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O’Connor v. Med-Center Home Healthcare, Inc.

CASE NO. 4954 CRB-5-05-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 17, 2006

JEAN O’CONNOR

CLAIMANT-APPELLEE

v.

MED-CENTER HOME HEALTHCARE, INC.

EMPLOYER

and

AIG CLAIMS SERVICES, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Brian Mongeluzzo, Esq., 80 Phoenix Avenue, Suite 201, Waterbury, CT 06702. However, counsel withdrew his appearance during the pendency of the appeal and claimant proceeded on her own behalf.

The respondents were represented by Robert Jahn, Esq., Morrison Mahoney, LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.

This Petition for Review from the June 7, 2005 Finding and Award of the Commissioner acting for the Fifth District was heard January 20, 2006 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, George Waldron and Ernie R. Walker.

OPINION

NANCY E. SALERNO, COMMISSIONER. There are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence. In the present case, the claimant seeks to be compensated for a pulmonary embolism she claims is the sequelae of an accepted compensable fall down injury. The respondents deny the embolism occurred. Following an extensive formal hearing, the trial commissioner agreed with the claimant and issued a Finding and Award determining the embolism occurred and was compensable. The respondents have appealed. Since we cannot interpose our evaluation of the evidence for that of the trial commissioner, we dismiss the appeal.

The following facts are not contested. The claimant was employed as a private duty nurse on December 27, 1996 when she fell on ice on a driveway in Newtown while in the course of her employment. Following the fall down she required wrist surgery. There has been a voluntary agreement reached for the fall down injury. On June 2, 1997 the claimant underwent carpal tunnel surgery at Waterbury Hospital to address her compensable wrist injury. There were complications within days from that surgery, as on June 7, 1997 the claimant complained of shortness of breath, swollen extremities, numbness and rapid pulse. She was admitted at Waterbury Hospital on June 8, 1997 for those symptoms. Her treating physician, Dr. Quinn, placed her on Coumadin following this episode.

The factual dispute centers upon the nature of the post-surgical complications. On June 12, 1997 and June 17, 1997 Dr. Quinn concluded that the claimant had suffered a pulmonary embolism. In 1999, the claimant had a CT scan done which identified an 8-centimeter size adrenal mass in her abdomen. Dr. Thomas Alosco surgically removed this growth and adjoining hemorrhagic tissue on October 1, 1999. Dr. Alosco has offered no opinion on the causation of the adrenal growth or whether the claimant has suffered a pulmonary embolism.

Dr. Daniel Gerardi conducted an independent medical examination of the claimant prior to the removal of the adrenal mass. He issued a report on June 16, 1999 in which he stated “I will assume for the purposes of this discussion that the embolism actually occurred.” He also stated “[t]here was historical evidence that made the embolism likely and some clinical findings also consistent with this diagnosis” while also noting the presence of some clinical findings not supportive of a finding of an embolism. (Emphasis added). Claimant’s Exhibit C.

Dr. Gerardi’s letter continues that based on the assumption an embolism occurred, “[i]n regards to causation of the embolism, it is more likely than not her injury and her apparent sedentary lifestyle, related to her recent surgery, were responsible for its development.” He further opined, “I would think that the injury sustained in her accident had contributed to this new development.” Id.

Another physician, Dr. Josel, reviewed the claimant’s medical records following the removal of her adrenal mass. He issued two reports. On October 1, 1999 he found the presence of a pulmonary embolism “questionable,” but had an embolism occurred that Coumadin therapy could have resulted in an adrenal hemorrhage causing the enlarged adrenal mass. Claimant’s Exhibit A. On November 17, 1999 he wrote a second report stating, “I feel that an embolism did not occur” and while in the absence of an angiogram he could not be “100% certain” he had an “honest medical opinion” an embolism had not occurred. Claimant’s Exhibit B.

