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Sullins v. United Parcel Service, Inc.

CASE NO. 5611 CRB-1-10-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 6, 2012

JOHN W. SULLINS

CLAIMANT-APPELLANT

v.

UNITED PARCEL SERVICE, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Nancy L. Meyer, Esq., The Law Office of Nancy L. Meyer, 65 LaSalle Road, Suite 202, West Hartford, CT 06107.

The respondents were represented by Nancy Rosenbaum, Esq., Law Offices of Loccisano, Turret & Rosenbaum, 101 Barnes Road, 3rd Floor, Wallingford, CT 06492.

This Petition for Review1 from the December 7, 2010 Finding and Award of the Commissioner acting for the First 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 Clifton E. Thompson.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Award which determined that the claimant’s permanent partial disability rating must be apportioned between a pre-existing noncompensable condition and his more recent compensable injury. The claimant argues the trial commissioner improperly applied the precedent in Deschenes v. Transco, Inc., 288 Conn. 303 (2008) in apportioning the disability rating in this matter. We believe the trial commissioner reached an appropriate conclusion based on the evidence in this case and the binding precedent herein. Therefore, we affirm the Finding and Award and dismiss this appeal.

The trial commissioner reached the following conclusions after considering the testimony of the claimant and the medical evidence presented to the tribunal. He found the claimant was employed by the respondent United Parcel Service for about 32 years unloading trucks and as a small part sorter. The claimant testified that he was diagnosed with diabetes in 1987 and subsequently with diabetic neuropathy in 1989. He further testified that at the time of his diagnosis of diabetic neuropathy he experienced weakness and tingling in his hands, a loss of feeling in his fingertips and difficulty grasping items. The claimant further testified that on March 5, 2003, he sustained compensable and accepted injuries to his bilateral upper extremities and bilateral hands. He received medical treatment, including surgeries, and returned to his job duties without restrictions. His treating physician for these injuries was Dr. Donald Kelly.

The commissioner found that on October 28, 2008, Dr. Kelly opined that the claimant had reached maximum medical improvement and rated him with a 13% permanent partial disability of each of the left and right upper extremities. As Dr. Kelly had retired prior to the formal hearing; the parties agreed to have the claimant evaluated by Dr. Richard Linburg on January 5, 2010. On that date, Dr. Linburg issued a report and subsequently testified at a deposition on July 13, 2010.

Dr. Linburg’s January 5, 2010 report opined “that in the case of an individual with cubital tunnel syndrome but some residual sensory and motor deficit, I would place a permanent partial functional impairment of the upper extremity of 10%. On the basis of a release of the carpal tunnel in an individual who has residual motor and sensory deficit, I would place a 10% permanent partial functional impairment of the hand. In Mr. Sullins’ case, however, he has severe motor and sensory loss in both nerves.” This resulted in Dr. Linburg determining the impairment was “a maximum of 44% of the upper extremity; motor and sensory deficit of the ulnar nerve below midforearm, maximum is 40% of the upper extremity.” Dr. Linburg further opined “that the major portion of Mr. Sullins’ ongoing neurological findings are on the basis of his polyneuropathy from diabetes as opposed to residual compressive neuropathy, and I would place a 10% permanent partial functional impairment of each upper extremity on the basis of the cubital tunnel, neurolysis of his ulnar nerve and a 10% permanent partial functional impairment of each hand on the basis of the carpal tunnel releases.”

Dr. Linburg explained at his deposition that the 44% and 40% disability ratings resulted “from a combination of two concurrent disease processes, one of which is nonoccupational, the diabetic neuropathy, and the other one which was the work related injury which caused the carpal tunnel surgery.” Conclusion, ¶ K. He further opined that the claimant’s preexisting neuropathy is diabetic in nature and not caused by the accepted work-related injury and also opined that his need for surgery was the result of his accepted work-related injuries. Dr. Linburg could not opine that the claimant’s hands were made worse due to those injuries.

The trial commissioner found that Dr. Linburg had at one point opined that the claimant’s preexisting neuropathy was aggravated by the March 5, 2003 injuries, but had retracted that opinion in response to a letter dated June 2, 2010 by the claimant’s attorney. Dr. Linburg also affirmatively responded that the claimant’s work-related injuries were a substantial contributing factor to his current bilateral hand and bilateral upper extremity conditions and their resulting permanencies. Dr. Linburg distinguished between the claimant’s compensable injury and diabetic neuropathy “because diabetic neuropathy the nerves themselves are affected by the diabetes itself” and “if someone has a diabetic neuropathy, you don’t make it worse by physical activity or work or things like that.” Conclusion, ¶ O.

