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

CASE NO. 5568 CRB-4-10-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 13, 2011

MADELINE DELEON

CLAIMANT-APPELLANT

v.

WALGREENS

EMPLOYER

and

SEDGEWICK CMS, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Steven D. Jacobs, Esq., Jacobs, Jacobs & Shannon, P.C., 265 Orange Street, New Haven, CT 06510.

The respondents were represented by Thomas M. McKeon, Esq., Bai, Pollock, Blueweiss & Mulcahey, P.C., One Corporate Drive, Shelton, CT 06484.

This Petition for Review from the June 7, 2010 Finding and Dismissal of the Commissioner acting for the Third District was heard December 17, 2010 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno and Jack R. Goldberg and Stephen B. Delaney.

OPINION

NANCY E. SALERNO, COMMISSIONER. The claimant in this matter has appealed from a Finding and Dismissal finding that her psychiatric injuries were not caused by an accepted compensable injury. Her appeal is based solely on her opinion that the commissioner’s examiner, Dr. Walter Borden, somehow tainted the proceedings as he is a member of the Workers’ Compensation Medical Advisory Panel. The claimant’s position is that this situation poses a due process issue. As the claimant offers no legal precedent which compels this panel to remand the matter for further proceedings, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner reached extensive factual findings after the formal hearing which we will summarize herein. On June 1, 2004 the claimant sustained a low/back/cervical strain while in the course of her employment with the respondents. On July 16, 2004 the respondents accepted the compensability of this injury in a voluntary agreement. Administrative notice was taken of a voluntary agreement approved on June 19, 2006 for 11% permanent partial disability of the lower back with maximum medical improvement on March 17, 2006; and a voluntary agreement approved on July 14, 2006 for 2.5% of the cervical spine with MMI on March 17, 2006.

The claimant commenced treatment for her injuries with Dr. Eric Katz during the second or third week of June 2004. The claimant has stated she cannot bend and is in extreme pain at all times subsequent to the injury. On June 21, 2004 Dr. Katz rendered a diagnosis of acute musculoligamentous strain of the cervical spine; acute musculoligamentous strain of the lumbosacral spine; and post-traumatic headaches secondary to the musculoligamentous strain of the cervical spine.

The claimant has undergone a wide variety of treatment modalities over the four and a half years prior to the formal hearing including physical therapy, heat, pain medication (including Vicodin, Demerol, Percocet, Flexoril, Motrin, Fiorinal with Codeine), chiropractic, two translaminar epidural injections, three transforaminal epidural injections, th. use of a Lidoderm patch, and home exercises. Nonetheless, the claimant testified these treatments had no effect and the injections made things worse.

The claimant underwent a Respondent’s Medical Examination with Dr. Robert Margolis, an orthopedic surgeon, on October 3, 2004. Dr. Margolis opined that the claimant’s symptomology was not supported by objective findings, and that the claimant did not require any additional medical treatment and/or medication. On October 11, 2005, the claimant underwent a second Respondent’s Medical Examination with Dr. Margolis. Dr. Margolis found the claimant had full range of motion and no abnormalities in the cervical spine. He found the claimant had “amplified pain behavior” with regard to her back pain. Dr. Margolis determined the claimant was at maximum medical improvement with a 7% permanent partial disability to the back. He found no need for additional orthopedic treatment and the claimant should return to work following an evaluation by a neurologist and a subsequently normal second MRI of the lumbar spine. Following the October 11, 2005 Respondent’s Medical Examination the claimant returned to work at the respondent’s Trumbull store.

On January 18, 2006, the claimant underwent a Respondent’s Medical Examination with Dr. James McVeety, a neurologist. Dr. McVeety opined that the claimant had no demonstrable neurologic abnormalities due to the injury of June 1, 2004; that the claimant was at maximum medical improvement and additional treatment was not reasonable and necessary.

Nonetheless, the claimant continued to treat with Dr. Katz and with Dr. Robert Boolbol. On September 29, 2005, Dr. Katz recommended that the claimant undergo psychological consultation for depression. Dr. Boolbol reported that the claimant continued to complain of low back pain radiating down her right lower extremities, symptoms consistent with irritation of the S1 nerve root. He recommended EMG, nerve conduction study and repeat translaminar epidural injections. On September 25, 2006, Dr. Boolbol reported that the claimant’s EMG suggested a possible L4-L5 lumbar radiculopathy and in the event of a negative MRI, recommended treatment with a spinal cord stimulator.

