Faroni v. Country Club of Waterbury

The claimant was represented by George E. Mendillo, Esq., 190 Carmel Hill Road, Woodbury, CT 06798.

The respondent employer and Liberty Mutual Insurance Group were represented by Richard D. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the January 11, 2000 Finding and Award of the Commissioner acting for the Fifth District was heard August 25, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and George A. Waldron.

OPINION

ROBIN L. WILSON, COMMISSIONER. The claimant has petitioned for review from the January 11, 2000 Finding and Award of the Commissioner acting for the Fifth District. He contends on appeal that the trier erred by adopting a permanent partial impairment rating that is unsupported by the diagnostic guidelines that were ostensibly relied upon by the doctor who issued the permanency rating. We disagree with this assertion of error, and affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his lower left leg in an October 12, 1996 golf cart accident. He has since undergone artery repair, the fixation of an external support for a fractured tibia and fibula, a fasciectomy, a skin graft, and surgery on all of the toes on his left foot. His treating physician, Dr. Olson, discharged him on October 27, 1998, with a work capability limited by a twenty pound lifting restriction. He observed that the claimant had a mild varus thrust in his left knee with 20% atrophy of the left quadriceps, a banging sensation in that knee, a Grade II laxity of the posterior cruciate ligament, a decreased range of motion in the left ankle, a surgically fused phalanx in his big toe, clawing in the other toes, and decreased foot sensation. In Dr. Olson’s opinion, this left the claimant with a 22% foot impairment, a 20% lower extremity impairment due to dysesthesia, and a 40% knee disability. Combined, these result in a 60% permanent partial disability of the left lower extremity.

At the request of a workers’ compensation commissioner, the claimant was evaluated on April 1, 1999 by Dr. Ferraro, an orthopedic surgeon. He noted that the claimant complained of pain, a grinding sensation, and locking and buckling in his knee, difficulty ascending and descending stairs, difficulty in driving, paresthesia in the left leg, stiffness in the left ankle (but with a good range of motion), tingling in the left foot, pain and clawing in his toes, and distress walking more than one-half mile. He opined that, pursuant to American Medical Association guidelines, the claimant suffered from a 40% permanent impairment of the left lower extremity. The trier accepted the permanency rating of Dr. Ferraro over that of Dr. Olson, and accordingly awarded the claimant 62 weeks of permanent partial disability benefits.1 The claimant has appealed that decision to this board, along with the denial of his Motion to Correct.

We begin by reminding the parties of the appropriate standard of review when factual findings are challenged in a workers’ compensation appeal. As the trier of fact, the commissioner is solely responsible for the arbitration of all issues that concern the weight and credibility of the evidence. Tartaglino v. State of Connecticut/Department of Corrections, 55 Conn. App. 190, 195 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This gives him the discretion to accept or reject, in whole or in part, the testimony of an expert witness, even if such evidence seems uncontradicted. Id. As long as the substance of a doctor’s opinion is stated within a reasonable degree of medical probability, it provides a competent basis for the trier’s findings. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Costa v. Torrington Company, 4097 CRB-5-99-8 (July 28, 2000). Upon review of such findings, this board may not reassess the credibility of the evidence or otherwise retry the facts of the case. Pallotto, supra. Instead, we are empowered to disturb the trier’s factual findings only if they are without support in the evidence or if they omit admitted or undisputed material facts. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Similarly, we may not disturb a commissioner’s legal conclusions unless they are the product of an incorrect application of the law to the facts, or of an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant contends on appeal that Dr. Ferraro’s 40% permanent partial impairment rating was in essence arbitrary because the doctor claimed to base it on the Fourth Edition of the American Medical Association’s Guide to Permanent Impairment (“Guide 4th”), but the rating itself does not correspond to the doctor’s clinical findings. As a means of establishing this claim, the claimant seeks to have us compare the permanency rating given by Dr. Ferraro to the 60% rating given by Dr. Olson, who also relied upon the Guide 4th in his diagnosis, and allegedly relied upon undisputed physical findings in doing so. Such a comparison might be interesting or even informative, but it would not have a tremendous impact on our review of this claim. Under the law, the question we need to address is not, “Was Dr. Ferraro’s medical opinion less thorough than Dr. Olson’s opinion?” No matter how cogent Dr. Olson’s diagnosis might seem, the trier was not required to rely upon any part of it. Tartaglino, supra. Rather, the question pending on appeal is, “Standing alone, was the substance of Dr. Ferraro’s permanency rating given within a reasonable degree of medical probability?” We believe that question must be answered in the affirmative.

