Keenan v. Union Camp Corporation

The claimant was represented by Guy DePaul, Esq., Jones, Damia, Kaufman, Wellman, Borofsky & Stelljes, 29 Sugar Hollow Road, P. O. Box 2929, Danbury, CT 06813-2929.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430-0550.

This Petition for Review from the October 25, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard September 20, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the October 25, 1995 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner erred by finding a causal relationship between the claimant’s initial work-related injury and a subsequent traumatic brain injury that occurred after he fell down a flight of stairs. We reverse the trial commissioner’s decision.

The claimant suffered a compensable injury to his groin and lower back on September 20, 1993, when he fell while walking over a conveyor belt. This injury was accepted by voluntary agreement. The commissioner found that there was no evidence of any problem with the claimant’s legs prior to that injury, as he had been very active physically. In November 1993, he indicated to his treating physician, Dr. Craig, that he had been falling down because his legs kept giving out. On December 21, 1993, he was standing atop a stairway when his leg gave out and he fell down the stairs. During the fall, he hit his head, suffering a traumatic brain injury. The commissioner cited testimony in which Dr. Craig was asked if the December 1993 fall was secondary to leg weakness from the claimant’s fall at work, and answered “yes.” The doctor also agreed that his opinion was based upon a reasonable degree of medical probability. The commissioner found that the fall down the stairs was linked to the compensable injury, and awarded the claimant benefits for the traumatic brain injury. The respondents have appealed that decision and the denial of their Motion to Correct.

In a workers’ compensation case, the claimant has the burden of proving that he has suffered a compensable injury, and that this injury at least significantly contributed to any alleged disability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 41-42 (1996); Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (decided Dec. 13, 1996). In a case such as the one at bar, proof of such a relationship is contingent upon expert medical testimony. Murchison, supra, 152. In order for a doctor’s opinion to qualify as competent evidence to meet that burden of proof, it must establish a causal relationship between the compensable injury and the subsequent disability within a reasonable degree of medical probability. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Rogers v. Laidlaw Transit, Inc., 2154 CRB-3-94-9 (June 24, 1996). As long as at least one opinion meets that standard, the trial commissioner is entitled to rely on it, for he or she is the arbiter of evidentiary credibility. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). This board would not be able to disturb such a finding on review. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995).

The claimant alleges in his brief that the opinions of Dr. Craig and Dr. Culligan support the commissioner’s conclusion. Both Drs. Craig and Culligan stated in reports that the claimant’s fall down the stairs was “secondary to leg weakness from a fall at work in September of 1993.” (Claimant’s Exhibits A and B.) In fact, Dr. Culligan went so far as to state that the claimant’s fall down the stairs was a result of his injury at work, which caused back pain, leg weakness and imbalance. (Claimant’s Exhibits C and D). However, the trier did not cite any of Dr. Culligan’s reports in her findings, and we cannot rely on those reports as a basis for her award. Instead, she relied on the testimony of Dr. Craig, which the respondents sought to elaborate on in their Motion to Correct.

A review of Dr. Craig’s testimony (see Respondents’ Exhibit 1) reveals that the claimant first saw him about one month after the injury at Union Camp, reporting groin pain and pain radiating from his low back into his mid and upper back. The claimant complained in two subsequent visits that his knees were occasionally giving out, particularly his left leg. The doctor could find no neurological basis for his leg giving out after reviewing a bone scan and a later MRI. It was his opinion that the mild disk bulges shown by the MRI did not cause this phenomenon. However, based on the history that the claimant provided him, the doctor still felt comfortable stating that the claimant’s left leg weakness was related to his fall at Union Camp. “I could find no underlying physical spinal related cause of any leg weakness, and I was not able to document any leg weakness by examination, but we rely on the claimant’s history as being a very significant part of what’s going on with them.” Id., 16. He specifically stated that his opinion was based on a reasonable degree of medical probability. Id., 18.

The ultimate issue in this appeal is whether the entire substance of Dr. Craig’s testimony supports the commissioner’s conclusion. This case is comparable to Rogers, supra, where a claimant with pre-existing arthritis in her knees had torn two knee ligaments in a compensable injury, and had subsequently had her left knee replaced. Although a doctor stated that her compensable injury had substantially increased the severity of the disability that her arthritis was causing in her knee, this board reversed the commissioner’s decision to award compensation for the knee replacement. We held that there was “a significant leap between the existence of a meniscal tear and the need for a knee replacement,” and that the doctor’s reports did not make that leap successfully.

There is a similar unexplained element in this case that detracts from the weight of the doctor’s opinion. Dr. Craig could not find any physical evidence to link the claimant’s back injury with his fall down the stairs, and noted this throughout his testimony. Instead, he relied on the history provided to him by the claimant in making his ultimate diagnosis. We recognize that no other explanation has been provided for the claimant’s complaints that his knees were giving out, and it is not impermissible for a doctor to take into account a claimant’s descriptions of his own pain or his own medical history in making a diagnosis, especially where there is no contradictory information. Colello v. Dresser Industries, Inc., 13 Conn. Workers’ Comp. Rev. Op. 14, 15, 1691 CRB-4-93-4 (Nov. 3, 1994). However, in order to establish causation within a reasonable degree of medical probability, it is not enough that a doctor utters those “magic words”: the entire substance of his expert testimony must reflect that a causal connection is reasonably probable. Struckman, supra, 555.

Here, Dr. Craig’s testimony falls short of meeting that standard. He offers no medical explanation of how the claimant’s September 1993 compensable injury is related to his December 1993 accident. Without some finding of physical symptoms linking those two occurrences, or even a theory as to why they are intertwined, the doctor’s opinion cannot be deemed legally sufficient to establish causation within a reasonable degree of medical probability. Any diagnosis made under those circumstances would be sheer guesswork by the expert witness, and could not support an award.