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Bailey v. Willimantic Dodge/Nissan Stripling Auto Sales

CASE NO. 4929 CRB-5-05-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 13, 2006

ROY BAILEY

CLAIMANT-APPELLEE

v.

WILLIMANTIC DODGE/NISSAN STRIPLING AUTO SALES

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., American Legal Services, LLC, 212 Talcottville Road, Route 83, Vernon, CT 06066.

The respondents were represented by Louis N. George, Esq., Hassett & George, P.C., 555 Franklin Avenue, Hartford, CT 06114.

This Petition for Review from the March 3, 2005 Finding and Award of the Commissioner acting for the Second District was heard October 14, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Michelle D. Truglia and Nancy E. Salerno.

OPINION

STEPHEN B. DELANEY, COMMISSIONER. The respondents have petitioned for review from the March 3, 2005 Finding and Award of the Commissioner acting for the Second District. They contend on appeal that the trier erred by awarding the claimant total disability benefits. We find no error, and affirm the trial commissioner’s decision.

The claimant suffered a compensable right hip injury on June 29, 1990, for which he was awarded a 12.5% permanent partial disability. He also made an unsuccessful claim for total disability benefits from July 27, 1993 through May 9, 1995. See Bailey v. Stripling Auto Sales, Inc., 3095 CRB-2-95-6 (June 28, 1996). Several years after the denial of that claim, the claimant returned to this Commission seeking § 31-307 C.G.S. total disability benefits from May 10, 1995 forward. The respondents raised the res judicata doctrine as a defense, and also made various objections to the claimant’s evidentiary offerings. After the trial commissioner issued a March 25, 2002 written decision denying the respondents’ motions, they filed an interlocutory appeal.

In Bailey v. Willimantic Dodge/Nissan, 4516 CRB-2-02-4 (May 8, 2003), this board ruled that the dismissal of the earlier total disability claim did not preclude the claimant from raising a new claim covering a subsequent period of time. “The two claims are legally distinct, even though they may stem from the same compensable injury, and even though the initial dismissal order may contain relevant findings of fact whose preclusive effect under the collateral estoppel doctrine would make it harder for a claimant to later prove that his condition has worsened enough to establish total disability.” We also upheld the trier’s decision to admit into evidence two sets of medical reports. The reports prepared by Dr. Lawrence were admissible, despite the respondents’ argument that they did not meet the “reasonable degree of medical probability” standard necessary to establish causal connection. “Whether or not the contents of such reports suffice to establish a causal relation between injury and disability is a separate question to be determined by the commissioner as part of the credibility-dependent factfinding process.” Id. With regard to Dr. Browning’s reports, the respondents argued that pursuant to Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961), they were inadmissible because they were based not upon his involvement as a treating physician, but on the evidence introduced at the first hearing. However, the reasoning of Zawisza and its progeny; see Brown v. Blauvelt, 152 Conn. 272 (1964); has been overruled by our Supreme Court, making any physician’s opinion admissible in a workers’ compensation case, even if it is based in part on hearsay statements made by a claimant. George v. Ericson, 250 Conn. 312 (1999). We therefore stated, “Any concern over the reliability of his report would, again, affect the weight to be assigned to that report, as opposed to its initial admissibility.” Bailey, supra.

The case then proceeded to additional formal hearings, where the claimant maintained his total disability claim and added an alternative claim for § 31-308a C.G.S. discretionary benefits. The trial commissioner found that Drs. Browning and Lawrence, both of whom are orthopedic physicians, pronounced the claimant totally disabled as a result of his 1995 compensable injury. Raymond Cestar, a vocational expert, also opined that the claimant was functionally and totally disabled. The trier noted that the claimant was currently 66 years of age, did mostly blue-collar labor during his adult years, had an eighth-grade education, and possessed poor speaking and communication skills. He also found that the claimant ambulates with a cane, and that he has trouble sitting, walking and driving because of his hip injury, which resulted in two surgeries. The trier found the claimant’s testimony to be credible.

