CASE NO. 5334 CRB-6-08-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 1, 2009
RONETTE M. SOCKBESON
PENNSYLVANIA MANUFACTURER’S ASSOCIATION
The claimant was represented by Gary Friedle, Esq., Old Post Office Plaza, 114 West Main Street, Suite 105, New Britain, CT 06051.
The respondents were represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the March 19, 2008 Finding and Award of the Commissioner acting for the Sixth District was heard October 24, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the March 19, 2008 Finding and Award of the Commissioner acting for the Sixth District. We find no error, and affirm the decision of the trial commissioner.1
The following factual determinations are pertinent to our review. On January 18, 2007, the claimant, who was employed as a cook, sustained an injury to her lumbar spine when she attempted to lift a box of frozen hamburgers. The claimant initially sought treatment with Sandor Nagy, M.D., at Alliance Health Care, who diagnosed a lumbar strain and took the claimant out of work until March 15, 2007. On March 16, 2007, Dr. Nagy returned the claimant to work with restrictions; however, in the interim Dr. Nagy had also referred the claimant to Jeffrey Steckler, M.D., an orthopedist; Dr. Steckler again took the claimant out of work following her first office visit with him on March 28, 2007. Dr. Steckler diagnosed a lumbar strain superimposed on a quiescent preexisting facet arthropathy at L4-5. He further opined that the strain had activated the claimant’s facet arthropathy and led to her current symptoms.2
At the respondents’ request, the claimant saw Patrick R. Duffy, M.D., on May 30, 2007. Dr. Duffy concurred with Drs. Nagy and Steckler in concluding that the claimant had sustained a lumbar strain in the lifting incident of January 18, 2007 and also opined that the strain was “superimposed on preexisting lumbar spondylosis, greatest at L5-S1.” Respondents’ Exhibit 3, p. 16. On February 4, 2008, the claimant saw William Druckemiller, M.D., for a commissioner’s examination. Consistent with preceding medical diagnoses, Dr. Druckemiller diagnosed a lumbar strain, also remarking that “[i]t appears that she probably does have a preexistent lumbar spondylosis.” Respondents’ Exhibit 6, p. 2. In addition, Dr. Druckemiller indicated he had not been provided the opportunity to review the claimant’s prior xrays but opined that the incidents which prompted xrays in 1998 and 2005 were probably not “significant.” Id.
In addition to the foregoing medical evidence, the trial commissioner also reviewed with the parties a videotape of a motor vehicle accident involving the claimant which occurred on May 19, 2007. The claimant was sitting in the passenger seat of a friend’s automobile parked in the lot of a local convenience store when another patron of the store accidentally backed his vehicle into the automobile in which the claimant was sitting. Subsequent to the accident, the claimant admitted feeling shaken and was taken by ambulance to the hospital, where she reported she was experiencing neck pain. The trial commissioner heard the testimony of the claimant with regard to the injuries she suffered in the motor vehicle accident and found her testimony credible relative to her assertion that she did not injure her lumbar spine in the accident.
The trial commissioner ultimately determined that the claimant had suffered a compensable injury in the lifting incident of January 18, 2007 and awarded temporary total benefits for the period of January 22, 2007 through March 15, 2007, temporary partial benefits for the period of March 16, 2007 through March 27, 2007, and temporary total benefits commencing on March 28, 2007 and continuing through the date of the formal hearing.3 In light of Dr. Druckemiller’s inability to review the claimant’s prior xrays, the trial commissioner indicated that he found Dr. Steckler more credible and persuasive “in regards to the facet arthropathy which I believe is the main point of contention in this particular matter ,” Findings, ¶ 18, and also concluded Dr. Duffy’s deposition and reports were not as credible or persuasive as Dr. Steckler’s. The trial commissioner authorized Dr. Steckler as the claimant’s treating physician and approved Dr. Steckler’s referral of the claimant to Dr. Kost for ESI treatment and/or injections. The trial commissioner further concluded the claimant was entitled to “medical treatment, prescriptions, mileage, out-of-pocket and all other benefits in regards to the January 18, 2007 injury.” Findings, ¶ N. Finally, the trial commissioner specifically left open the issue of the claimant’s future potential need for a facet or lumbar fusion pending the results of the ESI testing and/or injections with Dr. Kost.
