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Palumbo v. City of Bridgeport

CASE NO. 4991 CRB-4-05-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 7, 2006

WILLIAM PALUMBO

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

EMPLOYER

RESPONDENT-APPELLANT

and

BERKLEY ADMINISTRATORS

APPEARANCES:

The claimant was represented by John M. Varrone, Esq., Varrone & Varrone, 4154 Madison Avenue, Trumbull, CT 06611.

The respondent-employer was represented by Marie Gallo-Hall, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the August 17, 2005 Finding and Order1 of the Commissioner acting for the Fourth District was heard March 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. In the instant appeal, the respondent City of Bridgeport appeals from a Finding and Award determining the claimant, a former city employee, is still entitled to receive pain management treatment as a result of a compensable injury. We find no error and dismiss the appeal.

Following a formal hearing that commenced November 15, 2004 and continued January 12, 2005 and May 13, 2005 the trial commissioner found the following facts. In 1977, the claimant suffered a work related injury of his left knee while employed by the respondent. Findings, ¶¶ 1-2 (as corrected by the trial commissioner September 20, 2005). The respondent later executed a voluntary agreement. Findings, ¶ 3. A 30% permanent partial disability rating was awarded for that injury. Findings, ¶¶ 6-7. The claimant was paid benefits based on a 30% permanent partial disability rating for that injury. Following that injury, the claimant was disabled until 1981, and then started working in the cabinet business. Findings, ¶ 10. He had a knee patellectomy in 1982 and was then placed on pain management therapy in 1984. Findings, ¶¶ 12-13. He has treated with Dr. Arthur Taub since 1984 for his pain. Findings, ¶ 14. The left knee pain has been continuous but due to medication such as Percodan and Percocet the claimant has been able to maintain employment. Findings, ¶¶ 27-29. In 1989, the claimant started working for Royal Graphics. Findings, ¶ 19. He is still employed there and works shifts that require him to spend three or four hours a day on his feet. Findings, ¶¶ 20-24.

The claimant began treating with Dr. Patrick Ruwe in 1997 for his left knee. Findings, ¶ 32. Dr. Ruwe believes that the claimant will need a total knee replacement. Findings, ¶ 37. He also believes the claimant’s work with the respondent is a contributing factor to the recommended knee replacement, the claimant’s subsequent employment is a less substantial factor, and that old sports injuries also contribute to the degenerative changes to the knee. Findings, ¶¶ 38-40. Two other doctors retained by the respondent examined the claimant. The trial commissioner found that Dr. Balazs Somogyi related the claimant’s pain medication to the compensable injury. Findings, ¶¶ 41-42. Dr. Jonathan Kost also examined the claimant. A pain management specialist, he determined that the claimant’s treatment with Dr. Taub was related to the compensable injury. Findings, ¶¶ 43-46.

The trial commissioner reached the following conclusions in his Finding and Order of August 17, 2005: that Dr. Taub’s treatment enabled the claimant to work full time as a printer (Findings, ¶ I) ; that Dr. Kost had related Dr. Taub’s treatment to the claimant’s work (Findings, ¶ K); that Dr. Taub’s treatment was causally related to the claimant’s work injury (Findings, ¶ M) and, that his treatment is reasonable and necessary and has allowed the claimant to function as a full-time employee (Findings, ¶ N). As a result, the trial commissioner ordered the respondent to authorize Dr. Taub’s treatment.

The respondent filed a timely Petition for Review and Motion to Correct from the Finding and Order. On September 20, 2005, the trial commissioner granted those portions of the Motion to Correct that rectified errors as to dates, and denied the remainder of the proposed corrections that sought a different outcome than what was reached.

The respondent has appealed based on two claims of error. First, they argue that the decision in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) absolves them of further liability regarding the claimant’s condition. Second, they argue that the claimant’s condition is such that he is receiving only palliative care which they should not be obligated to provide. The trial commissioner determined these arguments could not be supported by the facts of this case. After reviewing the facts and the law we are satisfied he was correct in this conclusion.

We have applied the decision in Hatt in a number of recent cases. These cases have been fact driven. The trial commissioner must find a subsequent injury is a substantial factor in the claimant’s current medical condition to release the initial employer from further liability. Such a determination occurred in Hatt. “The commissioner stated that this condition was a cumulative injury that was the result of work activities following the initial 1988 injury.” Hatt, p. 286.

When a trial commissioner has found the subsequent injury was not a substantial factor in the claimant’s medical condition we have deferred to that finding of fact. In Doran v. State/DMR, 4519 CRB-6-02-4 (April 16, 2003) we articulated the following standard.