The trier concluded that the claimant had sustained his burden of proof with regard to total disability as of September 7, 1999 (the date of Dr. Browning’s report), and ordered the respondents to pay the claimant total disability benefits from that date through the present, together with applicable COLAs. The trier rejected the total disability claim prior to September 7, 1999, due to insufficient evidence. He also appointed Dr. Schutzer as the claimant’s treating physician in the wake of Dr. Lawrence’s retirement. The respondents have appealed that decision to this board.

On appeal, the respondents challenge the trial commissioner’s reliance on the opinions of Drs. Browning and Lawrence, revisiting some of the objections that they attempted to raise in the prior interlocutory appeal. They continue to maintain that there was insufficient medical evidence to establish the claimant’s hip injury as a substantial cause of the claimant’s alleged total disability.

With regard to Dr. Browning’s opinion, he stated unequivocally in a September 7, 1999 letter that the claimant’s hip injury is the proximate cause of his total disability. “Despite the impairment from the prior back injuries, he was able to work until he fractured his hip, and after that he was not able to work or be gainfully employed.” Claimant’s Exhibit H. The respondents criticize this letter by stating that Dr. Browning did not express his opinion within a reasonable degree of medical probability, and citing Struckman v. Burns, 205 Conn. 542, 554-55 (1987). However, our Supreme Court stated in Struckman that reasonable probability requires a conclusion to be more likely than not. Id., 555. “Whether an expert’s testimony is expressed in terms of a reasonable probability . . . does not depend upon the semantics of the expert . . . but rather, is determined by looking at the entire substance of the expert’s testimony.” Id. Dr. Browning’s choice not to use words akin to “reasonable degree of medical probability” does not make his opinion on proximate cause any less definitive.

The nature of Dr. Browning’s involvement as a nontreating physician who only saw the claimant once does not bar the trier from relying on his opinion as part of the basis for his ultimate finding. As we held in our previous Bailey decision, the claimant was not precluded from entering Dr. Browning’s report into evidence even if he visited the doctor solely to obtain a medical opinion in contemplation of trial. Taking this one step further, Dr. Browning’s testimony was not less than competent simply because the claimant may have retained his services for a second opinion rather than for primary treatment.1 An expert’s opinion is not rendered inadmissible when it is based in part on statements by the patient that might constitute hearsay, as long as the opinion is based on trustworthy information which the expert had sufficient experience to evaluate so as “to come to a conclusion which the trial court might well hold worthy of consideration by the jury.” George, supra, 321, quoting Vigliotti v. Campano, 104 Conn. 464, 466 (1926). The evaluation process of a physician, whether it be for treatment or litigation, is usually no less reliant on a patient’s statements when the physician assumes the role of treating physician than it is when the physician has been engaged only to evaluate a party in anticipation of trial. George, supra, 323. “To the extent that a party’s statements to a nontreating physician may be subject to potential exaggeration, that merely supplies possible grist for the mill of cross-examination.” Id.

Dr. Browning’s November 27, 1998 report explains that he not only saw the claimant in person, but also reviewed some original films from Windham Hospital. He refers to observations made by other treaters (e.g., the claimant’s right side limp) and changes over time in the claimant’s condition, which strongly implies that he reviewed a number of prior medical records. In George, our Supreme Court noted that the examining physician’s expert opinion had taken into account “voluminous” medical records, his own physical examination of the plaintiff, and the history she gave him. “This is hardly material that provides an insufficiently reliable basis for an expert opinion, and is precisely the same material on which physicians who examine patients for the purposes of treatment rely.” Id. Though we cannot assert that the amount of information reviewed by Dr. Browning was “voluminous,” it was within the trier’s discretion to infer that it was sufficient to enable the doctor to issue a competent medical opinion establishing a connection between the claimant’s hip injury and his total disability.