In 2008 Dr. Margolis testified that his review of Dr. McVeety, Dr. Katz and Dr. Boolbol’s findings did not demonstrate that the claimant had any treatable pathology and that treatment after March of 2006 was not reasonable and necessary. Dr. Margolis said there was no basis to believe the claimant had degenerative back disease when two MRIs had been normal. He did not believe a trial of a spinal cord stimulator was reasonable and necessary and further opined that as of October 11, 2005 any additional medical treatment of the claimant’s back and neck was not reasonable and necessary and the claimant was at MMI with a work capacity.

In 2009 the claimant underwent a commissioner’s examination for her orthopedic injuries with Dr. Michael Karnasiewicz, a neurosurgeon. He found the claimant had a work capacity and was at maximum medical improvement with a 5% permanent partial disability of the lumbar spine. He found placement of a spinal cord stimulator was neither reasonable nor necessary. He further suggested the claimant be weaned off Vicodin by a pain management specialist.

The claimant began treating for psychiatric ailments on May 23, 2006 when she was examined by Dr. Lazlo Pomeraniec. Dr. Pomeraniec rendered a diagnosis of major depression recurrent, moderate to severe with psychotic features. He treated the claimant with psychotropic medications. In July 2006 the claimant was admitted to Hall-Brooke Hospital “feeling suicidal.” She was discharged as “improved” on July 21, 2006 and referred for outpatient treatment. She was admitted again to Hall-Brooke with suicidal ideation, auditory hallucinations and depressed mood on September 18, 2006. She was discharged as “improved” on September 25, 2006 and continued to follow-up with outpatient treatment. It is the claimant’s position that her mental health condition is a compensable psychiatric injury and that she should receive temporary total disability benefits from the date of her second admission to Hall-Brooke Hospital, through May 14, 2007, the date of her return to work. Her treating physician, Dr. Pomeraniec, opined that there is a direct causal link between the claimant’s June 1, 2004 work injury and her depression, while acknowledging other family-related stressors were present.

On November 1, 2007 the claimant attended a Respondent’s Medical Examination with Dr. Mark Rubenstein, a psychiatrist. As a result of the examination, Dr. Rubenstein reported that the claimant presented with a “Schizoaffective Disorder.” Dr. Rubinstein found the claimant had numerous stressors such as childhood abuse and verbal abuse from her husband that had been going on for about two weeks. Dr. Rubinstein did concur at the time with the claimant’s treating physician the accident of June 1, 2004 was a substantial contributing factor in the claimant’s psychopathology for which she was being treated. Later, when deposed on May 23, 2008, Dr. Rubenstein testified it was clear that the claimant was not candid with him in talking about the stressors that were going on over a period of time with her husband, son, daughter, etc. Dr. Rubenstein further testified he did not know whether the accident at Walgreen’s was a substantial factor in causing the claimant’s Schizoaffective disorder to become symptomatic.

The claimant produced medical records indicating she lost feeling in her legs and was “hyperventilating, with anxiety” after a September 20, 2005 argument with her family which led to her being examined at Bridgeport Hospital. She also admitted at the hearing in July of 2006 she superficially cut her left wrist prior to her admission to Hall-Brooke after her son went into a rage at home, broke things and confronted her. She said she felt hopeless as she felt no support from her husband. Her complaints to treaters at Hall-Brooke centered around violent arguments she was having with her son, as well as turmoil resulting from her fifteen-year-old son having gotten his girlfriend pregnant, causing the claimant to worry about assuming the responsibility for her son’s child. At the time of her September 2006 hospitalization at Hall-Brooke the claimant testified her husband was threatening to leave her due to her son’s behavioral problems. At the time, her son was arrested for violently attacking the claimant’s daughter who suffered a black eye injury from the incident. The claimant said during that period her husband had been verbally and emotionally abusive to her. The claimant attributed her husband’s attitude to her physical limitations following her 2004 work injury. She testified however, that due to therapy their relationship had improved. The claimant testified that from the time of her June 1, 2004 work injury she has never been pain-free, nor has she been restored to good mental health.

On February 17, 2009 and February 24, 2009 the claimant underwent a commissioner’s examination with Dr. Walter Borden, a psychiatrist. In addition to doing psychiatric diagnostic evaluations of the claimant Dr. Borden also administered psychological testing.1 He had the opportunity to review the claimant’s medical/treatment records as well as the depositions and transcripts of the workers’ compensation hearings. Dr. Borden diagnosed the claimant with major depression, and opined “her psychiatric problems are unrelated causally to her work injury. They result from emotional trauma in childhood, adolescence and compounded by ongoing psychological stressors and losses.” Dr. Borden testified that the June 1, 2004 work incident was not causative of the claimant’s psychiatric problems, and did not exacerbate her pre-existing psychiatric condition.

