CASE NO. 5666 CRB-2-11-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 6, 2012
FEDEX GROUND PACKAGE SYSTEMS, INC.
BROADSPIRE (A CRAWFORD COMPANY)
The claimant was represented by Timothy F. Mills, Esq., Mills and Associates, PC, 40 Russ Street, Hartford, CT 06106-1520.
The respondents-appellees were represented by Richard W. Lynch, Esq., Lynch, Traub, Keefe & Errante, PC, 52 Trumbull Street, PO Box 1612, New Haven, CT 06506-1612.
This Petition for Review from the June 21, 2011 Finding and Award of the Commissioner acting for the Second District was heard December 16, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Award dated June 21, 2011. The claimant argues the trial commissioner erroneously determined that the surgery performed on his left knee was not causally related to a compensable injury. We have reviewed the issues which were appealed and conclude the trial commissioner had sufficient probative evidence to support his decision. We affirm the Finding and Award.
The following facts are pertinent to our consideration of this appeal. We note that the trial commissioner in this matter reached 57 separate factual findings and 18 conclusions in the Finding and Award, many of which do not relate directly to the issue under appeal. The claimant commenced working for the respondent in May of 2008 at their Willington depot loading and unloading trailers. At that point he passed a pre-employment physical. Prior to working for FedEx the claimant sustained a number of injuries to both knees. In 2004 the claimant injured his left knee playing basketball. On November 4, 2004, an MRI of the left knee was done at Cooley Dickinson Hospital in Northampton, Massachusetts. This revealed a torn medical meniscus. On April 27, 2005, the claimant underwent arthroscopic surgery on his left knee, performed by Henry Drinker, MD, a Northampton, Massachusetts orthopedic surgeon. The claimant had a displaced bucket handle tear of his medial meniscus, which was removed as a single, large fragment. As a result, as much as 70 percent of his left medial meniscus was removed. Dr. Drinker released the claimant back to work on May 16, 2005. Between 2005 and 2008 the claimant was in Puerto Rico. He returned to Connecticut in 2008 and commenced working for FedEx.
The claimant worked at FedEx Ground Monday through Friday on the “twilight shift”. On Thursday, August 21, 2008, just prior to the dinner break, the claimant was unloading boxes from a trailer when he turned and struck his left knee against the metal frame of a conveyor and felt immediate pain. The claimant treated the injury with an icepack and notified his superior. The claimant finished off loading the trailer and then went to the cafeteria for his scheduled, half-hour dinner break. After his break, the claimant returned to work and finished out his shift. The claimant continued to work his scheduled shifts but testified he did so in a great deal of pain. The claimant’s work involved a great deal of heavy lifting, bending and standing. The claimant testified that he used a knee brace to help him at work.
The claimant testified that he went to see his primary care physician, Gary Bykoff, MD, on or about September 3, 2008, regarding his knee pain. The claimant did not present medical records from this visit but testified he was sent to Rockville General Hospital for an x-ray. On Saturday, September 13, 2008, the claimant presented to the Emergency Department at Rockville General Hospital complaining of left knee pain of three-week’s duration, and gave a history of having struck his knee at work. He also complained of swelling in the front of the knee. On examination, the left knee was tender and swelling was confirmed. He had full range of motion in that knee at the time. The x-rays showed no fracture or dislocation and the claimant was given medications and discharged, with instructions to follow up with his personal physician.
On Monday, September 22, 2008, the claimant was seen by David A. Johnson, MD, an orthopedic surgeon. In his office note he recited the following history: “He apparently banged his knee. It has been swollen and stiff. He has anteromedial pain that has been difficult over the last several weeks. He has been unable to bear weight in a normal fashion and limps when he walks. On examination his knee was “mildly to moderately swollen,” he had effusion, and the knee was slightly flexed. Noting the prior history of meniscectomy four years earlier and the persistent effusion, Dr. Johnson recommended an MRI of the knee. The doctor “reluctantly” issued him a one-time prescription for Percocet. Findings, ¶¶ 22, 23.