The trial commissioner concluded that while Dr. Linburg’s earlier opinions were consistent with the claimant’s position “his testimony of July 13, 2010 clarifies his opinions and conclusions.” Conclusion, ¶ P. The commissioner concluded the March 5, 2003 compensable injuries “were separate and distinct from the Claimant’s diabetic neuropathy which also significantly affected his hands and arms.” Conclusion, ¶ Q. Therefore, the commissioner concluded the diabetic neuropathy was an independent nonoccupational disease affecting the claimant’s hands and arms, and the claimant’s occupation/work activities had no influence in the development of the nonoccupational disease to his arms and hands. Based on these factual conclusions, the trial commissioner concluded the Deschenes case governed the circumstances and the claimant was entitled to a 10% permanent partial disability award for his bilateral upper extremities and a 10% permanent partial disability award for his bilateral hands; less credits for permanency benefits previously paid by the respondent for these body parts.

The claimant filed a Motion to Correct. The major premise of the Motion to Correct was that Dr. Linburg’s testimony should have been evaluated in a fashion supportive of the claimant’s position on compensability. The trial commissioner denied this Motion to Correct and the claimant has pursued this appeal.

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “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). In the present matter, the trial commissioner determined that the Deschenes precedent governed the situation and mandated that the claimant’s disability rating be apportioned between the compensable and noncompensable causes of the claimant’s disability. We must ascertain if there was evidence to support this conclusion and whether it was reasonable.

The trial commissioner relied substantially on the opinions of Dr. Linburg. The claimant argues that the trial commissioner misconstrued the testimony of this witness, and the requisite factual predicate did not exist to apply Deschenes to this case. We note that the trial commissioner may chose to rely on only part of a witness’s opinions, and may deem other opinions by the same witness to be unpersuasive. Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). Nonetheless, we must review the evidence on the record herein to ensure that the trial commissioner’s conclusions are consistent with the evidence the commissioner found persuasive, Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).

The claimant has argued that Dr. Linburg originally suggested that the compensable injuries aggravated their claimant’s underlying neuropathy. The trial commissioner stated in Conclusion, ¶ P that the witness’s deposition testimony clarified that prior statement. We find that this is an accurate assessment. In particular, we look to this exchange,

Q: Well, based on the records, Dr. Linburg, is it your understanding that Mr. Sullins had a preexisting diabetic neuropathy?
A: Yes.
Q: Thank you. And within a reasonable degree of medical probability, was his preexisting neuropathy aggravated by his work injury of March 5th of 2003 at UPS?
A: I don’t know, thinking about that, whether that’s the way you should state it. And I know that you asked that question, and I put “Yes” because I don’t like to dictate much.
But it’s not as if - - if somebody has a diabetic neuropathy; you don’t make it worse by - - you don’t make the diabetic neuropathy worse, by physical activity or work or things like that. It’s not really - - you probably really wouldn’t say it that way.
Q: Then by the surgery?
A: No, you have diabetic neuropathy.
Q: Right.

Claimant’s Exhibit E, Deposition of Richard Linburg, M.D., pp.19-20.

Dr. Linburg continued that “[y]ou’re not going to make any changes to the diabetic neuropathy by operating on them for carpal tunnel.” Id., at 21. He further testified, “[s]o for me to say or anybody to say that work activities or surgery or anything contributed to or improved diabetic neuropathy, that’s not the case because diabetic neuropathy the nerves themselves are affected by the diabetes itself.” Id. Later in the deposition the witness said that he liked that definition when the attorney suggested “with respect to his diabetic neuropathy, we were talking about them being independent with the diabetic neuropathy versus the carpal tunnel and cubital tunnel being independent and concurrent conditions.” Id., at 39. He later agreed with the attorney who suggested “the conditions of his work had no affect on the development of his diabetic neuropathy.” Id., at 40.