Following the issuance of the trial commissioner’s Finding and Award dated March 19, 2008, the respondents submitted correspondence to the trial commissioner dated April 2, 2008 which consisted of a draft of a letter intended for Dr. Druckemiller inquiring whether he thought the opportunity to review the claimant’s x-rays would have made a material difference in his opinion. The trial commissioner denied the respondents’ request to forward the letter to Dr. Druckemiller. The respondents also filed a request to submit additional evidence in the form of correspondence from Dr. Steckler dated March 28, 2008 indicating Dr. Steckler agreed with the results of the Commissioner’s Evaluation performed by Dr. Druckemiller.4 The trial commissioner likewise denied that request, stating that the March 28, 2008 letter from Dr. Steckler neither addressed nor changed the issues which had been decided at the formal hearing of March 18, 2007.
On April 21, 2008, the trial commissioner issued a § 31-301(f) Order.5 On April 24, 2008, the claimant filed an objection to the various motions, deposition notices and additional medical evaluation requests propounded by the respondents, essentially protesting the respondents’ decision to continue their prosecution of the claim “as if no Finding and Award had been entered.” Claimant’s Objection to Respondent’s Motions and Deposition Notices, p. 2. Apparently the respondents had, inter alia, notified the claimant on April 8, 2008 she was scheduled for additional evaluations with Gerald Becker, M.D. and Michael Karnasiewisz, M.D., which evaluations the claimant characterized as “nothing short of harassment.” Id., at 3. The trial commissioner granted the claimant’s objection.
On May 6, 2008, the respondents’ filed a Motion to Correct which was denied in its entirety. On May 7, 2008, the respondents filed a Motion to Submit Additional Evidence to this board along with separate correspondence seeking appellate review of a number of “ancillary matters” primarily related to the wording of the § 31-301(f) Order and the trial commissioner’s order granting the objection of the claimant’s attorney to the post-judgment medical evaluations sought by the respondents. The respondents also requested review of the trial commissioner’s denial of the other postjudgment motions filed by the respondents. On May 15, 2008, the respondents filed a request with this board again seeking permission to forward correspondence to Dr. Druckemiller querying whether he believed the opportunity to review the claimant’s x-rays would have changed any of the conclusions contained in his report. In correspondence dated May 19, 2008, the chairman of this board indicated it would be inappropriate for him to comment on the points raised in the respondents’ letter given that the claim was currently under appeal.
The respondents advance a number of claims of error. They contend the trial commissioner’s decision to find the claimant credible regarding her medical history constituted an abuse of discretion in light of the various inconsistencies and “fabrications,” Appellants’ Brief, p. 7, contained in the claimant’s medical records and testimony and the claimant’s alleged failure to cooperate with Drs. Duffy and Druckemiller during her evaluations with them. The respondents also argue that the trial commissioner’s decision to “disregard,” id., at 14, the findings in the commissioner’s examination performed by Dr. Druckemiller constituted reversible error, while the trial commissioner’s failure to allow the respondents to obtain post-judgment clarification from Dr. Druckemiller relative to the claimant’s x-rays was a denial of due process. Finally, the respondents allege that the trial commissioner erred in denying the respondents’ Motion to Correct and by refusing to allow into the record the March 28, 2008 correspondence of the claimant’s treating physician, Dr. Steckler.
We begin our analysis with the respondents’ contention that the trial commissioner’s decision to find the claimant credible constituted reversible error. In support of this position, the respondents rely on what they identify as a pattern of mendacity adopted by the claimant relative to her medical history prior to the lifting incident of January 18, 2007. For instance, the respondents assert that a review of the emergency room report generated by the claimant’s visit to New Britain Hospital on January 19, 2007 states that the claimant had been seen in the emergency department three times during the prior year for neck and back pain. Respondents’ Exhibit 5. On the basis of this notation, the respondents conclude, “[u]nless someone entered New Britain Hospital and ‘doctored’ the claimant’s emergency room file, the objective evidence clearly shows that the claimant was having significant back problems in the year immediately preceding her date of injury at the employer-respondent.” Appellants’ Brief, p. 6.
The respondents also question the claimant’s credibility regarding the motor vehicle accident on May 18, 2007, contending that the claimant presented to the New Britain General Hospital emergency room with back pain on May 19, 2007 and subsequently underwent a lumbar epidural steroid injection at the Hospital of Central Connecticut on May 24, 2007. Respondents’ Exhibit 5. The respondents unrelentingly castigate the claimant for her failure to truthfully inform her medical providers about the motor vehicle accident and the injuries which allegedly occurred prior to the lifting incident, stating that “[t]he doctor’s medical presumptions on the issue of causation were crafted by the claimant’s lies, which thwarted the possibility of obtaining opinions based on reasonable medical probability.” Appellants’ Brief, p. 13. “Therefore, the commissioner’s conclusion that the claimant was a credible witness was completely unreasonable and unsupported by the evidentiary record because the claimant lied to her treating physician about her prior back injuries.” Id.
