State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Turrell v. State of Connecticut Department of Mental Health and Addiction Services

CASE NO. 5640 CRB-8-11-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 21, 2012

DEBRA A. TURRELL

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Peter J. Zagorsky, Esq., Zagorsky, Zagorsky & Galske, P.C., 73 East Main Street, P.O. Box 218, Plainville, CT 06062.

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 Review from the February 24, 2011 Finding and Dismissal of the Commissioner acting for the Eighth District was heard September 30, 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 which determined a work-related accident was not a substantial factor in the claimant’s need for surgery. The claimant also appeals from a decision made in this Finding and Dismissal as to the appropriate date to set the claimant’s date of maximum medical improvement. We find these decisions were judgment calls for the trial commissioner to make and that probative evidence before the Commission supported these decisions. Accordingly, we affirm the trial commissioner and dismiss this appeal.

The commissioner reached the following findings of fact at the conclusion of the formal hearing. The claimant was employed by the respondent on July 22, 2007 when she was assaulted by a patient. While working at Connecticut Valley Hospital the claimant was punched in the mouth and fell to her buttocks and said she briefly lost consciousness. The claimant was taken to the Emergency Room at Middlesex Hospital immediately following the incident. She returned to work the following Tuesday but still suffered from headaches and returned to the Middlesex Hospital that day. Thereafter, the claimant treated with a number of physicians. Dr. Thomas Danyliw, Dr. G. Gary Lian, Dr. C. Brendan Montano and Dr. Joseph Sohn.

The claimant suffered continuing headaches, numbness in her arms and in her hands which led Dr. Danyliw to refer the claimant to Dr. Lian, a neurologist, who administered nerve block injections. The claimant returned to work light duty at the end of 2007 and then she was returned to work full duty a day and one half later.

The trial commissioner took administrative notice of a Voluntary Agreement executed by the parties in October of 2008 and approved by this Commission on November 4, 2008, wherein the respondent accepts as compensable a July 22, 2007 work-related injury to the claimant’s cervical spine resulting in a nine and one-half (9.5%) compromise rating for a permanent partial disability sustained by the claimant with a maximum medical improvement date of July 22, 2008. About this time the claimant noticed weakness in her right arm and returned to treat with Dr. Danyliw. Dr. Danyliw referred the claimant to Dr. Sohn, who first saw the claimant on November 12, 2008. Dr. Sohn diagnosed the claimant with degenerative cervical spondylosis, cervical radiculopathy and herniated nucleus pulosus at C5-6 and C4-5. Following this examination Dr. Sohn recommended a cervical fusion and discectomy which the claimant wished to pursue.

Following a subsequent examination Dr. Sohn opined that the claimant’s cervical spine problems related mainly to her work-related injury because the claimant had no other events preceding the injury to her spine and she continued to work in a physically demanding job which could have further aggravated her issues that precipitated from her initial injury. Dr. Sohn wrote on January 21, 2009 to the claimant’s union representative, Ken Jones, and provided an explanation for this opinion; noting that the claimant had degenerative spondolytic changes but believed the injury initiated her clinical symptoms. The trial commissioner took administrative notice of a Form 43 received by this Commission on January 14, 2009 wherein the respondent accepts the underlying claim but contested liability for a proposed anterior cervical discectomy and fusion of C4-C5 based upon the opinion of Dr. Steven Selden.

Dr. Selden’s opinions were also the basis of a Form 36 filed by the respondent dated January 14, 2009 and received by the Workers’ Compensation Commission Eighth District on January 20, 2009 wherein the respondent asserts payments made to the claimant from July 22, 2008 represented permanent partial disability payments and that the full permanency amount had been paid. The trial commissioner took administrative notice of the Form 36, wherein Dr. Selden opined that while he agreed with Dr. Sohn surgery was appropriate; he did not find the causation of the injury necessitating the surgery was work related.