On September 24, 2008, the claimant underwent an MRI examination of his left knee. The radiologist interpreted this as showing a tear of “the body of the medial meniscus.” There was also a “questionable” tear of the posterior horn of the medial meniscus. In addition to the meniscus, the radiologist noted “a shallow cartilaginous defect along the medial femoral condyle, and a “bone bruise” of the medial tibial plateau. The study also showed effusion and a popliteal (Baker’s) cyst. Findings, ¶ 29. On September 30, 2008, the claimant returned to Dr. Johnson. Reviewing the MRI, Dr. Johnson estimated that 60-70 percent of the medial meniscus had been removed in the prior surgery. He noted that some of the images suggested cartilage defect and loss of space between the femur and the tibia “subsequent to the meniscectomy.” Findings, ¶ 30. Dr. Johnson then said: “The difficulty with him is to note whether the edema in the bone is acute after he “banged his knee” the other day or whether this is an overload type edema from significant meniscectomy.” Findings, ¶ 31. Dr. Johnson referred the claimant to his partner, Kenneth Alleyne, MD, as Dr. Johnson was leaving his practice.
The claimant also testified to conflict with the FedEx personnel department during this time period. He also sustained a wrist injury which is not the subject of this appeal. The claimant was later terminated by FedEx in October 2008 regarding a dispute with a co-worker which the claimant denies. Following his discharge from FedEx the claimant lost his health insurance. Subsequent to this event, the claimant became eligible for Medicaid, and worked sporadically for UPS as a casual driver. He has also collected unemployment benefits. The claimant later obtained a CDL license and is now qualified to drive tractor trailers.
On August 25, 2009, the claimant was seen by Robert Arciero, MD, at the Department of Orthopaedic Surgery at the UConn Health Center. In his report, Dr. Arciero noted that the claimant had undergone a medial meniscectomy in 2003 (i.e., 2005) and, by history, had been doing well until “a year and a-half ago when he sustained another injury to his left knee.” Findings, ¶ 42. According to the history, the claimant had “increasingly severe medial joint line knee pain as well as anterior patellofemoral knee pain.” Id. Dr. Arciero said the claimant reported “significant disability to work after a day of work when he is going up and down stairs particularly bothers him.” He also noted that he was unable to fully flex his left knee and that his knee swells up with increasing activity, and that “he reports clicking and locking.” Findings, ¶ 43. No new MRI was undertaken for comparison to the MRI of September 2008. The claimant was diagnosed with left medial meniscus deficiency, mild “genu varum” (bow-leggedness) and patellofemoral arthritis/pain. The decision was made to proceed with surgery.
On October 13, 2009, Dr. Arciero performed an “opening wedge osteotomy with medial meniscal transplant. He noted when performing this operation that the articular surfaces of the joint were in “excellent” condition. Findings, ¶ 45. On October 21, 2009, Dr. Arciero allowed the claimant partial weight bearing and said he would be able to do sedentary work at 2-3 months post-surgery and regular duty at about six months. He also ordered physical therapy at that point. At a November 11, 2009 follow-up visit it was apparent the claimant had not yet made an appointment for therapy, and the doctor again urged him to do so. By January 15, 2010, Dr. Arciero felt the bone had completely healed but that the claimant “is really inadequately rehabilitated ... he is going to need to work much harder at therapy.” At that point he was released to light duty with restrictions against lifting, climbing or crawling. Findings, ¶ 47. The claimant was later cleared for full duty on April 12, 2010.