It is perhaps helpful at this juncture to review the well-settled principle of appellate review regarding the credibility of witnesses appearing before a tribunal. We have repeatedly held that determinations regarding the credibility of a party or witness who appears before a trier fall squarely within the trier’s discretion. As we observed in 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),
[c]redibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, 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.
Id., quoting Burton v. Mottolese, 267 Conn. 1, 40 (2003).
In addition, “[a]s 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) citing Burton, supra, at 54.
The respondents’ strenuous attempts to utterly discredit the claimant notwithstanding, our review of the evidentiary record reveals ample support for the inferences drawn by the trial commissioner relative to the claimant’s credibility. For instance, a close reading of the claimant’s testimony at trial suggests that the confusion generated by the claimant’s remarks regarding her prior injuries seems to be far more a function of semantics than credibility. The claimant consistently testified that although she had experienced prior accidents involving her back, none of them had left her with residual symptoms and therefore in her mind did not constitute “injuries.”
Q: Now it is true isn’t it Ms. Sockbeson that you have injured your back in the past?
A: Yes, I have sir.
Q: Did you fall off a ladder within two years prior to going to McDonald’s?
A: Yes I have sir.
Q: And as a result of falling off the ladder did you think you hurt your back?
A: No sir, I went to the hospital to get checked to make sure it wasn’t hurt, I was able to get up, walk around and do things afterward. I never had an injury to my back. I had injuries but never something severe like I have to wear a brace and walk with a cane. I was able to still get up and walk, ride my bike and do things.6
January 28, 2008 Transcript, pp. 10-11.
The claimant also stated:
Q: Have you ever had any back problems prior to January 18, 2007?
A: I don’t understand.
Q: Back problems?
A: Have I had any back problems?
Q: Yes not injuries back problems?
A: Yes sir I have had problems but never no back injuries, nothing that would lead me to wearing this.
Id., at 12-13.
When confronted with the information that Dr. Steckler, upon being acquainted by respondents’ counsel with the prior incidents involving the claimant’s back, had called the claimant a liar, the claimant responded:
A: Well sir I’m not a liar, I may forget things but I don’t lie sir.
Q: So you disagree with what Dr. Steckler said?
A: I don’t recall him asking me that, I hadn’t had nothing wrong with my back and if I did it was my mistake. I do have things that I can’t remember just like anybody else. I have nothing to lie about.
March 18, 2008 Transcript, p. 20.
The medical reports contained in the record also support the trial commissioner’s inferences relative to the claimant’s credibility. As previously mentioned herein, the New Britain Hospital emergency room report of January 19, 2007 contains a notation referencing the claimant’s three prior visits for neck and back injuries. Respondents’ Exhibit 5. A close review of the evidentiary record indicates there were actually only two occasions during the year preceding the workplace injury of January 18, 2007 when the claimant visited the emergency room because of a neck or back complaint. The first occurred on July 6, 2006, when the claimant presented for back and knee pain but testified at trial that, “[y]es, but I had nothing wrong with me, I was up walking around, bike riding. I went and checked to make sure there was nothing wrong and there was nothing wrong.” March 18, 2008 Transcript, p. 21. The diagnosis at that visit was a knee sprain with accompanying back strain, and the claimant was prescribed an ace wrap for the knee. Respondents’ Exhibit 5. The claimant testified that she believed she had water on the knee. March 18, 2008 Transcript, p. 21. X-rays of the lumbar spine taken at that visit demonstrated “mild osteophytic lipping in the mid and lower lumbar spine, consistent with early degenerative involvement” along with “mild degenerative facet joint disease at L5-S1.” Respondents’ Exhibit 5.
The claimant also presented to the New Britain General Hospital emergency room on January 25, 2006. Relative to that visit, the claimant admitted she fell down a flight of steps but she testified that “there was still nothing wrong with me I was able to get up and ride my bike even though I wanted to be checked to make sure there was nothing wrong with my body and there wasn’t.” March 18, 2008 Transcript, p. 22. The intake report states that the claimant “slid down a flight of stairs on her buttocks” and the x-ray reports revealed “degenerative changes” at C6-7 and “mild scoliosis of the lumbar spine convex to the right” along with “mild degenerative disc disease with some mild marginal osteophyte formation.” Respondents’ Exhibit 5. Significantly, the report also states that although there is “[s]ome degenerative change of the facets, especially at the L5-S1 level,” there is also “[n]o evidence of fracture or subluxation.” Id.
