CASE NO. 5472 CRB-8-09-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 21, 2010
ESSEX MEADOWS HEALTH CENTER
GALLAGHER BASSETT SERVICES
The claimant was represented by Laura Ondrush, Esq., The Dodd Law Firm, LLC, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.
The respondents were represented by Michael V. Vocalina, Esq., Cotter, Cotter & Mullins, LLC, 6515 Main Street, Suite 10, Trumbull, CT 06611.
This Petition for Review from the June 4, 2009 Finding and Award of the Commissioner acting for the Fourth District was heard on December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 4, 2009 Finding and Award of the Commissioner acting for the Fourth District. We find no error and accordingly affirm the decision of the trial commissioner.1
The trier made the following factual findings which are pertinent to our review. The claimant, a certified nursing assistant, sustained injuries on April 21, 2005 when she fell while attending to a patient. The claimant later testified that she injured both of her knees, her right ankle, and her back and buttocks, and that she experienced back pain immediately following the incident. She was taken to Middlesex Shoreline Clinic where x-rays were taken and she was given crutches and an air cast. The claimant testified that she used the crutches for three to four weeks. The claimant returned to Middlesex Shoreline Clinic on April 26, 2005 at which point she was referred to Martin J. White, M.D., an orthopedist. In his report of April 28, 2005, Dr. White noted that the claimant had requested he examine a small, tender nodule in her left lower back, and stated that the claimant “[didn’t] think she injured this area when she fell but she has had some superficial tenderness.” Claimant’s Exhibit C. The claimant was seen again at the Shoreline Clinic on May 2, 2005 and again by Dr. White on May 9, 2005, who kept her out of work until May 16, 2005.
The claimant testified that she returned to full-duty employment on May 16, 2005 and continued to work until January 2006 without using a cane or crutches. The claimant saw Dr. White on May 23, 2005 and reported experiencing some ankle pain one day after returning to work. However, she indicated she felt fine afterwards and Dr. White advised her to continue working. On September 1, 2005, the claimant visited her primary care physician, Elizabeth Coric, M.D., complaining of body aches for the preceding two weeks; Dr. Coric told the claimant to stop using Zocor. On November 23, 2005, the claimant had x-rays taken of the pelvis and lumbar spine “which revealed minimal degenerative changes of the hips and moderate degenerative changes of the lumbar spine.” Findings, ¶ 12. See also Respondents’ Exhibit 1. The claimant returned to Dr. Coric on November 28, 2005 and at that time informed Dr. Coric of the details of her fall at work and her back pain. The claimant underwent an MRI on December 8, 2005 which indicated “moderate degenerative changes without evidence of an acute fracture or definitive focal disc herniation.” Findings, ¶ 14. See also Respondents’ Exhibit 1, Claimant’s Exhibit D.
In a report dated January 30, 2006, Dr. Coric referred the claimant to a specialist because the claimant was continuing to experience back pain that was not responding to conservative measures. On February 22, 2006, the claimant saw David Kvam, M.D., a neurosurgeon, who opined that the claimant’s low back symptoms “seem related to the injury to her knee and hip.” Claimant’s Exhibit A. However, Dr. Kvam also indicated that he could not recommend any neurosurgical procedure at that time. The claimant returned to Dr. Coric on March 9, 2006, who reported that the claimant was experiencing significant daily back pain and was unable to work. On April 6, 2006, Dr. Coric kept the claimant out of work for another month as the claimant continued to experience problems in her back and right leg.
Dr. Kvam wrote to claimant’s counsel on May 12, 2006, stating that the claimant’s “period of inactivity and the use of crutches and a splint exacerbated the patient’s underlying low back problems and that this is a substantial factor in her current problems with her low back.” Claimant’s Exhibit A. On July 12, 2006, the claimant returned to Dr. White, who determined the claimant had reached maximum medical improvement relative to her injury to her knee and ankle with no permanency and further opined that the claimant’s current symptoms were primarily related to her lower back and sciatic pain.