On April 21, 2010, the claimant presented to Peter Jokl, MD, an orthopedic surgeon at Yale Orthopaedics and Rehabilitation, for a respondent’s medical examination (RME). Dr. Jokl opined in his report that the incident at work on August 21, 2008 “was not a substantial contributing factor to his subsequent medial joint symptoms and degenerative changes in the medial compartment of his left knee.” Findings, ¶ 49. He did not think the claimant was capable of heavy labor. He opined that the claimant would have a permanent impairment as a result of the meniscus excision in 2005 and the “subsequent development of degenerative changes in the medial compartment of his left knee.” Findings, ¶ 50. He did not feel he had yet reached the point of maximum medical improvement, however. Dr. Jokl was later deposed and testified that the thinning of the cartilage shown on the September 2008 MRI was an “old change,” (i.e., before the 2008 injury) and that the bone edema (bruise) was newer, and likely due to the striking of the knee on August 21, 2008. He opined that such a bruise would likely take three to four months to resolve, and that it could be painful enough to cause work restrictions, at least for a few months. Dr. Jokl further opined the surgery done in 2009 – putting in a new “shock absorber” (meniscus) and realigning the tibia to take some of the load off the transplanted meniscus – was “all related to the 2005 ... surgery and injury.” Findings, ¶ 56. While Dr. Jokl could not rule out that the August 2008 incident may have accelerated the need for surgery, he testified that given the removal of the meniscus in 2005, the claimant eventually would have developed problems with the left knee at some point and the 2008 incident was not a significant factor in the 2009 surgery.
Dr. Arciero wrote on October 26, 2010, “that the claimant was still having pain and that he recommended removal of the hardware, now that the bone was healed. Dr. Jokl agrees with Dr. Arciero’s plan to remove the hardware.” Findings, ¶ 51. Dr. Arciero also noted in that letter “that the removal of most of the meniscus in 2005 would have been expected to lead to arthritis and symptoms later in life. While he felt that the August 21, 2008 incident was not a new “injury,” he did believe the direct blow to the knee at work was “an aggravation of an underlying condition.”’ Findings, ¶ 52. Dr. Arciero went on to make it clear that a direct blow was “not the typical mechanism” for meniscal injury or cartilage injury. However, given that the claimant “was asymptomatic prior to the 2008 injury” (notwithstanding his meniscal deficiency), he felt that 2008 incident must have been the aggravating factor. Findings, ¶ 53.
Based on these subordinate facts the trial commissioner concluded the claimant sustained a compensable knee injury on August 21, 2008, and the treatment immediately following the injury was reasonable and necessary treatment. The commissioner found the meniscal deficiency of the claimant’s left knee resulting from the 2005 surgery was a condition which would reasonably have been expected to lead to degenerative arthritis over time even without subsequent trauma. The commissioner did not find the claimant’s preexisting knee conditions “were mechanically or pathologically altered in any way by the bruising of the knee and tibial plateau which occurred with the blow to the knee on August 21, 2008.” Conclusion, ¶ J. The commissioner also found “[t]he direct blow to the knee which the claimant sustained on August 21, 2008 is not the type of mechanism of injury which normally leads to cartilage damage and, in fact, at the time of the surgery the cartilage along the tibial plateau was in “excellent” condition.” Conclusion, ¶ K. The commissioner further found “[t]he opinion of Dr. Arciero that the claimant aggravated a preexisting condition in the incident of August 21, 2008 is based solely on the claimant’s subjective history that he was asymptomatic prior to August 21, 2008 and became symptomatic following that incident. Based on this, Dr. Arciero uses the term ‘aggravation.’”Conclusion, ¶ L.
As a result, the commissioner found since “that the claimant’s left knee was virtually without a medial meniscus from 2005 through 2008 I find it improbable that the claimant’s left knee was completely asymptomatic prior to the incident on August 21, 2008. Nevertheless, it is clear that whatever degree of symptomatology he may have been experiencing prior to August 21, 2008, was not of such a degree as to impair his ability to perform the heavy and rather repetitive work required of his job at FedEx Ground.” Conclusion, ¶ M. The commissioner noted the claimant continued to work at this job for some weeks following the injury and subsequently worked for UPS. The commissioner found Dr. Jokl’s opinion more persuasive than Dr. Arciero’s on the issue of causal connection between the claimant’s 2008 contusion and the 2009 knee surgery. Therefore, the trial commissioner found “insufficient evidence to conclude that the contusion to the knee on August 21, 2008 was a substantial factor in bringing about the need for the surgery on October 13, 2008.” Conclusion, ¶ R.1 The commissioner dismissed the claim for finding the 2009 knee surgery compensable.
