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Santiago v. Laidlaw Transit, Inc.

CASE NO. 5379 CRB-5-08-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 27, 2009

MARTHA SANTIAGO

CLAIMANT-APPELLEE

v.

LAIDLAW TRANSIT, INC.

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul S. Ranando, Esq., Law Offices of Paul S. Ranando, 195 South Main Street, Cheshire, CT 06410.

The respondents were represented by Diane Duhamel, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from September 4, 2008 Finding and Award of the Commissioner acting for the Fifth District was heard February 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter sustained a compensable back injury and subsequently suffered non-work related accidents prior to undergoing additional back surgery. She asserts the surgery and the additional level of disability are due to her original work related injury. The respondents contested this claim at the trial level and have appealed the award, arguing that the precedent in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) barred such an award. We conclude that the Hatt precedent does not apply to this scenario and that the trial commissioner in this matter had sufficient grounds to award benefits to the claimant in this matter. We affirm the Finding and Award and dismiss the appeal.

The following facts are pertinent to our consideration. The claimant suffered a compensable back injury while employed by the respondents on May 3, 2001. After conservative treatment of the injury proved unsuccessful, the claimant’s primary care physician, Dr. Joseph Brenes ordered an MRI. This test disclosed a broad central and right posterolateral L4-5 disc bulge compressing the right L-5 nerve root. On October 3, 2002, the claimant came under the care of Dr. Michael Karnasiewicz, a neurosurgeon. He diagnosed right L5 lumbar radiculopathy secondary to a herniated disc based on the MRI of August 31, 2002, and recommended surgical correction.

The claimant underwent spinal surgery in December 2002 with Dr. Karnasiewicz consisting of an L4-5 disc excision and decompression of the L5 nerve root. Following this surgery the claimant developed post-operative low back pain radiating into both buttocks and both proximal thighs. As a result, the claimant underwent an MRI on January 13, 2003. The MRI disclosed significant post-op changes on the right side at L4-5 with enhanced posterior epidural scar tissue at that level, causing moderate stenosis. As a result of continued pain in her low back and leg area, the claimant had another MRI performed on February 13, 2003. Among the findings was post-op epidural scarring on the right side at L4-5 slightly distorting the right L5 nerve root.

Following the MRIs, the claimant underwent evaluation and treatment with Dr. Bhavesh Patel, a pain management specialist. The claimant treated with Dr. Patel until August 29, 2003, during which time, in addition to receiving physical therapy, she tried numerous medications. Throughout this period of time, the claimant complained consistently of significant right sided low back and right posterior leg pain. The claimant also continued to see Dr. Karnasiewicz through March 30, 2004 complaining of back and buttock pain. Both Dr. Karnasiewicz and the respondents’ examiner, Dr. William Druckemiller, evaluated the claimant with permanent disability from the 2001 injury. Dr. Karnasiewicz also believed the claimant was unemployable partially as a result of the injury. Based upon the ratings of Dr. Karnasiewicz and Dr. Druckemiller, the claimant was compensated for 13.3% permanent partial disability of the lower back with a maximum medical improvement date of October 14, 2003.

On March 30, 2004 Dr. Karnasiewicz reported that the claimant’s major complaint was bilateral lower back pain without radiation to her lower extremities and there was no change to her disability ratings or employability status. On April 7, 2004 the claimant presented to the emergency room of Waterbury Hospital complaining of burning left lower back pain, radiating to her left leg. The hospital records reflect that the claimant said her pain had been increasing over the past two weeks. The claimant had received Darvocet at the hospital on March 30, 2004; on April 7, 2004 she was administered morphine and sent home.

