Schiaroli v. UTC/Pratt & Whitney

The claimant appeared pro se at oral argument, and represented himself throughout the instant proceedings.

The respondents were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the March 3, 1997 Finding and Award of the Commissioner acting for the Third District was heard June 27, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 3, 1997 Finding and Award of the Commissioner acting for the Third District. He argues on appeal that the commissioner’s factual findings and conclusions were legally incorrect. We affirm the trial commissioner’s decision.

The commissioner made numerous findings of fact in his Finding and Award. He found that the claimant first suffered a work-related injury to his lower back in 1984, which was accepted and resolved by stipulation. The claimant testified that he injured his back again on July 11, 1995, while working as a machinist for Pratt & Whitney. The respondents initially accepted liability for the incident, paying lost work time and medical expenses without prejudice. They had an approved workers’ compensation medical treatment network, of which the claimant was aware.

The claimant initially consulted with Dr. Matza, an orthopedic surgeon who is not an approved physician within the network, on July 13, 1995. Dr. Matza diagnosed him with a low back strain that had exacerbated his old injury, and recommended that he receive physical therapy and remain out of work. The claimant then saw Dr. Kelley, a network orthopedic surgeon, on July 31, 1995. Dr. Kelley diagnosed an exacerbation of prior lumbosacral sprains, and released him to light duty work with restrictions one week later. He also directed the claimant to begin a formal physical therapy program. The claimant visited Dr. Kelley again on August 21, 1995, and questioned the doctor’s opinion that he should return to light duty work before undergoing physical therapy. He also challenged Dr. Kelley’s request that he provide medical reports from Dr. Matza concerning prior treatment. Dr. Kelley ceased treating the claimant at that point.

The claimant next saw Dr. Cucka, another network orthopedic surgeon. His first visit was on August 25, 1995, when Dr. Cucka reported that the claimant had returned to work for four hours per day on or about August 21, 1995, but that his pain had increased significantly. He thought the claimant suffered from low back pain secondary to persistent lumbar myofascial strain, and recommended physical therapy with a light duty return to work date of September 5, 1995. The claimant did neither of those things due to increased pain; in fact, he went to Waterbury Hospital for treatment on September 6, 1995. Dr. Cucka performed an MRI, and as a result of that sought a myelogram and CT scan. Despite the claimant’s objections to Dr. Cucka’s treatment plan, those tests were conducted, revealing no significant pathology. The claimant indicated that his symptoms were improving during an October 6, 1995 visit to Dr. Cucka’s office, and he was released to light duty for the next week to ten days and to full work duty thereafter. After experiencing increased pain two days later, the claimant was re-released to work under the same conditions by Dr. Cucka on October 16, 1995.

After two more visits to the emergency room and a directive to remain out of work on December 21 and 22, 1995, the claimant saw Dr. Cucka again on January 15, 1997. The doctor diagnosed an exacerbation of a long-standing chronic and underlying lumbar pathology, and released the claimant to light duty on January 17, 1996, and full duty on January 22, 1996. The claimant went to the emergency room again on January 28, 1996, and was released to light duty work on January 31, 1996. He obtained disposition slips from Dr. Whalley and Dr. Lefkowitz that disabled him from February 17,1996, and was examined by Dr. Chiappetta on referral from Dr. Cucka on February 12, 1996. Dr. Chiappetta recommended physical therapy for the claimant’s low back strain and inflamed sciatic nerve, and referred him back to his treating physician.

Dr. Krompinger examined the claimant on March 8, 1996. In the opinion of that orthopedic surgeon, the claimant had suffered an exacerbation of his original 1985 work-related injury and was capable of light duty work. He also reported that the claimant and he engaged in a confrontational discussion when he recommended that the claimant receive no additional narcotic medication. The claimant went to the emergency room on April 2, 1996, and received pain medication as well as a certificate from Dr. Lefkowitz disabling him from work through April 7, 1996. Dr. Matza also issued a disposition slip totally disabling the claimant from April 26-29, 1996. On July 8, 1996, the claimant underwent an independent medical examination by Dr. Karnasiewicz, a neurosurgeon, who also thought that the claimant’s injury was an exacerbation of the 1985 back injury. He opined that the claimant was capable of resuming full duty at his regular job.

