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Hubbard v. State of Connecticut University of Connecticut Health Center

CASE NO. 5705 CRB-6-11-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 30, 2012

ROSE M. HUBBARD

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT UNIVERSITY OF CONNECTICUT HEALTH CENTER

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GALLAGHER BASSETT SERVICES, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Jennifer B. Levine, Esq., Levine & Levine, 754 West Main Street, New Britain, CT 06053.

The respondent was represented by Donna H. Summers, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 061410120.

This Petition for Review from the November 14, 2011 Findings and Orders of the Commissioner acting for the Sixth District was heard on May 18, 2012 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has petitioned for review from the November 14, 2011 Findings and Orders of the Commissioner acting for the Sixth District. We find error and accordingly remand this matter to the trial commissioner for additional proceedings consistent with this opinion.

The following factual background is pertinent to our review. The trier took administrative notice of a voluntary agreement approved by the Workers’ Compensation Commission awarding the claimant a ten percent permanent partial disability to her right knee arising from a compensable injury sustained on October 4, 2007. The claimant offered the following testimony. She was employed by the respondent employer for five years and eight months, and retired on July 1, 2008. Her responsibilities included collecting and boxing biodegradable material and preparing the boxes for shipment. On October 4, 2007, the claimant tripped over a scale and fell onto a cement floor, landing on her right knee. She also felt hip pain. Paramedics were called and she was brought to the emergency room at UConn Health Center. The claimant indicated that she had never had any prior problems with her right knee but she had had prior problems in her right hip. In 1980, while ice skating, she fell and broke the ball in her right hip, resulting in a surgical procedure during which a “Yale Nail” was placed in her right hip. The claimant testified that the pain in her hip never improved after that.

The claimant also testified that on December 17, 2007, while loading boxes, she slipped on some ice on the loading dock and fell, ending up in a “split.” Following that incident, she had pain in her hip, buttocks and groin area on the right side. She underwent an ultrasound on her right hip and continued to work light duty.1 The claimant began treating with John P. Fulkerson, M.D., on November 6, 2008, and he performed laparoscopic surgery on her right knee. After the October 4, 2007 injury, the claimant felt pain when she put pressure on her right knee, so she put more pressure on her left knee and walked off-balance. The pain in her right hip was also worse after the October 4, 2007 injury. She stopped working for the respondent employer in July 2008 because no more light duty was available and did not seek new employment because she “was trying to work on [her] right hip being taken care of.” October 4, 2011 Transcript, p. 23. Because of her pain and discomfort, the claimant’s days consist primarily of lying down and watching television. She does not believe she can work because of the pain in her right hip and knee.

In addition to the foregoing testimony offered by the claimant, the trier found that during the period from October 9, 2007 through October 21, 2008, the claimant treated with three physicians at the University of Connecticut Health Center. John D. Meyer, M.D.; Manoj Saxena, M.D.; and Kenneth Dangman, M.D. In his report of June 24, 2008, Dr. Meyer indicated that because light duty was no longer available to the claimant, she should consider applying for a disability retirement. On July 14, 2008, Dr. Meyer stated that the claimant’s restrictions were permanent and “she will be unable to return to work in her present capacity as a direct consequence of this knee injury.” Claimant’s Exhibit A.

The claimant saw Dr. Fulkerson on November 6, 2008 and was diagnosed with a degenerative tear of the right medial meniscus with early to moderate right medial knee osteoarthritis. Dr. Fulkerson also diagnosed right hip osteoarthritis with radiating pain toward the knee. The doctor recommended an arthroscopy of the right knee, and indicated that the claimant may eventually need right hip and knee replacements. He performed a right knee arthroscopy on December 3, 2008 and released the claimant to light duty on January 5, 2009. Dr. Fulkerson last saw the claimant on April 12, 2010, at which time he indicated that the claimant had reached maximum medical improvement as to her right knee and determined she had sustained a 12.5% permanent partial disability to the right knee. The doctor also stated that she may be a candidate for a right knee replacement at some point in the future but there was nothing further he could offer her at that time.