The evidentiary record also indicates that the claimant presented to the New Britain General Hospital emergency department on August 24, 2005, some sixteen months prior to the January 18, 2007 lifting incident. The claimant had apparently fallen off a ladder, and testified that she fell onto “[m]y butt, I fell back on the ladder, when I got checked out they said there was nothing wrong once again I was still up able to walk around.” March 18, 2008 Transcript, p. 23. The x-ray report for that emergency room visit revealed “early facet arthropathy in the lower lumbar spine” with “no evidence of fracture or misalignment.” Respondents’ Exhibit 5.
Respondents queried the claimant regarding another incident which occurred on July 20, 1998 when she fell off a porch at a friend’s house. The claimant testified that after that accident, she was still “up walking around and still riding my bike” and “[n]one of this is nothing because I never had pain after all this.” March 18, 2008 Transcript, p. 24. The x-ray for that emergency room visit demonstrated “early hypertrophic lipping” and “a very minimal scoliotic curve” but “no fracture or dislocation detected in the lumbrosacral spine.” Respondents’ Exhibit 5.
Clearly, none of the foregoing medical reports or x-ray studies supports the respondents’ contentions relative to the severity of the claimant’s back injuries prior to the lifting incident of January 18, 2007. Furthermore, the claimant consistently testified that following all of these incidents, she was simply given a prescription for medicine and was always fine a few days later. March 18, 2008 Transcript, p. 25. The medical reports do indicate that the claimant had degenerative changes in her lumbar spine which were asymptomatic prior to the workplace injury. At his deposition, Dr. Steckler testified that “[p]eople just get arthritis to their spine as they get older. The changes are so slow that you don’t see anything, you don’t have anything. And people don’t complain of anything. But as soon as they have an incident that brings it to the forefront, they become symptomatic.” Respondents’ Exhibit 2, p. 39. When queried whether Dr. Steckler ever discussed the claimant’s arthritis diagnosis with her, the claimant answered:
[n]o, sir, he never told me I don’t complain he told me I have arthritis that was about it not about us getting older and its being there. As far as I know he had said I had it since I was 20, I didn’t even know I had it, I was still up riding my bike, doing things, climbing trees, playing with my children, able to bend, pick up things.
March 18, 2008 Transcript, pp. 26-27.
The evidentiary record likewise does not support the respondents’ contentions relative to the motor vehicle accident which occurred on May 19, 2007 and supposedly “represented an intervening event that substantially contributed to the claimant’s current back injury [that] would break the chain of causation between the work incident and the present disability.” Appellants’ Brief, p. 8. In fact, the New Britain General Hospital Emergency Department record of May 20, 2007 indicates that the claimant complained of neck pain, not back pain, and cervical x-rays which were taken at that visit revealed degenerative changes but no subluxation or facture. Appellee’s Brief, Exhibit 6. Treatment rendered consisted of the claimant being given a soft cervical collar which she was told not to wear all the time. Id. Moreover, we find no evidence in the record which would substantiate the respondents’ allegations that the claimant’s epidural injection on May 24, 2007 was in any way related to the motor vehicle accident.
The claimant also testified twice regarding the motor vehicle accident and its effects, first stating at the formal hearing of January 28, 2008 that, “[t]he guy was drunk, he was backing up and he hit the back of the car and my head snapped back.” Transcript, p. 27. When queried whether she had reported she was experiencing back pain as a result of the collision, the claimant testified as to what she told the paramedics on the scene. “I told them I had a brace on because they wanted me to lay down on the stretcher, they had to help me down because I couldn’t get down there and I told them I had a brace on.” Id., at 28. The claimant offered essentially the same testimony at the formal hearing held on March 18, 2008.
Q: Now you just made a gesture while you were sitting there that the accident bounced you around?
A: Just my head.
Q: Your head moved?
A: My head just went back like that.
BY ATTORNEY KELLY: Your Honor I don’t know if you’re observing the claimant is rocking her head back and forth.
A: It just went back, it snapped back.
Transcript, p. 6.
The claimant also reiterated that the paramedic crew on the scene had to help her lie down because she was wearing the back brace.7 The claimant specifically denied ever telling either emergency or hospital personnel that she was experiencing back pain, testifying, “I did not state that, I stated that I had a back brace on and I could not lay down on the board.” Id., at 17.
