State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Burns v. Town of Southbury

CASE NO. 5608 CRB-5-10-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 2, 2011

KEVIN BURNS

CLAIMANT-APPELLANT

v.

TOWN OF SOUTHBURY

EMPLOYER

and

CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Eric R. Brown, Esq., Secor, Cassidy & McPartland, P.C., 41 Church Street, Waterbury, CT 06702.

The respondents were represented by James Moran, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the November 8, 2010 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 27, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Dismissal where the trial commissioner found the claimant’s need for hip surgery was not the result of a compensable injury. We find this decision by the trial commissioner was the result of finding one medical witness more persuasive than other medical witnesses. This was within the prerogative of the trial commissioner and so long as this evidence was probative an appellate panel is not in a position to reach a differing conclusion. 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. He found it was undisputed that the claimant was involved in a motor vehicle accident on October 30, 2001 in his capacity as a police officer for the Town of Southbury. As a result of that motor vehicle accident, the claimant sustained a head contusion and a significant bruise to his right thigh. He found the respondents paid for medical care administered immediately after the accident. As a result of the October 30, 2001 motor vehicle accident, the claimant was out of work for three days.

The claimant testified as to the circumstances of the accident. He said that while he was on duty he saw a car drive off the road through a farm field, spin around, and then drive through a stop sign at a high rate of speed. The claimant commenced a pursuit in his police cruiser. During the pursuit he rounded a bend in the road, traveling about sixty miles an hour and observed a telephone pole lying across the road. His cruiser hit the pole before he had time to brake and the claimant said the cruiser was sent airborne before it stopped. In the course of the collision, the claimant’s head struck an overhead camera and his right leg struck the radio and armrest. He was transported by ambulance to St. Mary’s Hospital. After the accident he complained of a head injury and had sustained a significant bruise on his right thigh. The claimant said the bruising on his right thigh went away after about two or three months and the pain pretty much subsided.

Following the accident the claimant said there would be some periods where his right leg would be sore, but he did not seek treatment because he is “not really a complainer.”. At some point he went to Gregory Buller, M.D. for an unrelated reason and happened to mention his hip concerns. At that point, Dr. Buller referred him to Robert S. Wetmore, M.D. The claimant saw Dr. Wetmore on March 1, 2005 and he did not mention the 2001 motor vehicle accident. He did mention the accident at an April 2005 visit when Dr. Wetmore suggested to him he must have had a major trauma three or four years earlier. Prior to 2001, he had never suffered any injury to his right hip or leg. Between October 2001 and his visit with Dr. Buller in March of 2005, the claimant said he had not suffered any injury or accident to his right hip. In 2003 he fell on ice in his driveway and landed on his back, but did not seek medical attention. The claimant said he was in a 2007 nonwork related motor vehicle accident where he pulled a muscle in his back, but he did not injure his leg. The claimant did not recall whether he mentioned this accident to Dr. Buller or to the respondent’s examiner, Dr. Steven F. Schutzer. However, Dr Buller’s records indicated that in February 2005 the claimant said he was concerned about his right hip and mentioned that he had fallen on ice on his right side approximately two years prior.

Dr. Wetmore examined the claimant on March 1, 2005 because of the claimant’s right hip pain. The initial reports from Dr. Wetmore attributed the increase in pain over the prior 4 to 5 months as secondary to trochanteric bursitis. Subsequent to being informed of the 2001 accident on April 26, 2005, Dr. Wetmore concluded that the right hip arthritis was caused or exacerbated by the motor vehicle accident. On November 15, 2006 Dr. Wetmore indicated that the claimant had a fifty-percent (50%) permanent partial disability of his right lower extremity and would eventually need a total hip replacement. On November 3, 2009, Dr. Wetmore indicated that the claimant would need hip resurfacing.

The respondents’ examiner, Dr. Schutzer, examined the claimant on December 3, 2007. Based on the history given, Dr. Schutzer agreed with Dr. Wetmore that the claimant’s right hip arthritis and need for surgery were causally related to the 2001 motor vehicle accident. There was no indication in the report that Dr. Schutzer was made aware of the 2003 slip and fall or the 2007 motor vehicle accident.

John M. Keggi, M.D. reviewed the claimant’s medical records on September 21, 2009 at the request of respondents’ counsel. As a result of that records review, Dr. Keggi concluded that the claimant suffered from a developmental condition called femoroacetabular impingement (“FAI”), which was unrelated to the 2001 motor vehicle accident. Dr. Keggi further stated that the 2001 motor vehicle accident did not result in the need for surgery or even accelerate an underlying need for surgery.