On April 30, 2008, the claimant was examined by Courtland G. Lewis, M.D., who opined that the claimant’s symptoms were “most consistent with trochanteric bursitis as a residua of her fall.” Claimant’s Exhibit C. The doctor also stated that the claimant did “not have findings either clinically, symptomatically or on physical examination suggesting that this is directly related to her hip arthritis. In any event, it would be difficult to causally relate her hip arthritis to her fall of October 2007.” Id. Dr. Lewis offered the claimant either a trochanteric injection or a fluoroscopic hip injection to her right hip, both of which were refused by the claimant. Dr. Lewis indicated he would see the claimant in two years for a routine follow-up of her left hip arthroplasty or in the interim at her discretion. The claimant again saw Dr. Lewis on April 1, 2009, at which time he reported that the claimant had had a left total hip arthroplasty in August 2004 but that her current symptoms were consistent with right hip trochanteric bursitis.

The claimant returned to Dr. Lewis on December 17, 2009; December 29, 2009; and April 19, 2010. Dr. Lewis suggested some exercises and prescribed medication to treat the claimant’s trochanteric bursitis.2 On March 9, 2011, Dr. Murray performed a Commissioner’s Examination and diagnosed moderate to severe degenerative arthritis of the right hip. In his report of March 17, 2011, Dr. Murray opined that “in time the patient will require a right total hip arthoplasty,” Claimant’s Exhibit D, and indicated that the claimant “is disabled from work at this time.” Id. Dr. Murray stated that the claimant has reached maximum medical improvement and assigned her a permanent partial disability rating of fifty percent of the right hip, of which five percent was a direct result of the October 4, 2007 injury. Id.

Based on the foregoing, the trier determined that in addition to the accepted knee injury, the claimant also sustained a compensable injury to her right hip on October 4, 2007. However, although the trier found it “undisputed” that the claimant was suffering from moderate to severe osteoarthritis of her right hip, the trier concluded that the claimant had presented no medical evidence which would support a finding that the osteoarthritis is related to the October 4, 2007 injury. Conclusion, ¶ B. In light of Dr. Lewis’ treatment of the claimant since her left hip arthroplasty of 2004, the trier found Dr. Lewis’ opinion persuasive, concluding “that there are two separate and distinct pathologies affecting the Claimant’s right hip, namely osteoarthritis and trochanteric bursitis. The trochanteric bursitis is compensable and the osteoarthritis is unrelated to the October 4, 2007 injury.” Conclusion, ¶ C. Moreover, although Dr. Murray’s report of March 17, 2011 indicated that the claimant was disabled from work, Dr. Murray did not state whether he meant that the claimant was “disabled from her job or any job,” Conclusion, ¶ D, and he did not explain whether the claimant’s disability could be attributed to the osteoarthritis or trochanteric bursitis. The doctor also did not indicate whether the claimant’s disability resulted from the October 4, 2007 injury.

The trier concluded that the claimant sustained a five percent permanent partial disability to her right lower extremity as a result of the compensable October 4, 2007 hip injury. However, the trier determined that the claimant failed to provide any medical evidence in support of her claim for temporary total disability benefits arising from the compensable October 4, 2007 hip injury. The trier found the respondent liable for any medical treatment and outstanding medical bills relating to the claimant’s trochanteric bursitis but not for medical treatment or outstanding bills related to treatment of the claimant’s right hip osteoarthritis. Finally, the trier determined that the respondent did not unduly delay the claim, noting that the claimant, on the basis of her severe financial distress, had requested an expedited hearing on the issue of temporary total disability payments but failed to meet her burden of proof on that issue. The claimant also had requested a hearing on an expedited basis on the issue of the respondent’s denial of a right hip arthroplasty, but failed to present any medical evidence indicating that “any doctor was recommending such surgery at the present time.” (Emphasis in the original.) Conclusion, ¶ I.b.