The claimant suffered two non-work related injuries in April 2004. On April 11, 2004 the claimant slipped and fell at C-Town Supermarket landing on her buttocks. X-rays immediately afterward revealed no acute injury and she was treated at the hospital and released. On April 29, 2004, the claimant was involved in a motor vehicle accident. The incident was a low speed collision with minor vehicle damage. Waterbury Hospital records indicate the claimant was complaining of neck, low back and leg pain following the motor vehicle accident. Only x-rays of the cervical spine were taken after the accident and they showed no fracture or subluxation.

Following the supermarket incident and the car accident the claimant began treating with a chiropractor, Dr. Jennifer Gonzalez. Dr. Gonzalez was advised by the claimant of suffering bilateral buttocks pain, bilateral hip pain and left foot pain; as well as neck pain with headache; mid back pain and low back pain with sharp pain radiating into her right leg. On May 20, 2004 the claimant had an MRI of the lumbar spine at the direction of Dr. Brenes. On November 22, 2005 the claimant underwent another MRI of the lower back. This MRI notes evidence of right L4 laminectomy at L4-L5. It also notes evidence of recurrent right L4-L5 disc herniation on top of post-op epidural scarring at L4-L5 distorting and compressing the right L5 nerve root.

The claimant also treated following the non-work incidents with Dr. Richard Matza, an orthopedist. While treating with Dr. Matza from June of 2004 to September of 2006, the claimant’s chief complaints were of low back pain with bilateral leg pain. These complaints were similar to the claimant’s complaints prior to the slip and fall accident and prior to the motor vehicle accident. The claimant returned to work in December 2005 working the third shift at a home for children. Her duties involved monitoring the children’s sleeping and preparing breakfast and lunch for them the next day; duties which she said she had difficulty performing because of her back pain.

On January 6, 2006 the claimant returned to see Dr. Karnasiewicz regarding her lower back pain. Dr. Karnasiewicz recommended surgical correction of the recurrent disc herniation at L4-L5. He further opined that the claimant’s work injury that produced her original right L4-L5 disc herniation was a significant factor in the production of her current symptoms and need for treatment.

The claimant did not immediately have surgery because she had continued to experience pain after her first operation. As treatment with Dr. Matza failed to relieve the pain the claimant was examined by Dr. John Strugar in January 2007, who also recommended surgery. On June 29, 2007, the claimant underwent a lateral decompression of the L4-5 nerve roots, total facectomy and transforaminal lumbar interbody fusion at L4-5 with pedicle screw fixation which was performed by Dr. Karnasiewicz and Dr. Strugar. The surgical findings stated that there was marked foraminal stenosis and lateral recess stenosis L4-5, post laminectomy scarring at L4-5 on the right; narrowing and degeneration of the L4-5 disc space.

Prior to Dr. Karnasiewicz performing the surgery he was deposed by the parties to this case. He stated that it is fair to say that the claimant suffered from a pre-existing condition at L4-5 based upon her prior work injury that resulted in the disc herniation and the need for surgery at L4-5. He also testified that he had not seen the claimant between March 2004 and January 2006. He testified that the claimant’s original injury was a substantial factor in the need for the later surgery. He also testified that the epidural scarring from the original surgery probably accounted for the symptoms that the claimant was having. Dr. Karnasiewicz testified that both the car accident and the work accident were substantial factors in the subsequent need for surgery, and that he afforded equal significance to each incident.

Based on those subordinate facts the trial commissioner concluded the claimant credibly testified that she had not been without pain between December 13, 2002 and April 4, 2004 and the pain worsened during this time frame. She noted the claimant’s April 7, 2004 hospital visit complaining of burning lower left back pain. While the claimant was involved in two non-work incidents on April 11, 2004 and April 29, 2004 the symptoms she suffered with regard to her back were the same symptoms she had suffered for the previous two years. The trial commissioner also found the opinion of Dr. Karnasiewicz persuasive that the work injury that produced the claimant’s original L4-5 disc herniation was a substantial factor in the production of her recurrent disc herniation and surgery of June 29, 2007. Therefore the claimant’s work injury of May 3, 2001 was a substantial factor and the proximate cause for the claimant’s need for lower back surgery on June 29, 2007.

