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Montenegro v. Palmieri Food Products, Inc.

CASE NO. 5701 CRB-3-11-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 15, 2012

DENNIS MONTENEGRO

CLAIMANT-APPELLANT

v.

PALMIERI FOOD PRODUCTS, INC.

EMPLOYER

and

MEMIC INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Francis P. Cipriano, Esq., Law Offices of Francis P. Cipriano, 1220 Whitney Avenue, Hamden, CT 06517.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033-4412.

This Petition for Review1 from the October 31, 2011 Findings and Orders of the Commissioner acting for the Third District was heard May 18, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from Findings and Orders promulgated by the trial commissioner in this matter at the conclusion of the formal hearing. The Findings and Orders approved two Form 36’s in this case; one of which established a date of maximum medical improvement and the other which established the claimant had a work capacity. The trial commissioner also denied the claimant’s request for surgery. The claimant has appealed from this decision, arguing that the trial commissioner reached a decision unsupported by the evidence and asserting legal error. The claimant also argues that the respondent’s conduct in this matter warranted sanctions under § 31-288 C.G.S. and § 31-300 C.G.S. We find the trial commissioner had a reasonable basis to reach her decisions in this matter. We affirm the Findings and Orders.

The following facts were found by the trial commissioner at the conclusion of the formal hearing. The claimant suffered a serious thumb injury in the course of his employment on July 11, 2006. The compensability of this incident, where the claimant sustained a near total amputation of his left thumb, was accepted by the respondent-employer. Following orthopedic surgery to address this injury the claimant treated with Dr. Hubert Bradburn who opined that the claimant was totally disabled from employment. The respondents had their expert, Dr. Duffield Ashmead, examine the claimant on December 20, 2007. Dr. Ashmead confirmed that the claimant was reporting severe hypersensitivity to light touch and the claimant was protective of the left thumb and had profound restrictions that afforded only limited use of the left hand for day to day tasks. Dr. Ashmead recommended proximal nerve blocks, and consideration of neurotomy surgery. He also opined the claimant was physically capable of one handed work of a light to medium physical level of demand. Dr. Ashmead further opined that ongoing analgesic requirements for the claimant might prove problematic in the workplace.

The nature and extent of the claimant’s injury led to a slow recovery. On February 26, 2008, Dr. Bradburn said that conservative treatment had failed. He noted the claimant has extreme hypersensitivity of the injured area along with lack of strength and cold intolerance. He kept the claimant totally disabled and referred him to Dr. Mark Scanlan, an orthopedic hand specialist in his office, for further treatment and consideration of surgery. Dr. Scanlan examined the claimant on March 6, 2008. He concluded after working up the claimant that he should undergo surgeries, including a neurotomy, removal of the trapezium and some form of arthroplasty in regards to the ball joint.

The respondents asked Dr. Ashmead to opine on the proposed surgery. Dr. Ashmead issued a report on April 21, 2008, recommending the neurotomy but not the trapezium resection/modified arthroplasty. Dr. Ashmead suggested a two step surgical process rather than doing both procedures at once.

A commissioner’s examination was performed on February 3, 2009 by Dr. Stewart C. Gross. Dr. Gross noted the claimant’s “significant hypersensitivity to light touch with provocative examination producing burning and sharp dyesthestias and eventual retraction of the hand from examination.” Findings, ¶ 9. Dr. Gross identified the claimant’s injuries as severe traumatic arthropathy on the left first CMC joint; severe superficial radial neurotemic injury on the left wrist, and complex regional pain syndrome on the left hand. The commissioner’s examiner basically agreed with the treater’s surgical recommendations and believed that these procedures were necessary to produce a tolerable hand for the claimant’s activities of daily living and would hopefully produce a hand that would function in the claimant’s employment. Dr. Gross said the claimant had no manual capability based on the severity of his left hand dysfunction and at the present time he should remain on temporary total disability. He believed that while the claimant had no complaints as to his right extremity that the claimant would be less then productive in a working environment as he was highly protective of the left upper extremity producing pain at all times.

