Creamer v. General Dynamics/Electric Boat Division

The claimant was represented by Mark W. Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.O. Box 929, Groton, CT 06340.

The respondent employer was represented by Booth M. Kelly, Jr., Esq., Murphy & Beane, P.O. Box 590, New London, CT 06320.

The respondent Second Injury Fund was represented by Philip M. Schulz, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the April 26, 1993 Finding and Award of the Commissioner acting for the Second District was heard September 30, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund (hereinafter “Fund”) has appealed from the April 26, 1993 Finding and Award of the Commissioner acting for the Second District. In that Finding and Award the trier concluded that the claimant’s back injury of April 16, 1987 qualified for transfer to the Second Injury Fund pursuant to § 31-349 C.G.S. In support of its appeal, the respondent Fund contends that there was no medical evidence to support the trier’s conclusion that the claimant suffered from a preexisting disability which caused the injury of April 16, 1987 to be substantially and materially greater. The Fund further contends that the trial commissioner erred by refusing to grant its entire Motion To Correct. We agree.

We will first address the employer’s appeal in which the employer contends that the trial commissioner failed to give the employer credit for payments which it had made to the claimant under the Federal Longshore and Harbor Workers’ Compensation Act. The record in this case reveals that the employer and the claimant entered into an approved voluntary agreement which specifically covered the issue of a credit for payments made by the employer under the Longshore and Harbor Workers’ Compensation Act in the amount of $4039.80. If the respondent is now contending that the voluntary agreement was entered into due to fraud or mistaken facts, its remedy is to request a hearing before a trial commissioner regarding a reopening of the voluntary agreement pursuant to § 31-315 C.G.S. In addition, we note that in its reasons of appeal statement, the employer has included the commissioner’s award of benefits under § 31-308a C.G.S. However, because the employer neglected to brief this issue, we will not now consider it on appeal. Muha v. United Oil Co., 180 Conn. 720 (1980).

The trial commissioner found the following facts in his Finding and Award dated April 26, 1993, as modified by his Order dated May 16, 1994 which granted in part the Fund’s Motion to Correct. The claimant injured his back while descending a ladder on April 16, 1987 while employed by the respondent employer. The parties entered into a voluntary agreement, which was approved by the trial commissioner on March 10, 1988, by which the parties agreed that the claimant incurred a compensable injury which resulted in a fifteen percent permanent partial disability to his back. The claimant was initially seen by Dr. Philo Willetts, an orthopedist, who referred him to Dr. Anis Racy, a neurologist. On February 16, 1990, the claimant reached maximum medical improvement. Thereafter, he was examined by Dr. S. Pearce Browning, an orthopedist, on behalf of the respondents.

It is Dr. Browning’s medical opinion which forms the essential issue in this appeal. Specifically, Dr. Browning testified that “he believed that the claimant’s compensable injury was made materially and substantially greater by the presence of pre-existing arthritis.... (and) that claimant’s arthritis was due to inflammatory arthritic bowel disease, which in turn spread through the system and affected the back.” (Finding # 18) Based upon Dr. Browning’s medical opinion, the trial commissioner granted a transfer of the claim to the Second Injury Fund pursuant to § 31-349 C.G.S.

Section 31-349 C.G.S. provides a means for an employer to limit its liability for a second injury to 104 weeks of payments, after which the claim may transfer to the Second Injury Fund. This statute, as it was written at the time of the claimant’s second injury, applies to circumstances where an employee “who has previously incurred, by accidental injury, disease or congenital causes...(a) permanent physical impairment, (and) incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone....” In order for a claim to transfer to the Second Injury Fund, “the preexisting impairment must contribute materially and substantially to the resulting permanent disability.” Lovett v. Atlas Truck Leasing, 171 Conn. 577, 583 (1976). The Connecticut Supreme Court has recently stated that § 31-349 C.G.S. (Rev. to 1985) “unambiguously established a preexisting permanent physical impairment condition precedent to considering fund liability.” Rowe v. Plastic Design, Inc. 37 Conn. App. 131, 134 (1995).