Finally, we note that the trial commissioner was given full opportunity to review the videotape of the collision taken by the cameras at the convenience store and draw his own conclusions regarding the claimant’s credibility about the accident accordingly. Given the strong support provided by the various evidentiary submissions which formed the basis for the trial commissioner’s findings relative to this motor vehicle accident, we do not find that his factual determinations are subject to challenge by an appellate body.
As a corollary in support of their allegations regarding the claimant’s implausibility, the respondents point to the references to symptom amplification contained in Dr. Duffy’s report of May 30, 2007 and Dr. Druckemiller’s report of February 4, 2008.8 Our review of these reports indicates it could be reasonably inferred that the claimant may have indulged in some symptom amplification during her evaluations with Drs. Duffy and Druckemiller. However, we also note that Dr. Duffy, at his deposition of November 26, 2007, testified that, “pain is a subjective thing, so it can vary between one person and another.” Respondents’ Exhibit 3, p. 10. Dr. Duffy also admitted that his observations about the claimant “moaning and groaning and grimacing” throughout the exam were “subjective” on his part. Id.
In a similar vein, Dr. Steckler, in his deposition of October15, 2007, commented that there are a “multitude of reasons” why patients will amplify their symptoms, one being that they do not think they will be believed if they don’t. Respondents’ Exhibit 2, p. 47. He also testified that, “[s]ome people are truly painful and it hurts them, which we sometimes – if it’s over and above what we would expect, we say that there’s some symptom magnification.” Id. Significantly, we also note Dr. Steckler’s testimony that the client was in “severe pain” and that she was not “moving her spine. It’s not functional.” Id., at 49. When respondents’ counsel queried whether Dr. Steckler found it strange that the claimant had reported she had “zero motion,” the doctor replied, “[n]o. When you have tightness of the spine with pain you don’t move. It doesn’t move.” Id.
There is no question that that trial commissioner could have drawn any number of inferences from the references to symptom amplification contained in the reports of Drs. Duffy and Druckemiller. However, it is well-settled that the trial commissioner is charged with according such evidence the weight he deems appropriate and formulating his findings accordingly. Our review of the record suggests that the respondents’ assertions that the claimant was malingering are weakened by the claimant’s testimony at trial that her pain was finally improving and she had embarked on a course of therapy on her own.9 Dr. Steckler also testified that the claimant responded positively to treatment rendered at an office visit, which would further belie the supposition that she was “faking.”10 It was therefore well within the trial commissioner’s discretion to choose not to draw an unfavorable inference from the claimant’s alleged symptom amplification. “It is immaterial that the facts permit the drawing of diverse inferences. The Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
We conclude that the evidentiary record in the instant matter provided the trial commissioner with more than sufficient grounds to find the claimant credible regarding her medical history. More important, even after being apprised of the claimant’s previous accidents, all of the claimant’s treaters maintained their opinions that the claimant’s current lumbar strain was causally connected to the lifting incident of January 18, 2007. When queried whether the claimant’s prior history changed his diagnosis, Dr. Steckler stated, “[f]acet arthopathy is preexistent. The back pain and the facet arthritis that had been activated is related to the picking up of the box. Because I have no indication that she had ongoing pain prior to starting working at – at McDonald’s, there’s no other way of proving this unless somebody says that she came to work with pain in the lower back.” Respondents’ Exhibit 2, p. 43. Similarly, Dr. Duffy confirmed his prior diagnosis of causation when queried by respondents’ counsel.11 Finally, even Dr. Druckemiller, having had the opportunity to review the claimant’s entire medical file, including the written reports associated with the prior x-ray studies, concluded that the earlier events were probably not “significant” and also concurred that the claimant had suffered a lumbar strain superimposed on preexisting lumbar spondylosis. Respondents’ Exhibit 6, p. 2.
Despite the uniformity of the expert opinions in the file essentially dismissing the prior incidents in which the claimant allegedly sustained a back injury, the respondents have asserted, “[t]he evidence in the record unquestionably establishes that the claimant had a serious pre-existing back condition before her alleged work injury, one that had been compounded by multiple accidents involving the claimant’s lumbar spine.” Appellants’ Brief, p. 14. We disagree. As the preceding discussion indicates, the evidence presented in this matter provided ample support for the trial commissioner’s determination that the claimant did not suffer from a serious preexisting injury prior to the workplace incident of January 18, 2007. The claimant consistently and straightforwardly testified that none of the prior incidents involving her back had ever left her with the type or severity of symptoms from which she currently continues to suffer.12 Moreover, none of the claimant’s treating physicians opined that the claimant suffered from a significant pre-existing back condition. The trial commissioner had the opportunity to weigh the claimant’s testimony and that of her various physicians and draw his conclusions accordingly. “Where 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). In short, “[t]he trial commissioner herein believed the claimant. It was his prerogative to do so.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).