The trial commissioner for the Fifth District held an extensive Formal Hearing in which the claimant testified, expert opinions presented, and the matter continued for the submission of briefs.1 The trial commissioner issued a Finding and Award on June 7, 2005. He found the claimant’s testimony persuasive and credible. He agreed with Dr. Quinn the claimant had suffered an embolism (Findings, ¶ e). He adopted Dr. Gerardi’s opinion it was likely due to her hand surgery (Findings, ¶ f). He adopted Dr. Josel’s opinion that if an embolism occurred, the Coumadin therapy probably caused a hemorrhage which caused the enlarged adrenal mass. (Findings, ¶ k). Finding the opinions of Dr. Quinn and Dr. Gerardi persuasive as to the causation of the embolism and that of Dr. Josel persuasive as to the causation of the hemorrhage, he determined that the pulmonary embolism and the removal of the adrenal mass were compensable injuries.

On June 14, 2005 the respondents prepared a Petition for Review from the Finding and Award. It was received at the Eighth District office on June 17, 2005. A Motion For Extension of Time To file Reasons of Appeal was not filed until July 5, 2005. On July 6, 2005 the claimant filed a Motion to Dismiss the appeal, asserting the motion to extend time was untimely. On July 5, 2005 the respondents filed a Motion to Correct the trial commissioner’s findings. These corrections were denied. Reasons for Appeal were finally filed on September 6, 2005. The reasons were essentially due to the commissioner’s failure to adopt the Motion to Correct, which would have required reversal of the Finding and Award.

The respondents’ principal claim is that their Motion to Correct should have been granted, and if it had, the result would have been different. We note that the respondents presented competent evidence that would have directed a different outcome had it been accepted by the trial commissioner. The difficulty is that the trial commissioner did not accept this evidence. Moreover, we do not agree with the respondents that the opinions of the treating physician should be disregarded.

The bottom line here is that if one finds Dr. Quinn’s opinion credible that a pulmonary embolism occurred, then the other medical opinions reaching a different conclusion must be discounted on that issue. Respondents argue in their brief that Dr. Quinn’s opinion should be given lesser weight because it was presented in correspondence to counsel. This panel will not consider this argument because arguments regarding the weight of the evidence are reserved for the trial commissioner. Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).2

The respondents question the ability of the trial commissioner to adopt the opinions of Dr. Josel in his October 1, 1999 letter that had an embolism occurred, Coumadin therapy probably was responsible for the adrenal hemorrhage (Finding, ¶ k) when Dr. Josel later stated he believed an embolism did not occur. We have frequently held a trial commissioner may adopt part of an expert’s testimony while discounting other parts of the same expert’s testimony. See for example, Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006) and Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995).

The Lopez precedent also undermines the respondents’ argument that the number of physicians expressing an opinion is a paramount consideration for the trial commissioner in deciding which expert opinion to credit in reaching his or her decision. “There is no need for physicians to uniformly agree on causation to uphold a trial commissioner’s finding regarding a compensable injury. See Benlock v. New Haven Terminal, 3034-CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998)(per curiam). (single physician’s opinion as to causation adequate to support finding and award).” Lopez, supra.

It also seems counterintuitive that a trial commissioner must give greater weight to a physician, Dr. Josel, who did not physically examine the claimant and was limited to a medical record review than the opinions of two physicians, Dr. Quinn and Dr. Gerardi who did examine the claimant. The determination as to what evidence is reliable is a determination for the trial commissioner to make. See Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).

Dr. Josel and Dr. Gerardi agree that an angiogram would have positively confirmed the existence or nonexistence of an embolism. The claimant was offered the opportunity to have this test performed and declined to pursue this due to the health risks involved. It appears that the respondents believe the refusal to submit to this test should bar her claim. They do not cite any precedent for this position.

There is a statute which is instructive as to the issue of whether a claimant may refuse medical testing. This statute, § 31-294e C.G.S. gives the trial commissioner the right to suspend payment of compensation if a claimant refuses to accept “reasonable” medical aid. In this case, in regards to the refusal to seek appropriate medical treatment, there was no therapeutic benefit to be gained by having the claimant undergo an angiogram. It was only useful as an investigative tool. As we held in Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997), “[t]he reasonableness of a particular treatment is a question of fact for the commissioner to resolve . . . .” By awarding benefits to the claimant without undergoing an angiogram, one can infer the trial commissioner would have found such a requirement unreasonable.