In December 2009 Dr. Keggi began treating the claimant’s hip condition. The claimant was referred to Dr. Keggi by Dr. Wetmore. Dr. Keggi performed a hip-resurfacing procedure on the claimant’s right hip on December 30, 2009. Dr. Keggi was subsequently deposed on June 21, 2010. He testified he diagnosed the claimant as having FAI, which is a developmental condition. The claimant had FAI in both hips. A remote trauma would not change the course of events. In order to accelerate the need for surgery with FAI, a major trauma would be required, such as a fall from a “large” height, a fractured joint or shattered joint. Dr. Keggi discounted the effect of the motor vehicle accident or the claimant’s fall on ice as being related to the FAI. While the claimant’s FAI is worse on the right side then the left side, Dr. Keggi said “that is often the case.”. Dr. Keggi did not believe the motor vehicle accident affected the FAI and had no bearing on the claimant’s 2009 condition. Dr. Keggi disagrees with Dr. Wetmore’s and Dr. Schutzer’s opinions that the motor vehicle accident of 2001 is causally related to the claimant’s need for right hip surgery. He believed that even absent the 2001 motor vehicle accident, the claimant would have become symptomatic around the same time.

Subsequent to Dr. Keggi’s deposition, Dr. Wetmore was asked for his opinion. On April 22, 2010 Dr. Wetmore stated that, after having reviewed Dr. Schutzer’s report and Dr. Keggi’s deposition transcript, he still stands by his opinion that the claimant’s need for surgery is causally related to the 2001 motor vehicle accident.

Based on these subordinate facts, the trial commissioner concluded the claimant suffered a compensable injury on October 30, 2001, the respondents had accepted this injury, and that the respondents had provided medical care for this accident. All statutory notice requirements had been met. The trial commissioner concluded that Dr. Keggi’s opinions regarding compensability were the most persuasive. He further concluded none of the events preceding the surgery were of enough significance to either aggravate or accelerate the claimant’s underlying developmental disorder (FAI). As a result, the trial commissioner dismissed the claim as to finding the claimant’s right hip surgery compensable, as the 2001 motor vehicle accident was not a substantial factor in the claimant’s need for treatment of his right hip.

The claimant did not file a Motion to Correct, but proceeded to appeal the Finding and Dismissal. The gravamen of his appeal is that the trial commissioner’s ultimate conclusion was inconsistent with the subordinate facts that he found. He specifically challenges the trial commissioner’s reliance on Dr. Keggi’s opinion, asserting the opinion was as unreliable as the opinion relied on by the trial commissioner in DiNuzzo v. Dan Perkins Chevrolet Geo. Inc., 294 Conn. 132 (2009). We disagree.

We note that neither party has filed a Motion to Correct in this matter. As a result, 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 and Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008).

In Stevens, supra, the appellant argued the evidence the trial commissioner relied on to establish causation was insufficient based on the standard delineated in the Appellate Court’s opinion in DiNuzzo (99 Conn. App. 336, 344-346) (2007). We found the evidence presented in that case was definitive in nature. Stevens, supra. We are satisfied the evidence presented by Dr. Keggi was sufficient to sustain the trial commissioner’s decision herein.

“As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.”. Daniels v. Alander, 268 Conn. 320, 330 (2004), quoting Barton v. Mottolese, 267 Conn. 1, 54 (2003). A trial commissioner has a great deal of discretion in evaluating medical evidence. “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 claimant believes Dr. Keggi’s testimony is inadequate to support the trial commissioner’s decision herein. The claimant believes that Dr. Keggi’s opinion was based somehow on a misunderstanding as to the severity of the claimant’s 2001 accident. After reviewing the entirety of Dr. Keggi’s deposition, we are not persuaded. The claimant places great emphasis on the alleged inadequacy of this exchange:

Q Okay. What do you know about the automobile accident that Mr. Burns was involved in in October of 2001 in terms of its significance?
A As it was described to me, he was chasing a suspect, a vehicle chase, the suspect ran into a telephone pole, which subsequently he knocked down and that Officer Burns tried to avoid then an accident in his car, hit the telephone pole, and in the course of those events, he was seat belted, but in the course of that event, his thigh impacted with his gun on his hip, impacted upon the console of his car, so he developed a large hematoma and bruising of his right thigh.

Respondent’s Exhibit 3 June 21, 2010 Deposition of John Marbury Keggi, M.D., p. 27.

