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CASE NO. 3526 CRB-05-97-02
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 1, 1998
ST. MARY’S HOSPITAL
CONNECTICUT HOSPITAL ASSOCIATION/WORKERS’ COMPENSATION TRUST
The claimant was represented by Shari A. Tottle, Esq., Moore, O’Brien & Jacques, 700 West Johnson Ave., Cheshire, CT 06410.
The respondents were represented by Suzanne Rathbun Fetter, Esq., Letizia & Ambrose, 1764 Litchfield Turnpike, Woodbridge, CT 06525.
The Petition for Review from the January 23, 1997 Findings and Award of the Commissioner acting for the Fifth District were heard October 17, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 23, 1997 Finding and Award of the trial commissioner acting for the Fifth District. In that decision the trial commissioner concluded that the claimant’s prior compensable injury was a substantial cause of her need for right knee surgery. The respondents argue on appeal that the trial commissioner erred by failing to credit the opinion of Dr. Fisher who examined the claimant pursuant to a § 31-294f order. We affirm the trial commissioner’s decision.
The trial commissioner found the following relevant facts. The claimant sustained a compensable injury to her right knee on October 6, 1987, which was the subject of an approved voluntary agreement. Prior to October 6, 1987, the claimant had no injuries and experienced no symptoms in her right knee. The claimant’s treating physician was Dr. Duffy, an orthopedic surgeon, who performed arthroscopic surgery on the claimant’s right knee on May 20, 1988. The claimant continued to experience progressive discomfort in her right knee, and treated with Dr. Duffy periodically. On October 31, 1995, the claimant again saw Dr. Duffy due to increased right knee pain. Dr. Duffy opined that the claimant suffered from post traumatic degenerative arthritis which was progressive in nature and which was related to the October 6, 1987 injury. Dr. Duffy recommended a total knee arthrosplasty.
At the request of a trial commissioner pursuant to § 31-294f C.G.S., the claimant was examined by Dr. Fisher on August 5, 1996. Dr. Fisher opined that the claimant had preexisting degenerative arthritis of the right knee and that since the October 6, 1987 injury the claimant had progressive degenerative changes. Dr. Fisher opined that the major reason for the claimant’s need for knee replacement surgery was the underlying arthritis rather than the October 6, 1987 injury. However, Dr. Fisher opined that the October 6, 1987 injury may have accelerated the need for the surgery.
In support of their appeal, the respondents contend that the trial commissioner failed to articulate his reasons for not following the opinion of Dr. Fisher. We disagree, as the trial commissioner satisfactorily set forth findings of fact which indicate that he considered Dr. Fisher’s opinion, but chose not to accept it. Section 31-294f C.G.S. allows a commissioner to direct an injured employee to undergo a medical examination. We have recognized that the parties generally expect that such an exam will provide the trier with strong guidance. Iannotti v. Amphenol/ Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995). “As the assessor of the weight to be accorded all medical evidence, however, the trial commissioner is not absolutely bound to credit any given report.” Nieves v. SCM Company, Case No. 3317 CRB-6-96-4 (July 9, 1997) (citing Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995)).
The board further explained in Nieves, supra, that we “will not encroach upon the fact-finding authority of a commissioner to decide which evidence is the most credible simply because the commissioner ordered one of the medical examinations.” Furthermore, “(a)lthough we have stressed that a commissioner should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner.” Id., citing Iannotti, supra.
In support of their appeal, the respondents cite Gillis v. Waterbury Construction, 15 Conn. Workers’ Comp. Rev. Op. 131, 2182 CRB-5-94-10 (Jan. 17, 1996). In Gillis, the board remanded the matter to the trial commissioner for articulation where the reports of all doctors, including a commissioner’s examiner, indicated that the claimant’s need for surgery was due to preexisting arthritis, but the trial commissioner found the surgery to be compensable without discussing the § 31-294f exam. The case at hand is distinguishable from that case, because here the trial commissioner made findings regarding the § 31-294f exam conducted by Dr. Fisher. The trial commissioner specifically found that Dr. Fisher opined that the October 6, 1987 injury may have accelerated the claimant’s need for knee replacement surgery, and that the October 6, 1987 injury may have been a minor factor in requiring the surgery. (Finding No. 26 and 27). Accordingly, the trial commissioner clearly considered Dr. Fisher’s opinion, and after considering all of the evidence presented, chose to conclude that the claimant’s compensable injury was a substantial cause of her need for surgery.
In the instant case, the claimant’s treating physician opined that the knee replacement surgery was caused by the compensable injury of October 6, 1987. The evidence presented during the formal hearings, including the medical evidence, provides sufficient evidentiary support for the commissioner’s findings and conclusions, and thus we may not disturb them on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Iannotti, supra; Webb, supra. As there is sufficient evidence in the record to support the trial commissioner’s findings in this case, we find no error here.
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.
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