The respondents filed a Motion to Correct to remove the conclusions supportive of compensability and replace them with conclusions that since a second, intervening accident had occurred, the precedent in Hatt, supra, barred recovery. The trial commissioner denied the motion and this appeal ensued.

This appeal is based on a single premise advanced by the respondents-that the facts herein are governed by the precedent in Hatt. We have taken this opportunity to review the Hatt decision and conclude that it does not apply to the circumstance when a claimant with a prior compensable injury suffers a later, noncompensable injury. Under those circumstances, we believe the traditional “proximate cause” standard of such cases as McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987) applies.

The issue the Supreme Court wrestled with in Hatt was based on the interpretation of § 31-349 C.G.S. in the wake of reforms which limited the role of the Second Injury Fund. Mrs. Hatt had suffered two compensable injuries while employed by the same employer; who had switched insurance carriers following her first injury. This board concluded that due to the closing of the Second Injury Fund to new claims for “second injuries” that the employer and its carrier at the time of the second injury were solely liable for all expenses stemming from that injury, and could not seek apportionment from the initial carrier. The Supreme Court affirmed this board’s position. In doing so, it performed a review of the statutory construction of § 31-349 C.G.S. The portion of § 31-349 C.G.S. relevant to the inquiry in Hatt and in this case reads as follows.

Sec. 31-349. Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure. (a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, “compensation payable or paid with respect to the previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.

In considering this statute we must apply the “plain meaning” rule delineating in § 1-2z C.G.S. See First Union National Bank v. Hi Ho Shopping, 273 Conn. 287, 291 (2005). The “plain meaning” of this statute is that it deals with situations involving a “second injury.” The statute governing interpretation requires us to review in this situation “the text of the statute itself and its relationship to other statutes.” Id. In reviewing this statute we note that the term “second injury” is defined elsewhere in Chapter 568. Herein are the terms of § 31-275 (23) C.G.S.,

“Second injury” means an injury, incurred by accident, repetitive trauma, repetitive acts or disease arising out of and in the course of employment, to an employee with a previous disability. (Emphasis added)

Therefore the statute herein defines “second injury” as a term which is limited to a subsequent compensable injury. The facts in this case indicate that the claimant suffered an initial compensable injury and then suffered subsequent noncompensable injuries. As a result, we must conclude that the Hatt case, and cases which relied on Hatt such as Kelly v. Dunkin Donuts, 4278 CRB 4-00-8 (November 1, 2001) (claimant suffered two separate compensable injuries) are simply inapplicable to the case at hand. For the purposes of Chapter 568, the claimant did not suffer a “second injury” as defined by statute.1

Our inquiry does not end in this matter. Even if the precedent in Hatt is inapplicable in this matter, we must still determine whether the trial commissioner had a sufficient basis to find the claimant’s surgery was caused by the initial 2001 compensable injury. We faced a somewhat similar inquiry earlier this year in Wiggins v. Middletown, 5300 CRB-8-07-12 (January 15, 2009).2

In Wiggins, the respondents argued that the claimant’s injuries were the result of a subsequent motor vehicle accident, and not the compensable accident the claimant suffered at work. This case hinged therefore on whether the claimant’s expert witness proffered probative evidence on the issue of causation. As we noted,

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).”

Wiggins, supra.

We determined in Wiggins that the testimony of the claimant’s treating physician was sufficient to justify the trial commissioner’s findings of causation. In the present matter, the trial commissioner relied on the opinions of Dr. Karnasiewicz to determine the 2001 compensable injury caused the need for surgery. Therefore, we must ascertain if this reliance was warranted.

