CASE NO. 5420 CRB-1-09-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 1, 2010
JANEL J. JONES
CONNECTICUT CHILDREN’S MEDICAL CENTER FACULTY PRACTICE PLAN
WEBSTER RISK SERVICES, INC.
The claimant was represented by Edward T. Dodd, Esq., and Laura Ondrush, Esq., The Dodd Law Firm, LLC, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.
The respondents were represented by Colette S. Griffin, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114.
This Petition for Review from the January 6, 2009 Findings and Orders of the Commissioner acting for the First District was heard on December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the January 6, 2009 Findings and Orders of the Commissioner acting for the First District. We find error and accordingly reverse the decision of the trial commissioner.1
The trial commissioner made the following factual findings which are pertinent to our review. The claimant, who is a registered nurse and APRN, began working for the employer in December 2002 and on the date of injury was employed as a Manager of Clinical Operations and Ambulatory Support. Her duties consisted of basic management and human resource functions along with the clinical supervision of mid-level and administrative staff. At her deposition of February 28, 2007, the claimant testified that she sustained her injury on February 27, 2006 when she was involved in a motor vehicle accident while traveling from a medical office in Windsor to another in Bloomfield. The accident occurred when the rear tire from a truck traveling in front of the claimant fell off the truck and landed on the roof of the claimant’s vehicle. The claimant testified that she remembered ducking down when she saw the tire coming and saying something to the effect of “oh, crap!” She thought she began pulling over to the side of the road before seeing the tire coming towards her vehicle; the next thing she remembered was trying to open the car door. She testified that she heard a big noise but doesn’t remember the tire actually hitting the car because her eyes were closed. She also testified that when she was exiting her vehicle, she felt something touching her head but didn’t remember the tire or any part of the car hitting her head. The claimant stated that she did not remember losing consciousness, but she thought the tire had crushed the roof of her car onto her head, “squishing” her neck and back.
The claimant was driven home from the scene by a police officer and did not seek medical treatment immediately following the incident. However, later that day, the claimant developed a headache, soreness in her neck and shoulders, and some nausea, and went to the emergency department at the University of Connecticut medical hospital. The claimant testified that the physician did not order an x-ray or scan because neither the claimant nor the physician believed the claimant had hit her head in the accident. The diagnosis at that time was “cervical/thoracic strain, with complaints of right-sided headache and upper back/neck pain.” Findings, ¶ 41. See also Claimant’s Exhibit A, B1. The claimant again presented at the UConn emergency department on March 3, 2006 and the record for that visit indicated a “normal exam.” Findings, ¶ 42. See also Claimant’s Exhibit A, B3.
At the suggestion of the UConn emergency room treating physician seen by the claimant at her initial visit, the claimant consulted Sarah Dainiak, M.D., on March 9, 2006 and shortly thereafter began a course of physical therapy for neck pain. The claimant told Dr. Dainiak that her injury occurred when an SUV tire hit the windshield and roof of her car and that she felt a slight impact of the roof on the top of her head when the tire landed. On March 28, 2006, the claimant again presented to the UConn emergency department suffering from worsening headaches, constant dizziness and nausea, blurred vision and photosensitivity. The claimant indicated that she thought the neck traction component of her physical therapy might have aggravated her symptoms. The diagnosis at that time was postconcussive syndrome, and claimant was instructed to consult a neurologist as soon as possible. The claimant also underwent a CT scan of her head, which was normal. On March 31, 2006, the claimant underwent a cervical MRI at Hartford Hospital, which was also normal.
On April 3, 2006, at the request of her employer, the claimant saw Pietro Memmo, M.D. The claimant reported to Dr. Memmo that she had experienced a loss of consciousness in the accident and that she could not recall stopping or exiting her vehicle. Dr. Memmo suspected the claimant had sustained a closed head injury and recommended she see a neurologist. Dr. Memmo also stated that the claimant “has absolutely no recall of the circumstances surrounding the motor vehicle accident.” Claimant’s Exhibit A, B10. The claimant subsequently saw Dr. Memmo again on April 10, 2006, at which time he indicated that the claimant “by her own report has been diagnosed with a postconcussive syndrome, a closed head injury and vestibular dysfunction.” Id. The claimant returned to Dr. Memmo on May 24, 2006, June 19, 2006, and October 6, 2006; on October 6, 2006, Dr. Memmo cleared the claimant to return to full duty but deferred to the claimant’s neurologist, Peter Wade, M.D., with whom the claimant had begun treating on July 10, 2006, for his opinion regarding the status of the claimant’s postconcussive syndrome. Dr. Memmo next saw the claimant on September 17, 2007, at which time he reviewed an MRI of her cervical spine performed on March 1, 2007 and again opined that the claimant was capable of returning to full duty from his perspective.
