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Piscitelli v. Textron Lycoming Division

CASE NO. 4793 CRB-4-04-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 7, 2005

GENE PISCITELLI

CLAIMANT-APPELLANT

v.

TEXTRON LYCOMING DIVISION

EMPLOYER

and

TRAVELERS PROPERTY CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Howard Eckenrode, Esq., Meuser, Eckenrode & Hayes, 86 Cherry Street, P.O. Box 507, Milford, CT 06460.

The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 17, 2004 Finding and Award in Part and Dismissal in Part of the Commissioner acting for the Fourth District was heard October 22, 2004 before a Compensation Review Board panel consisting of Commissioners Charles F. Senich, Leonard S. Paoletta and Howard H. Belkin.

OPINION

CHARLES F. SENICH, COMMISSIONER. The claimant, Gene Piscitelli, has appealed from the March 17, 2004 Finding and Award in Part and Dismissal in Part of the Commissioner acting for the Fourth District.1 We affirm the decision of the trial commissioner.

Initially, we will address the respondents’ September 3, 2004 Motion to Dismiss based upon the claimant’s failure to file a timely brief. In response to that motion the claimant filed a Motion for Leave to File Brief Out of Time on September 10, 2004. The claimant’s counsel explained that through an inadvertent error he failed to prepare and file a timely brief and stated that he had alleged a good basis for the appeal. The claimant filed his brief on September 29, 2004 which allowed the respondents adequate time to file a reply brief prior to the oral argument before this panel on October 22, 2004. The respondents have not alleged any prejudice, therefore, we deny the respondents’ Motion to Dismiss. See, Fox-Gould v. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001).

The pertinent facts are as follows. The claimant has a complex medical history. Dr. Eric M. Garver has been treating the claimant for left knee problems due to an injury the claimant sustained in the 1980’s. Claimant’s Exhibit YY, June 19, 2003 Deposition of Dr. Eric M. Garver, p. 5. The claimant underwent ongoing treatment for that injury which spanned over decades. He went through over twenty surgical procedures which were performed by various surgeons in three different states. He endured extensive physical therapy and was prescribed anti-inflammatory and pain medications. He had knee injections and used a TENS unit.2 Id., p. 6. As a result of this knee injury the claimant experienced chronic posttraumatic arthritis of the entire knee. Id.

On November 4, 1989 the claimant sustained an accepted compensable left knee injury at work as a result of an electrocution accident while working for the respondent-employer. January 9, 2002 Transcript, p. 45. At the formal hearing the claimant sought compensability of injuries to his hands, wrists, fingers, left hip, right foot, right toe and back relating to that same incident. The claimant also sought compensation for a related psychological claim, pain management and § 31-312 C.G.S. reimbursement for prescriptions and mileage. Additionally, the claimant made a claim for temporary total disability benefits.3

The claimant testified about the medical problems which he believed were the result of the November 4, 1989 injury. He described the pain medications he was taking and the side effects he experienced from the drugs. He listed many of the doctors he had treated with or been evaluated by. The claimant testified that he believed that he was unable to work. He described how his activity level changed after the injury. He testified that he had done minimal retraining and performed few job searches since September 1996.

The medical providers the claimant had treated with and/or been evaluated by have varied opinions regarding the claimant’s work capacity. On June 19, 2003, the claimant’s treating physician, Dr. Garver opined that the claimant had been temporarily totally disabled since January 2000. The claimant’s therapist, Mark Curri, MA LMFT, stated that the claimant was unable to work due to psychological problems related to the November 4, 1989 injury. On July 17, 2000, Dr. Mark Thimineur, the claimant’s pain management physician, opined that the claimant was unable to work. Claimant’s Exhibit CC. On October 21, 1999 Dr. Carmen Luciano, the claimant’s podiatrist, stated that the claimant was totally disabled from January 26, 1999 through August 23, 1999 due to surgery, treatment and removal of plates on the claimant’s foot.

