State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Weir v. Transportation North Haven

CASE NO. 5226 CRB-1-07-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 16, 2008

RUSSELL G. WEIR

CLAIMANT-APPELLANT

v.

TRANSPORTATION NORTH HAVEN

EMPLOYER

and

MAC RISK MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.

The respondents were represented by Brenda C. Diaz, Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460.

This Petition for Review from the April 18, 2007 Finding and Denial of the Commissioner acting for the Third District was heard November 16, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Donald H. Doyle, Jr.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This present appeal is from the trial commissioner’s decision that the claimant’s accepted injury was not a substantial factor in his need for surgery. The claimant argues that the commissioner improperly applied the “substantial factor” test and should have determined that the treatment was compensable. The record demonstrates that there was not unanimity among the expert opinions presented; therefore, the trial commissioner acted within his discretion in dismissing the claim to make the claimant’s surgery compensable.

The claimant has spent his career as a truck driver for the respondent, which operated out of Stop & Shop’s former North Haven warehouse. On September 2, 2004, the claimant sustained an injury to his right shoulder while pulling a pin to disconnect the tractor from its trailer during the course of his employment. This injury has been accepted as compensable. Soon after the injury the claimant was treated at Occupational Health Plus Rehabilitation, Inc., in New Haven. Their report of his September 14, 2004 examination reported “severe” degenerative disease of the right shoulder and a partial tear of the supraspinatus. An MRI revealed “[e]xtensive degenerative changes of the right glenohumeral joint with large osteophytes of the inferior humeral head and degeneration of the labrum without focal tear.” The claimant was subsequently examined by an orthopedic surgeon, Dr. David Cohen, who determined the claimant had a light duty work capacity, prescribed physical therapy after two weeks of rest and further opined the claimant may need total right shoulder replacement surgery.

During the fall of 2004 the claimant treated with Dr. Cohen and another orthopedic surgeon, Dr. Michael Luchini. Dr. Cohen ascribed the cause of the claimant’s ailments to “Right shoulder advanced osteoarthritis, significantly worsened by his work activities, which have led to a significant exacerbation in the shoulder.” Dr. Luchini’s November 9, 2004 medical report indicated the claimant’s condition had improved since the injury, and while he was on light duty, he was not in pain and not on medications. He also noted the claimant’s father had had shoulder arthroplasty for a similar condition twenty years earlier. On November 23, 2004 Dr. Cohen reported that the claimant stated he was significantly better and as a result, Dr. Cohen released the claimant to full duty work. The claimant now denies his condition had improved as of that visit and testified at the formal hearing he “wanted to go to work.”

In March of 2005 the claimant returned to Dr. Cohen complaining of shoulder pain. Dr. Cohen reiterated his opinion the claimant was a candidate for total right shoulder replacement surgery. The claimant asserts this is necessitated by the compensable September 2004 injury. The claimant was examined by the respondent’s expert, Dr. Peter Jokl of Yale Sports Medicine, on June 1, 2005. Dr. Jokl opined “It is my opinion that there is minimal relationship between the incident of 09/02/04 and the present finding of advanced osteoarthritis of the right glenohumeral joint.” A commissioner’s examination was subsequently ordered and was performed by Dr. Rolf H. Langeland on April 10, 2006. Dr. Langeland diagnosed the claimant with right shoulder glenohumeral joint severe osteoarthritis, right shoulder intra-articular loose bodies and a superficial right shoulder partial thickness rotator cuff tear. He noted the claimant had returned to full duty within three months of the date of injury and further opined his diagnoses of the claimant’s condition are not causally related to the injury dated September 2, 2004.

Dr. Langeland was subsequently deposed and testified a traumatic injury can aggravate pre-existing osteoarthritis. He further testified that while the claimant’s symptoms may have worsened after the September 2, 2004 incident, his diagnosis was at pre-injury status after the injury and the need for the claimant’s surgery is due to his degenerative condition of advanced osteoarthritis. He described the work injury as being “third in line” in a list of factors behind the claimant’s need for surgery.