Based on this record the trial commissioner found that the claimant was not credible. As a result of the claimant’s lack of candor the commissioner foundDr. Rubenstein’s opinions flawed. The commissioner did not find Dr. Pomeraniec to be credible or persuasive. The commissioner found Dr. Borden credible and persuasive and agreed that the June 1, 2004 work accident did not cause or exacerbate the claimant’s psychiatric injuries. The commissioner also made numerous findings regarding the claimant’s physical injuries and treatment modalities which the parties have not contested on appeal.

The claimant did not file a Motion to Correct. Therefore, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6; 4948 CRB-2-05-5 (July 26, 2006) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993), we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4. The claimant instead filed a Petition for Review and Reasons for Appeal on the sole issue that the selection of Dr. Borden as a commissioner’s examiner constituted a “conflict of interest” and denied the claimant “due process.”

We find this argument unpersuasive for a number of reasons. Indeed, we might well be able to affirm the decision of the trial commissioner without reaching this issue. The trial commissioner found that the claimant was not a credible witness. As we held in Gioia v. United Parcel Service, 5488 CRB-3-09-8 (August 9, 2010)

The circumstances herein are that the trial commissioner did not believe the claimant and presented a number of reasonable grounds for finding his testimony incredulous. We cannot find this matter dissimilar from a host of similar cases where the claimant’s testimony was not believed and the claim was dismissed. See Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008), Smith v. Salamander Designs, LTD., 5205 CRB-1-07-3 (March 13, 2008), Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010) and Baker v. Hug Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010).

We cannot intercede in second-guessing a trial commissioner’s determination as to whether or not he or she finds a witness credible. Burton v. Mottolese, 267 Conn. 1, 40 (2003). Since the trial commissioner did not find the claimant credible on the issue of her psychiatric ailments, she would not have prevailed before the trial commissioner even if we were to strike every finding citing Dr. Borden’s testimony from the record.

Nonetheless, we believe we should address the specific question presented in this appeal. We simply cannot find any evidence on the record that Dr. Borden’s participation in this hearing was violative of the claimant’s right to due process.

As the claimant views the medical advisory panel, it appears she believes it is a group with great powers over the functioning of the Commission. Writing of Dr. Borden, the claimant states “[h]e has been given the imprimatur of authority by the Worker’s Compensation Commissioner.” Claimant’ Brief, p. 7. The medical advisory panel is a group of limited influence. Section 31-279(d) C.G.S. established the medical advisory panel for the purpose of reviewing and approving medical care plans submitted to the Chairman of the Commission. This group has no statutory authority over the decisions of trial commissioners or on the medical opinions rendered by commissioner’s examiners.

The statute authorizing commissioner’s examinations (§ 31-294f C.G.S.) herein does not require a trial commissioner to choose a commissioner’s examiner from the membership of the medical advisory panel, or in the alternative, bar the selection of a panel member from serving as a commissioner’s examiner. The chairman of the commission compiles an approved list of physicians, but takes no further role under the statute. Therefore, we conclude the choice of a commissioner’s examiner is left to the discretion of a trial commissioner, pursuant to the powers granted under § 31-278 C.G.S. and § 31-298 C.G.S. Had the General Assembly intended to limit the discretion of a trial commissioner as to the choice of a commissioner’s examiner, it would have written the statute in such a fashion as to limit discretion. “We are not permitted to supply statutory language the legislature may have chosen to omit.” Vaillancourt v New Britain Machine/Litton, 224 Conn. 382, 396 (1993).2

The claimant clearly had the right to object to a potential witness on the grounds of perceived bias, and pursuant to Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009), the claimant had the right to depose the witness prior to the trial commissioner acting on the witness’s opinions. In the present case, the claimant raised no objection to the initial selection of Dr. Borden as a commissioner’s examiner. The claimant subsequently deposed Dr. Borden on July 13, 2009, Claimant’s Brief, p. 7, prior to submitting her proposed Findings of Fact on February 23, 2010. In this matter, the due process concerns we identified in Ghazal were clearly addressed by the trial commissioner and the claimant had a full and fair opportunity to challenge the opinions of the expert witness. The respondents also point out that on the claimant’s factual claim that Dr. Borden was so well regarded his opinions would be binding on a trial commissioner, that the trial commissioner in Vetre v. State/Department of Children and Youth Services, 3443 CRB-06-96-10 (November 28, 2000) chose to rely on the opinion of the treating physician instead of relying on Dr. Borden’s opinion. We are not in a position to reverse the trial commissioner’s determination as to which side prevailed in a “battle of the experts” Dellacamera v. City of Waterbury, 4966 CRB-5-05-6 (June 29, 2006).3