Dr. Jarob Mushaweh performed a Commissioner’s Examination of the claimant on April 1, 2009. Dr. Mushaweh noted severe degenerative changes predating the claimant’s injury. He further opined that while the 2007 injury aggravated the claimant’s pre-existing condition it did not provide the most substantial factor in the claimant’s need for surgery. In a letter dated May 13, 2009 Dr. Mushaweh clarified his opinion and stated the claimant’s July 22, 2007 incident “did not play a substantial factor in her overall condition and the requirement for surgical management.”/p>

The respondent’s Form 36 request was granted with a maximum medical improvement date of May 13, 2009. The claimant elected to proceed with the surgery recommended by Dr. Sohn on July 22, 2009.

The parties deposed Dr. Mushaweh on September 8, 2010. The commissioner’s examiner was asked repeatedly if he believed the claimant’s July 22, 2007 work-related injury was a substantial factor in her need for surgical intervention. He testified that the claimant’s work-related injury did not accelerate the degenerative process of the claimant’s underlying preexisting condition because her preexisting condition had already reached a relatively critical level. He believed the findings on the claimant’s MRI scan “had been present probably for years”prior to the accident and while the incident played a factor in the claimant’s need for treatment and additional permanent disability, “I cannot say that the incident played a factor in requiring surgery.” Dr. Mushaweh believed the injury of July 22, 2007 aggravated the claimant’s preexisting condition but that it did not accelerate the degenerative progression. The claimant denied being symptomatic prior to the July 22, 2007 incident. Dr. Mushaweh, however, was skeptical of the claimant’s claim that she was asymptomatic prior to the injury saying: “Quite frankly, I don’t know anyone who would flatly deny any even passing history of cervical pain with this amount of degenerative disease.” The commissioner’s examiner did not believe surgery was unreasonable but would not have offered the claimant surgery because she had degenerative changes at the other segments that were liable to worsen more rapidly after her one or two-level fusion. Findings, ¶¶ 15-18.

Based on these facts, the trial commissioner determined the claimant sustained a compensable injury to her cervical spine on July 22, 2007, evidenced by a Voluntary Agreement executed by the parties and approved by this Commission on November 4, 2008, wherein the claimant was assigned a nine and one half (9.5%) permanent partial disability rating to her cervical spine with a maximum medical improvement date of July 22, 2008. He further determined that Dr. Selden, the respondent’s examiner, Dr. Sohn, the claimant’s treating physician, and Dr. Mushaweh, the commissioner’s examiner, all agree that the claimant had preexisting cervical spondylosis. The trial commissioner found Dr. Mushaweh’s opinion on the claimant’s need for surgery credible and persuasive and concluded the claimant’s work-related injury of July 22, 2007 was not a substantial factor in her need for surgical intervention. The commissioner further found the date of maximum medical improvement was set as July 22, 2008 as memorialized by the Voluntary Agreement executed by the parties and approved by this Commission on November 4, 2008. The trial commissioner reopened the Form 36 previously approved and set a new maximum medical improvement date consistent with the Voluntary Agreement. The trial commissioner dismissed the claim that the claimant’s July 22, 2008 surgery was compensable.

The claimant filed a Motion to Correct seeking to have her surgery deemed compensable, based primarily on testimony by Dr. Mushaweh not cited by the trial commissioner in the Finding and Dismissal. The Motion also sought to find certain documents should not have been relied on by the trial commissioner by the means of having taken administrative notice of such documents. The trial commissioner denied this Motion in its entirety. The claimant has pursued this appeal.

Prior to considering the merits of this appeal we must address the issue of whether the appeal was properly commenced. The respondent argues that since the Finding and Dismissal was issued on February 24, 2011 the claimant’s appeal documents, which were filed on March 25, 2011, are jurisdictionally invalid as they were not filed within twenty days of the decision in accordance with § 31-301(a) C.G.S.1 The claimant argues that as she filed a Motion to Correct during the twenty day period which sought to undo the result of the commissioner’s Findings, this motion serves to toll the appeal period. Therefore, she believes an appeal is timely if it commenced within twenty days of the decision rendered on this motion. We believe the “plain meaning”of the statute, see § 1-2z C.G.S., is more consistent with the claimant’s position on jurisdiction. We deny the Motion to Dismiss.

