CASE NO. 5583 CRB-8-10-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 8, 2011
STATE OF CONNECTICUT/DEPARTMENT OF MENTAL HEALTH & ADDICTION SERVICES
GAB ROBINS NORTH AMERICA
The claimant appeared without legal representation at oral argument. In the proceedings before the trial commissioner the claimant was represented by Ken Jones, Union representative from New England Health Care Employees Union District 1199, 77 Huyshope Avenue, Hartford, CT 06106.
The respondent was represented by Jennifer S. Janik, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review1 from the July 19, 2010 Finding and Dismissal of the Commissioner acting for the Eighth District was heard June 24, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Dismissal which determined his present knee condition was not causally related to his prior compensable injuries. We find this decision was reached after the trial commissioner evaluated conflicting medical testimony. We find the trial commissioner had a sufficient basis to support his decision and therefore we affirm the Finding and Dismissal and dismiss this appeal.
The trial commissioner reached the following Findings of Fact at the conclusion of the formal hearing. The claimant began working at Connecticut Valley Hospital in 1977 and has been a full time psychiatrist since 1985. It is acknowledged the claimant suffered a compensable injury to his low back on July 12, 1988 when he was lifting a patient. The claimant only missed one week from work as a result of his 1988 injury. He did not undergo surgery or injections following this injury and his treatment was sporadic over the next few years.
Following his 1988 accident the claimant treated with Dr. Marcia Trape-Cardoso through 1992. He treated with Dr. Alan Bernstein until 2000. He underwent an MRI in 1998 which revealed disc bulges at L5-S1 with no herniation, along with spinal stenosis at L3-4. Dr. Bernstein also found retrolysthesis likely as a result of degenerative changes. The claimant complained of chronic back pain and was prescribed Neuronton to deal with the pain. The claimant also consulted with Dr. Jeffrey Bash in January 2002, who confirmed the diagnosis of Dr. Bernstein and discussed surgical options. The claimant also treated with Dr. Thomas Danyliw, an occupational medical doctor, during 2001 and 2002. The claimant treated on eight occasions mentioning back problems and was prescribed medication during this time period. The claimant did not seek any further treatment for his back until 2008.
On January 29, 2008 the claimant was seated at an adjustable chair at work when he pulled the seat adjustment bar. He testified the chair immediately dropped six inches and he felt a quick and intense pain that felt “like a fireball down [his] left leg.” Findings, ¶ h. The claimant treated with Dr. Danyliw following the incident and also consulted with Dr. David Kvam on February 27, 2008. Dr. Kvam’s report related that the claimant developed serious back pain with a component in the leg when the claimant went to sit. The report did not reference an incident when the claimant’s chair dropped several inches. Dr. Kvam’s radiological studies did not reveal any significant root compression or significant stenosis. Dr. Kvam ruled out surgery as an option, noting the neurological exam was normal. On April 9, 2009 Dr. Kvam opined the claimant’s present ailment was an exacerbation of the 1988 injury.
Following the 2008 incident the claimant also consulted with Dr. Terry Reardon on August 7, 2008. The claimant was treated conservatively with physical therapy and medications. Dr. Reardon noted conservative care was not providing relief and suggested the claimant receive epidural injections.
The claimant was examined twice by the respondent’s medical examiner, Dr. Mark Lorenze, a board certified orthopedic surgeon. At the May 1, 2008 examination the claimant related the mechanism of injury on January 29, 2008 as “when working he sat in a chair which was jammed forward and he sustained a twisting injury to his low back.” Findings, ¶ m. Dr. Lorenze opined the cause of the claimant’s complaints was mainly related to the 2008 incident and he had been in his usual state of health prior to that date. He further opined all treatment was reasonable and necessary. The claimant returned to see Dr. Lorenze on June 29, 2008 and Dr. Lorenze said the claimant would not allow him to perform a physical examination. Dr. Lorenze further opined the tests that he was able to perform on the claimant indicated that there was evidence of symptom magnification.
The claimant also said he had sustained an injury to his left knee on or about August 16, 2008. He said on that date he was performing home exercises in bed at the direction of his physical therapist when my knee “just gave way.” Findings, ¶ i. The claimant treated with Dr. Reardon for his knee injury. Dr. Reardon treated the injury with injections of DepMedrol and Lidocaine, as well as oral medications and a recommendation for physical therapy and stretching exercises. Dr. Reardon causally related the knee injury to the claimant’s prior work injury by checking a box on a report.
The claimant was examined by the respondent’s medical examiner, Dr. Thomas Dugdale, on December 23, 2008. Dr. Dugdale did not causally relate the claimant’s knee injury to his work activities or as the sequalae of a prior work related injury. Dr. Dugdale opined it was “medically unlikely” that the claimant could have exercised his knee in bed to a point “where it couldn’t have supported his weight when he got out of bed.” Findings, ¶ v.