The respondents filed two Form 36’s which were considered at the formal hearing. The Form 36 filed on July 21, 2008, sought to terminate the claimant’s temporary total disability benefits as of May 15, 2008, based on Dr. Scanlan’s report wherein he agreed with Dr. Ashmead that the claimant retained a work capacity in his uninjured hand. The Form 36 filed on July 12, 2010, was based on Dr. Ashmead’s opinion the claimant had reached maximum medical improvement.

The respondents conducted surveillance of the claimant on several occasions in 2007 which yielded unremarkable results. They also performed surveillance on the claimant on several occasions in 2008 and prepared videodiscs of the claimant’s activities on June 13, 2008 and July 31, 2008. Those discs were provided to Dr. Ashmead in February 2009. Dr. Ashmead was deposed at three sessions after reviewing the video. Dr. Ashmead confirmed that the claimant’s allegation of severe pain and discomfort led to his recommendation of neurotomy. Dr. Ashmead, however, noted that the video surveillance cast doubt on the severity of the claimant’s pain and the videos also depicted activities that he understood the claimant couldn’t do. He said that the videos displayed “a disconnect here that’s disturbing.” Findings, ¶ 17. After reviewing the video evidence Dr. Ashmead concluded the reasonable and necessary course of treatment would be to “leave well enough alone” as there was not much to gain from surgery based on the claimant’s use of the hand for day to day activities. Findings, ¶ 18. He also opined the claimant had reached maximum medical improvement. Id. Dr. Ashmead also opined the claimant had the capacity for full-time gainful employment, with restrictions. He believed that despite the significant injury to the left thumb the claimant could use his right-master hand and that he is clearly capable of driving and handling things with both hands.

Dr. Scanlan testified at a deposition after reviewing the surveillance material. He did not believe what was shown contradicted the claimant’s presentation or indicated the claimant did not suffer pain in his left hand. He did not believe the video showed the claimant being subject to any significant force, nor did the video provide a basis to state whether or not the claimant was feeling discomfort. After reviewing the video, Dr. Scanlan testified it did not affect his recommendation that the claimant undergo surgery; nor did it change his opinion the claimant remained totally disabled.

Subsequent to his commissioner’s examination of the claimant Dr. Gross was provided with the most recent diagnostic films, the testimony of Dr. Scanlan and Dr. Ashmead, and video discs of the surveillance conducted on the claimant in 2008. Dr. Gross issued an addendum on May 12, 2010, to his original report. This addendum noted the surveillance DVD’s were “quite impressive in demonstrating no concern by the patient for the position or function of the left upper extremity” noting in particular the claimant’s use of a gas pump and holding hands with a woman in a store. Findings, ¶ 23. After reviewing the additional information Dr. Gross found it difficult to recommend any type of surgical procedure for the claimant’s upper left extremity at this time. Id. He recommended that the claimant be released to full duty work responsibilities and said he found the claimant “an unreliable subjective and objective patient.” Id.

Dr. Gross was deposed on October 1, 2010. At his deposition Dr. Gross said that after viewing the DVD’s he had a chance to see how the claimant functioned in the real world. While the claimant mentioned that he found it hard to perform activities of daily living due to inability to use his hand the DVD’s showed the claimant not being afraid to use his hand. Dr. Gross also noted the claimant’s ability to hyper flex his wrist in the video, noting the bones the claimant broke connect to the wrist and the thumb and the motion of the wrist was relevant. Dr. Gross noted that the diagnostic films provide a basis for the claimant’s complaints, and had he ignored the videos he would support the claimant’s surgeries. However, in light of the video he wondered if surgery would help the claimant and he would be leery of operating on the claimant. Dr. Gross said the claimant had a work capacity but the use of pain medication could interfere with this. Dr. Gross said that in his opinion the claimant was not at maximum medical improvement as he had not fully recovered and the claimant wanted more treatment.

Prior to disclosure of the video the claimant was deposed on January 22, 2009. He testified that he did almost nothing with his left hand and he had fear of it being touched because it was very sensitive to touch. He said he did not hold hands with his girlfriend or use his left hand to pump gas, and used his left hand while driving only to signal. He said he hides and protects his hand in cold weather and the summer. He also said doors to gas stations were too heavy to open with his left hand.