The claimant did not file a Motion to Correct. Instead, he filed an appeal to this board asserting that Conclusions, ¶¶ L and M of the trial commissioner were legally invalid as they were inconsistent with the subordinate and undisputed facts found in Findings, ¶ 9 that the claimant had passed a pre-employment physical and testified to performing his job without symptoms prior to the injury. The claimant also cites Glen v. Stop & Shop, 168 Conn. 413 (1975) for the proposition that one “takes the claimant as they find him” and that the claimant suffered a compensable aggravation of a pre-existing condition.
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). We note that in the absence of the claimant having filed a Motion to Correct the factual findings of this case, these findings were given conclusive effect. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). We may only determine if the trial commissioner did not properly apply the law or has reached a finding of fact unsupported by the evidence presented at the formal hearing, Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).
The claimant argues that the evidence was “undisputed” that the claimant worked without symptoms of knee problems prior to his September 21, 2008 injury. It is undisputed that the claimant passed a pre-employment physical. It is also undisputed that the claimant testified as to that narrative. March 23, 2010 Transcript, pp. 17-18, 76. The claimant believes that therefore Findings, ¶ 9 is inconsistent with Conclusions, ¶¶ L and M. We do believe certain verbiage the trial commissioner used in Conclusion, ¶ M is not reflective of either testimony or medical reports that appear in the record. We do not find that any medical expert or lay witness testified that the claimant was not “completely asymptomatic” prior to the 2008 conveyer belt accident. Were this unsupported speculation by the trial commissioner the sole basis for the ultimate conclusions herein, this panel would be compelled to sustain the appeal. See McFarland v. Department of Developmental Services, 115 Conn. App. 306, 318-320 (2009). While a trial commissioner may properly reach a factual conclusion based on the demeanor of a witness and his or her credibility, id., 320-322, a commissioner may not find facts which lack evidence in the record. See also Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006), citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).
Had the issue of whether the claimant was asymptomatic prior to the compensable injury established incontrovertible proof of causation of the subsequent knee surgery, the Finding and Award would have been vacated on this issue.2 We find, however, the trial commissioner cited independent and substantive reasons why he chose to find the claimant’s surgery was not due to that incident. The trial commissioner specifically cited the condition of the claimant’s knee cartilage and joint surface subsequent to the August 21, 2008 incident as inconsistent with a trauma having caused the need for subsequent surgery. See Findings, ¶ 45 and Conclusion, ¶ K. It appears that having determined the objective evidence of traumatic injury was not present; the trial commissioner discounted any narrative from the claimant to his treating physician associating the accident with the need for knee surgery. Although the trial commissioner’s conclusions did not specifically reach an evaluation as to the claimant’s demeanor and persuasiveness as a witness, we may infer the trial commissioner was not persuaded by the claimant’s narrative. The commissioner is entitled to make this determination and may find medical evidence dependent on the claimant’s narrative unreliable. Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008).
The record also documents that the claimant was able to continue working for a substantial amount of time subsequent to the August 21, 2008 incident. This fact could reasonably suggest to a trier of fact that the nature of the incident did not lead to long term orthopedic injury, especially if such a determination was consistent with medical evidence on the record. Such evidence was presented by the respondent’s expert witness, Dr. Jokl, whom the trial commissioner found persuasive. Conclusion, ¶ Q.