On appeal, we generally extend deference to the decisions made by the trial commissioner. “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). The Compensation Review Board cannot retry the facts of the case and may only overturn the findings of the trial commissioner if they are without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the present case the claimant argues that the trial commissioner misapplied legal principles governing the use of “administrative notice.”

As the claimant views the record, “there are serious due process issues raised”based on how the trial commissioner took administrative notice of various documents in the file. Claimant’s Brief, p. 26. As the claimant views the situation, the trial commissioner considered various documents without providing the parties an opportunity to object to these documents or critique their contents. The claimant views this as akin to the conduct proscribed in Balkus v. Terry Steam Turbine, Co., 167 Conn. 170, 177. (1974). The respondent does not share this view, citing Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB 3-02-1 (February 25, 2003) for the proposition that the trial commissioner is authorized to take administrative notice of forms that have been filed in the case. We find the respondent’s position more persuasive.

We find that the record of this case is very similar to the situation we ruled on in Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009). In Valiante the respondent argued that there was a due process issue when an issue was not previously noticed by the trial commissioner and who then proceeded to rule on that issue. We concluded that it was evident from the record what relief was under consideration, and the parties had ample time to prepare an argument on that issue.

On the issue of notice, we find that the trial commissioner twice specifically stated on the record what the purpose of the formal hearing was, and indeed, continued the formal hearing to a later date presumably to provide the respondents an opportunity to present a defense. Any confusion as to the scope of the issues and the remedy under consideration by the tribunal was clearly resolved on the record prior to the conclusion of the formal hearing. Therefore, the respondent’s citation of Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999) is off-base.

Id.

In the present case, the issue of administrative notice concerns the date of maximum medical improvement and whether the claimant had received an overpayment. The following colloquy is consistent with the facts in Valiante.

Commissioner: Any other issues on for today?
Attorney Janik: As your Honor indicated, there was an overpayment issue. However, I was not aware that we would be litigating it today, but I have no problem going forward on that as well if we would like to.
Commissioner: Well, that is going to be your issue. It is up to you if you want to go forward on it. I don’t think Mr. Zagorsky would want to go forward on it.
Attorney Zagorsky: I think we should just stick to the surgery.
Commissioner: I know there were prior hearings where that issue was raised. What we will do is continue it for a couple of weeks, you could present your evidence in reference to that as well, give Mr. Zagorsky a copy, let him have an opportunity to look at it before we come back next week.
Attorney Janik: Okay, thank you.

October 14, 2010 Transcript, p. 4.

Later in the same session, the parties returned to the issue of overpayment and the claimant’s date of maximum medical improvement.

Attorney Janik: No I’ll try to get the records within four weeks, I have no problem. Then at the next, if I could just clarify, at the next formal will be addressed I guess the overpayment.
Commissioner: If you want to address that issue you are more than welcome to.
Attorney Zagorsky. That is the overpayment issue for what period of time?
Attorney Janik: It’s nineteen weeks.
Claimant: It’s $18,000.
Attorney Zagorsky: There’s no question pending. Nineteen weeks over what period of time?
Attorney Janik: Do you want this on the record Commissioner?
Commissioner: I think he would like to have notice.
Attorney Janik: Yeah, oh yeah, I’ll tell him, I’ll definitvely tell him. I just didn’t know if you wanted this all on the record or not.
Commissioner: Well, it is not evidence.
Attorney Janik: All right, so the form 36 was approved as of ---.
Commissioner: 1/22/09 to 6/4/09 I think were the dates discussed.
Attorney Zagorsky: I am sorry, 1/22/09?
Commissioner: To 6/4/09 were the dates I think discussed, correct, is that correct?
Attorney Janik: I believe so.
Attorney Zagorsky: Just so I have notice, what is the basis for the claim of overpayment?
Attorney Janik: The 36 was approved, I want to say retroactively, but, the 36 approval.

October 14, 2010 Transcript pp. 35-37.

It is clear from these colloquys that the issue of overpayment and the appropriate date of the Form 36 was placed firmly before the parties at the formal hearing. It is also clear the trial commissioner directed the parties to prepare themselves on the issue and did not render a decision until after a subsequent hearing on December 6, 2010, where he directed the parties to brief the issue. This fully addresses the due process concerns raised in Valiante, supra.