The claimant also testified at the formal hearing. He said that his hand is always very sensitive and he tries to cover it all the time. He said he cannot use the thumb and has had to learn how to use the hand a different way. He said he has not looked for work and denies he is earning money. He said he is taking hydrocodone for his pain that Dr. Scanlan has prescribed and while it has been refilled he is trying not to take it too often to avoid dependency.

Based on these subordinate facts the trial commissioner found the testimony of Dr. Gross and Dr. Ashmead credible and persuasive on the issue of whether the claimant’s proposed hand surgeries were reasonable and necessary, and whether the claimant had a work capacity. The commissioner did not find Dr. Scanlan’s opinions in his report and testimony persuasive on the claimant’s need for medical treatment, and specifically found only one report dated May 15, 2008, persuasive on the issue of the claimant’s work capacity. The commissioner noted the video surveillance evidence appeared inconsistent with the claimant’s deposition testimony and his presentation to Dr. Ashmead and Dr. Gross. Therefore, the proposed surgeries were denied. The trial commissioner found the claimant had a light duty work capacity for up to forty hours per week. The commissioner approved both Form 36’s effective on the date of their filing. She determined further hearings were needed on the issue of permanent partial disability. The trial commissioner found no violation by the respondents of § 31-288(b) C.G.S. or § 31-300.

The claimant sought an extension of time to file a Motion to Correct. He filed a Motion to Correct seeking 25 corrections. The trial commissioner granted one correction fully and one in part, and denied all the other corrections. The granted corrections did not materially alter the Findings and Orders. The claimant has pursued the present appeal.

The claimant has advanced a variety of issues in his appeal. The gravamen of his arguments are based on his position that the trial commissioner erred in permitting the video surveillance to be admitted as evidence; and the medical professionals that the trial commissioner found credible should not have relied on this evidence. We are not persuaded that this constitutes reversible error.

We discussed our standards for resolving these disputes in Catale v. Physicians Health Services, 4495 CRB-4-02-2 (March 5, 2003). Catale involved a dispute over the use of video surveillance evidence and cited § 31-298 C.G.S. that in presiding over hearings, a workers’ compensation commissioner “shall not be bound by the ordinary common law statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties . . . .” Id. “This law gives the trier broad discretion to determine the admissibility of evidence, and we cannot set aside his rulings on appeal absent an abuse of discretion.” Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff’d, 45 Conn. App. 909 (1997)(per curiam), appeal dismissed, 244 Conn. 349 (1998)(certiorari improvidently granted). Still, the trier must remain mindful of the requirements of procedural due process, such as a party’s right to cross-examination upon the offering of evidence. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974); Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (January 22, 1987). Id.

In Catale the claimant objected to introduction of the videotape and the trial commissioner overruled this objection. The respondents made no effort to authenticate the tape and “[i]n the absence of such verification, the video was improperly allowed into evidence.” Id. We cited Catale more recently in Volmut v. General Electric Company, 5439 CRB-4-09-2 (April 7, 2010) and concluded in Volmut that the authentication issues as to the video surveillance in that case did not rise to the level of reversible error.

The claimant’s counsel, in this matter, argued at oral argument that the video evidence was presented in an untimely fashion pursuant to the Chairman’s Memorandum 2004-02 “Revised Professional Guide for Attorneys, Physicians and Other Health Care Practitioners; Guidelines for Cooperation” (rev. 10/1/2008). The claimant brings our attention to our guidelines which include this language.

The Workers’ Compensation Commission is necessarily concerned about ex parte communications. Communication between respondents’ counsel and the treating physician where such communication would involve unilateral disclosure or discussion of material information—for example, videotaped surveillance of a patient that purports to militate against the treating physician’s opinion that the patient is totally disabled from all work activity—should be avoided. If respondents’ counsel seeks to reveal such information to a treating physician, the attorney should inform the patient’s counsel in advance.

In the opinion of the claimant, his counsel should have been apprised of the existence of the video surveillance prior to his deposition and his medical examinations. We do not find that our guidelines require such disclosure as a matter of law. In addition, we find that the claimant raised issues as to the alleged delay in proffering video evidence in his Motion to Correct, and these corrections were denied. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted supporting the arguments presented probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious.

