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Carroll v. Flattery’s Landscaping, Inc.

CASE NO. 5385 CRB-8-08-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 24, 2009

JAMES CARROLL

CLAIMANT-APPELLANT

v.

FLATTERY’S LANDSCAPING, INC.

EMPLOYER

and

NORTH RIVER INSURANCE CO.

CRUM & FORESTER

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Frank A. May, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the October 8, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District was heard April 24, 2009 before a Compensation Review Board panel consisting of Commissioners Randy L. Cohen, Christine L. Engel and Daniel E. Dilzer.

OPINION

RANDY L. COHEN, COMMISSIONER. The claimant in this matter has appealed the Finding and Dismissal of his claim that his June 20, 2006 cervical spine surgery was due to a compensable injury; as well as seeking additional permanency benefits and temporary total disability benefits due to the surgery. We have reviewed the claimant’s arguments and determine that the trial commissioner herein relied on medical witnesses whom he found credible and persuasive. Since an appellate panel cannot retry such a factual determination, we uphold the Finding and Dismissal and dismiss this appeal.

We note that the claimant has been before this panel on two prior occasions dealing with issues emanating from his compensable November 28, 1995 injury; Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) (“Carroll I”) and Carroll v. Flattery’s Landscaping, Inc., 4839 CRB-1-04-8 (June 29, 2005) (“Carroll II”). The trial commissioner found the following facts concerning this claim. The November 28, 1995 incident caused the claimant to suffer injuries when a truck fell twice off the jack stand and landed on the claimant. The trial commissioner noted that a Voluntary Agreement was approved by the Commission on September 2, 1999 which established a 7.5% permanent partial disability rating for the cervical spine.

At the April 10, 2008 hearing for the present claim the trial commissioner found the claimant testified that he had been treating once a month with a chiropractor for about 9 years prior to the compensable injury. He also testified to two 1989 injuries at ski slopes and that in July 1990 he pulled his “left neck and shoulder.” He informed his chiropractor, Dr. Richard Caskey, of a stiff neck in September 1991. Dr. Caskey’s notes document the claimant had numerous complaints of left shoulder pain and a stiff neck prior to the compensable injury, as well as numerous complaints of poor sleep.

The claimant presented to Dr. Andrew Wakefield on June 8, 2006. On June 20, 2006 the claimant underwent anterior cervical discectomy and fusion at C5-6 and C6-7. Dr. Wakefield opined on May 23, 2007 that there was a “continuum” with the 1995 compensable accident which aggravated pre-existing conditions in the claimant’s neck which caused his neck pain and ultimately brought him to surgery.

The respondents presented evidence from their expert, Dr. William Druckemiller who performed two medical examinations of the claimant. On July 1, 1999 Dr. Druckemiller indicated that the claimant had degenerative spine disease at both C5-6 and C6-7, as well as a chronic thoracic cervical strain independent of his cervical spondylosis. Following the surgery, Dr. Druckemiller performed a second examination for the respondents on July 13, 2007. He opined that if the November 28, 1995 accident was a significant contributing factor behind the claimant’s need for fusion surgery, that the surgery would have been required immediately after the injury. Dr. Druckemiller further opined that the need for the 2006 surgery was the natural progression of the claimant’s pre-existing cervical spondylosis.

The trial commissioner requested the claimant be examined by Dr. Jarob Mushaweh. On November 28, 2007 Dr. Mushaweh performed his examination and determined that the November 28, 1995 incident did not cause any significant cervical spine injury and the need for cervical spine surgery was not causally related to the compensable injury.

Based on this record, the trial commissioner found that Dr. Druckemiller and Dr. Mushaweh were most persuasive and credible on the issue of whether the claimant’s 2006 cervical surgery was causally related to the 1995 accident. The commissioner concluded the claimant had preexisting degenerative disc disease which was separate and distinguishable from the cervical strain/sprain associated with the November 28, 1995 incident. He found that the substantial factor in the need for surgery was the preexisting degenerative disc disease, and the compensable injury was not a substantial factor. Therefore, the trial commissioner dismissed all claims related to the June 20, 2006 surgery.

The claimant filed a Petition for Review and a Motion to Correct. The motion to correct stated that the Finding and Dismissal was “in dire need of correction” but did not propose a specific alternative finding of facts; rather it argued that the trial commissioner had failed to appropriately credit evidence favorable to the claimant. The motion to correct was denied. Our panel then considered this appeal.

The claimant, who is proceeding pro se, reiterates the argument this Board considered and rejected in Carroll II that the respondents’ counsel acted improperly in contesting this claim. In the absence of any supportive documentation, we cannot consider this argument; since it is based solely on the claimant’s subjective opinion.

On the substance of the claimant’s argument, he states that the trial commissioner erroneously relied on the opinions of Dr. Druckemiller and Dr. Mushaweh who opined that the claimant’s 2006 cervical spine surgery was not necessitated by the claimant’s prior compensable injury. As the claimant views this case, the fact that he suffered serious injuries when a truck fell on him should be incontrovertible proof that subsequent cervical spine surgery was compensable. This is not the legal standard used to determine cases before this Commission.

We first note that as an appellate board we must provide a substantial level of deference to a trial commissioner’s evaluation of medical evidence. As this board held in White v. Wal-Mart Stores, Inc., 5363 CRB-2-08-7 (June 30, 2009).

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)].