At his deposition, Dr. Karansiewicz testified that the claimant’s present disc herniation was at the same level as her original disc herniation. Claimant’s Exhibit A-1, p. 8. He agreed that the claimant suffered from a pre-existing condition at L4-5 based upon her prior work injury that resulted in disk herniation and the need for surgery at L4-5. Claimant’s Exhibit A-1, p. 9. He explained that the claimant’s spine “was made weaker by the injury of 2001 and subsequent surgery to correct that injury. The weakness consisted of a portion of the disk was removed, a portion of the anulus ligament was removed which made her more susceptible to reherniation than someone who would not have had that injury.” Claimant’s Exhibit A-1, p. 14. He agreed the work injury was a substantial factor in the progression of the disc herniation. Claimant’s Exhibit A-1, p. 14. He also reiterated his prior January 6, 2006 opinion “that her work injury that produced her original L4-5 disk herniation is a significant factor in the production of recurrent symptoms and the need for treatment.” Claimant’s Exhibit A-1, p. 21.

The trial commissioner also considered the issue of epidural scarring from the claimant’s original surgery in her Finding and Award. See Findings, ¶¶ 10, 31, 37 and 41. Dr. Karnansiewicz testified at his deposition that the epidural scarring was not caused by the car accident, Claimant’s Exhibit A-1, p. 25; instead associating it with her operation. Claimant’s Exhibit A-1, p. 26. The claimant’s treating physician in 2005, Dr. Richard Matza, associated the claimant’s pain with having “had a disk out in 2003.” Claimant’s Exhibit A-3, March 9, 2005 medical report of Dr. Matza.3 The trial commissioner included the issue of epidural scarring derived from the original injury but still present after the claimant’s noncompensable accidents in her conclusions. Finding, ¶ H. Therefore, the record contains substantial evidence that the claimant’s present medical condition is attributable to her discectomy for the 2001 compensable injury.4

The respondents introduced no expert evidence contesting Dr. Karnasiewicz’s opinions on causation; hence, this is not a “dueling experts” case, such as Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006). What the respondents argue is that Dr. Karnasiewicz testified that both the initial compensable injury and the subsequent non-work injuries were both “substantial factors” in the claimant’s current medical condition. Claimant’s Exhibit A-1, p. 12. The respondents argue in their brief, citing Hatt, supra, and Kelly, supra, that this is an inadequate basis to sustain an award. Respondents’ Brief, pp. 6-10. We have already noted the inapplicability of apportionment cases to this matter and find that the traditional approach to causation governs in this case.

We addressed a similar issue last year in Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008). In Stevens, the claimant’s husband had previously established he had a compensable occupational disease (asbestosis) prior to his death from “ventricular arrhythmia, myocardial infarction and coronary artery disease.” The death certificate also stated that asbestosis was a significant factor contributing to death. We found a sufficient nexus herein to support an award for § 31- 307 C.G.S. benefits.

The test in Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000) is not whether a work related condition is the sole cause of injury, it is the claimant’s burden to prove it is among the “substantial contributing factors.” Id., n7. The trial commissioner had probative evidence that he chose to rely on that clearly stated asbestosis significantly contributed to the decedent’s death. Id.

In the present case, Dr. Karnasiewicz clearly testified that the compensable injury was a substantial factor in the claimant’s condition. The precedent in Dixon stands for the proposition he did not have to state it was the sole cause to find it substantial. He placed “equal weight” on both the compensable and noncompensable injuries; therefore, we may distinguish this case from cases where the experts failed to assess the relative significance of the various factors, i.e. Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) and Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008). As we pointed out in Weir, supra, “[w]hether or not a factor behind the need for surgery is ‘substantial’ is a matter left to the discretion of the trial commissioner, as ‘it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .’ O’Reilly[ v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999)]. Provided the record supports the expert’s opinion, we cannot second-guess a trial commissioner who relies on an expert who specifically testifies that a compensable injury is a substantial factor in a claimant’s condition.

