CASE NO. 5300 CRB-8-07-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 15, 2009
WILLIAM J. WIGGINS, JR.
CITY OF MIDDLETOWN
WEBSTER RISK SERVICES, INC.
The claimant was represented by Jeffrey Oliveira, Esq., Martocchio & Oliveira, LLC, 191 Main Street, Southington, CT 06489.
The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. Respondents were formerly represented by James Baldwin, Esq., Coles, Baldwin & Kaiser, LLC, 1261 Post Road, Fairfield, CT 06824.
This Petition for Review from the November 19, 2007 Finding and Award of the Commissioner acting for the Eighth District was heard November 21, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The appeal herein is from a decision that the claimant’s shoulder injuries were the result of an injury sustained in the workplace. The respondents argue the trial commissioner lacked sufficient probative evidence to award the claimant benefits for this injury. Our review indicates that the claimant’s treating physician offered competent testimony which supported this award. Since we cannot revisit a trial commissioner’s weighing of medical evidence, we affirm the Finding and Award and dismiss this appeal.
The present claim was occasioned by an incident that claimant says occurred at work on November 2, 2003.1 On that day, the claimant said he injured his shoulder while pulling a “Scott Pak;” which is a respiratory device which was affixed to a fire engine. The claimant testified that he reported this incident immediately to his employer. On April 23, 2004, the claimant filed a Form 30C stating that due to the injury he felt pain in his right arm, elbow, shoulder, wrist and hand.
Prior to the November 2, 2003 incident the claimant had sustained accepted compensable injuries to his right master elbow, shoulder and wrist on October 16, 1999. These injuries required wrist and right elbow surgery. The juxtaposition of these injuries is relevant to the issues herein.
The claimant treated with Dr. Terry Reardon, a board certified orthopedist, for his various injuries. On February 10, 2004, while treating his wrist and elbow injuries, the claimant told Dr. Reardon that he was “having problems in his shoulder.” Dr. Reardon’s records do not reflect further complaints as to the shoulder during 2004. The claimant underwent right elbow surgery on April 1, 2004. The claimant testified that he wanted to resolve the elbow injury prior to addressing his shoulder pain. He resumed treating for the shoulder pain on June 1, 2005.
Prior to resuming treatment for his shoulder, the claimant was involved in a motor vehicle accident on March 6, 2005. He testified he injured his lower back as a result of the accident. Subsequent to this accident the claimant treated at Valley Physical Therapy. The claimant filled out a questionnaire for Valley Physical Therapy stating his shoulder pain commenced in March of 2005. At the formal hearing, the claimant testified this statement was a mistake. The motor vehicle claim was settled on October 27, 2005.
The claimant underwent physical therapy for his shoulder injury in 2005 but this modality of treatment did not prove successful. He returned to Dr. Reardon and underwent additional testing and on December 7, 2005 underwent surgery. Following the surgery Dr. Reardon found the claimant totally disabled until February 26, 2006. On May 8, 2006 Dr. Reardon assigned a ten percent (10%) permanent partial disability rating to the Claimant’s right shoulder.
Dr. Reardon opined that the shoulder surgery and associated disability was causally related to the November 2, 2003 work injury. The respondents had their expert witness, Dr. Dante Brittis, perform a records review. Dr. Brittis opined that any injury the claimant may have sustained in November 2003 was not causally related to the claimant’s shoulder problems in 2005.
Two witnesses testified at the formal hearing which was held December 14, 2006 and February 26, 2007. The claimant testified on his own behalf and Ms. Darcy Donnelly, a manager for Travelers Insurance, testified as to the settlement of the motor vehicle claim. Ms. Donnelly testified that the motor vehicle claim had settled on the basis of the claimant’s back injuries.
Based on this record, the trial commissioner concluded that the claimant’s testimony was credible and persuasive. He found that Dr. Reardon had causally related the claimant’s right shoulder injury and need for surgery to the claimant’s November 2, 2003 injury; based substantially on the claimant’s narrative. He found the opinions of Dr. Reardon to be more credible and persuasive than those of Dr. Brittis. Therefore, he found the claimant sustained his burden of proof that he suffered an injury to his right shoulder on November 2, 2003, which arose out of and in the course of his employment with the respondents. The trial commissioner ordered the respondents to accept the shoulder injury as compensable, authorized Dr. Reardon as a treating physician for reasonable and necessary treatment, and ordered the respondents to pay temporary total disability and permanent partial disability benefits.