On August 3, 1998 Dr. Andrew N. Brazos, the commissioner’s examiner, opined that the claimant had a light-duty capacity and needed to be retrained and partake in work hardening. Claimant’s Exhibit J. On April 8, 1998 Dr. Robert Fisher performed an independent medical examination and opined that the claimant was capable of sedentary work. On May 14, 2000 Dr. Lloyd Saberski opined that the claimant should be able to perform sedentary duty. On September 3, 2002 Dr. Steven E. Selden4 stated that the claimant was not totally disabled from his left knee or lower back injuries and expressed the opinion that the claimant was capable of light-sedentary work.

The trial commissioner found that the claimant was not totally disabled except for the period of January 26, 1999 through August 23, 1999 which related to the claimant’s foot injury. The trial commissioner found that the claimant’s testimony regarding his inability to work was not credible and/or persuasive except for the period of January 26, 1999 through August 23, 1999.

Medical opinions regarding the claimant’s on-going need for pain management were conflicting. Dr. Thimineur, who was treating the claimant, opined that the claimant needed ongoing pain management treatment. Dr. Saberski opined that the claimant had reached maximum medical improvement from a pain management perspective. Dr. Fisher questioned whether the claimant was a good candidate for the pain management treatment he was receiving.5 Respondents’ Exhibit 1. The trial commissioner found Doctors Saberski’s and Fisher’s reports pertaining to pain management more credible and persuasive than Dr. Thimineur’s opinion. The trial commissioner determined that the claimant’s testimony regarding his pain management claim was not credible and/or persuasive.

The claimant testified to injuries to his left hip, hands and wrist. In a deposition dated June 19, 2003 Dr. Garver stated that he believed these injuries were attributable to the claimant’s November 4, 1989 injury. The trial commissioner found that the claimant’s testimony was not credible and/or persuasive regarding those injuries. For this reason, the trier determined that the doctors who stated the same opinion were not credible or persuasive.

There were conflicting medical opinions in the record regarding the claimant’s alleged psychological injury. Dr. Curri stated that the claimant had psychological problems which related to his November 4, 1989 injury. On August 23, 2002 Dr. Mark Rubinstein opined that the claimant did not have a psychiatric disability and did not require psychiatric treatment as a result of the work related injury. The trial commissioner found the claimant’s testimony regarding his alleged psychological injury was not credible and/or persuasive. The trial commissioner was persuaded by Dr. Rubinstein’s opinion and found that the claimant did not suffer from a psychiatric disability.

The claimant has appealed the commissioner’s findings. The claimant contends that the commissioner erred in failing to find that the claimant was totally disabled. Whether a claimant is totally disabled is a factual determination for the trial commissioner to make based on the weight and credibility that he gives to the evidence before him. Dudley v. Wadsworth Glen, 3942 CRB-8-98-12 (October 14, 1999), aff’d, 60 Conn. App. 907 (2000)(per curiam); Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998); Meredina v. Anderson Insurance Co., 3460 CRB-3-96-11 (April 8, 1998). Upon reviewing the evidence which forms the foundation of this determination, we will not disturb the commissioner’s decision unless his conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Here doctors Fisher, Bazos, Rubinstein and Selden all opined that the claimant had a work capacity. Although the claimant’s treating physicians had a different opinion, it is the trial commissioner’s prerogative to be the arbiter of competing medical opinions. D’Agostino v. Hamilton Standard, 4146 CRB-6-99-11 (February 21, 2001); Sealey v. Pfizer, Inc., 3708 CRB-8-97-10 (January 28, 1999).

The claimant asserts that the commissioner’s findings regarding total disability are flawed because the trier’s reliance on the respondents’ experts which only evaluated whether the knee, the back, or the psychiatric disability alone would disable the claimant. The claimant contends that the trier must rely on an opinion that takes into account the combination of all of the claimant’s injuries. Below we affirm the trier’s findings that the claimant’s only disabilities relate to his knee and foot. For this reason, there is no need for a more inclusive medical opinion than those on which the trial commissioner relied. However, we note that the trial commissioner ultimately decides the extent to which a medical opinion is relevant to the claimant’s injuries. It is the duty of this board to defer to that determination on review as long as it is based on the evidence before him. Here, there is evidence on which the commissioner could rely that the claimant was not totally disabled based on the injuries that the trier found to be compensable, therefore, we see no error.