The trial commissioner, having found the claimant’s trochanteric bursitis compensable, ordered the respondent to pay for medical treatment and any outstanding medical bills associated with that condition but dismissed any claims for treatment and/or outstanding medical bills associated with the claimant’s osteoarthritis. The trier dismissed the claim for temporary total disability benefits and the claimant’s request for a right total hip arthoplasty. The trier awarded the claimant benefits for a fivepercent permanent partial disability rating of her right lower extremity but dismissed the balance of her claim for benefits for a fiftypercent permanent partial disability. The trier also dismissed the claim for attorney’s fees pursuant to § 31-300 C.G.S.3

The claimant filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the claimant contends that the trier erred as a matter of law when he concluded that there are two separate and distinct pathologies affecting the claimant’s right hip – to wit, osteoarthritis, which is noncompensable, and trochanteric bursitis, which is not – but awarded permanent partial disability benefits on the basis of the non-compensable disability. The claimant also claims as error the trial commissioner’s determination that the claimant provided no medical evidence which would substantiate finding that the claimant’s osteoarthritis is related to the October 4, 2007 injury or that the claimant is entitled to temporary total disability benefits. Finally, the claimant argues that the trial commissioner erred in failing to grant her Motion to Correct.

The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535 (1988). However, “[w]e have held that, where the findings of a trial commissioner appear to be inherently inconsistent amongst themselves, or with the trier’s conclusions, the correct approach is to remand the matter for clarification.” Ortiz v. Highland Sanitation, 4439 CRB-4-01-9 (November 12, 2002).

We begin our analysis with the claimant’s challenge to the trier’s determination that there are two separate pathologies affecting the claimant’s hip and the trier’s award of a five-percent permanent partial disability rating on the basis of Dr. Murray’s report of March 17, 2011. The claimant asserts that the trier’s reliance on the opinions of both Dr. Lewis and Dr. Murray was erroneous because Dr. Lewis’ diagnosis is “diametrically different” from that of Dr. Murray. Appellant’s Brief, p. 7. As noted herein, Dr. Lewis opined that the claimant was suffering from trochanteric bursitis, which was caused by the injury of October 4, 2007, and hip arthritis, which was not. For his part, Dr. Murray assigned a fiftypercent permanent partial disability rating of the claimant’s right hip predicated on a diagnosis of arthritis, of which he attributed five percent to the claimant’s workplace injury. The claimant argues that the trier’s acceptance of Dr. Murray’s rating was erroneous because the trial commissioner “has the right to accept or reject the opinions of a physician, but he does not have the right to accept the disability rating attributed by the doctor to a work related injury and then reject the diagnosis rendered by that doctor which caused him to make such a rating.” Appellant’s Brief, p. 10.

As the claimant points out, it is axiomatic that “[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). However, it is equally wellsettled that under the provisions of our Workers’ Compensation Act, in order for the employer to be found liable for a claimant’s disability, either in whole or in part, the disability must be causally related to the employment. “Compensation cannot be awarded an employee under our Workmen’s Compensation Act unless he has sustained a personal injury arising out of and in the course of his employment. The subordinate facts found must satisfy these statutory requirements.” Madore v. New Departure Mfg. Co., 104 Conn. 709, 712 (1926).

In order to support the instant award of permanent partial disability benefits, the trier would need to have found that the claimant’s fall on October 4, 2007 was a substantial factor in the claimed disability suffered by the claimant. “The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” (Internal quotation marks omitted.) Ryker v. Bethany, 97 Conn. App. 304, 309, cert. denied, 280 Conn. 932 (2006). In the instant matter, given that Dr. Murray opined that the mechanism of injury which was producing the right hip disability was unrelated to the October 4, 2007 fall, it cannot logically follow that legal liability for a permanent partial disability to the right hip can inure to the respondent. As such, the trier’s conclusion cannot presently stand if the only evidence supporting the assignment of a five-percent permanent partial disability of the claimant’s right hip is the opinion of Dr. Murray. We therefore remand this matter to the trial commissioner with instructions to make further findings regarding the evidentiary support for the permanent partial disability awarded to the claimant.4

We turn next to an analysis of the claimant’s allegations of error relative to the trier’s determination that the claimant provided no medical evidence to substantiate a finding that the claimant’s osteoarthritis is related to the workplace injury of October 4, 2007. Our review of the record indicates that the claimant actually provided two reports attesting to such a causative link. Dr. Murray’s report of March 17, 2011 which attributes five percent of the fifty-percent permanent partial disability rating predicated on a diagnosis of hip arthritis to the workplace incident, Claimant’s Exhibit D, and the July 14, 2008 report of John D. Meyer, M.D., which states that the claimant’s “extended disability is a direct result of her knee injury and its aggravation of symptoms referable to her pre-existing hip osteoarthritis.” Claimant’s Exhibit A. With regard to Dr. Murray’s report, as previously discussed herein, we have remanded this matter due to our inability to reconcile the trier’s findings with the contents of this report.