The respondents also contend that the trial commissioner erred by “disregarding,” Appellants’ Brief, p. 14, the results of the commissioner’s examination performed by Dr. Druckemiller. This board has previously set out the generally recognized parameters for the utilization of these assessments.
The trial commissioner normally orders a commissioner’s examination when the evidence is in conflict, or when he believes that he does not have enough evidence to make a decision. Nieves v. SCM Company, 3317 CRB-6-96-4 (decided July 9, 1997). Although the parties may reasonably expect that the examiner’s report will provide the commissioner with strong guidance, the trier of fact is never required to adopt any one diagnosis. Id.; Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers' Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996) (per curiam). “This board will not encroach upon the fact-finding authority of a commissioner to decide which evidence is the most credible simply because the commissioner ordered one of the medical examinations. . . . There is no legal presumption of credibility for any expert witness in a workers’ compensation case, even one whom the parties assume is acting as a “tiebreaker” for the commissioner.” Nieves, supra; see also Gillis v. Waterbury Construction, 3337 CRB-5-96-5 (decided July 15, 1997).
Brown v. Greenwich, 3521 CRB-7-97-2 (March 31, 1998).
As the foregoing indicates, the trial commissioner was never under any compunction to view the evaluation of Dr. Druckemiller as having more or less probative value than any of the other evaluations performed on the claimant. Furthermore, our review of Dr. Druckemiller’s findings indicates they were largely consistent with the conclusions of Dr. Duffy and Dr. Steckler, in that he also determined that the client had a lumbar strain superimposed on a pre-existing degenerative disk condition. Respondents’ Exhibit 6, p. 2. Dr. Druckemiller’s opinion did differ from Dr. Steckler’s in that he found the claimant had reached maximum medical improvement, and he assigned a two (2%) percent permanent partial disability rating to the claimant’s lumbar spine. Id. In his Finding and Award, the trial commissioner stated he found Dr. Steckler’s opinion more persuasive and credible than Dr. Druckemiller’s because Dr. Steckler had reviewed the actual x-ray films in addition to the x-ray reports. However, logic would seem to dictate that the areas in which the trial commissioner found the opinion of Dr. Steckler more credible and persuasive than that of Dr. Druckemiller would probably lie in the elements of the two opinions which differed. In addition, given that Dr. Druckemiller had indicated in his report that the prior incidents involving the claimant’s back were probably not significant, we do not consider it an abuse of the trial commissioner’s discretion to credit the opinion of the treating physician over the opinion of the commissioner’s examiner.
The respondents also allege that the trial commissioner’s refusal to grant their motion to obtain and, presumably, submit as additional evidence a clarification of Dr. Druckemiller’s opinion constituted a denial of due process. As previously discussed herein, the respondents sought to inquire from Dr. Druckemiller whether the opportunity to review the actual x-ray films might have materially altered his opinion. The respondents maintain that the “examination supported the respondents’ position that the claimant was not suffering from aggravated symptoms of facet arthropathy,” Appellants’ Brief, p. 17, and therefore contend, “[p]rior to the Commissioner’s decision, there was no burden on the respondents to depose or seek clarification from Doctor Druckemiller because the commissioner’s examination report was unambiguous and clearly in their favor.” Id., at 18.
We are guided in our analysis of this issue by Administrative Regulation § 31301-9, which essentially requires that in order for additional evidence to be admitted after the record has been closed, “good reasons” must be provided for the failure to present the evidence at the trial level.13 The respondents’ assertion that the report was “unambiguous and clearly in their favor” does not seem to be borne out by an examination of the report, given that Dr. Druckemiller essentially agreed with the evaluations of the other treaters in diagnosing a lumbar strain superimposed over preexisting degenerative disk disease. We also note that Dr. Druckemiller clearly stated he had not personally reviewed the claimant’s x-ray films, and the report is dated February 4, 2008, fully a month and a half before the formal hearing of March 18, 2008. While we appreciate the sentiment behind the respondents’ choice to decline to seek clarification regarding the x-rays from Dr. Druckemiller when the report was issued, we do not conclude that the respondents’ election of that litigation strategy automatically entitles them to a “do-over” at the appellate level.
