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White v. Wal-Mart Stores, Inc.

CASE NO. 5363 CRB-2-08-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 30, 2009

DENA WHITE

CLAIMANT-APPELLEE

v.

WAL-MART STORES, INC.

EMPLOYER

and

CLAIMS MANAGEMENT, INC

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Michael D. Colonese, Esq., Brown Jacobson, PC, Twenty-Two Courthouse Square, P.O. Box 391, Norwich, CT 06360.

The respondents were represented by Timothy P. Knotts, Esq., Varunes & Associates, PC, 5 Grand Street, Hartford, CT 06106.

Anthem Blue Cross/Blue Shield was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. Anthem joined in the brief submitted on behalf of Wal-Mart Stores, Inc. and Claims Management, Inc.

This Petition for Review from the July 1, 2008 Finding and Award of the Commissioner acting for the Second District was heard January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has a compensable back injury as a result of a work-related injury which occurred April 13, 2003. She sought an award from this Commission determining that her need for surgery at L3-L4 was causally connected to her 2003 injury. The trial commissioner concluded that the claimant’s back condition at L3-L4 was due to the compensable injury. The respondents appealed, but upon review of the record we find the trial commissioner had sufficient basis to reach this conclusion. We affirm the Finding and Award and dismiss this appeal.

The commissioner found the following subordinate facts in issuing the Finding and Award. An initial Finding and Award for this claim was issued on May 24, 2004, where it was found the respondents failed to either contest liability or commence payments on the claim within the statutory deadline under § 31-294c C.G.S. As a result, the respondents were precluded from contesting that the claim was compensable.

A second Finding and Award was issued on May 25, 2006. It found that as a result of the claimant’s April 13, 2003 compensable back injury the claimant underwent an L4-5 posterior fusion by Dr. Paonessa on September 17, 2003. This award authorized removal of hardware and instrumentation surgery recommended by Dr. Paonessa, epidural injections at L4-5 and exploratory surgery at the L4-5 fusion site.

Subsequent to the 2003 injury Dr. Paonessa’s report notes upon review of an April 28, 2003 MRI there was an L3-4 focal right paracentral disc protrusion causing mild right L3 neuroforaminal narrowing as well as a recurrent left lateral L4-5 disc extrusion. Dr. Paonessa opined that while the MRI of April 2003 indicated a disc bulge to the right side at L3-L4, it was not a large enough herniation to consider surgery. However, he also testified by April 27, 2006 the L3-L4 disc herniation appeared to be increasing in size and an operation may need to be considered if the claimant needs additional surgery at her L4-L5 fusion. He opined with a reasonable degree of medical probability the L3-L4 disc condition is related to the April 13, 2003 work injury.

Dr. Paonessa indicated that on June 23, 2006 the L3-L4 disc was bulging slightly at the time of her initial fusion, but appears to have worsened over time. He recommended that in addition to exploration and removal of hardware at L4-L5 that a diskectomy and fusion be performed at L3-L4. On July 25, 2006 Dr. Paonessa performed surgery at both the L4-L5 and L3-L4 levels. Prior to this procedure, the respondents filed a Form 43 contesting the need for the L3-L4 surgery contending it was not causally connected to the April 13, 2003 injury. Therefore, the claimant had the surgery paid for by his group health insurer Anthem Blue Cross and Blue Shield who have filed a lien pursuant to § 38a-470 C.G.S.

The respondents had the claimant examined by their expert, Dr. Jarob N. Mushaweh. The trial commissioner found that he opined the L3-4 herniation was asymptomatic and incidental in April 2003 and could not be causally connected to the April 13, 2003 injury. The commissioner also found Dr. Mushaweh testified that performing a fusion at the L4-L5 disk level, which occurred on September 17, 2003, would place at risk the adjacent L3-L4 level. The trial commissioner also found Dr. Mushaweh testified that the fusion at L4-L5 was a significant cause of the disk’s condition worsening at the L3-L4 level.

