Gillis v. Waterbury Construction et al.

The claimant was represented by Ross T. Lessack, Esq., Dodd, Ross, Lessack, Ranando & Dalton, P.C., 700 West Johnson Ave., Cheshire, CT 06410.

The respondent-appellants White Oak Corporation and Liberty Mutual Insurance were represented by 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 not represented at oral argument. Notice sent to John Quinn, Esq., Furniss & Quinn, 248 Hudson St., Hartford, CT 06106.

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

This Petition for Review from the April 18, 1996 Amended and Articulated Finding and Award of the Commissioner acting for the Fifth District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents White Oak Corporation and Liberty Mutual Insurance have petitioned for review from the April 18, 1996 Amended and Articulated Finding and Award of the Commissioner acting for the Fifth District. This is the second time that this matter has arisen before this board. Last January, we issued a decision that detailed the facts of this case and described several of the medical opinions that were offered into evidence. Gillis v. Waterbury Construction, 15 Conn. Workers’ Comp. Rev. Op. 131, 2182 CRB-5-94-10 (Jan. 17, 1996).

One of those opinions was by Dr. Fisher, who examined the claimant pursuant to the commissioner’s order under § 31-294f C.G.S. He felt that the November 6, 1986 right knee injury suffered by the claimant while working for the White Oak Corporation was “relatively trivial,” and that pre-existing arthritis was the cause of the claimant’s need for knee replacement surgery. The trier found otherwise, ruling that the 1986 injury exacerbated the claimant’s underlying arthritic condition and caused the need for surgery. Because the trier provided no explanation of his disregard of Dr. Fisher’s opinion in his Finding and Award, this board remanded the case to him for an articulation of those reasons. Id., 133-34; see also Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d. 40 Conn. App. 918 (1996) (per curiam).

On remand, the commissioner added one finding and three conclusions to his decision. The extra finding was that the claimant testified that his right knee was in a worse condition following the 1986 injury. One of the extra conclusions noted the controverted medical evidence in this case, the 1981 and 1986 dates of surgery, and the claimant’s testimony regarding his symptoms. Based on those factors, the trier concluded that, despite Dr. Fisher’s opinion, the claimant’s 1981 and 1986 injuries did in fact hasten the claimant’s need for knee surgery, thereby establishing the necessary medical and legal causal link between those injuries and the surgery. He went on to stress that these injuries were substantial factors in accelerating the degenerative condition, and without them, the claimant would not have needed a total knee replacement on May 17, 1991. Despite this explanation, the respondents have again appealed his decision.

The respondents argue that the commissioner’s articulation was inadequate not because there is insufficient medical evidence in the record to support his conclusions, but because Dr. Fisher’s opinion is still being ignored. More specifically, they contend that the commissioner twisted Dr. Fisher’s description of the 1986 injury as “relatively trivial” into an admission that said injury played an identifiable, though small, part in the claimant’s need for a knee replacement, and that the trier improperly used this as a basis for finding legal causation. They maintain that “if a commissioner’s examiner concluded that a work related incident is relatively trivial and did not significantly accelerate the condition, and absent evidence that the history or facts relied upon by the examiner for that medical conclusion is mistaken or that medical analysis regarding causation is patently erroneous, then the conclusion of the commissioner’s examiner must be followed.” (Brief, p. 23-24; emphasis added.)

In Iannotti, supra, this board recognized that the parties usually expect a § 31-294f medical examination to provide the trier with strong guidance. “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.” Id., 321. We previously remanded the case at bar to the trier for articulation because he made no attempt to explain why he was ignoring the opinion of the commissioner’s examiner. This does not mean, however, that the commissioner was bound to rely on that opinion unless he could prove it false.

Adopting the respondents’ proposition would shift the fact-finding role from the trial commissioner to the independent medical examiner whenever § 31-294f was invoked in a case. That would be improper, as the Workers’ Compensation Act still places the duty of finding facts on the commissioner. We recently stated in Nieves v. SCM Company, 3317 CRB-6-96-4 (decided July 9, 1997), that “this board will not encroach upon the fact-finding authority of a commissioner . . . simply because he ordered one of the medical examinations. Although we have stressed that a commissioner should articulate the reasons behind his decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always his. . . . We disagree with the respondents’ insinuation that an independent medical examiner’s opinion automatically reaches the apex of credibility simply because the commissioner chose him to see the claimant.”

Here, the commissioner explained that he thought the claimant’s 1986 injury was significant enough to play a legally recognizable causal role in his need for a total knee replacement. He cited Han v. Amgraph Packaging, Inc., 14 Conn. Workers’ Comp. Rev. Op. 369, 2074 CRB-2-94-6 (Sept. 26, 1995), and Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991), as authority for his position. In Han, we upheld a trier’s finding that a claimant’s hip injury was aggravated when he bent over to tie strapping on a pallet, even though that action might seem minor. “The commissioner was legally entitled to reach the conclusion that the bending incident proximately caused the claimant’s disability, as there is medical evidence to support that finding.” Id., 371. In Charette, we noted that “the last event in the chain of causation even if it is only an aggravation of a pre-existing condition, may be the legal cause.” Id., 3. Those principles apply in all workers’ compensation cases, including ones where there has been a § 31-294f examination. This board will not detract from a commissioner’s authority to find the facts of a case. Han, supra, 370-71.