The claimant believes that the Voluntary Agreement which set an earlier date of maximum medical improvement than the date previously discussed should not have been considered by the trial commissioner. We disagree. Once the issue of overpayment of benefits was under consideration the trial commissioner was empowered to act in accord with § 31-298 C.G.S. “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.” The parties were on notice the date of maximum medical improvement was at issue. The parties had both executed the Voluntary Agreement. It has long been recognized that workers’. compensation commissioners have the power “to take administrative notice of the pleadings in the matters before them and in other files and related matters,”Hebert v. RWA, Inc, 48 Conn. App. 449, 458, (1998), citing DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 444 (1991). The trial commissioner did so in this case.

We have noted that there are potential pitfalls when a trial commissioner chooses to take administrative notice of prior matters in a case. As we pointed out in DiLeone v. State/DMR, 5147 CRB-5-06-10 (October 5, 2007) a commissioner may inadvertently rely on deficient precedent or evidence, as occurred in Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of final judgment, A.C. 24991 (May 5, 2004).

In Fiorillo, the trial commissioner took administrative notice of a stipulation of facts in a prior Finding and Award. The stipulated facts of the prior Finding and Award had been vacated by an order of the Supreme Court. Thus, when the trial commissioner took administrative notice in a subsequent Finding and Award of the stipulated facts in the prior Finding and Award his conclusion was based on legally erroneous facts. Had the trial commissioner given the parties notice of his intent to rely on the prior stipulation of facts the unfortunate error contained in those findings would not have been perpetuated.

DiLeone, supra.

We pointed out in Fiorillo that based on Connecticut appellate precedent a trier of fact may take notice of court files without affording the parties a prior hearing. We also pointed out that while it is preferable to fully advise counsel as to the intention to take such notice, it is within the court’s power to take such notice. While “the wiser approach would have been to provide the parties with advance notice” Fiorillo, supra, we do not believe the trial commissioner’s decision herein was capricious or unreasonable. The parties should have anticipated that any and all documentation relevant to the date of maximum medical improvement would be considered by the trial commissioner. The commissioner’s failure to specifically state that he was taking administrative notice constitutes harmless error.2

The other argument presented by the claimant is that the trial commissioner improperly evaluated the testimony of Dr. Mushaweh. As the claimant views the evidence, Dr. Mushaweh testified that the compensable injury did contribute to the claimant’s need for surgery. While the burden of proof in a workers’ compensation claim for benefits rests with the claimant, Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001); Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006), the claimant believes that as the trial commissioner found this witness credible and persuasive that as a matter of law she met the “substantial factor”test required to find surgical intervention compensable. We are not persuaded by this argument.

The trial commissioner cited the following reports and testimony of Dr. Mushaweh in concluding the evidence did not support the claimant’s bid to have her surgery covered by workers’ compensation.