On the same day as her initial visit with Dr. Memmo, April 3, 2006, the claimant also presented to the Hartford Hospital emergency department where she treated with Isaac Silverman, M.D. The claimant told Dr. Silverman she thought she had received a bump on her head as a result of the accident. The claimant underwent CT scans of her head/brain and cervical spine, all of which were normal. Dr. Silverman diagnosed the claimant as suffering from “[t]ypical post-concussive syndrome with a lot of concurrent anxiety.” Claimant’s Exhibit A, B14. Dr. Silverman referred the claimant for counseling at a traumatic brain injury clinic and also recommended vestibular therapy, which recommendation the claimant declined to follow after having discussed the treatment with Dr. Wade, who did not think it would be helpful. At her deposition, the claimant indicated that she attempted to obtain authorization from the respondents to attend the traumatic brain injury clinic at St. Francis but such authorization was not forthcoming and she ultimately “sort of dropped the ball on getting in to see someone.” Respondents’ Exhibit 3, p. 48. Dr. Silverman ultimately released the claimant to work on August 31, 2006.
On May 31, 2006, the claimant underwent ENT audiometry with Michael J. Franklin, M.D., to evaluate complaints of aural pressure, dizziness, nausea, blurry vision, otalgia, and bilateral tinnitus. In recounting the history of the accident, the claimant told the doctor that she had lost consciousness for a minute or two. Dr. Franklin concluded the claimant had normal hearing and a normal ENG. On June 22, 2006, the claimant experienced three “pops” in her neck while lying in bed coughing. She made an emergency appointment with Dr. Memmo, who said she was fine. However, the claimant thought she was having a stroke, so on the advice of her personal care physician, she presented to the St. Francis emergency department, where an angiography of her head and neck was performed. The angiography was normal.
The claimant also consulted Dr. Graham, her obstetrician, in 2006 because of worsening urinary symptoms. When recounting the circumstances of the accident to Dr. Graham, the claimant stated that she remembered seeing the tire coming towards her vehicle and ducking, but she did not remember removing her seatbelt or reaching for the door handle. She also indicated that she didn’t remember how her vehicle got to the side of the road. Dr. Graham concluded the claimant’s symptoms were not pregnancy-related and referred the claimant back to Dr. Wade, who in turn referred the client to Dr. Murphy-Setzko.2 Dr. Murphy-Setzko diagnosed the claimant as suffering from a neurogenic bladder and prescribed Detrol, which resolved the urinary symptoms.
On July 17, 2006, the claimant underwent a Respondent’s Medical Examination with Robert H. Berland, M.D. In describing the accident to the doctor, the claimant said that “[s]he ‘ducked’ and the next thing she was getting out of the car and she though [sic] she injured her neck.” Claimant’s Exhibit A, B21, p.1. Dr. Berland concluded that it was questionable whether the claimant had experienced a loss of consciousness but indicated the claimant had suffered a head and neck injury and was suffering from persistent posttraumatic symptoms. Dr. Berland also stated that although there appeared to be a direct relationship between the claimant’s injury and her symptoms, anxiety also played a role in precipitating many of her symptoms. Dr. Berland opined that the claimant would be able to return to work following four weeks of vestibular rehabilitation.
On January 16, 2007, the claimant consulted John A. Crouch, M.D., a neuropsychologist, who indicated in his evaluation summary of that date that the claimant “reportedly sustained a traumatic brain injury (TBI).” Claimant’s Exhibit 24, p. 1. Dr. Crouch recommended continued aggressive mental health treatment, ongoing neurological monitoring, utilization of memory compensation tools, and a repeat neuropsychological evaluation in six to nine months to assess work capacity.
On February 2, 2007, May 22, 2007 and May 24, 2007, the claimant and her husband underwent an examination with Kimberlee J. Sass, a neuropsychologist. In his report of June 10, 2007, Dr. Sass indicated that “[a]ccording to [the claimant’s] husband, the tire struck the roof of her car with such force that the roof collapsed to within two inches of the headrest.” Claimant’s Exhibit A, B25, p. 1. Dr. Sass concluded that in light of the claimant’s “seemingly full recall of the circumstances of the accident, it is unlikely that she was rendered unconscious or amnestic even for a brief period of time. Id., at 2. Dr. Sass also stated that the claimant did not have any “mental status impairments that prevent her from returning to work.” Id. Dr. Sass further opined that the claimant would not reach maximum medical improvement until she underwent psychological treatment, which in turn would not be effective unless it included the claimant’s husband and “addresse[d] the issues of the couple’s codependency.” Id., at 36. According to Dr. Sass, “the primary neuropsychological impediment to Mrs. Jones’ return to employment is the disruption of the family system that had existed prior to 27 February 2006.” Id., at 35.