The respondents also allege that the trial commissioner committed reversible error in denying the submission of the correspondence from Dr. Steckler dated March 28, 2008 in which Dr. Steckler ostensibly indicated he agreed with Dr. Druckemiller’s assessment. It is the respondents’ position that “Doctor Druckemiller had concluded that the claimant exhibited symptom amplification, and that she had only suffered a lumbar strain that did not require surgery.” Appellants’ Brief, p. 19. Again, our review of Dr. Druckemiller’s report does not comport with this characterization. As we have previously mentioned, Dr. Druckemiller found the claimant had a lumbar strain. However, he did not describe it as “only” a lumbar strain but, rather, in the very next sentence also wrote that “[i]t appears that she probably does have a pre-existent lumbar spondylosis.” Respondents’ Exhibit 6, p. 2. More important, Dr. Druckemiller also stated that the claimant “is not a surgical candidate at this time,” id., (emphasis added), an opinion he attributed to the fact that the claimant “gets absolutely no relief with recumbancy and fusion surgery is probably not likely to help her. This is in addition to the fact that she does continue to smoke and has a BMI high enough to preclude surgery at this point in time.” Id. (emphasis added)
In his Finding and Award, the trial commissioner specifically articulated that “[t]he issue of surgery will be addressed at a subsequent hearing as Dr. Steckler has stated that depending on how the ESI testing and/or injections go he would then make a determination and/or recommendation and/or referral out for a possible facet fusion or lumbar fusion in regards to the same.” Findings, ¶ P. This finding is supported by Dr. Steckler’s testimony at his deposition, in which he remarked, “if the brace doesn’t fix anything, she still needs the facet injection and she still needs evaluation by Dr. Kost and subsequent diagnosis will follow through whether or not she requires an operative intervention.” Respondents’ Exhibit 2, p. 56. In light of the previously mentioned similarities between the diagnoses of Dr. Steckler and Dr. Druckemiller, and Dr. Steckler’s clearly stated opinion at his deposition that he also did not consider the claimant a surgical candidate at that time, the trial commissioner’s decision to refuse to admit, after the record had closed, a letter in which Dr. Steckler wrote that he agreed with Dr. Druckemiller was not unreasonable and certainly did not constitute an abuse of discretion.
The respondents have also asserted that the trial commissioner’s denial of their Motion to Correct represented reversible error. In particular, the respondents point to the denial of their proposed correction regarding the typographical area in Findings, ¶ C, of the Finding and Award in which the year of the date for the commencement of payment of the temporary partial benefits on January 22, 2007 was typed “2997.” The respondents assert that “the Commissioner’s refusal to make such a correction on a material issue was unreasonable and should be reversed, especially when the error involves an order directing the payment of benefits.” Appellants’ Brief, p. 20. Furthermore, “[t]he most probative part of the issue is the fact that this particular ruling clearly shows that the Commissioner did not fully read and consider the entire Motion to Correct.” Id., at 21. We find the respondents’ contentions in this regard to be without merit.
Our review of the finding in which the typographical error occurred reveals that a contextual reading would be highly unlikely to inspire confusion on the part of a reasonable examiner. Our review of the balance of the proposed corrections contained in the Motion to Correct suggests that in addition to introducing into the record a great deal of extraneous information regarding Dr. Druckemiller’s credentials, the respondents were primarily seeking to re-litigate the matter in order to have the trial commissioner conform his findings to the respondents’ view of the facts. As this board has previously remarked, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002). Thus, given that “the corrections sought [by the respondents] were not merely facts that were admitted or undisputed no alteration to the factual findings is necessary.” Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007), quoting Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 280 Conn. 909 (2006).
As previously mentioned herein, the respondents filed correspondence with this board on May 7, 2007 seeking appellate review of a number of “ancillary matters” primarily concerning their dissatisfaction with the language employed by the trial commissioner in the § 31301(f) Order as well as the trial commissioner’s order granting the objection of the claimant’s attorney to the post-judgment medical evaluations sought by the respondents. The respondents also requested appellate review of the trial commissioner’s denial of the various other postjudgment motions filed by the respondents. We decline to review herein any of these additional issues which were not addressed by the respondents in their brief. "We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (internal citations omitted) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124 (2008). We note that the respondents did discuss several of these matters at oral argument. However, “[i]t is well settled that claims on appeal must be adequately briefed, and cannot be raised for the first time at oral argument before the reviewing court.” (internal citations omitted) Grimm v. Grimm, 276 Conn. 377, 393 (2005).