11. Dr. Mushaweh performed a Commissioner’s Examination of the Claimant on April 1, 2009. (Exhibit G. Dr. Mushaweh noted that the Claimant’s “9/07 scan clearly showed severe degenerative changes predating her injury. No “soft”disc herniations were seen on that study. It is my opinion that the 7/22/07 incident aggravated her pre-existing condition. It did not, however, play the most substantial factor in the need for her cervical procedure.” Id.
12. Dr. Mushaweh was asked to clarify his opinion and by letter dated May 13, 2009 Dr. Mushaweh indicated. “Ms. Turrell had had a rather significant pre-existing cervical spondylotic condition predating her July 22, 2007 incident. That incident did not play a substantial factor in her overall condition and the requirement for surgical management.” (Exhibit H)
13. The Respondents’ Form 36 request was granted with a maximum medical improvement date of May 13, 2009.
14. The Claimant elected to proceed with the surgery recommended by Dr. Sohn on July 22, 2009. (Exhibit F)
15. The parties deposed Dr. Mushaweh on September 8, 2010. (Exhibit J. At that deposition Dr. Mushaweh was asked several times whether he believed the Claimant’s July 22, 2007 work-related injury was a substantial factor in her need for surgical intervention.
A. Dr. Mushaweh said that the Claimant’s work-related injury did not accelerate the degenerative process of the Claimant’s underlying preexisting condition because her [the Claimant’s] preexisting condition had already reached a relatively critical level. (Exhibit J, p. 15)
B. Dr Mushaweh later explained that the Claimant’s MRI scan following the injury showed findings that “had been present probably for years. Then came the injury that I could read as a sprain to the cervical spine superimposed on those findings in her cervical spine.” (Exhibit J, p. 27)
C. Later, Dr. Mushaweh again explained “I can say the incident played a factor in her requiring treatment, conservative conventional pain management, medical treatment medication-wise, and ultimately permanency. I cannot say that the incident played a factor in requiring surgery, because this lady has a high likelihood of returning at some point.” (Exhibit J, p. 32)
D. He believed the injury of 7/22/07 aggravated her preexisting condition (Exhibit J, p. 14) but that it did not accelerate the degenerative progression. (Exhibit J, p. 15)
E. The imaging studies done right after the injury showed, Dr. Mushaweh explained, the Claimant had multiple level degenerative changes and the repeat MRI scan almost a year later had similar findings. (Exhibit J, p. 16)
16. The Claimant denied being symptomatic prior to the July 22, 2007 incident. (T1 p. 25. Dr. Mushaweh, however, was skeptical of the Claimant’s claim that she was asymptomatic prior to the injury saying: “Quite frankly, I don’t know anyone who would flatly deny any even passing history of cervical pain with this amount of degenerative disease.” (Exhibit J, p. 16)
17. Dr Mushaweh indicated a surgical option was not unreasonable but would not have offered the Claimant surgery (Exhibit J, p. 44) because the Claimant had degenerative changes at the other segments that were liable to worsen more rapidly after her one or two-level fusion. (Exhibit G)

In Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) this tribunal faced a very similar situation. In that case the claimant asserted his compensable injury was the proximate cause for his need for surgery. The respondent argued, and the trial commissioner agreed, the claimant’s prior degenerative ailments were the substantial cause for the surgery and the treatment was deemed not compensable. On appeal we affirmed the trial commissioner. In Weir, and the present case, the decision hinged on whether testimony from the commissioner’s examiner adequately supported the claimant’s position. We pointed out the legal standards involved in Weir.

In Voronuk v. Electric Boat Corporation, 5167 CRB-8-06-12 (January 17, 2008), citing O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999), we pointed out that when a physician does not use the term “substantial”or “significant”to describe the weight a work related illness has on a specific ailment or disability, then the expert’s opinion “is determined by looking at the entire substance of testimony.” Id.

We concluded in Weir that while the commissioner’s examiner ascribed some weight to the work injury as far as creating the claimant’s need for surgery, he clearly deemed it a less weighty factor than the claimant’s noncompensable injuries. We also determined that “[w]hether or not a factor behind the need for surgery is ‘substantial’ is a matter left to the discretion of the trial commissioner, as ‘it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .’ O’Reilly, supra, 818.” Id.3

We have reviewed Dr. Mushaweh’s deposition to ascertain if it was a reasonable conclusion that the totality of his evidence did not find the work injury a substantial factor in the claimant’s need for surgery. Claimant has pointed out that at one point in his deposition Dr. Mushaweh attributed 33% of the claimant’s present spinal condition to her compensable injury. However, the balance of the deposition involved the witness explaining that he places very little weight on that calculation. At one point Dr. Mushaweh appears to indicate that he placed no weight on the compensable injury for surgical purposes, and deemed it more relevant as to an apportionment of permanent impairment.

That would make -- that would mean I’m conceding that the indication for surgery was causally connected to that incident, and I’m not really conceding that. What I would say, if you want to look at the permanency rating a person like this would be entitled to not having surgical procedure with multiple level degenerative cervical disc disease, it would be, let’s say hypothetically, figure -- let’s say 12 percent...(Claimant’s Exhibit J, p. 31)

On the next page Dr. Mushaweh continued to indicate he was not opining in favor of finding the need for surgery was due to the work injury.