Following the formal hearing the trial commissioner found the claimant suffered a temporary self limiting aggravation on September 2, 2004 of his underlying condition of advanced osteoarthritis of his right shoulder. The trial commissioner also found the claimant provided inconsistent histories of his injuries to his physicians. The commission also found the reports and opinions of Dr. Langeland and Dr. Jokl as fully credible and persuasive as to the issue presented and found the claimant failed to sustain his burden of proof that the need for total right shoulder arthroplasty was causally related to the September 2, 2004 work incident. The claimant filed a Motion to Correct the April 18, 2007 Finding and Denial, which was denied in its entirety. The claimant then appealed to this board asserting that the commissioner erred in finding the need for surgery was not work related.

The claimant’s appeal is based on the argument that the trial commissioner failed to properly apply the “substantial factor” test in denying the claimant’s bid for shoulder reconstruction surgery. Since the claimant points out the commissioner’s examiner ascribed some weight to the work related injury as causing the need for surgery, he believes the commissioner was compelled to issue an award. This argument must overcome the significant deference which we accord trial commissioners when they weigh conflicting medical evidence.

“In reviewing this instant decision, our standard of review is deferential to the finder of fact. ‘As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.’ Daniels v. Alander, 268 Conn. 320, 330 (2004).” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

There have been a number of recent cases discussing the “substantial factor” test. In Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008) we upheld an award for § 31-306 C.G.S. benefits when it relied on a death certificate that stated asbestosis was “another significant condition” causing the death of the decedent. In Stevens we cited Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000) that the test is not whether a work related condition is the sole cause of injury, it is the claimant’s burden to prove it is among the “substantial contributing factors.” Id., n7. In Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008), citing O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999),1 we pointed out that when a physician does not use the term “substantial” or “significant” to describe the weight a work related illness has on a specific ailment or disability, then the expert’s opinion “is determined by looking at the entire substance of testimony.”

A review of Dr. Langeland’s entire deposition transcript provides little support for the claimant’s position that the commissioner’s examiner considered the September 2004 injury a substantial factor in the claimant’s need for surgery. He refused to opine on whether that injury accelerated the need for surgery, stating that was “an impossible question to answer.” Joint Exhibit 1, p. 16. He specifically identified the need for surgery as based on the claimant’s degenerative condition. Joint Exhibit 1, p. 17. On redirect examination, after extensive discussion from claimant’s counsel on what counsel understood a “substantial factor” to be, the witness testified that, “the work injury certainly is a factor. Is it a substantial factor? I don’t understand the definition of substantial. You said there was no percentage, so . . . if I was to put percentages, that would be third in line.” Joint Exhibit 1, p. 23. He later opined the work related injury was a 15% factor in the need for surgery, ascribing 70% to the claimant’s pre-existing condition.

It is clear that the commissioner’s examiner attributed the least weight to the September 2004 injury of the three factors at hand.2 We also note that claimant’s counsel may have inadvertently defined the issue before this panel when, at Dr. Langeland’s deposition, counsel explained the “substantial factor” test to the witness.

And there’s no percentage. You know, it’s not that it has to be more than 50 percent to be a substantial factor. It just needs to be substantial and it’s really for the Workers’ Comp. Commissioner to determine what is or is not substantial. Joint Exhibit, p. 22. (Emphasis added).

Counsel herein was entirely correct. Whether or not a factor behind the need for surgery is “substantial” is a matter left to the discretion of the trial commissioner, as “it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly, supra, 818. The cases cited by the claimant (Pasternostro v. Arborio Corp., 3659 CRB-6-97-8 (September 8, 1998), aff’d, 56 Conn. App. 215 (1999); Epps v. Beiersdorf Inc., 41 Conn. App. 430 (1996) and Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007)) are all factually distinguishable and do not suggest any error on the part of the trial commissioner. Pasternostro concerned an intoxicated employee who died trying to cross I-84 on foot where such misconduct was a substantial factor in his injuries. Epps was a case where the claimant’s medical evidence was “uncontradicted.” Neither case is particularly relevant to this appeal.

