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Chmielewski v. Reno Machine Company, Inc.

CASE NO. 5273 CRB-6-07-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 4, 2009

TADEUSZ CHMIELEWSKI

CLAIMANT-APPELLEE

v.

RENO MACHINE COMPANY, INC.

EMPLOYER

RESPONDENT-APPELLEE

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENT-APPELLEE

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by John C. Lewis, Esq., Brignole, Bush and Lewis, Attorneys and Counselors at Law, 73 Wadsworth Street, Hartford, CT 06106 who did not file a brief nor appear at oral argument as the issues did not involve the claimant.

The respondent Reno Machine Company, Inc. was represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

The respondent Travelers Property & Casualty was represented by Andrew J. Hern, Esq., Law Offices of Andrew J. Hern, 221 Main Street, 5th Floor, Hartford, CT 06106.

The respondent Hartford Insurance Group was represented by Lisa A. Bunnell, Esq., and Meg Crawford, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review1 from the September 11, 2007 Finding & Award/Finding & Dismissal of the Commissioner acting for the Sixth District was heard February 24, 2009 before a Compensation Review Board panel consisting of Commissioners Peter C. Mlynarczyk, Randy L. Cohen and David W. Schoolcraft.

OPINION

PETER C. MLYNARCZYK, COMMISSIONER. The present case is a dispute between two insurance carriers as to the obligation to pay for the claimant’s surgery and assume ongoing obligation for this claim. The trial commissioner found the claimant had suffered two compensable injuries; but that the initial injury caused his need for surgery. The respondent Hartford Insurance Group has appealed, asserting that this result is inconsistent with the precedent in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). We conclude the trial commissioner reached legally sound conclusions consistent with the facts in this case. We affirm the Finding & Award/Finding & Dismissal and dismiss this appeal.

The trial commissioner reached the following conclusions of fact. He found the claimant had been employed by Reno Machine Company, Inc. (“Reno”) during all times relevant to the dispute. The respondent Reno had paid benefits for an October 25, 1999 lifting injury which occurred at work. Following that injury the claimant had been treated at New Britain General Hospital. A CT scan performed at that facility revealed a small focal disc protrusion at L4-5 and sclerotic change at L5-S1. X-rays performed at Alliance Occupational Health revealed degenerative disc disease at L5-S1. Treatment at Alliance referred to symptoms of right low back pain.

Following that injury the claimant treated with his family physician, Dr. John Harbut. Dr. Harbut examined the claimant and on a number of occasions noted symptoms consistent with symptoms of the previous back injury. On September 25, 2000 the claimant complained of lumbosacral pain. Dr. Harbut identified a positive straight leg raising test in the right leg indicative of nerve root irritation. The claimant was examined by Dr. Harbut as late as December 13, 2000 for the 1999 injury.

On March 13, 2001 the claimant was lifting at work when he felt back pain with right leg symptoms. He was treated at MedWorks for this incident, and Reno has acknowledged the claimant’s current back condition is the result either of the October 25, 1999 incident or the March 13, 2001 incident. Travelers Property & Casualty (“Travelers”) was the carrier on the risk for the 2001 incident and paid benefits to the claimant. A March 22, 2001 MRI revealed the presence of degenerative disc disease which was most severe at L5-S1. On April 28, 2001 the claimant was seen by Dr. Bruce Chozick.

Dr. Chozick’s history stated that the claimant had had symptoms of back pain since 1999, referencing a “March 1999” injury. Dr. Chozick believed the claimant has degenerative disc disease at L4-5 and L5-S1. On September 26, 2001 Dr. Chozick performed bilateral foraminotomies and discectomy at L5-S1. Subsequent to this surgery, both at a deposition and in a 2005 report, Dr. Chozick related the need for this surgery to an injury in March 1999. He acknowledged at his deposition his reference to a “March 1999” injury misstated the month.

Following this injury Dr. Steven Selden performed a respondent’s Medical examination on the claimant on November 14, 2002.2 Dr. Selden opined that the claimant’s back problems were the result of the October 1999 injury and the March 13, 2001 injury was not a significant factor in the need for surgery. The trial commissioner acknowledged there were various inaccuracies in the history set forth in Dr. Selden’s opinion; he concluded the record does not demonstrate that those inaccuracies would alter his opinion as to causation in any way.

The commissioner concluded, based on these subordinate facts, that Dr. Chozick and Dr. Selden were credible. He concluded that Dr. Chozick’s clarification of the 1999 date of injury was persuasive. He also concluded that Dr. Selden had opined that the October 1999 injury was the event which caused the need for the claimant’s surgery, and that the 2001 injury was self-limiting. Therefore, he found the October 25, 1999 injury the material and substantial cause for the claimant’s subsequent treatment. He ordered the carrier on the risk at that time, Hartford Insurance Group, (“Hartford”) to assume ongoing responsibility for the claim and reimburse Travelers for benefits paid subsequent to the March 13, 2001 incident.

