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McMahon v. Emsar, Inc.

CASE NO. 5049 CRB-4-06-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 16, 2007

JEANNE McMAHON

CLAIMANT-APPELLANT

v.

EMSAR, INC.

EMPLOYER

and

CHUBB SERVICES CORP.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christina Smith, Esq., Berkowitz & Reinken, Century Plaza South Tower, 100 Prospect Street, Stamford, CT 06901.

The respondent employer was represented by Michael Vocalina, Esq., Cotter, Cotter & Mullins, LLC, 6515 Main Street, Suite 10, Second Floor, Trumbull, CT 06611.

This Petition for Review from the January 13, 2006 Supplemental Finding and Order of the Commissioner acting for the Seventh District was heard July 14, 2006 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 13, 2006 Supplemental Finding and Order of the Commissioner acting for the Seventh District. She objects to the discontinuance of her total disability benefits, the trier’s description of her compensable injury in his factual findings, and the medical treatment that was authorized. Upon review, we affirm the trial commissioner’s decision.

The claimant suffered a compensable low back strain on October 5, 2000. She began medical treatment in the state of New York with Dr. Zimbardo, a chiropractor, on October 16, 2000,1 and continued there through July 11, 2001. She also received steroid injections and acupuncture from another New York physician. Her primary treating physician has been Dr. Snowball, a Connecticut physical medicine specialist who first treated her on July 17, 2001, and opined that she was temporarily totally disabled. Dr. Snowball stated on July 31, 2001, that the claimant would remain totally disabled until re-evaluation. Joint Exhibit 4. She would not mention the claimant’s work capacity again until 2004. Over the course of several years, Dr. Snowball prescribed both land- and water-based physical therapy, home exercise, trigger point injections, a TENS unit, and a host of pain and muscle spasm medications, most prominently Zanaflex and Desyrel.

The claimant underwent an MRI on April 16, 2002, that showed disc bulging and degenerative changes in the lumbar spine. Dr. Apostolides, a colleague of Dr. Snowball, provided neurosurgical consultation and recommended a joint injection, having noted multilevel degenerative disc and joint disease. Dr. Apostolides discussed surgical options with the claimant in May 2002. The Hospital for Special Surgery also suggested surgery on June 19, 2002. However, the claimant opted to continue with conservative treatment. Dr. Snowball noted that she had “reached maximum medical improvement from a conservative management perspective” on July 3, 2002, with a 20% permanent partial disability of the lumbar spine, though she might achieve a more complete functional recovery with surgery. Joint Exhibit 3. Soon after, the respondents filed a Form 36 requesting discontinuance of the claimant’s total disability benefits in favor of advances against permanency. This Commission approved that Form 36 on August 2, 2002.

Eventually, the claimant settled on a combination of Zanaflex and Desyrel that improved her functioning and helped manage her pain, though her symptoms continued to escalate over time. In 2004, Dr. Snowball resumed addressing the claimant’s work status, stating on four occasions that she was no longer able to seek gainful employment. See Joint Exhibit 1. By then, the claimant had entered into a voluntary agreement regarding permanency, which was approved on August 27, 2003. She was not represented by counsel for the Voluntary Agreement. The claimant’s temporary total disability benefits were changed to permanent partial disability benefits for a 20% loss of use of the low back, retroactive to July 3, 2002, her maximum medical improvement date as listed in the voluntary agreement. Among the medical documentation then available was the October 10, 2002 opinion of Dr. Barschi, a New York orthopedic surgeon, who stated that the claimant had reached maximum improvement from her physical therapy and injections. He concurred with a therapist’s evaluation showing that the claimant had a very light duty sedentary work capacity of only two hours per day. See Joint Exhibits 7, 8.

Also in evidence at trial was Dr. Margolis’ medical opinion. He saw the claimant on July 8, 2004, and diagnosed her with degenerative disc disease that had been developing for years. He agreed that the claimant was a surgical candidate who currently has a 20% permanent partial disability of the lumbar spine, and also believed that the claimant has a light sedentary work capacity. He commented that Dr. Snowball’s treatments had been unsuccessful, and opined that future treatments should not involve physical therapy or epidural steroid injections. Respondents’ Exhibit 1. Dr. Apostolides agreed in a March 4, 2005 opinion that the claimant is still a surgical candidate, and that she has a part-time, sedentary work capacity. Joint Exhibit 5.

The trial commissioner found that the claimant was temporarily totally or partially disabled by a compensable low back strain until August 27, 2003, when she became entitled to permanent partial disability benefits for a 20% loss of use of the low back. At the end of the 78.40-week benefit period, prior orders for § 31-308a benefits could become effective. The trier also found that, based on the evidence, the claimant was unable to prove that the voluntary agreement should be modified pursuant to § 31-315 C.G.S. “Thusly, the benefits as paid to the Claimant to the date of this decision are found to be proper and in accordance with the Workers’ Compensation [Act].” Findings, ¶ E. In a supplemental order dated January 13, 2006, the trier also ordered the respondents to pay for non-narcotic analgesics and up to 16 sessions of physical therapy, if so prescribed by the claimant’s treating physician. The claimant has appealed that decision.

The claimant raises three categories of error on appeal. She contests the trier’s finding that she was no longer totally disabled as of July 3, 2002. She objects to the trier’s failure to order the continuation of pain management therapy. She also alleges error in the trier’s characterization of her injury as a “low back strain,” given the medical evidence that showed much more extensive damage to her lumbar spine, such as disc bulges and degenerative disc disease.

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

We begin by addressing the issue of total disability. Under our law, an individual may reach maximum medical improvement with a permanent partial impairment, and still be temporarily totally disabled from working. McCurdy v. State, 227 Conn. 261, 267-68 (1993). Still, the claimant’s total disability status was a question of fact, and the burden of demonstrating continuing total incapacity was hers to carry. Dengler, supra, 454; Gombas v. Custom Air Systems, Inc., 4996 CRB-4-05-9 (September 20, 2006), A.C. No. 28092. “Total incapacity becomes a matter of continuing proof for the period claimed.” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996). Dr. Snowball stated that the claimant had reached maximum improvement from a conservative, non-surgical perspective, while never mentioning a work capacity. However, the July 2002 report of Lori Goldberger, who did an evaluation for the Greenwich Hospital Return-to-Work Center, stated that the claimant could tolerate a very sedentary physical demand level, limited to a two-hour workday. Joint Exhibit 7. Dr. Barschi expressed his agreement with this opinion in October 2002, while Drs. Margolis and Apostolides identified a limited sedentary work capacity in 2004 and 2005.

First, we recognize that the claimant seeks to reopen a voluntary agreement that she entered into willingly, albeit without the assistance of counsel. There is no allegation that she was incompetent to make that agreement. Also, she did not request a hearing following the August 2002 granting of the respondents’ Form 36, which is the procedure for challenging the discontinuance of benefits. See § 31-296. Section 31-315 allows modification of an approved voluntary agreement where there has been a change in an injured employee’s level of incapacity or her measure of dependence, or where changed conditions of fact have arisen. An award may also be modified in the event of accident, fraud, or mutual mistake of fact. Riedel v. F&F Concrete Corp., 3529 CRB-8-97-2 (July 24, 1998). The trial commissioner found that the claimant did not meet the criteria for modification. Findings, ¶ D. That finding is supported by the record. The claimant’s pro se status at the time of the agreement does not absolve her from its terms, even if they vary from the trier’s finding of an August 27, 2003 end date for temporary disability. Id.

Second, the claimant’s argument is that she was totally disabled as a practical matter, because the limited work capacity identified by Goldberger would not have been sufficient to allow her to find work in the job market. A claimant is totally disabled under § 31-307 when she is unable to work at her customary calling or any other occupation which she might reasonably pursue. Rayhall v. Akim Co., 263 Conn. 328 (2003). In Osterlund v. State, 135 Conn. 498 (1949), our Supreme Court decided that a finding of a work capacity is not always conclusive proof that the claimant is not totally incapacitated. “If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Id., 506-507.

Whether or not a claimant’s skills constitute marketable labor is a factual decision. Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). The burden remains on the claimant to demonstrate total incapacity, and a claimant who fails to show efforts to find work is, to some extent, taking a risk. Such a claimant cannot presume that the trier of fact will rely on other considerations such as educational background, training, age, and physical/medical restrictions to declare her totally incapacitated, even if there is evidence in the record that could support incapacity if taken in the light most favorable to the claimant. A commissioner need not assume that a job search would be futile for a claimant with some identifiable job skills. See Gombas, supra. The claimant here offered mainly anecdotal proof that her skills were unmarketable, relying heavily on her personal belief that no one would want to hire her based on her age and her physical condition. See June 14, 2005 Transcript, p. 49. A belief does not constitute undisputed material evidence, and the trial commissioner was not required to incorporate it into his findings. For these reasons, we uphold the trier’s conclusion that the benefits previously paid to the claimant were proper.

The claimant also takes issue with the trier’s conclusion that the claimant suffered only a compensable low back strain. In her Motion to Correct, she requested that the trier augment that description by including “L5-S1 disc protrusion; L4-5 disc bulges; myofascial pain syndrome; pelvic dysfunction secondary to antalgic gait associated with S1 joint pain; leg pain; degenerative disc disease; and lumbosacral radiculopathy, as a result of the October 5, 2000 work injury.” The commissioner denied this proposed correction.

Our review shows that the trial commissioner cited opinions by both Dr. Barschi and Dr. Margolis that described the source of most of the claimant’s back problems as degenerative disc disease at multiple levels and spinal stenosis, which were present prior to the October 5, 2000 lifting incident. Dr. Barschi reported in March 2002 that “the claimant’s previous history of degenerative changes in her spine and spinal stenosis, which were present prior to 10/5/00 materially and substantially have increased the length of time that she has had any symptoms and needed treatment than one would have expected from her 10/5/00 injury alone, which was simply an aggravation of the previous degenerative condition.” Joint Exhibit 8.

Dr. Margolis, meanwhile, hesitated to designate the compensable injury as an aggravation or exacerbation of preexisting spinal stenosis, stating in his April 15, 2005 deposition that the injury was in essence an “acute sprain” that caused no structural changes, and which the claimant “has long since gotten over.” Respondent’s Exhibit 1, pp. 22-23; see also, p. 33. “What continues to cause her symptoms and limit her is the preexisting condition which surfaced at the same time.” Id., pp. 23-24, 33. Dr. Margolis said that it was common for a person with an underlying degenerative condition to report having experienced no prior symptoms despite years of progressive deterioration, prior to a minor lifting incident that brings on symptoms. Id., pp. 11-12. He described the sprain as a “trigger” for the previously asymptomatic back condition. Id., p. 23. He added that the claimant’s disc bulges were solely attributable to her degenerative condition, and were unrelated to the lifting incident. Id., p. 34. Dr. Margolis also disagreed with Dr. Snowball’s diagnoses of myofascial pain and left sacroiliac joint dysfunction, reasoning that Dr. Snowball’s unsuccessful attempts to treat these conditions over the course of several years was evidence that her assessment of the claimant’s condition was inaccurate. Id., pp. 12-14.

Neither Dr. Apostolides nor Dr. Snowball actually theorizes that the claimant’s degenerative disc disease and spinal stenosis were caused by her October 5, 2000 back injury, even if that incident produced an onset of pain when superimposed onto those conditions. Insofar as ambiguous wording in the doctors’ reports might be construed to imply otherwise,2 the trial commissioner was not required to credit the reports and records of Dr. Snowball or Dr. Apostolides over those of Drs. Barschi and Margolis. He was also not required to accept the entirety of one physician’s report over that of another, as a factfinder is entitled to accept none, part or all of a medical opinion. Tartaglino, supra, 195-96; Gillis v. White Oak Corp., 49 Conn. App. 630, 639 (1998). We acknowledge that a number of doctors agreed that the claimant had suffered a 20% loss of use of her low back, which the trial commissioner accepted as compensable, and which had already been accepted by voluntary agreement. Based on the medical evidence, the trier could reasonably have concluded that the October 5, 2000 lifting incident played a contributing role in the claimant’s back symptoms over the course of two years and in the development of permanency in that body part, without having caused or worsened the claimant’s diagnosed degenerative back conditions, such as spinal stenosis. It was not error for the trier to deny the claimant’s requested correction to the findings.

The claimant also challenges the trial commissioner’s supplemental order directing the respondents to pay for non-narcotic analgesics and up to 16 sessions of physical therapy, if prescribed by the claimant’s treating physician. She alleges that it was error for the trier not to order continued pain management, as evidence showed these treatments had helped to improve the claimant’s condition. This evidence includes the claimant’s testimony that the muscle relaxants and anti-inflammatories prescribed by Dr. Snowball were helping her cope with pain and increased her mobility. June 14, 2005 Transcript, p. 54. “Continued examinations by the claimant’s physician, physical therapists, as well as injections and acupuncture, could have and should have been found to have been reasonably and medically necessary and so ordered by the trial Commissioner.” Claimant’s Brief, p. 14. Dr. Snowball’s December 21, 2004 report indicates that she had planned to continue the use of Zanaflex for back spasms and Desyrel to avoid pain disruption of sleep cycles, along with spine injection concurrent with physical therapy for core strengthening and myofascial releasing. Joint Exhibit 1.

We observe that the claimant did not seek to correct the trial commissioner’s findings to state that such treatments were medically necessary. By failing to do so, she has omitted a required step of the appeal process under Admin. Reg. § 31-301-4, which requires an appellant to move to correct any finding that it seeks to change. It is difficult to tell, therefore, if the trier intended to prevent the continuation of the claimant’s current medication regimen by virtue of his order. (Neither Zanaflex nor Desyrel is a “narcotic” in the sense of being an opioid.) Also, the trier drew substantially from Dr. Margolis’ opinion, which opposed future physical therapy or anti-inflammatory epidural steroid injections for the claimant. Dr. Margolis stated that there were “only two or three rational treatments” for the claimant’s underlying spinal stenosis, those being surgery and a short course of physical therapy. Respondent’s Exhibit 1, p. 14. He confirmed that the use of non-narcotic analgesics was helpful. Id., p. 25. He characterized the extensive treatments provided by Dr. Snowball as having been of no curative help to the claimant. Id., p. 15. The trial commissioner appears to have been likewise persuaded that steroid injections and narcotic medications would not be of future benefit to the claimant, and chose to limit the claimant to 16 additional sessions of physical therapy. As there is medical evidence to support that course of action, we have no basis for reversal on appeal.

The trial commissioner’s decision is therefore affirmed.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.

1 The Finding and Award lists this date as October 16, 2002, which is clearly a typographical error. See Joint Exhibit 10. BACK TO TEXT

2 For example, in Dr. Snowball’s December 21, 2004 report, she describes the claimant as “a 60-year-old female initially evaluated in the office on 07/17/01 for complaints related to low back pain secondary to spinal stenosis resulting from a work-related injury occurring initially on 10/05/01.” Joint Exhibit 1. BACK TO TEXT

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