In reviewing the totality of the record herein, we are not persuaded that a due process issue exists pursuant to the presentation of video surveillance. The trial commissioner is afforded broad discretion under § 31-298 C.G.S. in managing hearing proceedings; subject to preserving the right to confront witnesses and provide due process. We do not find that a “trial by ambush” occurred and find the claimant had sufficient opportunity to review the video evidence and depose all the expert witnesses prior to the conclusion of the formal hearing. Moreover, we find that the Motion to Correct did not contest the authenticity of the video evidence. The respondents presented a witness, Kevin Chopak, to authenticate the videos and the witness testified at length and was cross-examined by claimant’s counsel at the July 12, 2010, August 26, 2010 and March 10, 2011 formal hearings. The claimant argues at length that the videos present a “false premise” as to the claimant’s condition. Claimant’s Brief, p. 12. We find the claimant had ample opportunity to argue this issue of fact at the formal hearing and failed to persuade the trial commissioner.2 3

The claimant also argues that the video evidence somehow tainted the opinions of the various medical professionals in this matter, but does not offer precedent wherein a respondent cannot present this evidence to an expert witness and elicit whether this causes their opinions to change. All the expert witnesses in this case (Dr. Scanlan, Dr. Ashmead and Dr. Gross) were extensively deposed by claimant’s counsel subsequent to having viewed the video and well prior to the conclusion of the formal hearing on Apri1 21, 2011. Based on their review of the video evidence, Dr. Ashmead and Dr. Gross concluded that the claimant’s physical limitations were not as great as they had previously believed. They also believed the surgical intervention sought by the claimant was not warranted. In reaching her conclusions, the trial commissioner relied on competent medical evidence she found persuasive. In particular, we note the trial commissioner relied on the opinions of the commissioner’s examiner, Dr. Gross. As we held in Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009) and Carroll v. Flattery’s Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009) “[w]e have previously explained that the usual purpose of a § 31-294f examination is to provide strong guidance to a commissioner,” and “[t]his board favors an articulation when a trial commissioner does not follow that opinion.” Id., citing Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(Per Curiam). The trial commissioner herein found Dr. Gross’s opinion persuasive and she was legally entitled to do so.

The claimant argues at some length that the expert witnesses in this case somehow conflated limitations with the left thumb and the left wrist. 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 look to Findings, ¶ 24d, wherein Dr. Gross explained how the motion of the thumb and the wrist are related, as the bone the claimant broke was connected both to the wrist and the thumb. At his deposition Dr. Gross testified as to how he observed hyperflexion of the claimant’s wrist in the video evidence that he had not anticipated to see given the claimant’s prior presentation. Claimant’s Exhibit K, pp. 56-60. We find the trial commissioner had a reasonable basis in the evidence for the conclusions she reached.

This issue goes to the claimant’s credibility. The trial commissioner noted that the claimant’s activities on the video “appear to the undersigned to be inconsistent with both his deposition testimony and his presentation to Dr. Ashmead and Dr. Gross.” Conclusions, ¶ D. In the present case the trial commissioner heard the testimony of the claimant and decided not to credit his testimony. That is the prerogative of the trial commissioner. In Burton v. Mottolese, 267 Conn. 1 (2003), the Supreme Court indicated that this is a decision we may not revisit on appeal.

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.”

Burton, supra, 40.

In making an assessment of witness credibility a trial commissioner performs factfinding. As we held in Gibbons v. UTC/Pratt & Whitney, 4000 CRB-8-99-3 (April 12, 2000), aff’d, 63 Conn. App. 482 (2001), cert. denied, 257 Conn. 905 (2001), we must respect the commissioner’s evaluation.

As the trier of fact, the commissioner is the sole individual vested with the authority to decide which, if any, evidence is probative, including the testimony of both lay and expert witnesses. Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d, 248 Conn. 379 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Even where an oral statement or a doctor’s report is not expressly contradicted, the trier may still draw inferences regarding its reliability from the demeanor of the witness, the overall consistency of the testimony, the presence or absence of corroborative empirical evidence, the nature and circumstances of the alleged injury, or any other element of the case that the factfinder deems significant. On review, this board does not have the power to second-guess a trial commissioner’s decision that a particular version of the facts is or is not credible. Freeman, supra; Perry v. Commercial Interior Systems, 3571 CRB-7-97-4 (June 3, 1998).