On August 17, 2006, the claimant underwent a Respondents’ Medical Examination with Jarob Mushaweh, M.D., a neurosurgeon. At his deposition held on October 1, 2007, Dr. Mushaweh opined that the claimant did not “sustain any injury to the lumbar spine as a result of that trip and fall” because she did not start experiencing any lumbar pain until several months later. Respondents’ Exhibit 4, p. 8. However, Dr. Mushaweh also testified that the claimant’s lumbar pain “may or may not have been indirectly caused by her abnormal posture, the fact that she was walking with an air cast .” Id. Dr. Mushaweh declined to define the claimant’s use of crutches as a substantial factor in her back condition but did concede that her use of crutches may have been a “contributing” factor. Id., at 14-15. Dr. Mushaweh also opined that the claimant did not have a work capacity at the time of her evaluation with him, stating,
[t]he fact that she was hobbling around, quite frankly, it wasn’t clear that she had any work capacity. She was in a deconditioned state, limping because of her ankle, and complaining of back pain, but, again, I’m trying to look at her condition strictly from one aspect of her body, and that would be the lumbar region, and from the lumbar region, perhaps, she had no reason to be out of work. However, given the whole picture in its totality, she had just too many complaints to justify her working.
Id., at 11.
Proceeding on the basis of a referral from Dr. Coric, the claimant saw Hilary C. Onyiuke, M.D., the chief of neurosurgery and director of the University of Connecticut Health Center’s spine program, on May 30, 2007. At his deposition held on October 2, 2008, Dr. Onyiuke opined that although the claimant was experiencing pain and numbness, she had no neurological deficits, Respondents’ Exhibit 5, p. 7, and the MRI taken on December 8, 2005 revealed lumbar spondylosis which had caused spinal stenosis.2 Id., at 8. Dr. Onyuike also testified that spinal stenosis is a progressive condition that can be aggravated by trauma. As such, because it did not appear that the claimant had back symptoms prior to her fall, Dr. Onyuike stated that the claimant “does have an underlying condition which I believe may have been exacerbated as a result of the trauma, not necessarily the cause of it.” Id., at 15. Dr. Onyuike further opined that the reference to the claimant’s low back tenderness in Dr. White’s report of April 28, 2005 suggested that the claimant’s back “was probably part of the contact at the time of the fall.” Id., at 32.
Dr. Onyuike further testified that at the time of the evaluation, the claimant had not reached maximum medical improvement but, rather, had become worse, and as a result he was recommending the claimant undergo a lumbar fusion at L3-4 and L4-5. Dr. Onyuike opined that the claimant was suffering from “moderate to severe type of spondylolisthesis and spinal stenosis,” id., at 23, and, absent the surgery, the claimant would likely continue to have symptoms such that the stenosis could reach the point where the claimant would develop a neurological deficit. However, he predicted the claimant’s symptoms would improve with surgery and her long-term prognosis would be good.
The claimant testified extensively at trial regarding her current physical limitations, noting that she was unable to participate in recreational activities such as motorcycling, boating and horseback riding which she had previously enjoyed with her husband. She stated that she had also only recently begun driving short distances, was unable to lift more than three or four pounds, and had difficulty bending over, particularly in the morning. The claimant also testified that she often used a pain patch at night and usually walks with the assistance of cane.
Based on the foregoing, the trial commissioner found the claimant credible and persuasive and determined that the claimant’s workplace fall on April 21, 2005 was a substantial factor in the aggravation of the claimant’s pre-existing spondylolisthesis and spinal stenosis. The trial commissioner ordered the respondents to pay the claimant temporary total benefits effective January 17, 2006 and continuing until such time as a Form 36 is approved in accordance with § 31-296 C.G.S.3 The trier also ordered the respondents to pay for all medical treatment, including the proposed lumbar fusion, deemed necessary by the claimant’s treating physician, Dr. Onyuike, as well as any and all indemnity benefits associated with the surgery.
The respondents filed a Motion to Correct which was denied in its entirety, and this appeal followed. The respondents assert that the trier’s decision to award the claimant temporary total disability benefits constituted reversible error because it is “speculative, based on insufficient evidence and is legally inconsistent with the subordinate facts and conclusions found.” Appellants’ Brief, p. 6. The respondents contend that subsequent to Dr. Coric’s note dated April 6, 2006 wherein she disabled the claimant from working for one month, “[t]here is no further credible medical evidence to warrant a finding of total disability after this period of time.” Id., at 7. In addition, the respondents argue that the claimant’s testimony did not “make it abundantly clear that she was incapable of work following May 6, 2006 .” Id. The respondents also assert that the trier’s failure to grant the corrections sought in their Motion to Correct constituted reversible error because he refused to incorporate into his findings additional facts which were admitted, undisputed and material to his decision to award temporary total benefits to the claimant.
We begin our analysis by setting forth the well-settled standard of deference an appellate board such as ours is obligated 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).