The respondents subsequently filed a Motion to Correct seeking 43 separate corrections to the record. This motion was denied in its entirety and the respondents have pursued this appeal.
The respondents’ argument on appeal is centered on a single theme: that Dr. Reardon’s opinions were inadequate to justify the award of benefits in this case. They point to the extensive delay from 2003 to 2005 in the claimant commencing treatment for his shoulder injury as arguing against finding this injury compensable. They also argue that Dr. Reardon failed to offer “competent” medical evidence supportive of the claimant. Therefore, they believe the majority opinion in Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008), cert. granted, 286 Conn. 916 (2008) would cause these opinions to be legally inadequate to justify an award. We are not persuaded as the Marandino case is factually distinguishable.
In Marandino the evidence supporting the claimant’s theory that her knee injury was the sequelae to a previous arm injury was contained in two written reports authored by her treating physician, Dr. Vincent Santoro. The reports themselves were somewhat conclusory in wording, id., at 674-675, and the trial commissioner relied on them on the issue of causation largely as they were uncontradicted by medical evidence offered by the respondents. Id., at 680. The majority opinion in Marandino concluded these reports were “grounded in speculation and conjecture,” and pursuant to precedent in DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336 (2007), they did not constitute probative evidence. Marandino, supra at 681.2
We believe that Marandino can be distinguished from this case. The trial commissioner in Marandino relied on written reports which were conclusory in nature and had not been challenged by the respondents. The respondents argue that Dr. Reardon’s conclusions were “talismanic but unsupported;” Respondents’ brief, p. 17, and thus, akin to the evidence in Marandino. The record, however, demonstrates that Dr. Reardon explained at length his reasoning for his opinions on causation.
On July 18, 2006 the respondents deposed Dr. Reardon and the deposition was entered into evidence before the trial commissioner as Claimant’s Exhibit J. Counsel for the respondents repeatedly challenged the witness for the source of his opinion that the claimant’s rotator cuff injury was due to a November 2, 2003 event at work. Dr. Reardon consistently testified as follows:
Q: Okay. And is that mechanism, Doctor, again, pulling the Scott pack off the truck and the traction injury, consistent with the shoulder injury for which you’ve rendered treatment for Mr. Wiggins for his right shoulder injury?
A: The arthroscopic findings were entirely consistent with a traction injury, yes.
Q: Okay. Such as were described by Mr. Wiggins for the November 2nd, 2003 incident, pulling the Scott pack off the truck?
A: Yes. The findings and arthroscopy were entirely consistent with a traction mechanism.
Claimant’s Exhibit J, p. 66.
The witness repeated this statement on cross-examination. Id., at 102. Dr. Reardon also testified on the issue of whether the 2005 motor vehicle accident was the proximate cause of the claimant’s shoulder injuries. He specifically testified the claimant’s right shoulder injury was inconsistent with the mechanism of an auto accident. Id., at 45-49. Dr. Reardon testified that to “a reasonable degree of medical certainty” that the claimant’s symptoms were consistent with his traction injury, id., at 76, even considering the 2005 motor vehicle accident. Id., at 78. The witness also discounted the possibility that the claimant’s injury was due to a weight lifting accident. Id., at 97-99.
A trial commissioner is entitled to substantial deference in his evaluation of medical evidence. “When the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Dengler, supra, 451.” Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007).
If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). “We must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.” (Internal citations omitted) Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006) n.1; Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).
Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008), quoting Solonick v. Electric Boat corporation, 5170 CRB-2-06-12 (January 9, 2008), aff’d, 111 Conn. App. 793 (2008). The respondents herein may vehemently believe that the trial commissioner should not have relied on Dr. Reardon’s testimony, but we cannot conclude based on his testimony that he failed to offer a reasonable basis for his opinions as to the cause of the claimant’s injury.3 The respondents also argue that there were certain discrepancies in the testimony of Dr. Reardon and his medical records, presented as Claimant’s Exhibit D. Respondents’ Brief, pp. 8-9. This issue is one reserved for the trial commissioner to resolve, as held in Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007), citing Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000).