In reviewing the circumstances of this case, we note it is congruent to a recent Appellate Court case where a medical witness updated his original opinions at a later date. In Bode v. Connecticut Mason Contractors, The Learning Corridor, et al., 130 Conn. App. 672 (2011), cert. denied, 302 Conn. 942 (2011) the trial commissioner relied on an expert witness who opined at one time the claimant had a work capacity but disregarded a later opinion of the same expert when he found the claimant’s work capacity to be “nil.” Id., at 683-684. The Appellate Court reversed the trial commissioner on the issue of total disability as the witness’s testimony subsequent to his original report at no time opined the claimant had a work capacity. Id., at 686. In the present case, Dr. Linburg’s more recent testimony clearly opined that the factors behind the claimant’s disability were independent in nature. Our understanding of the Bode opinion is when the trial commissioner finds an expert witness is reliable, he or she is not free to disregard a more recent medical opinion presented by that witness. In the present case, the trial commissioner properly considered Dr. Linburg’s most recent opinions and found them reliable.2

Based on this testimony which the trial commissioner found probative and persuasive we must examine the importance of the Deschenes decision. That decision held “apportionment of permanent partial disability benefits is appropriate when a respondent employer is able to prove that: (1) a disability has resulted from the combination of two concurrently developing disease processes, one that is nonoccupational, and the other that is work related; and (2) the conditions of the claimant’s occupation have no influence on the development of the nonoccupational disease.” Deschenes, supra, at 306.

We note that the Supreme Court reversed our decision in Deschenes v. Transco, Inc., 4943 CRB-8-05-5 (May 22, 2006). In Kronick v. Ansonia Copper & Brass Co., 5127 CRB-5-06-8 (August 15, 2007) we outlined what our understanding of the law was prior to the Supreme Court’s more recent interpretation of § 31-349 C.G.S.

In particular, Deschenes v. Transco, Inc., 4943 CRB-8-05-5 (May 22, 2006) is factually on point with this case. In Deschenes the claimant had contracted asbestosis on the job, but had a long history of cigarette smoking. The respondents argued the effects of the two lung diseases were divisible and similar to the respondents in the present case, sought to be liable only for the later work-related exposure. We determined that even if expert testimony could assign a separate disability rating to the preexisting ailments “[i]t has long been a fundamental principle of workers’ compensation law that an employer takes the employee as it finds him, and that any statutory variation from that principle must be construed to work a minimum encroachment on that rule.” Id. We further held in Deschenes “[t]here is no legal remedy that allows those employers to avoid liability for whatever portion of the claimant’s lung impairment might be traceable to non-work-related emphysema, insofar as it was one of two conditions that combined to cause a single impairment.” This reasoning is consistent with other recent precedents on point, Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003) and Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB 2-03-3 (March 12, 2004).

Kronick, supra.

This interpretation changed when the Supreme Court issued its Deschenes opinion. For the purposes of permanent partial disability benefits the respondent now had the opportunity to argue that an independent noncompensable disease or injury should be held accountable for a share of the total disability, and the employer should bear the burden for the share of disability attributed to the compensable injury. “Put differently, apportionment or reduction of permanent partial disability benefits is appropriate only in those cases wherein different diseases, one of which is occupational in nature, have combined to cause, in effect, two different disabilities, even if they ultimately affect the same bodily part or function.” Deschenes, supra, at 322-323.

In his Finding and Award the trial commissioner determined that the evidence he found persuasive supported the conclusion that the claimant’s permanent partial disability should be apportioned between the compensable and noncompensable injuries. The evidence presented by Dr. Linburg clearly identified the diabetic neuropathy as a separate and distinct ailment which was not exacerbated or intensified by the carpal and cubital tunnel conditions. This factual circumstance places the claimant within the ambit of Deschenes.

The claimant argues that the claimant’s injuries “fall directly within the purview of existing Workers’ Compensation Law Section 31-349(a) of the Connecticut General Statutes.” Claimant’s Brief, p. 4. As the claimant views this case, the Deschenes case only “filled a gap in our statutes.” Id., at 8. The claimant argues such cases as Blakeslee v. Platt Bros. & Co., 279 Conn. 239 (2006) and Levanti v. Dow Chemical Co., 218 Conn. 9 (1991) govern this situation. Given the evidence the trial commissioner credited, and the facts and law delineated in Deschenes, we are not persuaded.