The claimant’s medical history must be considered in determining whether a refusal is reasonable under the circumstances. Dr. Gerardi’s medical history of the claimant indicates prior incidents of phlebitis and an embolism in 1977. The claimant was advised of acknowledged risk factors in undergoing an angiogram and refused. She testified at the formal hearing that she was told by doctors at Waterbury Hospital “[w]e reviewed my history and since I had a stroke in 1995 they said it would be life threatening.” October 20, 2000 Transcript, p. 23. Given this evidence, we cannot second-guess the trial commissioner’s decision to proceed to reach a decision in the absence of this evidence.

Therefore, we must determine whether the evidence on the record is adequate to support the Finding and Award. As we previously noted, Dr. Quinn unequivocally stated an embolism occurred. Dr. Gerardi stated the most likely cause of such an embolism was as a result of her 1996 compensable injury. While clearly respondents challenge this evidence, we believe this evidence is legally sufficient to support the Finding and Award. See Kish v. Nursing and Home Care, 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).3

We must also consider the Motion to Dismiss. The grounds for the claimant’s motion is that by not filing its Reasons for Appeal within ten days of filing its petition for review, the respondents’ appeal fails to comply with the relevant state regulation (§ 31-301-2) governing appellate procedure, thus implicating the jurisdiction we have to consider the appeal. Section 31-301-2 states, “[w]ithin ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal.” In Sager v. GAB Business Service, Inc., 11 Conn. App. 693 (1987) the Appellate Court compared our procedure with civil appellate procedure and held, “[w]here an appellant fails to file timely a preliminary statement of issues as required by Practice Book 4013(a)(1), the appeal is voidable.” Id., 697.

The Appellate Court further held that it was the duty of the appellee to move for dismissal during the appropriate ten day time period under the Practice Book, or the defect would be deemed waived. In Sager, the court determined the objection to the allegedly late filing of reasons of appeal was itself filed late, and reversed the board’s dismissal.

All the time periods relevant to this discussion are governed by Practice Book Section 63-2, “[i]n determining the last day for filing any papers, the last day shall, and the first day shall not, be counted. Time shall be counted by calendar, not working, days. When the last day of any limitation of time for filing any paper under these rules . . . falls on a day when the office [of the appropriate entity] is not required to be open, the paper may be filed on the next day when such office is required to be open.” Applying this provision, the final day to file the Reasons for Appeal, would have been ten days from filing the Petition for Review. Not counting the first day the petition was received (June 17, 2005) and adding ten days one obtains a deadline of June 27, 2005. Therefore, the first prong of the test, the failure to comply with § 31-301-2 occurred.

The claimant’s Motion to Dismiss was filed on July 6, 2005. The respondents claim this is not “within” ten days of the deadline to comply with the Practice Book requirements as outlined in Sager. We disagree. Following the same provisions of Practice Book 63-2, one adds ten days and arrives at July 7, 2005. Therefore, the Motion to Dismiss was timely under the precedent of Sager.

We however, decline to rule on this issue. We have previously determined that this Finding and Award can be upheld on the merits. The Sager opinion makes clear that this sort of late filing does not destroy our subject matter jurisdiction, “[t]he regulations, however, do not provide that a failure to file timely the reasons of appeal mandates dismissal.” Id., 696. See also footnote 8 of said opinion. Consequently, we need not rule on this issue, particularly as the claimant did not provide substantive evidence that she was prejudiced by this delay.

The appeal is dismissed. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.

Commissioners George Waldron and Ernie R. Walker concur in this opinion.

1 The formal hearing commenced July 14, 2000 and continued to October 20, 2000, December 13, 2000, January 25, 2000 and concluded April 1, 2005. BACK TO TEXT

2 Respondents argue the term “reasonable medical probability” does not appear in the June 17, 1997 Quinn letter. Since it states unequivocally that the claimant suffered an embolism, we believe it is an opinion stated to that standard as to the presence of an embolism; notwithstanding the absence of this phrase. As long a as doctor avers his opinion within a reasonable degree of medical probability (based upon the substance of the opinion, rather than the presence of a particular word or phrase), it may serve as the foundation for a trial commissioner’s findings. Struckman v. Burns, 205 Conn. 542, 555-56 (1987). BACK TO TEXT

3 Respondents claim it was error for the trial commissioner to reject its Motion to Correct. Since the Motion to Correct essentially sought to interpose the respondents’ conclusions as to the facts presented, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Department of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: July 21, 2006

Page URL: http://wcc.state.ct.us/crb/2006/4954crb.htm

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