In order to establish causation, we have consistently required a standard of “reasonable medical probability.” Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 2, 936 CRD-6-89-11 (March 19, 1991). “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Hoffman v. Platinum Vacation of New England, 8 Conn. Workers’ Comp. Rev. Op. 174,176, 867 CRD-7-89-5 (Nov. 30, 1990) (citations omitted).

After carefully reviewing the record,1 we conclude that there is insufficient medical evidence to support the commissioner’s determination that the claimant suffered from a preexisting disability. Specifically, Dr. Browning admitted the following information during the deposition conducted on July 23, 1992 at which legal counsel for all parties were present. Dr. Browning admitted that although he concluded in both his written reports and in his deposition testimony that the claimant had sacroiliac joint arthritis as a result of inflammatory bowel disease, (Tr. p. 23, 37, and 39), he in fact had no medical records, reports, or diagnostic test results which documented the existence of any bowel disease, and he did not order any such diagnostic tests during his evaluation of the claimant. (Tr. pp. 33-35, 37, and 38). Moreover, Dr. Browning testified that he did not have any firsthand knowledge regarding whether the claimant suffered from any bowel disease or disorder, but that he merely relied on the claimant’s assertion that he developed a “spastic colon” after the injury of April 16, 1987. (Tr. p. 34, 37-38). Dr. Browning further admitted that he did not know who, if anyone, informed the claimant that the symptoms he experienced after April 16, 1987 were, in fact, those of a spastic colon. (Tr. pp. 37-38).

Moreover, Dr. Browning admitted that (1) the radiologist who interpreted an April 25, 1987 X-ray of the claimant’s lumbosacral spine found the claimant to have a normal lumbosacral spine (TR p. 16); (2) the radiologist who interpreted a July 1, 1987 CT scan of the sacroiliac joints found the claimant’s condition to be normal (TR p. 19); (3) a July 17, 1987 CT scan without contrast showed no disc abnormalities (TR p. pp. 15-16); and (4) the results of an enhanced lumbar CT scan and myelogram performed on August 28, 1987 were negative (TR pp. 17-18). Dr. Browning was not the claimant’s treating physician, and only saw the claimant on two occasions. It was not until the second visit of June 22, 1990, over three years following the injury at work, that the claimant told Dr. Browning that he believed he suffered from a “spastic colon” and that when he was discharged from the Navy in 1981 he was suspected of having either gout or arthritis. (Claimant’s Exhibit F). Moreover, the claimant has failed to provide any medical documentation from the period prior to his accident of April 16, 1987.

We conclude that the existing record lacks any medical evidence to support Dr. Browning’s opinion that the claimant suffered from a preexisting permanent disability, namely arthritis due to inflammatory arthritic bowel disease. This Board, as an appellate tribunal, can disturb factual conclusions when they are found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). However, we may not usurp the authority of the trier of fact by ordering specific findings based on our evaluation of the evidence. Halliday v. Daw’s Critical Care Registry, 8 Conn. Workers’ Comp. Rev. Op. 74, 76, 797 CRD-7-88-12 (April 27, 1990).

Accordingly, the decision of the trial commissioner regarding the transfer of the claim pursuant to § 31-349 C.G.S. is remanded in accordance with this decision, so that the trial commissioner may correct his findings of fact, allow the parties to present further evidence, and issue a new decision. The remainder of the decision is affirmed.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 The parties have not provided this Board with a transcript of the formal hearings. However, the issue which we are addressing is the medical opinion of Dr. Browning, who did not appear at the formal hearings. We find that the transcript of the deposition of Dr. Browning, upon which the trial commissioner based his decision, together with the exhibits entered into the record, provides this Board with a sufficient record. Moreover, we note that in the briefs filed with this Board, the parties have not referenced a transcript of the formal hearings. BACK TO TEXT