The appellant Hartford filed a Motion to Correct focused on two issues: a) that the claimant had suffered two separate injuries and the 2001 injury was not self limiting and b) Dr. Selden’s opinion was based on so many inaccuracies that it could not be relied on. The commissioner denied this motion and Hartford filed its appeal, arguing the trial commissioner erred by not applying the Hatt precedent; that the evidence did not support a finding of causation emanating from the first injury, and the commissioner lacked a basis for finding the second injury was self-limiting.

We find that this case closely tracks the scenario we considered in Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008). In Lamontagne we dealt with a claimant who had suffered two separate injuries and following the second injury, obtained surgery. We rejected the appellant’s argument that under these circumstances responsibility for the surgery should be placed on the second injury, as the trial commissioner found credible expert testimony ascribed the need for surgery solely on the initial injury. In so doing, we rejected the argument that such a case must be the subject of apportionment under the Hatt precedent.

The Appellant cites Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007) as being on point with the present case and mandating that this case be remanded to the trial commissioner for a hearing on apportionment consistent with Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). We do not find Fratino stands for this proposition. Fratino cited Gagliardi [v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 915 (2004)], supra, for the proposition a trial commissioner may accept or reject all of part of an expert’s opinion, and thus, deny a Motion to Correct. It also cited Fox-Gould [v. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001)], supra, as supporting a trial commissioner’s right not to admit evidence which could have been obtained earlier through due diligence, but was not provided to the tribunal. In Fratino, the appellant argued that when two injuries are found to have occurred to a claimant “the second injury must be of legal significance in the proximate cause analysis. We are not so persuaded.” Id. We did not remand the case in Fratino for an apportionment hearing and are not persuaded one should be ordered in this case since the trial commissioner did not reach any findings that injuries to the claimant subsequent to his employ at F & F Concrete Corporation were a substantial factor in his current condition.

In the present case the trial commissioner found both Dr. Chozick and Dr. Selden credible witnesses and found that they opined that the cause for the claimant’s surgery was the original 1999 injury. Since the trial commissioner did not conclude the latter of the two injuries was a substantial factor in the need for surgery, we find no error.

The appellant argues that notwithstanding the trial commissioner’s findings the evidence presented by Dr. Chozick and Dr. Selden was not sufficient to justify the conclusion. The appellant points to various discrepancies in the medical history presented to Dr. Selden and the fact that Dr. Chozick originally testified to an inaccurate date of injury. We were presented with similar arguments in such cases as Wiggins v. Middletown, 5300 CRB-8-07-12 (January 15, 2009) and Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). In both cases, we determined that the trial commissioner was responsible to resolve these discrepancies in medical testimony. We believe the trial commissioner in this case reached a reasonable conclusion based on the totality of the evidence presented by both the treating physician and the respondent’s expert witness.

The appellant also argues that the trial commissioner lacked a basis for concluding that the claimant’s 2001 injury was self-limiting. Dr. Selden’s report of July 28, 2003 clearly identified the latter injury as a “temporary and self-limiting aggravation.” Joint Exhibit 6. We are perplexed as to why the appellant believes the trial commissioner erred by determining this report was probative evidence supportive of his conclusion. The appellant argues that the primary focus should have been on the fact that the claimant did not miss work following the initial accident, and did miss time following the 2001 accident. This evidence, however, does not constitute a competent medical opinion. See Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008), cert. granted, 286 Conn. 916 (2008). Dr. Selden’s report on the other hand, does constitute such an opinion.3

The appellee in this case points out that had the appellant wanted to challenge the opinions of Dr. Selden, that they had the chance to depose him and elicit a clarification as to his opinions. The appellant chose not to depose the doctor, however. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) stands for the proposition that when medical evidence is presented under these circumstances “the respondents must accept the testimony ‘as is,’ as well as the permissible inferences which the trial commissioner drew from it.” Id., n3. We find the situation in Berube congruent with the present case; in both cases uncontested medical evidence established causation to the trial commissioner’s satisfaction.

Finally, we consider the issue of the appellant’s Motion to Correct. We find the Motion to Correct essentially sought to interpose the appellant’s conclusions as to the facts presented. Since this a judgment call for the trial commissioner, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).

We must respect the trial commissioner’s evaluation of medical evidence O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). We find that the trial commissioner’s decision herein was based on a foundation of evidence which he determined was probative. Since we cannot retry such a case on appeal, we affirm the Finding & Award/Finding & Dismissal and dismiss this appeal.

Commissioners Randy L. Cohen and David W. Schoolcraft concur in this opinion.

1 We note that a postponement as well as extensions of time was granted during the pendency of this appeal. BACK TO TEXT

2 The finding identifies this as an IME; but we wish to clarify it was not ordered as a commissioner’s exam. BACK TO TEXT

3 The appellant argues that Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001) does not require expert testimony to be presented to prove causation when it can be established as a matter of common knowledge. The appellee challenges this on the facts, but we find a legal deficiency with this argument. We do not find Dengler, stands for the proposition that expert testimony must be disregarded by the trial commissioner in such circumstances, which would have been necessary to have linked causation for the claimant’s surgery as attributable to the second injury. Since a “commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law,” id., at 451, we must respect the trial commissioner’s conclusion herein. BACK TO TEXT

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