The claimant argues this evidence is akin to the insufficient evidence in DiNuzzo as the witness did not reference the speed of the claimant’s car when it crashed.1 As the claimant views this evidence, the accident was akin to the sort of “major trauma” that Dr. Keggi suggested could aggravate someone’s FAI. Id., 15. We do not accept this characterization of Dr. Keggi’s testimony. He noted that prior to rendering his opinion he had reviewed X-rays and photographs relevant to the accident. Id., 27-28.

We believe it was even more relevant that Dr. Keggi testified that the claimant had been his patient prior to the deposition, id., 8, and he had performed the claimant’s hip surgery. Id., 19. Since the witness had such direct knowledge of the claimant’s condition, we believe the trial commissioner could reasonably infer based on these facts that the witness was sufficiently informed as to the mechanics and impact of the 2001 accident prior to rendering his opinion. See Findings, ¶ 11a. In DiNuzzo, supra, the claimant’s expert witness admitted he had not reviewed an autopsy of the victim prior to rendering an opinion as to cause of death, and conceded there was no way of knowing the exact cause of death without an autopsy. Id., 138-140, 145-146. The witness the trial commissioner relied on herein was not offering a similar opinion based on conjecture.

Indeed, in reviewing the totality of Dr. Keggi’s deposition we conclude he clearly believed a significantly more serious trauma than what the claimant underwent would have been necessary to have aggravated the claimant’s FAI. He believed the claimant would need to “break a bone or shatter a joint or something like that” (Respondent’s Exhibit 3, p. 15) to aggravate what Dr. Keggi explained at length was essentially a chronic degenerative condition. Id., 11-15; 24-27 and 33-35.2 There was no evidence in the record that the 2001 accident caused the claimant to break a bone or shatter a joint. Indeed, the record indicates the claimant missed very little time from work following the accident.3 Dr. Keggi unequivocally opined that the 2001 accident was “not significantly related” to the claimant’s hip condition, id., 16, and agreed the accident “had no bearing” on the claimant’s later condition. Id., 19. Dr. Keggi further said that in the absence of the motor vehicle accident the claimant would have become symptomatic with FAI at about the same time as he developed the symptoms. Id., 35. The trial commissioner’s Conclusion, ¶ E--that the 2001 accident was not a substantial cause of the claimant’s hip condition--was thus grounded in competent evidence he found persuasive.

We have long held if “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.”. Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). We cannot intercede when a trial commissioner determines one witness is more persuasive than another in a “dueling expert” case. Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006), footnote 1. We note that it is the claimant’s burden to prove that a work-related accident is the cause of a recent need for surgery, see Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) and Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008). Indeed, in DiNuzzo, supra, the Supreme Court rejected the idea “that the onus of disproving causation is thrust upon the [employer or insurer].”. Id., 151.

In many ways this case resembles Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). In Torres the claimant suffered a degenerative hip ailment but asserted the primary cause of his current disability were compensable traumatic injuries. We found the trial commissioner relied on probative evidence from expert witnesses he found persuasive that the claimant’s condition would have occurred whether or not he had suffered the traumatic incidents at work. We concluded the trial commissioner relied on probative evidence and exercised reasonable judgment in dismissing the claim. We reach the same conclusion in this case. We 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 while Dr. Keggi was cross-examined at length by claimant’s counsel, at no time in the deposition was the witness presented with a question as to the alleged collision speed of the claimant’s vehicle and whether this fact would alter his opinion on causation. As a result, we believe the trial commissioner could rely on this testimony as is. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT

2 A primary reason the Appellate and Supreme Courts found the opinion in DiNuzzo v. Dan Perkins Chevrolet Geo. Inc., 294 Conn. 132 (2009) unreliable was that the witness relied upon by the trial commissioner did not consult relevant medical records prior to issuing his opinion on causation and then subsequently testified this information could reasonably have supported an alternative cause of death. Id., 138-140. There is no representation herein that Dr. Keggi failed to consider any relevant medical evidence prior to issuing his opinion. In addition, his deposition testimony on causation was unwavering. BACK TO TEXT

3 Dr. Keggi was asked at his deposition about the various opinions by Drs. Wetmore and Schutzer finding the 2001 accident caused the claimant’s hip condition and explained why he rejected their reasoning. Respondent’s Exhibit 3, pp. 21-22. We further find Dr. Keggi’s opinions as to causation were rendered to the standards delineated in Struckman v. Burns, 205 Conn. 542 (1987). BACK TO TEXT

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