The respondents assert that Dr. Browning had retired by the time of the 2002 formal hearing, making him unavailable for cross-examination. There is no indication, however, that the respondents ever sought to take Dr. Browning’s deposition during the course of the proceedings, or that he would have refused to make himself available for a deposition. Without more of a basis to demonstrate that Dr. Browning was unavailable or unwilling to testify, we have no ground to find that the respondents were deprived of an opportunity to cross-examine this expert in violation of due process. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974)(procedural due process is a requirement of workers’ compensation hearings).

Dr. Lawrence’s testimony, meanwhile, allegedly fails to link the claimant’s total disability to his compensable hip injury within a reasonable degree of medical probability. The respondents characterize his testimony as ascribing the claimant’s current disability to his supposed dropped foot condition, which the doctor could not say was due to the hip injury rather than the claimant’s preexisting back injury. In reviewing Dr. Lawrence’s deposition, we see that the respondents focus their questioning on the dropped foot, which Dr. Lawrence thought was most likely caused by nerve damage attendant to prior back surgery, though he could not be sure, saying, “something around the hip would still need to be ruled out by a neurologist, I would think.” Respondents’ Exhibit 3, p. 23; see also p. 9, 24. The claimant had presented with hip complaints during the early 1990’s, and the cause of his recurring pain had never been specifically identified by his treaters. The situation was described as “complicated” and “cloudy.” Id., pp. 23-24.

The claimant’s attorney, meanwhile, elicited testimony from Dr. Lawrence that the claimant’s work restrictions had increased between 1993 and the physician’s January 11, 2001 examination. Id., p. 38. Though the etiology of the problem was difficult to pin down, the doctor still confirmed that he agreed with Dr. Browning’s diagnosis within a reasonable degree of medical probability, i.e., that the claimant’s total disability was due to the right hip injury superimposed on his prior back surgery. This opinion was based on the fact that the claimant had returned to work after recovering from spinal surgery, but had not been able to go back to work following his hip injury. The doctor also mentioned a 1995 examination by Dr. Fredericks, a neurologist, that found no pathology in the lumbar nerve root, which would strengthen the argument that the hip injury somehow caused the claimant’s foot problems, via the intervening development of an altered gait and resultant tendon damage. Id., pp. 40-41. On recross-examination, Dr. Lawrence said, “I would conclude by saying that there is a relationship between the patient’s right foot problems and his right hip surgery and its aftermath, and the proximate cause of his disability is his right hip fracture with an underlying precursor of his S1 radiculopathy. . . . I think there’s some type of correlation and some type of relationship between [the right hip injury and the prior back surgeries]” Deposition, pp. 50, 52.

On review, it is not the duty of this board to make factual findings based on this testimony. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). Our role is to determine whether the trial commissioner drew permissible inferences from this testimony, and reached a conclusion that is supported by the evidence. Id. As we review the medical evidence, we keep in mind that the trier has discretion to make findings of evidentiary credibility, and to credit all, part or none of an expert’s testimony, resolving inconsistencies in the manner the trier sees fit. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).

Above, we have identified reasoning within the opinions of Dr. Lawrence and Dr. Browning that sets forth an understandable medical basis for a finding of compensable total disability. The trier found that reasoning persuasive, which was reasonable for him to do under the circumstances. We must respect the trial commissioner’s decision to rely upon that reasoning, and uphold the resultant findings. That is our duty as a review board.

Accordingly, the trial commissioner’s decision is affirmed. Insofar as any benefits may have remained unpaid pending the outcome of this appeal, interest is awarded as required by § 31-301c(b).

Commissioners Michelle D. Truglia and Nancy E. Salerno concur.

1 In fact, there are indications in the record that the claimant would have continued to see Dr. Browning for treatment if the respondents had not refused to pay Dr. Browning’s bill. March 12, 2002 Transcript, pp. 15, 31-32. The claimant also made a request to have Dr. Browning approved as his treating physician, which a trial commissioner denied on December 12, 2000, given that the doctor was in the process of retiring. See Claimant’s Brief, p. 10. BACK TO TEXT

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