Simmons v. Doran Manufacturing Co.

The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson, P.O. Box 278, 46 West Street, Litchfield, CT 06759-0278.

The employer and its insurer were represented Joseph Passaretti, Jr., Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the September 8, 1999 Finding and Award of the Commissioner acting for the Seventh District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Robin L. Wilson.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the September 8, 1999 Finding and Award of the trial commissioner acting for the Seventh District. In that decision the trial commissioner authorized surgery for the claimant’s compensable back injury. In support of their appeal, the respondents contend that the trial commissioner failed to provide a sufficient reason for not following the opinion of Dr. Mushaweh, who conducted an examination at the request of a trial commissioner.

In the instant case, the claimant sustained a compensable injury to his back while employed by the respondent employer. After conservative treatment was unsuccessful, the claimant’s treating physician, Dr. Mastroianni, recommended surgery (a partial heliaminectomy, discectomy and foraminotomy). At the request of the respondents, an independent medical examination of the claimant was performed by Dr. Belkin, who opined that the claimant was not a suitable surgical candidate. Pursuant to § 31-294f, a trial commissioner’s examination of the claimant was performed by Dr. Mushaweh, who found a disc protrusion at the L1-L2 level. Dr. Mushaweh confirmed that such a protrusion could produce the kind of pain that the claimant was feeling. Dr. Mushaweh testified in his deposition that whether the claimant was a surgical candidate was a “close call” and “a judgment call. It could go either way.” (Finding ¶ 10; see also Respondents’ Exh. 1 at p. 32). Despite this observation, his opinion was that the claimant was not a surgical candidate.

The trial commissioner considered the opinions of Dr. Mastroianni, Dr. Belkin, and Dr. Mushaweh, and authorized the surgery which was recommended by Dr. Mastroianni. The trial commissioner explained that Dr. Mastroianni “more than adequately articulated why his opinion that the Claimant is a surgical candidate should prevail.” (Finding ¶ A). The trial commissioner further explained that Dr. Mushaweh’s opinion was “not so certain that a contrary opinion could not be validly accepted.” (Finding ¶ B).

In support of their appeal, the respondents contend that the trial commissioner failed to provide a reasonable explanation for not following Dr. Mushaweh’s opinion regarding surgery. We disagree. In Zito v. Stop & Shop, 3929 CRB-3-98-11 (Feb. 17, 2000), we recognized that “the parties generally expect that an examination performed at the direction of a trial commissioner pursuant to § 31-294f will provide the trier with strong guidance.” Id., citing 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)(per curiam). In Iannotti, where the board affirmed a Finding and Award in which the trial commissioner chose not to follow the opinion of a commissioner’s examiner, the board explained as follows:

In the instant case, the trial commissioner adequately explained his reason for not following Dr. Mushaweh’s opinion. Moreover, the trial commissioner’s findings of fact indicate that he considered the medical opinions offered by Dr. Mastroianni, Dr. Belkin, and Dr. Mushaweh, and chose to accept the opinion of the claimant’s treating physician as the most reliable. As the record amply supports the factual findings and conclusions of the commissioner, we will not disturb them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Finally, we note that in their appeal the respondents contend that the information in Finding Number 15 includes “medical conclusions which [were] not represented by the facts of the case and there is no documentary or testimonial evidence from which one could have reasonably drawn these inferences.” (Respondents’ Brief at 7). We disagree, as the information contained in this finding is supported by the testimony of Dr. Mushaweh provided at his deposition at pages 18-24. (Respondents’ Exh. 1).

The trial commissioner’s decision is affirmed. If any of the benefits due the claimant remain unpaid, an award of interest is mandated by § 31-301c(b).