However, we do choose to briefly respond to the respondents’ objection to the trial commissioner’s decision to grant the claimant’s objection to the additional evaluations with Drs. Becker and Karnasiewicz sought by the respondents following the issuance of the Finding and Award on March 19, 2008. We note that the trial commissioner clearly stated that he was closing the record at the end of the formal hearing on March 18, 2008. Transcript, p. 39. We also note that the correspondence sent by the respondents to the claimant informing her that these examinations had been scheduled was dated April 8, 2008. Claimant’s Objection to Respondent’s Motions and Deposition Notices, p. 2. Given that the issue of compensability had been resolved at trial and the additional medical treatment with Dr. Kost authorized by the trial commissioner at the formal hearing of March 18, 2008 was still pending, we fail to appreciate the utility of the evaluations sought by the respondents and do not deem the trial commissioner’s decision to grant the claimant’s objection an abuse of discretion.
Having found no error, the Finding and Award dated March 19, 2008 of the Commissioner acting for the Sixth District is accordingly affirmed.
Commissioners Charles F. Senich and Stephen B. Delaney concur in this opinion.
1 We note that several extensions of time were granted during the pendency of this appeal. BACK TO TEXT
2 At his deposition on October 15, 2007, Dr. Steckler testified, “… well, I would say that the arthropathy was there but quiescent. In other words, nothing was there until she lifted the box. When she lifted the box, the facet arthropathy was sort of activated and that’s what causes the problem that she now has.” Respondents’ Exhibit 2, p. 26. BACK TO TEXT
3 The Finding and Award contained a typographical error in that the date shown for the commencement of temporary total benefits was January 22, 2997. We address this issue below in our discussion of the respondents’ Motion to Correct. BACK TO TEXT
4 That particular letter was in fact not attached to the respondents’ Motion to Submit Additional Evidence, as Dr. Steckler apparently prepared and mailed two different letters on March 28, 2008. The respondents filed a Second Motion to Submit Additional Evidence on May 6, 2008 seeking to incorporate the correct letter, which request was denied on the grounds that the issue of the claimant’s need for surgery had been left open pending future proceedings. BACK TO TEXT
5 Sec. 31-301(f) C.G.S. (Rev. to 2007) provides, “[d]uring the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer. BACK TO TEXT
6 The claimant testified that prior to the workplace incident, she would ride her bike from her home in New Britain to the McDonald’s in Plainville where she was employed, a trip which took approximately thirty-five minutes each way. January 28, 2008 Transcript, p. 10. BACK TO TEXT
7 Q: Did the emergency personnel ask you questions?
A: Yeah they asked me to lie down, I had my brace on I couldn’t lay down, they had to help me.”
March 18, 2008 Transcript, p. 14. BACK TO TEXT
8 Dr. Duffy reported that “[t]here [was] moaning and groaning and grimacing throughout the exam.” Respondents’ Exhibit 4, p. 3. Dr. Druckemiller wrote that the claimant “has moderate symptom amplification with significantly more subjective complaints than objective findings.” Respondents’ Exhibit 6, p. 2. BACK TO TEXT
9 The claimant testified that, “I’m doing my own therapy at home, stretches, working slowly trying to bring my knees to my chest, walking around the block, taking walks, bringing my hands up stretching my lower back, the doctors gave me a pamphlet of doing my own therapy at home.” March 18, 2008 Transcript, pp. 38-39. BACK TO TEXT
10 Dr. Steckler testified, “[b]ut you know, the thing is, she had spasm and she loosened up after the injection and sort of melted away and I was able to bring her knees up to her chest and she walked out pretty pain-free the first time I injected her. So usually when a — when a person is — has got this feeling of pain and you do something, the usual thing is, oh, I got worse, that type of thing. She didn’t do that.” Respondents’ Exhibit 2, p. 48. BACK TO TEXT
11 Q: Okay. So despite looking at those previous films, you still concluded that based on the information available, which included those prior X-rays, that her lumbar sprain was casually [sic] related — causally related to the incident on January 18th? I mean, you had all that information and saw?
Respondents’ Exhibit 3, pp. 25-26. BACK TO TEXT
12 The Alliance Occupational Health intake report of January 22, 2007 indicates that the claimant “[n]otes she is an active person and never had problems at all, especially this severe and is very concerned.” Claimant’s Exhibit A. BACK TO TEXT
13 The full text of Administrative Regulation § 31-301-9 C.G.S. (Rev. to 2007) is: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.” BACK TO TEXT