As previously mentioned herein, the claimant began treating with Dr. Wade on July 10, 2006. In describing the circumstances of the motor vehicle accident to Dr. Wade, the claimant reported that she remembered seeing the tire coming towards her car, felt something, and the next thing she remembered was getting out of the car which was on the side of the road. In his report of that date, Dr. Wade noted that “[t]here was clearly a period of amnesia and confusion consistent with a concussion.” Claimant’s Exhibit A, B18, p. 1. On May 1, 2007, Dr. Wade issued a Form 42 indicating that the claimant had sustained a tenpercent permanent partial disability to her brain and reached maximum medical improvement on April 29, 2007.
At the formal hearing of June 12, 2008, Dr. Wade testified that he believed the motor vehicle accident was responsible for the claimant’s symptoms in that the claimant experienced an “altered mental state” for some period of time. June 12, 2008 Transcript, p. 10. Dr. Wade also stated that the claimant is not currently capable of participating in gainful employment, she is not a candidate for retraining, and her ability to return to work is non-existent. Dr. Wade testified that his opinion regarding the claimant’s work capacity was based on the January 16, 2007 report of Dr. Crouch and the claimant’s subjective complaints, and he indicated he agreed with the recommendations from Dr. Sass and Dr. Crouch that psychotherapy and counseling would be helpful for the claimant.3 Dr. Wade acknowledged that the claimant did not follow through on Dr. Crouch’s suggestion to have her work capacity re-assessed in six to nine months.
On December 10, 2007, the claimant underwent a Respondents’ Medical Examination with James O. Donaldson, M.D., a neurologist. At his deposition held on March 21, 2008, the doctor summarized his understanding of the history of the motor vehicle accident and noted that the claimant “later told Dr. Sass that she was smart enough to keep her eyes closed until after she got out of the car and shook her hair and got the glass out.” Respondents’ Exhibit 2, p. 11. Dr. Donaldson opined that the claimant did not lose consciousness but experienced some strain and muscle spasm as a result of the accident and that the claimant’s somatic symptoms would have resolved in a few days to a few weeks. Dr. Donaldson did not believe the claimant suffered a concussion, postconcussive syndrome, or a traumatic brain injury and that the symptoms which have been attributed to postconcussive syndrome are actually due to a psychiatric disorder separate and distinct from the motor vehicle accident. Dr. Donaldson also indicated that the claimant’s bladder condition was not caused by the accident and the claimant had long ago reached maximum medical improvement without sustaining a permanent impairment. Dr. Donaldson testified that there was no reason to suspect the claimant sustained an injury to her central nervous system, given that MRI’s of the claimant’s brain, neck and back were normal. He also testified that the most likely cause of the claimant’s symptoms was psychological distress which is unrelated to the motor vehicle accident.
On March 25, 2008, the claimant underwent an evaluation with Walter A. Borden, M.D., a psychiatrist. Dr. Borden diagnosed the claimant as suffering from a somatization disorder associated with her underlying depression and anxiety. At his deposition held on April 15, 2008, Dr. Borden opined that because it did not appear that the claimant lost consciousness and there was no indication of head trauma when the claimant was examined at the UConn emergency department, the claimant did not suffer a traumatic brain injury and was not suffering from post-traumatic stress disorder. Dr. Borden also stated that generally the greatest amount of brain dysfunction occurs immediately after a traumatic brain injury and not the other way around. Dr. Borden indicated that the claimant is “out of touch with her painful emotions” and “can only experience them and they’re converted into physical symptoms.” Respondents’ Exhibit 1, p. 17. According to Dr. Borden, the claimant’s basic issues stem from underlying depression and anxiety, which conditions pre-dated the motor vehicle accident. Dr. Borden testified that the claimant “very much” needs psychiatric counseling but the prospect is “very threatening” to the claimant. Id., at 25.
