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Ferrara v. The Hospital of St. Raphael

CASE NO. 3260 CRB-3-96-2



NOVEMBER 14, 1997













The claimant was represented by John Keyes, Esq., Keyes & Looney, 201 Orange Street, New Haven, CT 06510.

The respondents were represented by Andrew A. Cohen, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Woodbridge, CT 06525.

These Petitions for Review from the February 9, 1996 Finding and Award of the Commissioner acting for the Third District were heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.


JESSE M. FRANKL, CHAIRMAN. The claimant and respondents have both petitioned for review from the February 9, 1996 Finding and Award of the Commissioner acting for the Third District. They each raise multiple claims of error on appeal. After reviewing their arguments, we affirm the trial commissioner’s decision.

The claimant, a registered nurse, sustained an injury to her low back on August 26, 1991, while lifting a patient at St. Raphael’s Hospital. The compensability of that injury was accepted by voluntary agreement. The issues at the formal hearing were two Forms 36 and two Forms 43 filed by the respondents. The claimant objected to the Forms 43 on the ground that her psychological condition was related to her accepted injury, and sought a finding that she had not reached maximum medical improvement and that she was currently entitled to temporary partial disability benefits. The trier found that the claimant was paid compensation continuously through July 8, 1994, when the respondents’ Forms 36 were initially denied and the claimant objected to the Forms 43.

The claimant’s non-surgical lower back injury occurred on August 26, 1991. Its severity was compounded by numerous prior low back injuries and groin pulls that the claimant had already suffered while performing her nursing duties. She remained out of work through the end of 1992, whereupon she was terminated from her employment at St. Raphael’s. At that time, the claimant became more stressed over the loss of her job, financial problems and marital difficulties. Medical personnel who reviewed the claimant’s case uniformly recognized her depression and recommended treatment, but communication between the respondent insurer and the claimant broke down, delaying her psychological rehabilitation. She continued to attend classes at Southern Connecticut State University, where she had enrolled in a master’s program in the spring of 1991. The commissioner found that she completed that program with a dean’s list average.

The commissioner found from the evidence that the claimant’s low back symptomalogy combined with her depression/pain syndrome to totally disable her through August 23, 1994. Her psychological depression was compensable, but resolved as of November 10, 1993. He ordered all but three of the doctors who treated the claimant to be paid in full by the insurer, and two others to be paid in part. He also found that she reached maximum medical improvement as of August 23, 1994, with 10% permanent partial disability of the low back. Finally, he awarded testimony fees to an osteopath who appeared at the formal hearing. Amidst the 120 pages of briefs filed by the two parties, virtually every one of these findings is being challenged on appeal.1

The main thrust of both parties’ appeals is that the medical expert testimony did not support certain findings and conclusions reached by the commissioner. We therefore begin by reminding the parties that the trial commissioner is entitled to weigh the credibility of all medical opinions, even uncontradicted ones, in reaching a decision. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). Encompassed within that authority is the discretion to accept part of an expert’s testimony while rejecting another part. Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). Once a finding has been made regarding the credibility of evidence, this board may not reevaluate that evidence and reach its own conclusions absent a clear abuse of discretion. Jusiewicz, supra. The findings must remain intact unless they are completely without supporting evidence in the record, or unless they omit undisputed and material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

We first address the findings that the claimant was totally disabled through August 23, 1994, and that she reached maximum medical improvement on that date. The commissioner relied on Dr. Luchini’s September 12, 1995 deposition in reaching those conclusions. Dr. Luchini performed an examination of the claimant at the request of the trial commissioner. He stated that he believed the claimant had reached maximum medical improvement as of August 1994 (Deposition, p. 12), that her back injury had prevented her from working as a nurse (p. 14), and that at the time he saw her on August 23, 1994, she was capable of light, sedentary work. He also stated that his diagnoses were given within a reasonable degree of medical probability. Id.

This testimony supplies reasonable support for the commissioner’s conclusions. The trier expressly rejected the reports of Dr. Sella and Dr. Seigel in denying the respondents’ Forms 36, as he was entitled to do. He was also not required to credit the opinions of Dr. Strayer and Dr. Kennedy over that of Dr. Luchini, whether or not the former were both treating physicians. Indeed, a commissioner’s examiner normally provides strong guidance to the trier of fact. See Iannotti v. Amphenol Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995)aff’d., 40 Conn. App. 918 (1996).

Next, we address the trier’s finding that the claimant’s psychological depression arose out of the original work injury but was resolved as of November 10, 1993. The claimant takes great exception to the commissioner’s reliance on Dr. Berv’s report in support of this finding. Indeed, both parties agree that the November 10, 1993 date has no support in the record, and that reliance on Dr. Berv’s report would require the use of a May 1993 resolution date. However, we are not convinced that there is any error here.