Based on those subordinate facts, the commissioner concluded the claimant’s Motion to Preclude was granted. He also found the claimant’s treating physician has opined that with reasonable medical probability the claimant’s L3-4 disc is causally related to her April 13, 2003 injury and as of April 27, 2006 the L3-L4 disc herniation appeared to be increasing in size. He found the September 17, 2003 fusion surgery had put the L3-L4 level at risk and it substantially worsened. The commissioner found both the opinions of Dr. Paonessa and the opinion of Dr. Mushaweh credible. Therefore, he concluded the claimant’s April 13, 2003 injury is a substantial factor in causing the claimant’s symptoms at L3-L4 and need for surgery and is causally connected to the April 13, 2003 injury. He directed the respondents to take responsibility for the injury at L3-L4 and to pay off the Anthem Blue Cross/Blue Shield lien.

Both the claimant and the respondent submitted Motions to Correct. The commissioner granted the claimant’s motion, which added a gym membership as part of the prescribed relief for the claimant; but denied the respondents’ motion which sought to find the claimant’s injury at L3-L4 unrelated to the compensable injury. The respondents have taken this appeal.

The respondents’ appeal is centered upon their belief that the evidence presented does not support the trial commissioner’s findings. In particular, they claim that the testimony of Dr. Mushaweh, whom the trial commissioner found credible, does not support the findings the commissioner attributed to him. As the respondents view the record, the decision must be reversed since they believe Dr. Mushaweh opined that the 2003 incident was not a significant factor in the claimant’s current condition at L3-L4.

We believe that this argument has been rendered moot in light of the Supreme Court’s recent decision in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009). In Donahue, the respondents did not present their own witness, but cross–examined the claimant’s witness. The Supreme Court found this was inconsistent with their ruling in Harpaz v. Laidlaw Transit Co., 286 Conn. 102 (2008). In the present case, as well as in Harpaz and Donahue, a Motion to Preclude had been granted pursuant to § 31a-294c C.G.S. The Supreme Court in Donahue made clear that once such a motion is granted, the respondents can take no action to challenge the validity of the claimant’s evidence.

The plaintiff contends that the board’s decision must be reversed because the commissioner improperly allowed the defendant to contest her claim by challenging her proof. We agree with the plaintiff. Id. See also Donohue, n. 9.

Therefore, we believe that the entirety of Dr. Mushaweh’s testimony must be disregarded in considering this matter on appeal. Once preclusion is found, the respondents cannot present their own expert witness to challenge the claim. This would result in expunging Dr. Mushaweh’s testimony from the record which would leave us with the testimony of Dr. Paonessa, who found causation and whom the trial commissioner found credible.

We note Dr. Paonessa stated on April 27, 2006 that to a “reasonable degree of medical probability that the L3-L4 disc condition is related to the April of 2003 work injury.” Claimant’s Exhibit A. Dr. Paonessa held this opinion consistently during these proceedings. See Claimant’s Exhibit D and E.

We also note that we must defer to the trial commissioner’s evaluation of medical evidence. 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 [v. Special Attention Health Services, 62 Conn. App. 440 (2001).

Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007).

Since Dr. Paonessa testified to a reasonable degree of medical probability we find no reversible error, since we must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009).1

We find that the trial commissioner’s decision herein was based on a foundation of evidence which he determined was probative. We cannot retry such a case on appeal. Moreover, the relief sought by the respondents is now barred by unambiguous appellate precedent. Therefore, we affirm the Finding and Award and dismiss this appeal.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 Assuming arguendo, were we to strike the two findings of fact supportive of compensability that relied on the opinions of Dr. Mushaweh (Finding, ¶ 12 and 13) and remove Dr. Mushaweh from Finding, ¶ E, this would create a scenario similar to the scenario in Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008) in which the respondent wanted findings removed from the record.

The Second Injury Fund identified only one specific finding (Finding, ¶ 12) which relied solely on the statements made by Mr. Hasiuk in his cross-examination of the claimant. We believe that were this finding to be stricken, the remaining findings of fact would still support the trial commissioner’s legal conclusions. As a result, we find this to be a harmless error at best. See Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).

Were one to remove the findings which were reliant on Dr. Mushaweh’s opinion (Finding, ¶ 12 and ¶ 13) from the Finding and Award and remove Dr. Mushaweh from Finding, ¶ E, there is still sufficient probative evidence from Dr. Paonessa to sustain the award. See, in particular, Finding, ¶ 5. BACK TO TEXT

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