The claimant’s arguments appear based on his belief that Deschenes does not apply to “pre-existing conditions.” We note the court in Deschenes specifically cited Blakeslee, supra, but chose not to apply that holding to the facts therein. Deschenes, supra, at 322.3 The trial commissioner in the present case specifically found the claimant’s two forms of injury were independent in nature. Conclusions, ¶¶ R and S. To the contrary, the claimant’s epileptic seizure in Blakeslee was the proximate cause behind the orthopedic injuries the claimant sustained when restrained. Had the claimant not have had that pre-existing condition, he would not have suffered the subsequent compensable injury. The evidence herein did not lead the trial commissioner to conclude the claimant’s nonoccupational ailment caused the work-related injury, or that the work-related injury exacerbated the claimant’s nonoccupational ailment. If the two ailments act independently to disable the claimant, we believe this is “the gap” the Supreme Court intended the Deschenes case to address.4

The claimant further suggests the trial commissioner erred in his evaluation of Dr. Linburg’s testimony. He argues that the trial commissioner ignored evidence by Dr. Linburg and other medical witnesses which would support a finding that the claimant’s surgeries for compensable injuries exacerbated the claimant’s pre-existing condition. Claimant’s Brief, p. 9. We disagree. The trial commissioner is the sole judge of what medical evidence he or she finds probative and persuasive. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). 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). While Dr. Linburg may have offered some testimony supportive of the claimant’s position, the trial commissioner concluded the more persuasive evidence was supportive of the respondent’s position. He was entitled to do so. Lopez, supra. The evidence cited by the trial commissioner reasonably supports his conclusions in the Finding and Award. He concluded the evidence herein indicated the claimant’s prior noncompensable injuries were independent of the compensable injury, Torres v. New England Masonry Co., 5289 CRB-5-07-10 (January 6, 2009). The evidence herein conforms to the standard in Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003) and we must defer to the trial commissioner’s conclusions.

In Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009), a case which dealt with other permutations of § 31-349 C.G.S., we held “the respondents in this matter had the burden of establishing that apportionment was legally necessary.” In the present case the respondents met that burden to the satisfaction of the trial commissioner. We find the commissioner reached a reasonable conclusion based on the evidence he found persuasive and the result was consistent with binding appellate precedent.5 Therefore, we affirm the Finding and Award and dismiss this appeal.

Commissioners Scott A. Barton and Clifton E. Thompson concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 We do not believe Bode v. Connecticut Mason Contractors, The Learning Corridor, et al., 130 Conn. App. 672 (2011), cert. denied, 302 Conn. 942 (2011) has limited such precedents as O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999) as to the trial commissioner’s prerogative to assess and weigh medical evidence. A trial commissioner is not obligated to accept the most recent medical opinion presented to the tribunal. O’Leary v. Wal-Mart Associates, Inc., 5395 CRB-3-08-11 (October 27, 2009). However, when a medical witness offers subsequent testimony which deviates from a prior opinion, a trial commissioner must acknowledge and reconcile the differing opinions and should the commissioner seek to rely on the prior opinion, grounds for the reliance must be provided. Bode, supra. See Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), fn. 2 “[w]e want to reiterate that there is no certainty that the most recent opinion of a physician must automatically be the most credible. We have upheld trial commissioners who found later expert opinions unreliable due to a lapse of time, Carlozzi v. State/Dept. of Mental Retardation Southbury Training School, 5072 CRB-5-06-3 (March 20, 2007) or an unreliable patient history, Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). In those cases, the trial commissioner provided an explanation for not crediting the more recent expert opinion, which is not present herein.” BACK TO TEXT

3 We note that in Blakeslee v. Platt Bros. & Co., 279 Conn. 239 (2006) that the issue of compensability largely turned on resolving the question of “mutual benefit”, as we discussed in Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). BACK TO TEXT

4 We note that the facts of the Levanti v. Dow Chemical Co., 218 Conn. 9 (1991) case were that all three of the claimant’s back injuries occurred in the course of employment. Id., at 11. The “noncompensable” nature of the prior injuries were due to a change in the law regarding specific benefit awards during this time period. Id. As a result, Levanti can be distinguished on the facts from the instant case where the claimant’s prior ailments are acknowledged to be unrelated to his employment. BACK TO TEXT

5 We affirm the trial commissioner’s denial of the Motion to Correct. The trial commissioner is not required to add facts to the Finding which are not relevant to his ultimate conclusions. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003). He is not obligated to add evidence he does not find probative or to conform to the claimant’s position. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). BACK TO TEXT

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