Regarding Dr. Meyer’s report, we do note that in denying the claimant’s Motion to Correct in its entirety, the trier rejected a number of proposed corrections specifically predicated on this report. As such, it could be argued that the trier essentially stated by implication that he simply did not find persuasive Dr. Meyer’s opinion that the claimant suffered an aggravation of her preexisting hip osteoarthritis. However, because none of the trier’s findings specifically address this issue, and given that the other medical reports in evidence are likewise silent on this point, we are reluctant to “read into the record” such an inference. Generally, when physicians put forward contradictory or inconsistent opinions, the trier has the additional benefit of reviewing deposition testimony in order to reach his conclusions. In the instant matter, none of the doctors who examined the claimant were deposed. Thus, in light of the inconclusive nature of the record, we also remand this matter to determine if additional proceedings on the issue of whether the workplace incident of October 4, 2007 constituted an aggravation of the claimant’s pre-existing hip injury are warranted.5

The claimant also contends that the trier erred as matter of law when he concluded that the claimant failed to provide evidence substantiating an entitlement to temporary total disability benefits pursuant to § 31-307 C.G.S.6 In support of this claim of error, the claimant points to the March 17, 2011 report of Dr. Murray wherein the doctor stated, “[a]t this time the patient is quite disabled and has a difficult time performing all weightbearing activities. I do feel she is disabled from work at this time.” Claimant’s Exhibit D. The claimant challenges the trier’s determination that although this report indicates that the claimant is disabled from work, the doctor did not state whether the claimant was disabled “from her job or any job.” Conclusion, ¶ D. The claimant also disputes the trier’s observation that the doctor did not expressly relate the claimant’s disability to either the osteoarthritis or trochanteric bursitis or state that the claimant’s disability resulted from the October 4, 2007 injury.

In Marandino v. Prometheus Pharmacy, 105 Conn. App. 669 (2008), aff’d in part, rev’d in part, 294 Conn. 564 (2010), our Appellate Court stated:

In order to receive total incapacity benefits under § 31-307, a plaintiff bears the burden to demonstrate a diminished earning capacity by showing either that ‘she has made adequate attempts to secure gainful employment or that she truly is unemployable....’. (Emphasis in the original.) Whether the plaintiff makes this showing of unemployability by demonstrating that she actively sought employment but could not secure any, or by demonstrating through a nonphysician vocational rehabilitation expert or medical testimony that she is unemployable, as the plaintiff did in the present case, as long as there is sufficient evidence before the commissioner that the plaintiff is unemployable, the plaintiff has met her burden.

Id., at 684-685.

We note at the outset that at the formal hearing of October 4, 2011, the claimant testified she did not look for alternative employment after retiring from the respondent employer in July 2008 because she was focused on securing additional medical treatment. October 4, 2011 Transcript, pp. 23, 36-37. As such, the claimant did not adduce any evidence which would comport with the first prong articulated by the Marandino court.

Relative to the second Marandino prong, our review of the record indicates that apart from Dr. Murray’s report of March 17, 2011, no other evidence was submitted attesting to the claimant’s eligibility for temporary total disability benefits. In fact, Dr. Fulkerson’s report of January 26, 2010 stated that although the claimant could not return to her prior employment, she was capable of “doing some type of strictly sedentary work where she is not up and around ....” Claimant’s Exhibit B. Dr. Lewis did not address the claimant’s work status in any of his reports and despite his role as a long-term treater of the claimant, he was never deposed so that his opinion of the claimant’s work capacity could be elicited. The records provided from the physicians at the University of Connecticut Health Center articulate some restrictions on the claimant and echo Dr. Fulkerson’s concerns about the claimant returning to her previous employment; although Dr. Meyer, in his report of July 14, 2008, indicated that the claimant had “ongoing temporary total disability from her job functions,” Claimant’s Exhibit A, a subsequent office note dated September 30, 2008 states only that the claimant “remains unable to perform the work she was originally doing” and places some restrictions on the claimant. Id. No vocational study was performed. Based on the record before us, then, the claimant’s claim for temporary total disability benefits relative to her hip injury rests solely on the March 17, 2011 report of Dr. Murray.