The trial commissioner concluded from these factual findings that the claimant had a long-standing back problem prior to July 11, 1985, when he experienced a new compensable injury. This injury exacerbated his prior back injury, and required periodic medical treatment and the claimant’s absence from work on several occasions. The trier accepted Dr. Cucka’s opinion that the claimant was able to return to his previous full-time employment on January 22, 1996, and stated that the claimant’s condition had by that date returned to the status which existed prior to the July 11, 1995 injury. He approved treatment by Drs. Kelley, Cucka, Chiappetta, Krompinger and Karnasiewicz, but declined to approve Drs. Whalley, Lefkowitz and Matza as authorized treating physicians. Thus, he ordered the respondents to pay benefits for any periods of time that the approved doctors determined that he was incapacitated from work between July 11, 1995 and January 22, 1996, as well as all related medical expenses. The claimant was responsible for any medical expenses resulting from treatment by unauthorized physicians, and was denied benefits for time periods in which they determined that he was disabled from work. The claimant has petitioned for review from that decision.

The claimant basically argues that he should have been awarded benefits for the time period after January 22, 1996, and takes issue with the commissioner’s finding that, as Dr. Cucka stated, he was able to return to work on that date. The claimant did not file a Motion to Correct the factual findings of the trial commissioner as required by Admin. Reg. § 31-301-4. Without such a motion, the Compensation Review Board is not permitted to investigate the accuracy of the factual findings. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996); Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 264, 1790 CRB-3-93-8 (April 18, 1995). The only question we may then answer is whether the commissioner correctly applied the law to the facts found. Seltenreich, supra, 136-37, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). There is no allegation that the law itself was misapplied in this case.

Even if the claimant had filed a Motion to Correct, there is little that this board could have done on appeal. It is the trial commissioner’s charge to listen to all of the witnesses and review all of the evidence, and make a decision as to which evidence is most persuasive. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Ettienne-Modeste v. Bloomfield, 13 Conn. Workers’ Comp. Rev. Op. 327, 328, 1789 CRB-1-93-9 (April 26, 1995). When an appeal is filed with this board, we do not reconsider all of the evidence that the trier of fact weighed in making his ruling. We simply review the record to see if there is any evidence to support the findings that the commissioner made. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). In other words, this board has no authority to change the weight given by the commissioner to any of the medical reports. Ettienne-Modeste, supra, 329.

In the record, specifically Respondents’ Exhibit 1, there is a medical report from Dr. Cucka dated January 15, 1996 stating that “a brief period of rest from work was prescribed and I have given [the claimant] a note releasing him back to work on a limited duty basis . . . until January 22, 1996, at which time he may resume full activities. . . . [I]t is my opinion that his current symptoms are related to his initial injury from last year and merely represent[] an exacerbation of a long standing chronic and underlying lumbar pathology.” The commissioner relied on this report in his decision. Dr. Karnasiewicz’s report of July 8, 1996 also states that the claimant’s “current symptoms and complaints are very similar to what was treated by Dr. Matza in 1992,” which is consistent with the commissioner’s finding that the claimant’s condition as of January 22, 1996 had returned to the status that existed prior to the July 11, 1995 injury.

We do not have the power to say that these reports were inaccurate, because that is an issue that only the trial commissioner can decide in a workers’ compensation case. Also, we cannot say that the commissioner should have given credit to the reports of other doctors that might have conflicted with the reports he relied on in his decision, or that he should have approved all of the doctors the claimant saw as authorized physicians under § 31-294d, including Dr. Matza, who was not a member of the respondents’ network of medical providers. There is evidentiary support for the decision that the trier made, and this board is legally required to uphold his decision. The Finding and Award of March 3, 1997 is thus affirmed.