The trial commissioner took administrative notice of a jurisdictional voluntary agreement approved by the Workers’ Compensation Commission on June 26, 2006. In that agreement, the respondents acknowledged a claim for injuries arising from the claimant’s motor vehicle accident on February 27, 2006 and recited as accepted body parts “concussion, cervical, thoracic and lumbar strain.” The trial commissioner also determined, following his review of the parties’ briefs and proposed findings, that the respondents issued to the claimant voluntary agreements predicated on the tenpercent permanent partial disability rating and date of maximum medical improvement of April 29, 2007 assigned by Dr. Wade. The claimant apparently did not execute the voluntary agreements, contending instead that she remained totally disabled.4
Based on the foregoing evidentiary submissions, the trial commissioner concluded there was insufficient evidence to support finding that the claimant had experienced a loss of consciousness, an altered state of mind, or an amnesic period during the motor vehicle accident of February 27, 2006. The trial commissioner also determined that “the Claimant provided inconsistent histories to various providers, the sum of which accounted for virtually every moment that the Claimant experienced during the accident .” Findings, ¶ C. The trial commissioner did not consider persuasive Dr. Wade’s opinion that the claimant suffered from post-concussive syndrome because “the history given to [Dr. Wade] by the Claimant was incomplete and he was therefore led to believe that there was a period of altered consciousness.” Findings, ¶ K. Noting that “[v]irtually every objective neurological test performed on the Claimant has come back with a normal result, with the possible exception of the bladder test and minor issues in Dr. Sass’s testing,” Findings, ¶ J, the trial commissioner concluded that the claimant had not sustained a concussion and was not suffering from either postconcussive syndrome or posttraumatic stress disorder.
The trial commissioner also determined that “[t]here is no persuasive objective evidence to show that the claimant still suffers from any soft tissue or skeletal issues resulting from the motor vehicle accident,” Findings, ¶ N, and “likewise, no persuasive objective evidence showing that the Claimant suffers from any neurological deficits at present.” Findings, ¶ O. Consequently, the trial commissioner concluded that “the only issues keeping the Claimant from returning to full-duty work in her prior position are emotional and psychological,” Findings, ¶ P, and determined that the claimant’s failure to comply with Dr. Crouch’s recommendations regarding psychotherapy was “indicative of the Claimant’s refusal of reasonable and necessary medical treatment recommended by a provider.” Findings, ¶ L.
However, the trial commissioner did conclude that “the fact remains that the Claimant had no problem performing her work duties prior to the accident on February 27, 2006. Therefore the accident was a substantial factor in her subsequent emotional and psychological sequellae.” Findings, ¶ M. The trial commissioner also found Dr. Murphy-Setzko’s opinion persuasive on the issue of the causation of the claimant’s neurogenic bladder condition and determined that the claimant sustained the condition as a result of the motor vehicle accident. The trial commissioner concluded that the claimant had sustained a ten-percent permanent partial disability of her brain as a result of the motor vehicle accident of February 27, 2006 and ordered the respondents to issue (or re-issue) voluntary agreements awarding same with a maximum medical improvement date of February 29, 2008. Finally, the trial commissioner approved the Form 36 tendered by the respondents on February 29, 2008 and determined the respondents would “not be liable to the Claimant for prospective indemnity benefits until such time as the claimant complies with the treatment plan outlined by Dr. Crouch in his report dated January 16, 2007 and an authorized treating psychiatrist or psychologist undertakes care of the Claimant and provides a prima facie report supporting an outofwork status.” Findings, ¶ 7.
The respondents filed a Motion to Correct, which was denied in its entirety, and this appeal followed.5 On appeal, the respondents contend that the trial commissioner reached several conclusions which were inconsistent with his factual findings. First, the respondents argue that the trial commissioner erred in finding that the motor vehicle accident was a substantial contributing factor in the development of the claimant’s “subsequent emotional and psychological sequellae.” Findings, ¶ M. The respondents also contend that the trial commissioner’s conclusion that the claimant sustained a tenpercent permanent partial disability of the brain was erroneous because it was inconsistent with the trial commissioner’s determination that the evidence was insufficient to support finding the claimant had experienced a loss of consciousness, an altered state of mind, or a period of amnesia during the accident. The respondents also aver that this conclusion is likewise inconsistent with the trial commissioner’s findings that the claimant did not suffer from a concussion, post-concussive syndrome, or posttraumatic stress disorder. Finally, the respondents contend that the trial commissioner’s conclusion that the claimant suffered from a neurogenic bladder was erroneous “because (a) it is inconsistent with his conclusions that she did not suffer a concussion, (b) is not based on a medical opinion with a reasonable degree of medical certainty, and (c) ignores the fact that she suffered from the same condition throughout all three of her pregnancies.” Appellants’ Brief, p. 37.