On the other hand, the Fratino case is particularly relevant and supportive of the commissioner’s decision herein. In that case we upheld a trial commissioner who concluded that based on the evidence presented only one of two injuries was a substantial factor in that claimant’s need for surgery. In Fratino citing Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam),3 we restated that the trial commissioner may accept or reject all of an expert’s opinion, or merely portions of it. See also, Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007) and Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008). Consequently, while the claimant argues Dr. Langeland “recanted” his opinion, it appears that the trial commissioner did not agree and was not obligated to credit that portion of his testimony supportive in some fashion of the claimant’s position.

We cited Gagliardi in a somewhat similar case in 2006, Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006). In Ben-Eli the commissioner chose not to rely at all on the commissioner’s examiner and relied instead on the opinions of the treating physicians. We upheld his right to do so since he justified his non-reliance on the opinions of the § 31-294f examiner and his award was based on competent medical evidence. In the present case the trial commissioner found both the respondent’s examiner, Dr. Jokl, and the commissioner’s examiner “fully credible and persuasive.” We will infer that he found them credible and persuasive on the issue of whether the work related injury was a substantial factor in the need for surgery.4 We can also infer he found their testimony consistent on the issue of causation. Had the trial commissioner placed no weight at all on Dr. Langeland’s opinions he still could have relied on Dr. Jokl’s opinion to reach the same conclusion.5

When a witness identifies three causation factors we can find no legal precedent that states that as a matter of law that the third and least weighty factor must be deemed “substantial” by the trier of fact. We also have been presented with no precedent that states any threshold percentage of causation is as a matter of law, “substantial.” Even considering Dr. Langeland’s testimony in the most favorable light to the claimant we are not persuaded that the trial commissioner abused his discretion.6

We also note that the trial commissioner reached a finding concerning the claimant’s testimony in this case, finding he had offered inconsistent histories to the various physicians who treated him as to the history of his right shoulder pain and discomfort. The Appellate Court recently upheld the dismissal of a claim when a trial commissioner deemed medical evidence unreliable as being derived from an unreliable patient narrative Abbotts v. Pace Motor Line, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436, 442 (2008). The trial commissioner therefore could properly discount evidence supportive of compensability for that reason as well.

As a result, we conclude the trial commissioner’s determination was a reasonable exercise of his discretion. The burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The evidence presented by the claimant simply, as a matter of law, did not compel the trial commissioner to determine that the accepted compensable injury was a substantial cause behind the claimant’s need for surgery. We affirm the Finding and Denial and dismiss this appeal.7

Commissioners Amado J. Vargas and Donald H. Doyle, Jr. concur in this opinion.

1 See also Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007), where we rejected the appellant’s effort to cherry pick favorable testimony from an expert witness as to assert the trial commissioner committed error. BACK TO TEXT

2 Compare with Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008), where the medical report in question lacked an evaluation of the relative weight of possible agents of causation. BACK TO TEXT

3 Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam) also stands for the principle that “. . . a § 31-294f examination is usually expected to provide strong guidance to a commissioner, and that a commissioner should attempt to articulate the reasons for disregarding such an opinion in recognition of the § 31-294f examiner’s traditional role.” In order for the trial commissioner to have found the claimant’s proposed surgery compensable he would have had to explain why he did not rely on the bulk of Dr. Langeland’s testimony and chose to rely on Dr. Cohen, the treating physician. BACK TO TEXT

4 In Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), we rejected the argument the trial commissioner should have searched the commissioner’s examiner’s report for independent grounds to sustain its conclusions when the commissioner rejected its finding as based on unreliable supporting evidence. We reject as well the suggestion the trial commissioner in this case was obligated to find an opinion supporting compensability from Dr. Langeland’s testimony; particularly as he found the respondent’s witness, and not the claimant’s, persuasive and credible. BACK TO TEXT

5 Respondent’s Exhibit 1, is a report dated June 1, 2005 from Dr. Jokl opining in part, “it is my opinion that the need for total shoulder replacement is not related to the incident on 9/02/04.” BACK TO TEXT

6 See also Funaioli v. City of New London, 3814 CRB-2-98-5 (June 16, 1999) “. . . the claimant also carries the burden of proving to the trier of fact via expert medical testimony that such ‘substantial’ causation was, within a reasonable degree of medical probability, attributable to the compensable injury.” BACK TO TEXT

7 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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