Cases such as Dengler, supra, and Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142 (1972); Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008) and DiNuzzo v. Dan Perkins Chevrolet Geo, 99 Conn. App. 336 (2007) stand for the proposition that expert testimony is generally required to establish that a specific injury has a causal relationship to a compensable event. In the present case, the claimant seeks to establish that surgery performed over a decade after the original accident is due to that compensable accident. We do not believe this is a judgment that can be reached without an evaluation of the medical evidence.

We recently considered the latitude trial commissioners have in considering such evidence in Nicotera v. Hartford, 5381 CRB-1-08-9 (September 2, 2009). In Nicotera we held,

As we pointed out in Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) “[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)].

The trial commissioner determined that Dr. Druckemiller and Dr. Mushaweh offered the more persuasive and credible evidence on the issue of causation. We note that Dr. Mushaweh was the commissioner’s examiner and “[w]e have previously explained that the usual purpose of a § 31-294f examination is to provide strong guidance to a commissioner,” and “[t]his board favors an articulation when a trial commissioner does not follow that opinion.” Mele v. Hartford, 5286 CRB-1-07-10 (October 10, 2008) citing Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). While the trial commissioner was not bound to accept Dr. Mushaweh’s opinion, generally he would need to proffer a reason why he found another expert more persuasive. See Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009), and Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009). The claimant argues that Dr. Druckemiller and Dr. Mushaweh differed on certain aspects of their testimony and that this constitutes error.1 We disagree. The witnesses agreed on the central point that the 1995 accident did not create the claimant’s need for surgery in 2006, similar to the experts agreeing on the central issue in Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006). The trial commissioner is responsible for resolving discrepancies in medical evidence. Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007) and Gagliardi, supra.2

Moreover, it was the claimant’s burden of persuasion to convince the trial commissioner that the need for cervical spine surgery was caused by a compensable injury, Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (February 27, 2001), citing Murchison, supra. We acknowledge that the medical reports of Dr. Wakefield (Claimant’s Exhibit B) would support the claimant’s position that the 2006 surgery should be deemed compensable.3 However, much as was the case in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) “[t]he difficulty is that the trial commissioner did not accept this evidence.” The trial commissioner accepted the opinions of Dr. Druckemiller and Dr. Mushaweh. Since we determine they offered probative evidence to the tribunal, we cannot pre-empt the conclusion of the trial commissioner on this issue. See Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) and Torres, supra. The claimant had the burden of persuasion before the trial commissioner and we cannot re-weigh the evidence the commissioner considered.

“As we stated earlier, this board does not have the power to conduct its own fact-finding proceedings during the resolution of an appeal. We would be exceeding our powers if we were to independently consider the claimant’s history of the events relevant to this case, and declare that his explanation should have been accepted by the trial commissioner.” Warren, supra. We find Warren on point.4

We conclude that this case hinged on the evaluation of expert medical evidence. We must respect the conclusions of the trial commissioner who determined the claimant failed to meet his burden of persuasion. The claimant has failed to advance a persuasive argument that the trial commissioner committed legal error and in the absence of such averments, we must respect the commissioner’s evaluation of evidence. We affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Christine L. Engel and Daniel E. Dilzer concur in this opinion.

1 Respondents’ Exhibit 1 was the November 28, 2007 report of Dr. Mushaweh’s Commissioner’s Examination. Dr. Mushaweh concluded “[o]n examination, the patient appears to be in no acute distress.” After “reviewing his extensive records and imaging studies, the evidence would suggest that his initial incident of 11/28/96 [sic] did not cause any significant cervical spine injury, per se. In fact, he had presented with relatively diffuse and nondescript symptoms, and was found to have spondylotic changes ten years after the fact. The need for his two-level ACDF procedure, based upon reasonable medical probability and the available data, was not causally related to his 11/28/95 injury.” Respondents’ Exhibit 2 was the July 13, 2007 report of Dr. Druckemiller. Dr. Druckemiller stated “the patient has two problems. He has a pre-existing cervical spondylosis and he has his work-related injury. The symptoms of his work-related injury were principally those of his chest and a cervical strain without obvious radicular complaints through the time he saw me, four years later.” Dr. Druckemiller concluded “[i]n my opinion, the patient had pre-existent cervical spondylosis and his story is consistent with progression of that problem. If he had a significant problem with the cervical spondylosis such that the injury was a significant contributing factor to his need for surgery he would have had surgery around the time of his initial injury.” BACK TO TEXT

2 The claimant argues that both Dr. Mushaweh and Dr. Druckemiller erred in their reliance on and interpretation of prior medical reports. The claimant brought this to the attention of the trial commissioner via his Motion to Correct, which was denied. We are not persuaded by the claimant’s evidence and legal arguments that the trial commissioner’s decision herein was “clearly erroneous.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT

3 Dr. Paul Tortland’s March 29, 2007 report was also evidence presented supportive of the claimant’s position (Exhibit A); but was not cited by the trial commissioner. We must infer he did not find this evidence probative as it was not cited in the Finding and Dismissal. We cannot revisit this decision. Vitti v. Richards Conditioning Corp, 5247 CRB-7-07-7 (August 21, 2008). BACK TO TEXT

4 Warren v. Federal Express Corporation, 4163 CRB-2-99-12 (February 27, 2001) also involved issues where a claimant who had an accepted compensable injury later sought to prove an additional injury was causally related to the original injury. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: September 29, 2009

Page URL: http://wcc.state.ct.us/crb/2009/5385crb.htm

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