We begin our analysis of the merits of the respondents appeal with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.
the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
In the instant matter, the respondents have challenged the trial commissioner’s finding that the motor vehicle accident was a substantial contributing factor in the development of the claimant’s psychological issues. The respondents assert that no objective evidence was proffered to support such a conclusion and in fact, Drs. Donaldson, Borden and Sass all “opined that the Claimant’s psychological issues pre-existed the accident and are unrelated.” Appellants’ Brief, p. 23. The respondents therefore aver that “[t]he Commissioner should have relied on the opinions of Drs. Borden, Sass and Donaldson, whom he found to be more credible, with respect to the issue of causation between the Claimant’s psychological issues and the motor vehicle accident.” Id., at 25-26.
Having reviewed the trial commissioner’s findings in toto, we are inclined to agree with the respondents on this point. We are of course mindful of the precept that “[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert." (Internal citations omitted, emphasis added.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). However, it is equally well-settled that “[a] finding of fact is clearly erroneous when there is no evidence in the record to support it .” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).
In the matter at bar, the trial commissioner concluded, “the fact remains that the Claimant had no problem performing her work duties prior to the accident on February 27, 2006. Therefore, the accident was a substantial factor in her subsequent emotional and psychological sequellae.” Findings, ¶ M. We find this determination problematic for several reasons. First, it is inconsistent with the trial commissioner’s other findings that the evidence did not support a diagnosis of concussion, postconcussive syndrome, or posttraumatic stress disorder, and the results of every neurological examination performed on the claimant were normal. The finding is also inconsistent with the trier’s determination that Dr. Wade’s opinion relative to his diagnosis of postconcussive syndrome and the claimant’s work capacity was not persuasive. Thus, insofar as we are unable to discern from the evidentiary record a medical basis for the trier’s conclusion that the motor vehicle accident was a substantial contributing factor in the development of the claimant’s subsequent psychological issues, we are unable to affirm a finding which seems to suggest that those emotional impairments constitute a compensable injury.
The respondents also contend that the trial commissioner’s conclusion that the claimant sustained a ten-percent permanent partial disability of the brain was erroneous, again in light of its inconsistency with the trial commissioner’s other findings relative to the insufficiency of the evidence to support the conclusion that the claimant had experienced a loss of consciousness, an altered state of mind, or a period of amnesia during the accident or suffered from a concussion, post-concussive syndrome, posttraumatic stress disorder, or any other neurological deficits following the accident. The respondents aver that this finding is likewise inconsistent with the trier’s conclusion that every objective neurological test which has been performed on the claimant has come back with a normal result, apart from the urinary testing and some minor issues in Dr. Sass’ evaluation. The respondents therefore challenge the trier’s order to issue (or reissue) the permanency voluntary agreements.
As previously mentioned herein, the trial commissioner took administrative notice of a jurisdictional voluntary agreement approved June 26, 2006 memorializing, inter alia, a concussion as an accepted body part. The trial commissioner also found that the respondents had issued voluntary agreements awarding the claimant a tenpercent permanent partial disability rating of the brain with a maximum improvement date of April 29, 2007, which agreements the claimant declined to execute, maintaining instead that she had not yet reached maximum medical improvement. It may be reasonably inferred that the catalyst for the issuance of these permanency voluntary agreements was the Form 42 completed by Dr. Wade on May 1, 2007.
However, in light of the trial commissioner’s conclusion that Dr. Wade’s opinion was unpersuasive relative to both his diagnosis of postconcussive syndrome and the claimant’s work capacity, we are unable to discern the rationale for this order. Although the jurisdictional voluntary agreements issued by the respondents do state that the claimant sustained a concussion, those agreements are silent as to what, if any, permanent impairment may result from same. Likewise, although the record indicates that although the respondents tendered permanency voluntary agreements to the claimant, the claimant never executed those agreements. It could therefore be argued that the decision by the claimant to pursue litigation rather than accept the settlement offer advanced by the respondents relieved the respondents of any contractual obligations vis-à-vis the voluntary agreements. Certainly, once the trial commissioner determined, after formal proceedings, that the underpinnings of the permanency award, i.e., Dr. Wade’s opinions, were not credible, the unexecuted voluntary agreements became moot. Moreover, while the respondents’ proffer of the permanency voluntary agreements could be construed in light of a “judicial admission,” we are reluctant, given the overall tenor of the trial commissioner’s findings in this matter, to set a precedent that would “hold the respondents’ feet to the fire” in such a fashion. As our Supreme Court remarked in Peiter v. Degenring, 136 Conn. 331 (1949):
such an admission should ordinarily be adopted by a trial court in the decision of a case. It is not, however, necessarily binding upon the court, and under the circumstances of a particular case the court may be justified in disregarding it. This follows from the fact, which we have frequently stated, that a judge is not a mere umpire in a forensic encounter but a minister of justice.