The gravamen of respondents’ grievance in this appeal is focused on the nearly two year lapse between the claimant’s November 2, 2003 injury and his commencement of treatment for the injury. The claimant testified that prior to June 2005 his primary focus was in treating his elbow injury. December 14, 2006 Transcript, pp. 14 and 38; Finding, ¶ 4. This delay in treating the shoulder injury, in the respondents’ view, makes it impossible for the trial commissioner to have found causation. The problem herein for the respondents is “this issue is one of those ‘prototypical questions of fact’ which limits the scrutiny we may apply on review.” Prescott v. Community Health Center, Inc., 4426 CRB 8-01-8 (August 23, 2002). We faced a very similar situation recently in Sweet v. Coca Cola Bottling Company, 5262 CRB-1-07-8 (August 27, 2008).
In Sweet, the respondents advanced alternative theories of causation for the claimant’s back condition and further argued that the claimant’s narrative to his treating physician was so inconsistent as to vitiate any reliance on the treating physician’s opinion regarding causation. Our opinion in Sweet reiterated that an appellate panel is not in a position to reassess the credibility of witnesses who appear before the trial commissioner.
We pointed out, citing Burton v. Mottolese, 267 Conn. 1, 40 (2003), that an appellate panel cannot revisit a credibility determination as “it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record. 4" We also noted “[w]here the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal. Canevari v. [C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001).]” Berube, supra. Obviously, if the trial commissioner had believed the alternative explanations for the claimant’s injury advanced by the respondents’ witnesses and presented by respondents’ counsel, he would not have found the injury compensable. The trial commissioner chose to believe the claimant and that is his prerogative.
The trial commissioner, having observed the claimant testify, herein found the claimant a credible witness. Findings, ¶ B. As a result, the trial commissioner reasonably could have found Dr. Reardon properly relied on the claimant’s narrative. While cases such as Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008), Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006) and Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008) clearly establish that a trial commissioner may decide uncontroverted medical evidence is unreliable when he or she finds the claimant’s narrative not to be credible; the converse is also true. A trial commissioner may rely on expert testimony which is grounded in a claimant’s narrative he or she does find credible.4 We also note that in the present case, the trial commissioner was presented with conflicting expert testimony and the respondents made a serious effort to challenge the claimant’s evidence. Despite this the trial commissioner concluded the claimant offered the more persuasive arguments. We must respect his evaluation of contested evidence, O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999), especially since an appellate body must extend “every reasonable presumption” to the fact-finder’s decision. Daniels v. Alander, 268 Conn. 320, 330 (2004).
The respondents finally argue that the trial commissioner erred by not granting their Motion to Correct. This motion sought to interpose the respondents’ 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).
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 and Award and dismiss this appeal.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 This date is cited at some points in the initial Finding and Award as “November 2, 2004.” This is a harmless scrivener’s error. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) and on December 6, 2007 the trial commissioner issued sua sponte a Corrected Finding and Award citing the correct date of injury. BACK TO TEXT
2 We note that Justice Mihalakos reached a differing conclusion on whether Dr. Santoro’s medical evidence was sufficient to justify an award of benefits to Ms. Marandino for her knee injury. In his dissenting opinion, Justice Mihalakos held, “[t]he evidence in the record establishes the extent of the preexisting elbow injury and manner in which the knee injury occurred and consequently, provided the commissioner with sufficient facts from which causation could be inferred.” Marandino, supra, at 692. Whether the majority opinion or the dissenting opinion in Marandino, more properly defines what constitutes probative evidence of causation is presently being considered by the Supreme Court. BACK TO TEXT
3 The respondents’ argue that the trial commissioner failed to identify what evidence specifically said causation was established to a reasonable medical probability. This issue is not material to this decision. Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998) is dispositive of this argument. The respondents in that case made the same argument and the Appellate Court held “[i]t is of no moment that the commissioner’s finding and award did not patently state every piece of credible evidence or testimony that contributed to the rendering of her decision.” Id., at 285. Since Dr. Reardon clearly testified at his deposition to the standard delineated in Struckman v. Burns, 205 Conn. 542 (1987), we believe the trial commissioner could reasonably rely on his opinions. BACK TO TEXT
4 The respondents attempt to argue the issue of witness credibility in this case should not be dispositive because of alleged discrepancies between the claimant’s narrative and the medical evidence. Respondents’ brief, pp. 17-20. The claimant did testify at the formal hearing that he injured himself pulling the Scott Pak. December 14, 2006 Transcript, pp. 6-7. As noted, Dr. Readon testified as to the claimant sustaining a “traction injury.” Given this evidence on the record, we find the alleged discrepancies a reasonable exercise of his discretion. Williams v Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). BACK TO TEXT