The claimant asserts that the trial commissioner’s analysis of Dr. Murray’s report was faulty because he “interpreted ambiguity where there was no ambiguity to be found.” Appellant’s Brief, p. 14. “Rather than looking at the entirety of Dr. Murray’s opinion regarding work capacity, as well as the plain meaning of the word ‘work,’ the trial commissioner decided to impose a hyper-technical reading of the phrase ‘work’ to construe ambiguity where none should have been found.” Id., at 15. As such, the trial commissioner “created a more stringent and burdensome standard for determining work capacity than is reasonably required under the Workers’ Compensation Act.” Id.

There is no question that Dr. Murray’s report both diagnosed the claimant as suffering from degenerative arthritis and also disabled the claimant from work. What Dr. Murray’s report does not do on its face, however, is link either his diagnosis of arthritis or the claimant’s current incapacity to the compensable incident of October 4, 2007. It is well settled that the burden of proving an entitlement to disability benefits rests with the claimant, and that “[s]uch proof must be established by competent evidence.” Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Moreover, “[w]here, as here, it is difficult to ascertain whether or not the disease arose out the employment, it is necessary to rely on expert medical opinion. Unless the medical testimony by itself establishes a causal relation, or unless it establishes a causal relation when it is considered along with other evidence, the commissioner cannot conclude that the disease arose out of the employment.” Metall v. Aluminum Co. of America, 154 Conn. 48, 52 (1966), citing Madore, supra, at 714.

In the matter at bar, it could be argued that based on the ambiguity of the medical evidence relative to the extent of the claimant’s disability, and absent additional elucidation from Dr. Murray in the form of deposition testimony or a clarification of his original report, the trier simply could not reasonably infer that the claimant’s disability entitled her to temporary total disability benefits. As discussed previously herein, there can be little question that the trier was clearly hampered by the lack of deposition testimony from the various doctors who examined the claimant. Nevertheless, precisely because of the ambiguity of the evidence at hand, we are unable to sustain the trier’s dismissal of the claim for temporary total disability benefits. We therefore remand this matter to the trial commissioner for additional proceedings relative to the issue of whether the claimant currently has an entitlement to temporary total disability benefits. “No case under this Act should be finally determined when the ... court is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.” Cormican v. McMahon, 102 Conn. 234, 238 (1925).

Finally, the claimant asserts that the trial commissioner’s denial of her Motion to Correct constituted error. Our review of the proposed corrections indicates that the claimant was primarily engaged in “reiterating the arguments made at trial which ultimately proved unavailing.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). Nevertheless, insofar as the trier’s denial of the proposed corrections was inconsistent with the findings presented herein, the denial constituted error.

Having found error, the November 14, 2011 Findings and Orders of the Commissioner acting for the Sixth District are hereby remanded for additional proceedings consistent with this opinion.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur.

1 It does not appear that the claimant ever advanced a claim for this incident. BACK TO TEXT

2 In ¶ 13 of his Findings and Orders, the trier states that the claimant returned to Dr. Fulkerson on these dates. We deem this harmless scrivener’s error. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

3 Section 31-300 C.G.S. (Rev. to 2007) states, in pertinent part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.” BACK TO TEXT

4 It should be noted that the respondent has not contested the permanent partial disability award. BACK TO TEXT

5 We contemplate that included in the scope of this issue on remand will be an assessment of the associated claim of error that the trier was obligated to accept the full permanency rating assigned by Dr. Murray. See Epps v. Beiersdorf, 41 Conn. App. 430 (1996). BACK TO TEXT

6 Section 31-307(a) C.G.S. (Rev. to 2007) states: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the injured employee’s average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity.” BACK TO TEXT

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