In order for Hatt to apply we would have to overturn the trier’s findings and conclusions that the claimant’s employment with CW Group and the compensable injuries he suffered while in its employ were not a substantial factor in causing the claimant’s total disability. Whether or not the injuries the claimant suffered while in the employ of the respondent CW Group substantially contributed to his disability is a factually dependent question.

In Doran, the trial commissioner determined the factual evidence placed the onus of the claimant’s condition on the initial injury. A similar conclusion was reached in Fantano v. Stop & Shop Companies, Inc., 4946 CRB-3-05-5 (May 19, 2006).

The trial commissioner determined that the claimant suffered two separate and distinct injuries. As an appellate body, we must evaluate the medical testimony provided to the trial commissioner to determine whether his findings are supported by the evidence. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it.

The trial commissioner in this case did not make factual findings similar to those in Hatt regarding an aggravation of a repetitive trauma injury. The respondent argues in its brief the medical evidence before the commissioner would have supported such a determination, and the commissioner should have granted their corrections to reach such a finding. However, “[a]s the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not,” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004). The trial commissioner did not find the respondent’s evidence sufficiently persuasive that the claimant’s pain management issues were related to subsequent events. Based on the precedent in Doran, supra, we must uphold this determination unless it is without evidential support.

What the trial commissioner did find persuasive was the evidence provided by the respondent’s own IME doctor on pain management, Dr. Jonathan Kost. In his November 20, 2003 report, he makes the following observations. “it appears that his 1979 work-related injury is causally related to his left knee condition,” “it is most likely that his degenerative changes involving the left knee is a result of his prior injuries and surgeries,” and “[t]he ongoing pain management with Dr. Taub appears to be the result of the 1979 knee injury.” Claimant’s Exhibit D. The trial commissioner clearly adopted Dr. Kost’s opinions regarding the cause of the claimant’s knee pain and an appropriate treatment regimen. It seems remarkable the respondent believes the trial commissioner should not have relied on the medical opinions of their own expert witness. While the respondent may want to belatedly question his opinions, in the absence of a credible argument his evidence was legally inadequate (which the respondent has not advanced) we are bound to uphold these findings. See Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).

In regards to the question of palliative care, it is clear the trial commissioner concluded, based on evidence from Dr. Kost, that the pain management treatment Dr. Taub was providing was essential to keeping the claimant in the work force. Claimant’s Exhibit D. As a result, the respondent’s reliance on Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) is misplaced. “[w]e have in past cases addressed the subject of the ‘curative/palliative’ distinction upon which the compensability of his medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the ‘reasonable and necessary’ standard of § 31-294d C.G.S.” (Emphasis added). Id. We upheld the trier’s conclusion in Carroll that the treatment in that matter was palliative; we are compelled based on that precedent and the evidence of Dr. Kost to uphold the trier’s conclusion in this matter the treatment was curative, as “therapy designed to keep the employee at work or to return him to work is curative.” Id. See also Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995) and Haskos v. NROE-Ernest DePalma, 3421 CRB-3-96-9 (January 22, 1998).

We address two subordinate issues briefly. The respondent argues in its brief the evidence now indicates the proximate cause of the claimant’s injuries was a 1969 sports accident suffered prior to his employment with the City. The claimant argues these issues are barred as the Finding and Order and the voluntary agreement for the claimant’s left knee are res judicata on the issue of liability. We agree with the claimant. Evidence regarding pre-employment injuries fails to comport to the requirements enumerated in Pantanella v. Enfield Ford, Inc., 65 Conn. App 46, 57-58 (2001) and, there is no argument presented that the 1980 Finding and Award was based on some mistake of fact or accident which should now be reopened Marone v. City of Waterbury, 244 Conn. 1, 17 (1998).2 The respondent sought a finding of fact from the trial commissioner that the 1969 injury was responsible for the claimant’s condition. The trial commissioner rejected this view by denying those portions of the respondent’s Motion to Correct. D’Amico v. Dept. of Correction, 73 Conn. App 718, 728 (2002)(the trial commissioner properly denied those portions of the motion he denied.)

We conclude that pursuant to the holding in Tovish v. Gerber Electronics, 32 Conn. App. 595, 603 (1993), that the trial commissioner’s conclusions must stand as we do not find an incorrect application of the law or an improper inference from the subordinate facts presented as evidence.

The appeal is dismissed. Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.

1 We note an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 Respondent cites Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996) as supportive of their position a subsequent employer should assume responsibility for the claimant’s medical treatment, yet fail to acknowledge this holding regarding “taking the employee as you find him” eviscerates their theory that they can now assign cause of the claimant’s knee pain to pre-employment injuries. We also note in this case the medical testimony was not “uncontradicted,” unlike Epps, infra. BACK TO TEXT

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