Based on these subordinate facts the trial commissioner concluded the 2008 injury suffered by the claimant was a new and distinct injury and not a sequalae of his prior compensable injury. The trial commissioner credited the opinion of Dr. Lorenze on this issue. The trial commissioner further concluded the claimant’s knee injury was not the sequelae of either the 1988 or 2008 work related injuries. The trial commissioner credited Dr. Dugdale’s opinion as credible and persuasive on this point. Therefore, the trial commissioner dismissed the claimant’s left knee claim.
The claimant did not file a Motion to Correct, but did file a timely Petition for Review. The respondent filed a Motion to Dismiss contesting the adequacy of the claimant’s pleadings in this matter. We decline to grant this motion. The claimant is pursuing this appeal as a pro se party and we believe his pleadings have placed the respondent and this tribunal on notice as to the issues he is addressing herein. We find Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008) on point. “We believe some indicia of prejudice to the respondents should generally exist before we dismiss a claim initiated in a timely manner, as the sole dispute herein is over the adequacy of the pleadings. See also Rinaldi v. Tilcon Connecticut, Incorporated, 4981 CRB-3-05-7 (August 30, 2006).” Id. To the extent that the respondent may have had any initial misunderstanding as to what the claimant had filed, it has since been remedied as a result of the extensions of time granted in this matter.
We thus turn to the substance of the claimant’s appeal. Essentially, he believes it was error on the part of the trial commissioner not to rely on the opinions of the treating physicians on the issue of causation. He cites Champagne v. O. Z. Gedney, 4425 CRB-5-01-8 (May 16, 2002) and Belanger v. J & G Belanger Concrete Construction, 4684 CRB-6-03-6 (July 28, 2004) as precedent which would support reversing the trial commissioner’s decision. The cases cited do not stand for that proposition.
While the result in both these cases (the clamant prevailed on the issue of causation) may be congruent to what the claimant seeks; in neither case did the Compensation Review Board reverse the factual findings of the trial commissioner. We determined in both cases the trial commissioner could properly find the opinions of the treating physician credible and persuasive. In Champagne, supra., we held as follows.
In matters such as these, it was up to the trial commissioner to determine which (if any) of the physicians who examined the claimant provided the most reliable testimony or documentary evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). In doing so, the trier was entitled to accept all, part or none of any given doctor’s medical opinion. Tartaglino, supra., Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). This board does not have the power to disturb such a finding on appeal, unless the facts found are without any support in the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra.
We followed similar reasoning in Belanger, supra.
In a workers’ compensation case, it is well-established that the trial commissioner has the sole authority to judge the credibility of witness testimony and other evidence, including the relative persuasiveness of conflicting medical opinions. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). The trier of fact must decide whether a claimant has proven the occurrence of a compensable injury, and established a relationship between that injury and an alleged physical ailment or disability within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Duddy, supra. On appeal, this board does not have the power to retry the case by second-guessing the inferences drawn from the evidence by the commissioner. Id., Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Our role in reviewing a trier’s factual findings is to ascertain whether there is evidence in the record to support them, and whether the trier may have omitted undisputed material facts. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren, supra.
The claimant in this matter had the burden of persuading the trial commissioner that his knee ailment was due to a compensable injury. He failed in this effort and the trial commissioner cited reliance on medical witnesses that disputed the claimant’s position. The claimant points to no deficiency in the evidence presented by the respondent’s witnesses. Our precedent is clear that the trial commissioner may find the respondent’s medical examiner credible and persuasive and when evidence which is adverse to the claimant is credited, that element of the claim is likely to be denied.
Indeed, we find the Champagne and Belanger decisions are fully supportive of upholding the trial commissioner’s decision herein. We determined in those cases the trial commissioner had sufficient evidence to justify his ultimate decision. We would have had to have determined there was a deficiency in the factual underpinnings, or a misapplication of law, in the Finding and Award in those cases so as to warrant reversing the decision. The claimant has not argued that the witnesses relied upon by the trial commissioner failed to offer probative evidence. Champagne and Belanger stand for the proposition this panel should give great weight to the trial commissioner’s evaluation of their evidence.
In the present case, the trial commissioner did not credit the opinion of the treating physician on the issue of causation of the claimant’s knee condition. This case is similar to a number of other recent cases where the claimant’s treater was deemed less persuasive than the respondent’s expert witness or the commissioner’s examiner. See Lettieri v. Tilcon Connecticut, Inc., 5478 CRB-3-09-6 (June 17, 2010) and Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009).2 As we pointed out in Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006), “[w]e must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.”
In Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006) this board cited Strong v. UTC/Pratt & Whitney, 4563 CRB 1-02-8 (August 25, 2003) for the proposition “[i]f on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.” Id. We find the trial commissioner’s determination herein was reasonable and based on probative evidence. As a result, we must affirm the Finding and Dismissal and dismiss this appeal.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.
1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT
2 See also, Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) where even when a prior injury has been accepted as compensable it is the claimant’s burden to prove that a subsequent request for surgery is causally linked to the accepted injury. BACK TO TEXT