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Torres v. New England Masonry Company et al.

CASE NO. 5289 CRB-5-07-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 6, 2009

MILTON TORRES

CLAIMANT-APPELLANT

v.

NEW ENGLAND MASONRY COMPANY

EMPLOYER

and

YANKEE NEWS

EMPLOYER

and

HANOVER INSURANCE COMPANY

CNA INSURANCE

BROADSPIRE

INSURERS

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents New England Masonry Company and Hanover Insurance were represented by Charlene Russo, Esq., Law Office of Charlene Russo, Suite 400, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent Yankee News and CNA were represented by Paul M. Pieszak, Esq., Law Offices of Cynthia Jaworski, 55 Capital Boulevard, Suite 210, Rocky Hill, CT 06067.

The respondents Yankee News and Broadspire were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. However, they did not file a brief nor appear at oral argument.

This Petition for Review from the October 19, 2007 Finding and Dismissal of the Commissioner acting for the Fifth District was heard October 24, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Stephen B. Delaney and Peter C. Mlynarczyk.

OPINION

ERNIE R. WALKER, COMMISSIONER. The question before this panel in the present appeal is whether the trial commissioner had sufficient grounds to determine the claimant failed to prove his hip condition was the result of a compensable injury. The claimant has suffered two compensable injuries. The first injury occurred when the claimant fell off a scaffold July 8, 1993 which resulted in a right leg laceration, a right knee injury, and right elbow injury. The second injury occurred January 17, 1998 when the claimant fell while delivering newspapers and injured his knee. Conflicting evidence was presented to the trial commissioner as to whether the claimant’s hip condition was caused by these compensable injuries. We find the trial commissioner had sufficient probative evidence to support his Finding and Dismissal; hence we affirm his decision and dismiss this appeal.

The trial commissioner found the following facts after a lengthy formal hearing process. Noting the aforementioned compensable injuries, the commissioner focused on the compensability of a right and left hip condition, commonly known as bilateral avascular necrosis. The claimant contended the bilateral avascular necrosis was a compensable injury arising out of the July 8, 1993 or the January 17, 1998 injury, and or repetitive trauma. The respondents contested the compensability of this injury.

The commissioner found that following the claimant’s 1993 injury, he began treating with Dr. Regina Hillsman, an orthopedic physician, who performed right knee and right elbow surgeries on the claimant in 1993 and 1994. Dr. Hillsman performed additional right knee surgery in early 1997 and subsequent to that surgery; the claimant began to experience some symptoms emanating from his hips. Dr. Hillsman ordered an MRI to address these concerns.

The claimant then suffered his 1998 injury and subsequent to that event came under the care of Dr. Patrick Duffy, an orthopedic physician. Surgery was done on March 2, 1998 to address the left knee condition. While treating with Dr. Duffy, the symptoms emanating from claimant’s hips continued. The MRI that was previously requested by Dr. Hillsman was performed and this test showed significant abnormalities. Dr. Hillsman diagnosed a right and left hip problem, commonly known as bilateral avascular necrosis. She referred the claimant to Dr. Richard Pelker, an orthopedic physician and Professor of Medicine associated with Yale University, to address this problem. After becoming the claimant’s treating physician for the hip condition, Dr. Pelker performed right and left hip surgeries on June 25, 1998 and November 15, 1998, respectively.

Following his 1998 hip surgeries the claimant began treating with Dr. John Keggi. Dr. Keggi performed additional surgeries to the claimant’s right and left hips as the claimant continued to have significant symptomatology. The claimant underwent a commissioner’s examination by Dr. John Grady-Benson on July 26, 1999. The trial commissioner noted a divergence of opinion as to the cause of the claimant’s hip ailments. Drs. Keggi, Hillsman and Duffy have offered the opinion the claimant’s left and right hip problems are primarily associated with the July 8, 1993 specific incident and or compounded by the January 17, 1998 incident and repetitive trauma. The claimant also testified extensively as to the impact of these injuries. On the other hand, Drs. Pelker and Grady-Benson are of the opinion the right and left hip conditions, specifically the avascular necrosis, are not related to the July 8, 1993 and January 17, 1998 specific incidents or to any repetitive trauma post July 8, 1993.

In the Finding and Dismissal issued October 19, 2007, the trial commissioner accepted the opinions of Dr. Pelker and Dr. Grady-Benson, on the causation issue; finding their testimony persuasive and credible. He found the claimant failed to sustain his burden of proof on the mechanism of his left and right hip condition and its connection to the work-related injuries of July 8, 1993 and January 17, 1998. The commissioner did not find the testimony of the claimant’s expert witnesses, Drs. Keggi, Hillsman and Duffy, credible or persuasive. Therefore, the commissioner dismissed the claim for benefits for the claimant’s hip condition.

The claimant filed a Motion to Correct, seeking to add additional information as to the claimant’s exposure to depo-medrol (an anti-inflammatory corticosteroid), which the claimant believes was the source of his bilateral avascular necrosis. The commissioner denied the Motion to Correct, and the present appeal ensued.