Dr. Berv testified that he saw the claimant three times at the respondents’ request. When he first talked to the claimant in October 1992, she mainly discussed her physical pain and the problems it was causing her. (Deposition, p. 12). He thought she had an adjustment disorder at the time, as opposed to a major depression, and that it was related to her pain complaints. Id., 15. When he next saw the claimant on September 27, 1993, she told him that she had seen a psychiatrist during the early part of the year, stopping in May 1993 due to lack of funds and denial of payment by the insurer. He thought that her mood had improved sufficiently by that time, and that she did not need more counseling. Id., 21.

At the second interview, the claimant no longer focused on her pain, and did not mention it at all until Dr. Berv asked her about it. Instead, she talked of her anger and frustration with her insurance carrier, with the hospital she had worked for, with the grievance process and with the workers’ compensation process. Id., 22. She focused on “the fact that her position had been terminated, she had gone through a lengthy grievance process . . . and that it was a waste of her time and that she felt betrayed.” Id., 63-64. Dr. Berv thought that she had developed major depression by the time of this visit, due to the loss of her job, the grievance and workers’ compensation processes, and personal troubles including a brother who had died. He distinguished the adjustment disorder caused by the original physical injury and its concomitant physical pain, stating that it had been successfully treated with psychotherapy, but that subsequent difficulties in coping with other issues were “by far, the major, major part” in causing a second, major depression. Id., 24-25, 66.

Despite the claimant’s arguments that Dr. Berv improperly ignored DSM-IV and relied on a misreading of the reports of Judy Kopman-Fried, a social worker, in making his diagnosis, we do not believe that his testimony was legally unreliable. Irrespective of what Kopman-Fried actually said, the claimant herself made statements to Dr. Berv that led him to conclude that she was more depressed over the actions of St. Raphael’s than the loss of her ability to nurse in general. Id., 63. Further, there is no requirement that a doctor rely on any textbook in making his diagnosis. Dr. Berv explained why he did not rely on any particular text. Id., 48-51. The commissioner was perfectly entitled to agree that this practice did not lessen the weight of his medical opinion.

As for the November 10, 1993 cutoff date for the claimant’s work-related depression, although Dr. Berv said that he thought she was better by May 1993, he did not actually see her until September 27. He then wrote a report on November 10, 1993 noting the result of that evaluation. The commissioner certainly acted with proper caution in not giving Dr. Berv’s opinion effect until at least the date he saw the claimant, and was not without reason in believing that the most certain diagnosis was one based on the date the doctor wrote his report, which he referred to in his testimony. Id., 65. We thus find no error in the commissioner’s reliance on Dr. Berv’s opinion.

Finally, we discuss one additional issue: the commissioner’s order that the respondents pay the testimonial fees of Dr. Strayer, an osteopath who treated the claimant beginning in February 1992. We have stated that “insofar as the appearance fee [for a doctor deposed by the claimant] is a fee for the presence of the doctor as a witness, § 31-298 C.G.S. authorizes the Commissioner to order the respondent to pay the fee for such testimony.” Fappiano v. Nutmeg Concrete Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 32, 539 CRD-8-86 (Sept. 29, 1988). Although such fees are clearly not mandatory under the statute, we believe that they are permissible. See Blassingame v. Acme Steel Company, 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (Oct. 8, 1996), aff’d, 45 Conn. App. 914 (1997) (per curiam); Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 164, 1310 CRD-5-91-9 (Aug. 23, 1993). As the respondents contested the extent of the claimant’s disability, which was the subject of Dr. Strayer’s testimony, we do not believe that a separate hearing was required before this order could be made. See Fappiano, supra.

The trial commissioner’s decision is affirmed on all grounds.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 The claimant raises error in the following components of the commissioner’s decision: (1) his alleged misuse of the “substantial factor” test in finding no causal relationship between the latter stages of the claimant’s psychological injury and her compensable injury; (2) the inconsistency between findings based on the testimony of Dr. Sella and findings based on testimony by Dr. Berv; (3) his failure to find that the respondents’ misconduct in failing to provide treatment caused her continuing depression, and his finding that her “ongoing turmoil” was due to an intervening cause rather than an additional consequence of the compensable injury; (4) his alleged failure to find that Dr. Kennedy was a treating physician, thus reducing the weight of her testimony; (5) his improper characterization of the claimant’s prior and current physical problems; (6) his reliance on Dr. Berv’s testimony, which the claimant argues is completely subjective, inconsistent, inadequate, and based on a misunderstanding of other doctors’ reports; and (7) his finding that the claimant had reached maximum medical improvement, and was not entitled to temporary partial disability benefits. Meanwhile, the respondents argue that certain paragraphs of their Motion to Correct were improperly denied, as the existing findings inaccurately reflect the doctors’ reports, e.g. regarding the date of maximum medical improvement and the date the claimant had resolved her psychological problems. They also argue that the commissioner improperly overlooked evidence that the claimant had a work capacity before August 1994, and improperly ordered them to pay Dr. Strayer’s $600 testimonial fee. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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