I can say that the incident played a factor in her requiring treatment, conservative conventional pain management, medical treatment medication-wise, and ultimately permanency. If I -- I cannot say that the incident played a factor in requiring surgery, because this lady has high likelihood of returning at some point needing -- remember the C3-4 disc was degenerating as well. Are you going to contribute her prior injury to the need for that disc. When does it stop. (Claimant’s Exhibit J, p. 32)

Finally, the witness appeared to question the entire approach of assigning a percentage factor to the issue of causation in this matter.

I am -- you know, I feel uncomfortable telling you what percentage of her surgery needed on the basis of the pre-existing and the injury. It just -- it’s really a distorted, flawed way to look at this. But I -- you kept on asking me, so I had to tell you something.... (Claimant’s Exhibit J, p. 35)

Dr. Mushaweh then later explained why he did not place much weight on the work incident as causing the need for surgery. He pointed out the claimant had chronic findings on her MRI scans, and the work injury did not produce a herniated disc; and that would have played a direct and material factor in the need for surgery. Claimant’s Exhibit J, p. 41.

We believe the trial commissioner could reasonably review the totality of Dr. Mushaweh’s testimony and conclude that he did not find the work related injury played a significant role in precipitating the claimant’s need for surgery. Weir, supra, O’Reilly, supra. The commissioner was not required to rely on those statements by Dr. Mushaweh the claimant believed were favorable to her claim and ignore those opinions which did not support her claim. “We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion.” See Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007) and Weir, supra.

The very methodology utilized by claimant’s counsel to establish causation was repudiated by the expert witness. We believe the trial commissioner reached a reasonable conclusion based on the evidence on the record. This determination is consistent with the Appellate Court precedent in Voronuk v. Electric Boat Corporation, 118 Conn. App. 248 (2009). In this case the claimant argued that precedent in Birnie v. Electric Boat Corp., 288 Conn. 392 (2008) redefined the “substantial factor”test to mean simply “more than de minimis.” The Appellate Court rejected this formulation, and restated the discretion of trial commissioners to decide what constituted a substantial factor in causation of an injury.

The plaintiff’s argument that this language, read in the context of the applicable precedential guidance, somehow removed from the commissioner the discretion to deny the plaintiff’s claim once he decided that workplace exposure caused, in part, the decedent’s death, simply is untenable.
Nowhere does the Birnie opinion expressly state such to be the case, and such a reading cannot, in light of established precedent, reasonably be inferred. Moreover, such a reading would render the substantial factor test nugatory.

Id., 255. See also, id., n. 3.

We believe the trial commissioner applied this test appropriately. We are satisfied the trial commissioner has reached a reasonable determination consistent with the applicable law and the evidence presented on the record.4 The Finding and Dismissal is affirmed. The appeal is dismissed.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 The terms of that statute read as follows:

Sec. 31-301. Appeals to the Compensation Review Board. Payment of award during pendency of appeal. (a) At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties. If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion. BACK TO TEXT

2 The claimant argues the trial commissioner “relied”on the report of Dr. Selden, who did not testify before the commissioner and had not been deposed. We note that the verbiage of the Finding and Dismissal contains no reference to the trial commissioner finding Dr. Selden a persuasive or reliable witness. Instead, the trial commissioner placed his reliance on the opinions of Dr. Mushaweh, who had been deposed. In light of the specific findings articulated, we find the reference to Dr. Selden at worst harmless error. Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB 5-93-3 (May 19, 1995). BACK TO TEXT

3 In Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) we cited the following testimony as defining the appropriate standard for defining whether an injury was a “substantial”factor in a bid for treatment.

And there’s no percentage. You know, it’s not that it has to be more than 50 percent to be a substantial factor. It just needs to be substantial and it’s really for the Workers’ Comp. Commissioner to determine what is or is not substantial. Joint Exhibit, p. 22. (Emphasis added.) BACK TO TEXT

4 The claimant cited the denial of her Motion to Correct as grounds for appeal. We find no error. Those corrections sought to interpose the claimant’s conclusions as to the law and the facts presented Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). We conclude the trial commissioner did not find these arguments persuasive. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). BACK TO TEXT

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