Gillis v. Waterbury Construction et al.

CASE NO. 2182 CRB-5-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 17, 1996

RICHARD GILLIS

CLAIMANT-APPELLEE

v.

WATERBURY CONSTRUCTION

EMPLOYER

and

NORTHBROOK INSURANCE

INSURER

RESPONDENTS-APPELLEES

and

WHITE OAK CORPORATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

YONKERS & D’ADDARIO

EMPLOYER

and

MICHIGAN MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ross T. Lessack, Esq., Law Offices of Edward T. Dodd, Jr., 700 West Johnson Ave., Cheshire, CT 06410.

The respondents White Oak Corp. and Liberty Mutual Ins. were represented by Kevin Maher, Esq., and Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

The respondents Waterbury Construction and Northbrook Insurance were represented by John Quinn, Esq., Furniss & Quinn, 248 Hudson St., Hartford, CT 06106.

The respondents Yonkers D’Addario and Michigan Mutual Insurance were represented by James Hughes, Esq., McNamara & Kenney, Brewster Station, P. O. Box 8187, Bridgeport, CT 06605, who did not appear at oral argument.

This Petition for Review from the October 4, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard June 9, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents White Oak Corporation and its insurer Liberty Mutual (hereinafter “respondents”) have petitioned for review from the October 4, 1994 Finding and Award of the Commissioner for the Fifth District. In that decision, the commissioner concluded that the claimant sustained a compensable injury on November 6, 1986 while he was working for White Oak Corporation. The respondents contend that the record does not support the commissioner’s conclusion that the November 6, 1986 injury increased the claimant’s permanent partial disability, caused the need for surgery in January of 1987, or caused any further need for surgery. Specifically, the respondents object to the commissioner’s failure to accept the medical opinion of Dr. Fisher, who examined the claimant pursuant to a commissioner’s ordered exam.

The trial commissioner found that the claimant suffered three injuries to his right knee as follows: (1) on July 7, 1981 while employed by Yonkers & D’Addario the claimant injured his right knee, which resulted in a seven and one-half percent permanent partial disability as evidenced by an approved voluntary agreement; (2) on November 6, 1986 while employed by White Oak Corporation the claimant the claimant injured his right knee when his leg slipped through a ladder; and (3) on April 20, 1992 while employed by Waterbury Construction Company the claimant fractured his right knee cap, as evidenced by an approved voluntary agreement.

Following the first injury of July 7, 1981, the claimant underwent surgery by Dr. Taylor, who explained to the claimant that his injury was superimposed on a badly degenerated right knee. On April 20, 1982, Dr. Sumner examined the claimant, and opined that the claimant had a degenerated knee which would continue to get worse. Following the claimant’s November 6, 1986 injury, Dr. Taylor again performed surgery on the claimant’s right knee. Dr. Taylor opined that the 1981 injury aggravated the claimant’s underlying preexisting arthritic condition, that the claimant’s knee had continued to deteriorate, and that “his 1987 symptoms and the 1987 surgery are the result of the pre-existing arthritis....” (Finding No. 21).

The trial commissioner ordered a medical examination by Dr. Fisher pursuant to § 31-294f. Dr. Fisher, in response to a specific question posed by the trial commissioner, opined that the claimant’s degenerative arthritis had progressed as expected over the past twelve years and that “the 1986 incident was relatively trivial.” (Finding No. 41). In addition, Dr. Fisher indicated that the claimant’s injuries did not accelerate by any significant period of time the need for the total knee replacement surgery, and that the total knee replacement would have been needed even in the absence of the three injuries. Despite the opinion of Dr. Fisher, the trial commissioner concluded that the November 6, 1986 injury exacerbated his underlying arthritic condition and necessitated the need for the surgery.

Section 31-294f C.G.S. provides that a commissioner may request a medical exam. This board has stated:

(W)hen a commissioner orders a medical examination, there is usually an expectation among the parties that said examination will provide strong guidance to the commissioner. Where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report..... we want to stress the importance of a commissioner-ordered medical examination and the need for a commissioner to explain his or her reasoning in not crediting the examiner’s report.

Iannotti v. Amphenol/Spectra-Strip, Case No. 1829 CRB-3-93-9 (April 25, 1995).

In the instant case, we are unable to determine the reason for the trial commissioner’s disregard of Dr. Fisher’s opinion which was made pursuant to the § 31-294f examination.

Accordingly, this matter is remanded for the trial commissioner to issue an articulation as set forth above.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.