The respondents argue that the circumstance herein is akin to the approach we rejected in Yelunin v. Royal Ride Transportation, 5274 CRB-1-07-9 (September 5, 2008), aff’d on alternate grounds, 121 Conn. App. 144 (2010), “[w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Id. In the present instance, we believe had the claimant intended to assert a due process violation by virtue of Dr. Borden’s participation, she needed to have placed this concern squarely before the trial commissioner prior to the conclusion of the formal hearing. There is little appellate precedent wherein such a factual question can be addressed on appeal after the decision is rendered.4 5

To the extent this panel has previously ruled on similar issues the results are not supportive of the claimant’s plea for relief. In Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001) the claimant argued the commissioner’s examiner in that case was biased in favor of the respondents, and sought to reverse the trial commissioner’s decision on appeal. We held such a claim “should be raised before the close of the formal hearing process, in order to allow a discussion of the issue.” Id. We affirmed the trial commissioner. We find no distinction herein between this case and Mosman and reach the same result.

The claimant makes a second due process argument that she was unable to properly depose Dr. Borden because her production request for documents was limited by the trial commissioner, who sustained an objection interposed by the respondents. We note that the claimant herself admits that such a decision is within the discretion of the trial commissioner and can only be overruled if it was “clearly erroneous.” Claimant’s Brief p. 10. Our precedent directs us that there has been no error. On substantive grounds the claimant’s wide-ranging production request was likely to require the production of privileged documents. Vetre v. State/Department of Children and Youth Services, 3948 CRB-06-98-12 (February 14, 2000).6 The trial commissioner had the right to decide not to proceed in this fashion, especially as procedurally the commissioner has wide discretion to decide when to compel the admission of evidence. Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009).

We note that in an analogous situation a trial commissioner limited cross-examination of a witness when the respondents sought to raise matters unrelated to the claim seeking to assert alleged bias. The Appellate Court upheld this discovery limitation. Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 780-782 (1998). We find this precedent consistent with our recent case law. “Our case law clearly states, ‘a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion ’” Lamontagne v. F & F Concrete Corp., 5198 CRB-4-07-2 (February 25, 2008)], Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008). We find no abuse of discretion herein.

A trial commissioner “shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Valiante, supra. An appellant must bring a substantive challenge to this broad discretion when claiming he or she was deprived of due process. To paraphrase Justice Benjamin Cardozo’s opinion in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), “proof of bias in the air will not do.” The Finding and Dismissal is affirmed. The claimant’s appeal is dismissed.

Commissioners Jack R. Goldberg and Stephen B. Delaney concur in this opinion.

1 Dr. Borden administered the Minnesota Multi-Phasic Personality Inventory (MMPI-2) and Millon Behavioral Medicine Diagnostic (MBMD), two standardized psychiatric tests, to the claimant. BACK TO TEXT

2 The claimant cites a single case where an appellate court considered whether the choice of a commissioner’s examiner could have deprived the claimant of due process. However, the case cited, City of Manassa v. Ruff, 235 P3rd 1051 (2010), involved a Colorado court interpreting Colorado law. For the reasons we cited in Atkinson v. United Illuminating Company, 5064 CRB-4-06-3 (April 19, 2007) we find this case unpersuasive. Perhaps even more unsupportive of the claimant’s position is that on the facts the court in City of Manassa “found the record was insufficient to find the claimant’s due process right had been violated.” Claimant’s Brief, p. 8. Consequently the claimant seeks this tribunal to offer her relief when she presents no evidence similar relief has ever been ordered in the United States. BACK TO TEXT

3 Trial commissioners have also declined to follow the opinions of the commissioner’s examiner in Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009) and Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006). BACK TO TEXT

4 We note that the Claimant’s Proposed Findings of Fact and Conclusions of Law dated February 23, 2010 did not seek to find Dr. Borden’s opinions not credible or to find Dr. Borden’s participation in the proceedings invalid. BACK TO TEXT

5 The claimant asserts that Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313 (1994) supports her invocation of the “plain error” doctrine to raise an issue for the first time on appeal. Upon review of Dime Savings Bank, supra, we find the case unsupportive of the claimant’s position and factually distinguishable. Dime Savings Bank was a foreclosure case where the bank sought to set aside the auction as the court failed to have the premises appraised, in contravention of § 49-25 C.G.S. “Our Supreme Court has stated a trial court’s failure to follow the mandatory provisions of a statute governing trial procedures constitutes plain error.” Id., at 318. As we have explained, there are no statutory provisions barring the selection of a member of the medical advisory panel as a commissioner’s examiner. BACK TO TEXT

6 The production request sought to have the witness produce, among other documents, copies of all reports for every examination he had performed since January 1, 2004 for automobile liability carriers, workers’ compensation carriers and workers’ compensation commissioners, as well as copies of all records, reports, invoices, logs, income tax returns and IRS Form 1090’s reflecting income to Dr. Borden from such examinations from January 1, 2004 to the present date. BACK TO TEXT

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