The respondents first assertion of error concerns the trier’s award of ongoing temporary total disability benefits commencing on January 17, 2006. We agree with the respondents that the burden of proving incapacity to work and the concomitant entitlement to workers’ compensation benefits falls squarely upon the claimant. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). It is equally well-settled that “total incapacity becomes a matter of continuing proof for the period claimed.” (Internal quotation marks omitted.) Dengler, supra, at 454, citing Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996). However, this board has also previously observed that
an employer takes a practical risk when it rests its entire case on the assumption that a claimant has not adhered to some hypothetical minimum required frequency for updates to medical reports that reaffirm his total disability status . There is simply no hard and fast rule as to the length of time that may elapse between doctor’s visits in a total disability case; many other factors may also govern a trier’s decision.4
Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001).
In the instant matter, the record contains an office note from Dr. Coric dated April 6, 2006 stating that the claimant “should remain out of work until seen by orthopedist, Dr. White.” Claimant’s Exhibit B. Dr. Coric’s progress note of the same date states that she intends to recheck the claimant in one month, and “[i]f there is no improvement she will stay out of work until then at least.” Respondents’ Exhibit 1. The claimant saw Dr. White on July 12, 2006, who noted that although the claimant had reached maximum medical improvement relative to the injuries to her right knee and ankle, she was experiencing “ongoing symptoms” relative to her lower back and it was his recommendation that she pursue a course of aqua therapy. Respondents’ Exhibit 3. Dr. White did not directly address the issue of the claimant’s work capacity.
However, as previously discussed herein, when the claimant saw Dr. Mushaweh on August 17, 2006, Dr. Mushaweh did address that issue, concluding that the claimant did not have a work capacity at that time. Furthermore, although Dr. Onyuike originally recommended conservative treatment when he first saw the claimant on May 30, 2007, by November 8, 2007, Dr. Onyuike opined that because the claimant continued to be symptomatic, she was “optimally” a candidate for a two-level lumbar fusion but that the claimant would need to lose weight before proceeding with surgery. Claimant’s Exhibit E, F. Moreover, in his office note of September 17, 2008, Dr. Onyuike indicated that the claimant, who apparently had reported that she was experiencing “worsening back pain,” appeared to have lost some weight and was consequently a viable candidate for the surgery. Claimant’s Exhibit E. Similarly, in his deposition on October 2, 2008, Dr. Onyuike testified that the claimant’s “stenosis is actually worse” and “[s]he has progression of her structural abnormality. I think she probably will need surgery.” Respondents’ Exhibit 5, p. 26.
Having reviewed the expert testimony contained in the record, we believe the medical opinions expressed therein provided a reasonable basis for the trier to infer that the claimant had been and continued to be totally disabled from employment at the time of the formal hearing of November 19, 2007. Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). In addition, as discussed previously herein, the claimant testified extensively at the formal hearing regarding her level of pain, current physical limitations and the involuntary curtailment of a number of recreational activities she had previously enjoyed with her family. It was well within the trial commissioner’s prerogative to weigh this testimony in addition to the proffered expert testimony in reaching his conclusions.
Credibility 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.
Burton v. Mottolese, 267 Conn. 1, 40 (2003).
We therefore decline to overturn the trial commissioner’s award of temporary total disability benefits in this matter. “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).
The respondents have also asserted that that the trier’s failure to grant the corrections sought in their Motion to Correct constituted error. Obviously, we reject the respondents’ contention that “[t]here is no medical evidence from any medical provider to substantiate the claimant being totally or partially disabled from work after Dr. Coric’s report dated April 6, 2006 .” Respondents’ Motion to Correct, p. 1. Thus, as this board has previously observed, 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).
Having found no error, the June 4, 2009 Finding and Award of the Commissioner acting for the Fourth District is accordingly affirmed.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 We note that two motions for extension of time were granted during the pendency of this appeal. BACK TO TEXT
2 At his deposition, Dr. Mushaweh stated that he “totally disagreed” with this diagnosis. Respondents’ Exhibit 4, p. 19. We note that the December 8, 2005 MRI report states that the claimant had “mild degenerative lateral recess stenosis, left greater than right” at the L3-4 level and “bilateral mild lateral recess stenosis” at the L4-5 level. Claimant’s Exhibit D. BACK TO TEXT
3 § 31-296 C.G.S. (Rev. to 2005) states, in pertinent part: “If an employer and an injured employee ... reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it…. Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner...” BACK TO TEXT
4 In Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001), we concluded that a nine-month gap between claimant’s visits to his treating physician did not prevent trier from finding total disability during that span of time. BACK TO TEXT