Id.

One factual decision the claimant challenges is whether the trial commissioner erred in denying his bid for additional hand surgery. The claimant argues that the trial commissioner improperly relied on the video evidence in denying a bid for reasonable and necessary medical care. We find the trial commissioner relied on probative medical opinions of Dr. Ashmead and Dr. Gross, neither of whom endorsed surgery after considering the video evidence. We find the trial commissioner’s decision herein consistent with our precedent in Cervero v. Mory’s Association, Inc., 5357 CRB-3-08-6 (May 19, 2009), aff’d, 122 Conn. App. 82 (2010), cert. denied, 298 Conn. 908 (2010). A claimant cannot prevail on a contested issue of further medical treatment merely by proffering a medical opinion that the treatment is worthy of attempt. The trial commissioner retains discretion to approve or deny surgery based on the medical opinions he or she finds persuasive. The commissioner relied on expert opinions she found persuasive in determining further surgery was unwarranted.

The claimant also challenges the finding that he had reached maximum medical improvement. As the claimant views this situation, such a decision could not be reached without simultaneously issuing a rating as to permanent partial disability. The respondent argues that the evidence from Dr. Ashmead supports this decision, as well as precedent from Wrenn v. Connecticut Brass Company, 96 Conn. 35 (1921) and Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). We note that in Mosman we specifically directed the trial commissioner to hold further proceedings on establishing a disability rating after establishing a date of maximum medical improvement; finding that both parties should offer evidence on that issue.4 We find the circumstances herein too similar to Mosman to reach a conflicting result on appeal.

We also note that the claimant argues that his Motion to Correct should have been granted and the failure of the trial commissioner to grant those corrections that were denied constitutes error. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti, supra. On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id. We are satisfied the trial commissioner reached a reasonable decision herein, in particular insofar as she articulated her rationale in the Findings and Orders for finding some witnesses more persuasive than others. The trial commissioner is not obligated to adopt a party’s conclusions as to the facts and the law. See 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).

Finally, we wish to address the claimant’s position that the trial commissioner erred in not levying sanctions against the respondent pursuant to § 31-288 C.G.S. and § 31-300 C.G.S., Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) stands for the proposition that this tribunal has extended broad latitude to trial commissioners in deciding when a respondent’s conduct warrants the imposition of sanctions for undue delay or unreasonable contest. We note that the respondents prevailed on the merits of this case, Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007), and this generally would argue against sanctioning the respondents. In review of the record, we are not persuaded the trial commissioner’s decision herein was arbitrary or capricious by the standards delineated by In re Shaquanna M., 61 Conn. App. 592 (2001).

We find the trial commissioner reached a reasonable conclusion herein based on the evidence presented to the tribunal. It was her duty to weigh the evidence and determine on which witnesses testimony to place greater weight. She did so and we cannot, as an appellate panel, reweigh this record on appeal. We affirm the Findings and Orders.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

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

2 The claimant based much of his argument before this panel on his belief that the trial commissioner’s decision is violative of the precedent in Strona v. Textron Lycoming, 4700 CRB-3-03-7 (August 6, 2004). We find Strona clearly distinguishable from the present case. We reversed the finding in Strona because “the trier’s conclusion on the issue of the exacerbation of claimant’s heart disease due to his compensable back and neck injuries cannot stand, given that a material fact upon which the conclusion was based was not proved.” Id. We specifically did not rule on the issues the claimant raised in this appeal “as the conclusion we reach today in which we order a trial de novo obviates our need to review the other issues presented by the appellants.” Id. BACK TO TEXT

3 The claimant also argues that the trial commissioner failed to provide due process when she considered the issue of a Form 36 concerning maximum medical improvement which had not been previously noticed for the formal hearing. We find that the parties at the commencement of the formal hearing indicated to the commissioner that this was an issue under consideration. See July 12, 2010 Transcript, pp. 3-5. This circumstance is governed by Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009). The parties were aware at the commencement of the proceeding as to the scope of relief and were able to prepare themselves upon the issue. We find no error. BACK TO TEXT

4 The claimant challenges the date on the Form 36 as inaccurate. The respondents argue that the date on the form in question was a scrivener’s error. We are persuaded this constitutes 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

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