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Keeney v. Laidlaw Transportation

CASE NO. 5199 CRB-2-07-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 21, 2008

ARLINE KEENEY

CLAIMANT-APPELLEE

v.

LAIDLAW TRANSPORTATION

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John Jay Pavano, Esq., Faulkner & Boyce, P.C., 216 Broad Street, P.O. Box 391, New London, CT 06320.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review1 from the February 2, 2007 Finding and Award of the Commissioner acting for the Second District was heard December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have appealed from an award of temporary total disability benefits awarded to the claimant. The dispute in this appeal concerns two issues: a) whether the aggravation of a previous compensable back injury was attributable to the original injury; and b) whether the trial commissioner erred by declining to admit evidence proffered by the respondents at the formal hearing. We conclude that the trial commissioner had proper grounds to reach these decisions and therefore he acted within his discretion. We uphold this Finding and Award and dismiss this appeal.

There is agreement that the claimant’s back was injured while on the job August 13, 2005 when she was moving a desk. Following that injury she was treated that day at Pequot Medical Center, where she was diagnosed with a back strain and placed on temporary total disability. She was also examined at Lawrence and Memorial Hospital where she described the August 13, 2005 work injury as a ripping sensation and complained of back pain which occasionally radiated at times down her posterior left leg to her knee, or radiating to her left buttocks.

Following conservative treatment of this injury the claimant returned to light duty work as a bus monitor on August 24, 2005. She was released to full duty on September 23, 2005 and worked at a full duty position until November 16, 2005 when she called out sick with the flu. During the period from September 23, 2005 to November 16, 2005 the claimant missed numerous physical therapy appointments as well as a follow up visit with Dr. Geraldine Ruffa at Lawrence and Memorial Hospital. She did not seek or receive treatment for her back from Lawrence and Memorial Hospital Occupational Health Center during this time frame. The claimant testified that on November 16, 2005, while out of work as a result of the flu, she bent over to vomit and while standing up from bending over to vomit, she felt a ripping sensation in her low back with pain going down her leg.

The claimant treated at Lawrence and Memorial Hospital’s emergency room on November 16, 2005 and related a similar sensation of pain to her September 23, 2005 injury. On January 31, 2006 the claimant was evaluated by Dr. Jeffrey Miller, an orthopedic surgeon. Conservative treatment with pain management and physical therapy did not yield results and on March 28, 2006 Dr. Miller totally disabled the claimant from work. Dr. Miller ordered an MRI on April 14, 2006 and following evaluation of the MRI Dr. Miller diagnosed the claimant with L4-5 degenerative disc disease with a superimposed HNP lateralizing to the left. The treating physician opined that the claimant had a weakened lumbar spinal segment with a probable tear in the annulus superimposed on degenerative changes. Dr. Miller further opined that the vomiting event on November 16, 2005 caused an increase in intracecal pressure making her disc herniation more clinically apparent and that had the claimant not been injured on August 13, 2005 the vomiting episode would not have resulted in a disc herniation. He believed the vomiting event extended or worsened the claimant’s disc herniation which could have occurred while simply bending down, putting on a sock, sneezing, or coughing. Dr. Miller concluded the vomiting incident in November 2005 did not result in a new injury to the claimant’s back but was a manifestation of her previous weakened lumbar spine. The respondents have had the claimant examined by their expert, Dr. Mark Lorenze, an orthopedic surgeon. Dr. Lorenze first opined that the claimant’s current complaints are directly related to her injury on August 13, 2005 injury. He later opined that he had not been advised of her injury at home, and now cannot state with certainty that her current complaints are directly related to the August 13, 2005 work injury.2

Based on these subordinate facts the trial commissioner concluded that both the claimant and Dr. Miller offered credible testimony. He determined as a result of the August 13, 2005 work injury, the claimant’s back was weakened and the event of November 16, 2005 was an inevitable progression of the events set in motion by the August 13, 2005 injury without any new intervening proximate cause. As a result the November 16, 2005 event does not constitute a new injury. He ordered the respondents to pay for reasonable medical care for the November 16, 2005 injury and determined that as of March 28, 2006 the claimant was entitled to be paid benefits for total disability. The respondents filed a Motion to Correct which was denied in its entirety. They have pursued this appeal.

The respondents advance two arguments. They argue that the evidence presented to the trial commissioner demonstrated that the November 16, 2005 vomiting incident was a superceding cause which was the proximate cause of the claimant’s disc herniation and disability. They also assert error from the trial commissioner’s decision not to admit as evidence a MRI “aging study” presented by the respondents. We find neither argument persuasive.

As for the evidentiary issue presented, we believe that our recent decision in Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) substantially addresses this matter. In both cases the respondents offered evidence late in the proceeding from which the claimant asserted prejudice from its admission. The MRI “aging study” in the present case was evidently a document generated by the insurance carrier at its Illinois headquarters, and not by a treating physician or an expert witness who had examined the claimant. While the respondents raise case law such as Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974) to assert due process issues, had the disputed evidence been introduced it would have raised other concerns, particularly due to the fact it had not been disclosed to the claimant prior to its proposed admission. In addition, it had not been presented to the claimant’s physician prior to its use in his deposition. Our case law clearly states, “a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion.” Lamontagne, supra. We do not find the trial commissioner abused his discretion in this instance.

We also find that Lamontagne, supra, is persuasive authority on the other issue raised in this case: whether a superseding injury to the claimant broke the chain of causation back to the original compensable injury. In Lamontagne, supra, the respondents attempted to attribute a percentage of the claimant’s disability to a second compensable injury he suffered while employed by another firm. We upheld the trial commissioner as she did not reach any findings that the subsequent injury was a substantial factor in the claimant’s current condition.

In the present case, the trial commissioner clearly relied on the testimony of Dr. Miller, whom he found credible, to determine that the claimant’s disc herniation was attributable to her original August 2005 accident. While we are deferential to the trial commissioner’s authority to find facts, Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), we must ascertain if such conclusions are grounded in evidence presented at the hearing. Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007). We find that competent evidence supportive of the commissioner’s findings is in the record.

Respondents’ Exhibit 3 is the deposition testimony of Dr. Miller. Dr. Miller testified specifically that the November 2005 incident aggravated her original injury (Respondents’ Exhibit 3, p. 29) and “I believe her original injury weakening that segment made her at significant risk for then the compression of the nerve that later occurred. Were it not for the injury in August, I don’t think she would have had the same result after the coughing incident in November.” Respondents’ Exhibit 3, p. 30. Dr. Miller restated this opinion in a July 10, 2006 letter admitted as evidence which stated “it is more likely than not that the exacerbation of low back pain in November of 2005 was an aggravation of her original injury of August of 2005. I do not believe that a new injury was occurring but instead a manifestation of her previous weakened lumbar spine.” (Claimant’s Exhibit A, Item #32)

The respondents argue that the trial commissioner lacked an evidential foundation for Findings, ¶ 29. “Dr. Miller opined that the vomiting incident in November 2005 was not a new injury but was a manifestation of her previous weakened lumbar spine.” We disagree as we find Dr. Miller did testify to that exact issue. Consequently, this argument raised by the respondents is unmeritorious.

We find the trial commissioner in this case had competent evidence supporting his conclusion that the claimant met her burden of proof that her disc herniation was due to the original compensable injury. The outcome herein is the same as a 2007 case where a respondent claimed a subsequent injury should be deemed the proximate cause of the claimant’s disc ailments, and the trial commissioner determined otherwise Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). These questions pose a “prototypical question of fact” for the trial commissioner to resolve. Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (August 23, 2002). We find that the trial commissioner in the Williams case relied on competent evidence in that matter and the trial commissioner in the present case reached a similar conclusion based on competent evidence which we must uphold.3

Therefore we find no error and affirm the trial commissioner’s Finding and Award.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 We note that a postponement and extensions of time were filed during the pendency of this appeal. BACK TO TEXT

2 The trial commissioner concluded that Dr. Lorenze had been advised of the household injury prior to issuing his original opinion. Findings, ¶ H. BACK TO TEXT

3 The respondents assert error from the trial commissioner’s denial of 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. Dept. of Corporation, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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