Dr. Jokl specifically opined in a April 21, 2010 report subsequent to examining the claimant that the August 21, 2008 incident “was not a substantial contributing factor to his subsequent medial joint symptoms and degenerative changes in the medial compartment of his left knee.” At his deposition, Dr. Jokl clearly distinguished between injuries that would thin or damage knee cartilage, and injuries that would swell bone tissue by way of a contusion or bruise. Respondent’s Exhibit 2, pp. 8-10. Dr. Jokl suggested that a bone bruise could lead to two or three months of discomfort and impediments at one’s job. Id., pp. 10-11. Dr. Jokl concluded that the basis for the 2009 surgery had been the removal of meniscus from the claimant’s left knee in 2005 and “[t]hat is all related to the 2005 injury or surgery and injury.” Id., p. 14. Dr. Jokl did not anticipate “any future problems” from the 2008 bone bruise. Id., p. 16. The witness unequivocally said “no” when asked if the 2008 incident was a “significant contributing factor to everything that occurred after that.” Id., p. 18. Dr. Jokl opined that notwithstanding that incident “that process was going on regardless of that injury.” Id., p. 19.
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). We have long held it is the trial commissioner’s prerogative to decide which expert witness on an issue he or she finds more persuasive. Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006), n. 1. We also note the claimant does not suggest Dr. Jokl’s testimony was based on speculation or conjecture, and therefore should not have been relied upon such as the testimony found unreliable in DiNuzzo v. Dan Perkins Chevrolet Geo. Inc., 294 Conn. 132 (2009).3
We find that this case is very similar to Burns v. Southbury, 5608 CRB-5-10-11 (November 2, 2011). In Burns the claimant suffered a traumatic injury when his police cruiser crashed and thus sustained a significant bruise to his right thigh. The claimant later asserted his need for hip surgery was causally related to that incident. The trial commissioner relied on a medical witness who opined that the claimant’s need for hip surgery was due to degenerative reasons and was unrelated to the compensable incident. We affirmed this decision, as “[w]e 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 find the medical opinions of Dr. Jokl in this matter reasonable, and therefore must affirm the trial commissioner’s reliance on such opinions. 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). The claimant did not sustain this burden.
We believe the critical and decisive question in this case was the question of causation posed to Dr. Jokl at his deposition. He answered the question unambiguously in a manner adverse to the claimant. Respondent’s Exhibit 2, Deposition of Peter Jokl, M.D., p. 18. As the trial commissioner found Dr. Jokl’s opinion on this issue persuasive, Conclusion, ¶ Q, we find the ultimate decision herein must be affirmed, notwithstanding the trial commissioner’s other speculative digressions.
We note that in the case relied upon by the claimant, Glen, supra, the claimant did persuade the trial commissioner that his compensable repetitive trauma injury was the proximate cause of his back ailments. Id., 419. The claimant in the present case did not succeed in this effort. We must respect the conclusions of the trial commissioner when, as in the present case, we find there is expert testimony supportive of the conclusion.
We therefore affirm the Finding and Award.
Commissioners Scott A. Barton and Stephen B. Delaney concur in this opinion.
1 The actual date of this surgery was October 13, 2009. This is a harmless scrivener’s error. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT
2 We note that in the past, when a trial commissioner granted a party relief based on what this tribunal found was an inconsistent and speculative conclusion, we remanded the issue for an articulation so the basis for the conclusion could be proffered. DiDonato v. Greenwich/Board of Education, 5431 CRB-7-09-2 (May 18, 2010). As we find independent grounds in the record to affirm the Finding and Award on the issue of surgery, we determine a remand is not necessary in this matter. BACK TO TEXT
3 In his brief, claimant suggests that Dr. Jokl’s opinion should have been discounted due to the delay between the 2008 injury and the surgery, when allegedly the claimant’s knee deteriorated due to lack of treatment. Claimant’s Brief, Paragraph K. Counsel for the claimant failed to raise this issue when given an opportunity to cross-examine this witness. Respondent’s Exhibit 2, Deposition of Peter Jokl, M.D., pp. 17-19. The commissioner must therefore accept the evidence “as-is.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT