying lung disease).

Under Kisson, however, it is not a mere increase in pain or symptoms that triggers a finding of a new injury or aggravation within the meaning of the Workers’ Compensation Act. Some finding that subsequent work exposures have contributed to a claimant’s condition must also be present. To illustrate, we cite the language in a similar case, Sadosky v. U.S. Properties, Inc., 4751 CRB-2-03-11 (November 2, 2004), that relied on the Kisson holding. There, we explained, “Dr. Stuart’s opinion was that the claimant’s symptoms never vanished, but rather continued steadily throughout the entire period (of repetitive right extremity use). This differs from Dr. Ashmead’s opinion that the claimant’s symptoms were well-established at the time of diagnosis and that her employment after that initial diagnosis was not contributory.” Sadosky, supra. In that case, the trier accepted the report of Dr. Stuart, which supported a worsening of the condition along with a worsening of symptoms.

Here, in contrast, the trier accepted the report of Dr. Sabshin, who was unable to state with sufficient probability that the claimant’s condition had identifiably worsened due to subsequent workplace trauma. We note also that the April 2002 MRI, which was performed in response to the symptoms that the claimant was already complaining of in January 2002, showed that a residual disc herniation had occurred at L4-L5, several months prior to the July 28, 2002 occurrence. Accordingly, the legal analysis of Kisson and related cases is inapposite. The trier permissibly found that there was insufficient evidence to support the occurrence of a new injury, and it is the duty of this board to defer to that finding on review.

The trial commissioner’s decision is accordingly affirmed.

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

1 Counsel for the respondents Brownstone and MAC filed a petition for review on March 10, 2004, presumably as a follow-up to the filing of a Motion to Correct on March 4, 2004. The corrections sought by counsel were primarily to correct minor errors in the trier’s decision, as Brownstone and MAC had not been found liable for the claimant’s medical condition. The trial commissioner granted each of the five corrections sought by Brownstone and MAC on April 27, 2004, and no further action was taken on their petition for review. As no documents have been filed by Brownstone and MAC alleging error in the trier’s decision, we dismiss their petition for review pursuant to Practice Book § 85-1. BACK TO TEXT

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