We note that the claimant is pursuing this appeal pro se. The record herein reflects his counsel at the formal hearing moved to withdraw his appearance shortly after the Finding and Dismissal was issued, and the trial commissioner granted this motion. The claimant on appeal seeks to have this panel consider a great deal of documentary evidence concerning the effect of depo-medrol which the claimant asserts was not properly considered by the trial commissioner, and which he states his former counsel failed to present on the record at the trial level. We believe this is a de facto Motion to Submit Additional Evidence as delineated under Admin. Reg. § 31-301-9. For the reasons stated in Diaz v. Jaime Pineda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008) we are not persuaded that this motion is meritorious.

As this board stated in Diaz,

A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The respondent Second Injury Fund (The “Fund”) points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996) we held the moving party in such a motion must establish the evidence could not have been obtained at the time of the original hearing.

Our review of the material sought to be added by the claimant indicates it consists primarily of medical treatises published prior to the conclusion of the formal hearing, as well as a medical report authored by Dr. MacAllen Glass in 1997. The claimant offers no compelling explanation why this material was not presented at the time of the hearing. Moreover, we believe evidence on the underlying issue concerning the effect of depo-medrol (also known as Prednisone) exposure on the claimant was in the record before the trial commissioner. See Claimant’s Exhibit A (deposition of Dr. John Keggi) pp. 29-35; Respondents’ Exhibit 2 (deposition of Dr. Richard Pelker) pp. 13-18. Therefore, we decline to admit additional evidence submitted by the claimant.

The claimant also asserts error insofar as efforts to reach a global settlement of his various claims against the respondents were unsuccessful. He discusses at some length his reasons not to execute a stipulation which he believes was inadequate. Having failed to reach such an agreement, he believes a Finding and Dismissal that resolved his hip injury claims against him while leaving open his compensable knee and elbow injuries was legally deficient. We do not agree and take this opportunity to explain these circumstances in detail.

An appellate panel cannot take into consideration issues related to unsuccessful settlement negotiations. Such discussions are not part of the record before this panel and cannot be weighed in our deliberations. Our scope of review is limited to the decision of the trial commissioner and whether the evidence presented on the record reasonably supports such a decision. The scope of the formal hearing was exclusively based on the claimant’s assertion that his hip injuries were compensable injuries incurred due to accidents at work. The trial commissioner’s Finding and Dismissal resolved the one question pending before the trial commissioner.

The claimant’s other injuries were already accepted as compensable by the respondents. The trial commissioner’s Finding and Dismissal was of no force and effect as to those injuries. Our precedent in the various Schenkel cases (Schenkel v. Richard Chevrolet, Inc., 5302 CRB-8-07-12 (November 21, 2008) (“Schenkel II”) and Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004) (“Schenkel I”)) is clear. Until there is a full and final stipulation these matters remain open and within the jurisdiction of this Commission.

Absent the execution and approval of a full and final settlement, an accepted workers’ compensation claim theoretically remains open for the duration of a claimant’s lifetime. Though a commissioner may determine that current circumstances at the time of a formal hearing do not warrant further benefits or ongoing treatment such as pain management therapy, a claimant always retains the right to seek medical treatment or benefits for future time periods should circumstances change.

Schenkel I, supra.

The major issue raised by the claimant is that he believes the trial commissioner erred in not determining the bilateral avascular necrosis was the result of various injections of depo-medrol administered by Dr. Hillsman while treating his 1993 knee injury. He asserts that medical evidence states even a single dose of this medication could lead to necrosis. While this is a well reasoned argument, at its essence it is a factual argument and as an appellate panel, we must defer to the fact-finding prerogative of the trial commissioner.

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).

The burden of proof in a workers’ compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006). The claimant proffered probative evidence his hip condition was the result of work injuries; see e.g. Claimant’s Exhibit A; but also needed to persuade the trial commissioner that his evidence was persuasive and should be credited over the evidence presented by the respondents. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008).

The trial commissioner in this case specifically credited the testimony of Dr. Grady-Benson and Dr. Pelker as being persuasive on the question of the claimant’s avascular necrosis. Both witnesses testified that they believed the claimant’s necrosis was idiopathic; i.e. of undetermined causation. See Respondents’ Exhibit 2, p. 12; Respondents’ Exhibit 3, July 26, 1999 letter. We note our precedent stands for the proposition that a trial commissioner may choose to give greater weight to the opinions of the commissioner’s examiner over that of the treating physician Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). The commissioner’s examiner, Dr. Grady-Benson specifically opined the claimant’s avascular necrosis “would have happened whether or not he had been involved in any traumatic episodes.” Respondents’ Exhibit 3. Dr. Pelker discounted the claimant’s position steroids caused his necrosis, citing the very short time lapse between exposure to depo-medrol and the claimant’s hip pain. Respondents’ Exhibit 2; pp. 13-18. Therefore, we find the trial commissioner relied on probative evidence in rendering the Finding and Dismissal.

As a result, we conclude the trial commissioner’s determination was a reasonable exercise of his discretion. We affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Stephen B. Delaney and Peter C. Mlynarczyk concur in this opinion.

Workers’ Compensation Commission

Page last revised: January 27, 2009

Page URL: http://wcc.state.ct.us/crb/2009/5289crb.htm

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