The claimant asserts that the trial commissioner erred in failing to make an award for the claimant’s pain management treatment. The claimant contends that because he has an accepted injury with undisputed associated pain the commissioner must necessarily order that the claimant is entitled to on-going pain management treatment. The commissioner is entitled to credit which ever medical opinion he regards as the most persuasive as long as the opinion is made with a reasonable degree of medical probability. Orlando v. Reliable Construction Services, 4791 CRB-8-04-3 (April 6, 2005); Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004). Here the trier was not persuaded that the claimant needed pain management treatment. This decision was supported by the record. Dr. Fisher stated that he questioned whether the claimant was an appropriate candidate for the pain management treatment. Respondents’ Exhibit 1. Dr. Saberski opined that the claimant was not a good candidate for pain management. Respondents’ Exhibit 11. Dr. Saberski stated, the “patient’s own statements indicate the medication [he is currently on for pain] is not very good.” Id. He further advised, “prescription medication can be helpful for genuine pain, but can become a crutch that fails to allow patient independence.” Id. Additionally, Dr. Rubinstein commented that the claimant was “pharmacologically addicted to various analgesics,” and that this addiction “has become a way of life for Mr. Piscitelli.” Respondents’ Exhibit 14. Given the totality of these opinions we find the commissioner’s determination to deny the claimant’s claim for pain management treatment is reasonable and we will not overturn that decision on appeal.

The claimant also alleges that the trial commissioner erred in failing to find that he had a psychiatric disability. Dr. Rubinstein clearly opined that claimant did not have a psychiatric disability. Finding, ¶ 21; Respondents’ Exhibit 14. The claimant suggests that the fact that claimant was on the verge of tears during his examination with Dr. Rubinstein and the fact that Dr. Rubinstein opined the claimant presented with some elements of dysthymic disorder were inconsistent with Dr. Rubinstein’s ultimate conclusion that the claimant was not disabled.6 In the claimant’s view, these inconsistencies make Dr. Rubinstein’s opinion unreliable. We disagree. Although Dr. Rubinstein opined that the claimant had some elements of dysphoria,7 Dr. Rubinstein believed that the claimant did not present with any indications of Major Depression. Respondents’ Exhibit 14, pp. 10-12. Dr. Rubinstein explained,

He [the claimant] is not psychotic. He does not have any cognitive impairment of any kind. He is obviously intelligent and is able to understand and follow instructions in any work situation. He is clearly capable of performing both simple, repetitive tasks as well as complex and varied tasks. On a psychiatric basis Mr. Piscitelli could maintain any reasonable work pace. He is eminently capable of relating to other people in giving or receiving instruction and in maintaining cordial relationships with others. He is clearly an articulate and outgoing individual who is capable of influencing people. Mr. Piscitelli is able to make generalizations, evaluations, and can make independent decisions about any of a variety of issues. He is clearly capable of planning ahead and has no work restrictions from a psychiatric perspective. Id., p. 12.

Dr. Rubinstein’s report could reasonably be read to state that although the claimant has symptoms of a disorder, those symptoms did not render him disabled from a psychiatric standpoint. As the trial commissioner’s findings and conclusions are fully supported by the evidence in the record, we must let those findings stand. Ferrara v. The Hospital of St. Raphael, 3260 CRB-3-96-2 (November 18, 1997), 54 Conn. App. 345, 349 (1999), cert. denied, 251 Conn. 916 (1999); Scrivano v. UTC/Pratt & Whitney, 12 Conn. Workers’ Comp. Rev. Op. 87, 1501 CRB-1-92-9 (February 14, 1994).