Id., at 337-338. (Internal citations omitted.)
Finally, the respondents contend that the trial commissioner’s conclusion that the claimant suffered from a neurogenic bladder was erroneous. We agree. As previously mentioned herein, the trial commissioner found credible Dr. Murphy-Setzko’s opinion that the motor vehicle accident caused the claimant’s neurogenic bladder. However, in her deposition held on June 4, 2008, although the doctor defined neurogenic bladder as “a bladder that’s been affected by a neurologic insult or injury,” Claimant’s Exhibit F, p. 28, she admitted that she had never reviewed Dr. Wade’s records and it was “an assumption on [her] part” that Dr. Wade had referred the claimant for evaluation based on the premise that the claimant had sustained a head injury. Id., at 32-33. Under crossexamination, the doctor conceded that her diagnosis of a neurogenic bladder was largely predicated on her understanding of Dr. Wade’s diagnosis as conveyed to her by the claimant, id., at 34, and agreed that she could not formulate an opinion based on a reasonable degree of medical certainty without reviewing the claimant’s other medical records. Id., at 35-36.
The foregoing indicates quite clearly that Dr. Murphy-Setzko’s diagnosis was primarily derived from her assumption, based in part on her prior working relationship with Dr. Wade and in part on the history of the motor vehicle accident given to her by the claimant, that the claimant had sustained a head injury in the accident. The record does indicate that Dr. Wade in fact believed the claimant had sustained a concussion and was suffering from post-concussive syndrome. Had the trial commissioner found Dr. Wade’s opinion persuasive, it might have been possible to uphold the trier’s finding relative to the credibility of Dr. Murphy-Setzko regarding the causation of the claimant’s neurogenic bladder. However, the trial commissioner ultimately determined Dr. Wade’s opinion was not persuasive and, further, that the evidentiary record was insufficient to determine that the claimant suffered from a concussion, postconcussive syndrome, or any other neurological deficits. As such, given the degree to which Dr. Murphy-Setzko’s opinion was demonstrably dependent upon Dr. Wade’s diagnosis, we are unable to affirm the trial commissioner’s finding that Dr. Murphy-Setzko was credible relative to her conclusion that the claimant developed a neurogenic bladder as a result of the motor vehicle accident.
The respondents filed a Motion to Correct which was denied in its entirety. Insofar as the proposed corrections pertain to findings which we have determined were erroneous, the trier’s decision to deny those corrections also constituted error.
Having found error, the January 6, 2009 Findings and Orders of the Commissioner acting for the First District are hereby reversed.
Commissioners Jack R. Goldberg and Randy L. Cohen concur in this opinion.
1 We note that two motions for extension of time and a motion for continuance were granted during the pendency of this appeal. BACK TO TEXT
2 Respondents note that although the claimant testified that Dr. Graham also believed the claimant’s urinary symptoms were not pregnancy-related, Respondents’ Exhibit 5, pp. 22-23, the claimant failed to enter into the record any medical reports from Dr. Graham. The respondents therefore assert that “any discussion or reliance upon alleged opinions from Dr. Graham must be disregarded.” Appellants’ Brief, p. 38. BACK TO TEXT
3 At his deposition held on June 11, 2007, Dr. Wade indicated that in order for him to find the claimant had a work capacity, she would have to express her ability to handle the demands of a job. Respondents’ Exhibit 4, p. 32. BACK TO TEXT
4 In her brief filed pro se on July 27, 2009, the claimant indicated that she “agrees that she has reached Maximum Medical Improvement and a permanent impairment rating was given as a result.” Appellee’s Brief, p. 11. BACK TO TEXT
5 The claimant also filed an appeal on January 26, 2009 which was subsequently withdrawn on May 21, 2009. On May 14, 2009, claimant’s counsel filed a Motion to Withdraw Appearance citing deterioration in the attorney/client relationship, and the claimant retained new counsel prior to oral argument held on December 18, 2009. BACK TO TEXT