We finally address the respondents’ effort to define “proximate” as being “closest in time.” Respondents’ Brief, p. 7. We reject this effort to graft a dictionary definition to our case law, as it cannot overcome the force of stare decisis we must afford Dixon. We note that when a claimant has suffered two separate injuries we have deferred to the trial commissioner to ascertain which injury is legally significant to the claimant’s medical condition. See Williams, supra, Wiggins, supra, Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008); LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008); Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007); and Fantano v. Stop & Shop Companies, Inc., 4946 CRB-3-05-5 (May 19, 2006). We believe the record permitted the trial commissioner to find the claimant’s compensable 2001 injury was “a proximate cause set in motion by the employment;” Brown v. United Technologies Corporation, 112 Conn. App. 492, 498 (2009) which created the need for the claimant’s surgery and present medical condition.5

We conclude that the trial commissioner relied on sufficient probative evidence to justify the decision she reached in this case. Since the determination of whether proximate cause exists is a factual matter reserved to her discretion, we may only intervene if that discretion has been abused. It has not been abused in this matter. Therefore, we must affirm the Finding and Award and dismiss this appeal.6

Commissioners Peter C. Mlynarczyk and Nancy E. Salerno concur in this opinion.

1 “. . . [r]elated statutory provisions, or statutes in pari material, often provide guidance in determining the meaning of a particular word [or phrase].” Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). BACK TO TEXT

2 Wiggins v. Middletown, 5300 CRB-8-07-12 (January 15, 2009) was decided prior to the Appellate Court’s ruling in Brown v. United Technologies Corporation, 112 Conn. App. 492 (2009). In that decision, Judge Richard Robinson delineated the standards to establish causation in cases under Chapter 568.

“The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” Id., at 498.

Upon review, we are satisfied that in both Wiggins and the present case a sufficient nexus of proximate cause existed between the compensable injury and the claimant’s present medical condition to justify the award of benefits. BACK TO TEXT

3 This date appears to have been slightly inaccurate; the actual date of the procedure was December 13, 2002. BACK TO TEXT

4 We also note that the trial commissioner found the claimant had remained in pain rather continuously from her injury to the date of the 2004 non-work accidents. Conclusion, ¶ J. While this is not an injury where we believe the trial commissioner could rely solely on the claimant’s testimony for evidential support, Lee v. Standard Oil of Connecticut, Inc., 5284 CRB-7-07-10 (February 25, 2009), we pointed out in Wiggins, supra, that when a trial commissioner finds a claimant’s testimony credible and persuasive, he or she may rely on medical evidence consistent with this testimony. BACK TO TEXT

5 The respondents raise the issue of “superseding cause.” We note that recent appellate decisions have limited the legal import of this concept as related to civil litigation. See Archambault v. Soneco/Northeastern, 287 Conn. 20, 44-45 (2008) and Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003). While we held in Sapko v. State/Department of Correction, 5335 CRB-8-08-4 (March 23, 2009) citing Brown, supra, and Fair v. People’s Savings Bank, 205 Conn. 535, 541 (1988) that the strict liability aspects of Chapter 568 were not congruent with various elements of the Barry precedent, we determined that whether a subsequent non-work event was the proximate case of the claimant’s injury was a factual determination left to the trial commissioner to adjudicate. BACK TO TEXT

6 At oral argument, counsel for the respondents presented an argument that the present scenario could constitute a double recovery for the claimant since a moratorium in favor of the respondents for a tort settlement or judgment would not be applicable. We decline to address this issue at this juncture as the respondents did not brief the issue. We note that the specific terms of the Finding and Award govern “all benefits to which the claimant may be entitled under Chapter 568 with regard to the June 29, 2007 surgery.” To the extent the claimant seeks benefits above and beyond the aforementioned surgery, further proceedings may be necessary to ascertain if the claimant has received benefits subject to the collateral source rule so as to prevent the “double recovery” of disability compensation barred under McFarland v. Dept. of Developmental Services, 115 Conn. App. 306 (2009). BACK TO TEXT

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