The claimant also contends that the trial commissioner erred in failing to find his hand and wrist injuries were compensable. The claimant contends the only evidence submitted regarding the claimant’s trigger finger and carpal tunnel syndromes was Dr. Garver’s opinion that the conditions were causally related to his prolonged use of crutches for the compensable knee injury. The claimant has given his subjective belief that the hand and wrist injuries were related to his knee injury. The trier specifically found, “[a]s I do not find the Claimant’s testimony credible or persuasive as to his left hip, hands, wrist, fingers, pain management and psychological issues, I do not find as credible or persuasive any doctors who state the same as to that position.” Finding, ¶ L. As we have said before, the trial commissioner has the discretion to credit all, part or none of the medical evidence in the case. Parisi v. Yale University, 4606 CRB-3-02-12 (March 4, 2004), aff’d, 89 Conn. App. 716 (2005); Maitland v. Home and Buildings Control, 4623 CRB-3-03-2 (January 13, 2004). Here the trial commissioner chose to discredit the medical evidence regarding the hand and wrist injuries because he found that the claimant’s testimony regarding these injuries was not credible. We will not overturn that decision on appeal.

The claimant also contends that the trial commissioner erred in failing to find his hip injury to be compensable. The allegations of hip pain in the claimant’s medical records all stem from the claimant’s own subjective complaints. See Claimant’s Exhibits L, N, MM. Dr. Bazos opined that the claimant had trouble gauging his own pain. Claimant’s Exhibit J. Here, evidently the trier felt that the claimant’s testimony regarding these injuries was not credible, therefore, he found it necessary to disregard the medical opinions which related these injuries. In a workers’ compensation case, the claimant has the burden of proving injuries were causally connected to the workplace, and to do so via competent evidence. Keenan v. Union Camp Corporation, 49 Conn. App. 280, 282 (1998). Ultimately, physicians commonly rely on a patient’s oral history to diagnose the cause of an injury. However, where a trier rejects a claimant’s recounting of the circumstances surrounding an injury it may be reasonable for him to reject the related medical opinions of compensability. Sprague v. Lindon Tree Service, Inc., 4460 CRB-2-01-11 (November 15, 2002), aff’d, 80 Conn. App. 670 (2003); Palandro v. Bernie’s Audio-Video TV & Appliances, 3876 CRB-3-98-8 (September 2, 1999). For this reason we find the commissioner’s determination regarding the left hip to be reasonable and will not reverse it on review.

For these reasons we affirm the decision of the trial commissioner.

Commissioners Leonard S. Paoletta and Howard H. Belkin concur.

1 Extensions of time were granted throughout the Appellate process. BACK TO TEXT

2 The American Heritage Stedman’s Medical Dictionary (2001) defines TENS as “Trancutaneous electric nerve stimulation; a technique used to relieve pain in an injured or diseased part of the body with electrodes applied to the skin deliver intermittent stimulation to surface nerves and block the transmission of pain signals.” BACK TO TEXT

3 The claimant also sought authorization to treat with an out-of-state physician, however, that issue had been previously resolved in a Finding and Dismissal dated August 13, 1996. Finding, ¶¶ 18, O. BACK TO TEXT

4 Although Finding ¶¶ 19, 20, G, H, and I reference “Dr. Sheldon,” the doctor that examined the claimant is Dr. Steven E. Selden. See Respondents’ Exhibit 13. BACK TO TEXT

5 Dr. Fisher’s April 8, 1998 report states in relevant part: “I have not had any good personal experience with the Yale Pain Clinic [the facility where the claimant was treating with Dr. Thimineur] and wonder if this man would be a respectable candidate for it.” Respondents’ Exhibit 1. BACK TO TEXT

6 The American Heritage Stedman’s Medical Dictionary (2001) defines Dysthymic disorder as “a chronic disturbance of mood lasting at least two years in adults or one year in children, characterized by recurrent periods of mild depression and such symptoms as insomnia, tearfulness and pessimism.” BACK TO TEXT

7 The American Heritage Stedman’s Medical Dictionary (2001) defines Dysphoria as “An emotional state marked by anxiety, depression and restlessness.” BACK TO TEXT

Workers’ Compensation Commission

Page last revised: July 25, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4793crb.htm

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