Matteau Riley v. ARA Services/County School

The claimant was represented by Frank McIntosh, Esq., 402 Long Hill Road, Groton, CT 06340.

The respondents were represented by Jonathan Reik, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the January 18, 1995 Finding and Dismissal of the Commissioner acting for the Second District was reargued September 19, 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 claimant originally petitioned for review from the January 18, 1995 Finding and Dismissal of the Commissioner acting for the Second District. She argued in that appeal that the commissioner erroneously failed to authorize a proposed arthroscopy of her left knee. In Matteau Riley v. ARA Services/County School, 16 Conn. Workers’ Comp. Rev. Op. 112, 2280 CRB-2-95-1 (Nov. 25, 1996), we remanded this matter back to the trial commissioner for articulation concerning her apparent decision not to credit the report of a § 31-294f medical examiner. The trial commissioner issued a Supplemental Finding on January 21, 1997. The claimant did not file a separate petition for review from that decision, but requested a further hearing on his previous appeal in light of the commissioner’s articulation of her decision. That request was granted, and is the subject of this opinion.

As we discussed in our previous Matteau Riley decision, the claimant suffered a compensable injury to her left knee in 1978 when she fell at work. A 1983 voluntary agreement assigned her 22.5 percent permanent partial disability of that knee. The claimant has undergone several knee surgeries as a result of her injury. According to her two treating physicians, the claimant has advanced chondromalacia of the patella. One of these physicians, Dr. Richeimer, believes she should undergo arthroscopic surgery. At the request of a commissioner, the claimant was examined by Dr. Selden on May 9, 1994. Dr. Selden agreed that an arthroscopic surgical debridement of her left knee would be appropriate, and might partially relieve her discomfort.

The trial commissioner did not follow Dr. Selden’s recommendation in her findings. Instead, she adopted the position of Dr. Fisher, the respondents’ examiner, who last evaluated the claimant on November 8, 1993. In his opinion, the claimant had surprisingly good function of the knee, and did not need arthroscopic surgery. Dr. Fisher and Dr. Richeimer also disagreed on whether the claimant still retained part of her medial meniscus in her left knee despite earlier surgery. The commissioner noted that Dr. Fisher had later reviewed the reports of both Drs. Richeimer and Selden, and still disagreed with their recommendations that arthroscopic surgery be performed. Without further explanation, she ruled that the proposed arthroscopy was unreasonable “as the claimant lacks a left knee medial meniscus due to its prior surgical removal,” and denied the request for surgery.

After the claimant appealed that decision, and the case was remanded pursuant to language in Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), the commissioner issued a supplemental decision. There, she explained that Dr. Selden’s May 9, 1994 report following his sole visit with the claimant only stated that she would be moderately or temporarily helped by arthroscopic surgery. The commissioner also noted that Dr. Selden did not have information on the status of either meniscus, and did not have the opportunity to review the claimant’s numerous x-rays that were referred to in other medical reports. In contrast, Dr. Fisher examined the claimant five times, and had much more information at his disposal, including previous x-rays, and a chance to comment on Dr. Selden’s report. Dr. Fisher disagreed with the recommendation for an arthroscopic debridement of the claimant’s left knee, as she had no medial meniscus, and her condition could worsen after the procedure. The commissioner explained that she gave greater weight to Dr. Fisher’s opinion for these reasons.

It is axiomatic in workers’ compensation proceedings that a trial commissioner is empowered to choose among conflicting medical opinions in evaluating the weight of the evidence. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Prescott v. Echlin, Inc., 14 Conn. Workers’ Comp. Rev. Op. 191, 193-94, 2029 CRB-3-94-4 (July 13, 1995). Unless her factual findings lack any support in the evidence, this board will not disturb them on appeal. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Here, Dr. Fisher’s report provides an adequate foundation for the commissioner’s conclusion. The commissioner has now articulated her reasons for choosing his opinion over Dr. Selden’s opinion, and it was well within her discretion to make that choice. See Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997). The claimant offers no basis upon which we could legally disturb the trial commissioner’s decision. Therefore, we must affirm her ruling.