In his Motion to Correct, the claimant sought to add findings further detailing the claimant’s symptoms as found by Dr. Ferraro, including audible crepitus (clicking), medial lateral instability, a left knee varus deformity, further dysesthesia and paresthesia, and bony ridging of the femur and tibial condyles. The trier permissibly declined to add these additional findings to the doctor’s diagnosis, as they were not likely to be material to the outcome of the case. Pallotto, supra. The claimant further sought to amend the award by adding a paragraph stating that Dr. Ferraro had cited the Guides 4th, but had not provided an explanation as to how he applied the claimant’s physical findings to those guidelines, thus rendering his permanent partial disability rating conclusory and insufficiently supported by the evidence. That correction was also rejected by the trier.

Dr. Ferraro’s report is seven pages long, and it recounts numerous impressions that the doctor drew from his physical examination of the claimant. Along with the symptoms listed above (which the doctor categorized as “complaints” rather than direct observations), the doctor mentioned that the claimant walked with a “minuscule drop foot limp,” that he had good flexion, rotation, adduction and extension in the hip, and that he was only able to get within 28” of his left heel (with knee pain) when he attempted to squat buttock to heel. After reviewing the claimant’s x-rays, which showed good healing and alignment of his tibial fracture, along with degenerative changes in the knee, he opined that the patient had responded well to orthopedic and vascular care. He did not believe the claimant to be in need of any further medical or surgical treatment at the moment, other than a stabilizing leg brace, but thought medical or surgical care would likely be necessary in the future. He concluded by stating, “All that having been said, it would be my best medical opinion that this claimant has reached maximum medical improvement and utilizing the guidelines to the Evaluation of Permanent Impairment, American Medical Association, 4th Edition, 1993, has eventuated in a 40% impairment of the left lower extremity.”

There is nothing facially insufficient about this medical opinion, which lists many relevant indicators of disability, and evinces no uncertainty or confusion on the doctor’s part. If the claimant wished to impeach its credibility, it was incumbent on him to offer evidence designed to illustrate the weaknesses of this diagnosis. Yet, the claimant did not depose Dr. Ferraro for cross-examination regarding the contents of his report.2 Clearly, the parties had to suspect that the § 31-294f exam was likely to be given some weight by the trier, as it was ordered specifically to shed light on a dispute over the correct permanent partial impairment rating. See, e.g., Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997) (parties usually expect that commissioner’s examination will provide trier with strong guidance, though trier is not bound to rely on it). Without directly challenging Dr. Ferraro’s findings at trial, the claimant leaves us with little basis to declare his opinion unsubstantiated on appeal.

The trier essentially took administrative notice of the Guide 4th at the formal hearing. Transcript, p. 10. However, this board would be hard-pressed to find a legally cognizable discrepancy between Dr. Ferrarro’s diagnosis and the numbers set forth in the AMA guidelines. There are several different tables to consider, and some discretion is necessarily used by a doctor in applying such guidelines, particularly when there are injuries to several different and separately scheduled body parts such as the leg, foot and toes. See § 31-308(b). As a review board whose duty it is to ensure that the law was correctly applied below rather than to reassess the credibility of medical evidence, we are in no position to sift through the permanency rating tables and perform mathematical calculations of disability in an effort to gauge the reasonableness of one doctor’s opinion. Such a matter is best left to the expertise of a qualified medical professional, and by extension, to the trier of fact.

Therefore, the trial commissioner’s decision is affirmed.

Commissioners Leonard S. Paoletta and George A. Waldron concur.

1 We observe on appeal that Dr. Ferraro’s report is not marked as a full exhibit, nor is it marked for identification. In past cases, we have held that it is improper for a commissioner to rely on a document that has not been properly offered into evidence and marked as an exhibit. Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7 (Nov. 2, 1999); Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 343, 1542 CRB-1-92-10 (July 11, 1994), aff’d., 40 Conn. App. 36 (1996). However, where there are substantial extenuating circumstances supporting the authenticity and admissibility of the items in question, we have waived the requirement that said items be formally introduced into evidence. Minneman v. Norwich Board of Education/Norwich Public Schools, 2294 CRB-2-95-2 (Dec. 13, 1996), aff’d., 47 Conn. App. 913 (1997) (per curiam). Here, there are many such circumstances. Dr. Ferraro’s examination was specifically ordered by a commissioner pursuant to § 31-294f, and was received by the Fifth District office on April 7, 1999. Neither party objected to the examination, and a reading of the December 8, 1999 formal hearing transcript suggests that both parties’ counsel assumed that the report would be part of the official record. In fact, the claimant asked Dr. Olson to address the contents of Dr. Ferraro’s report in a letter dated April 14, 1999. Both that letter and Dr. Olson’s response were marked as full exhibits (Claimant’s Exhibit B). Finally, neither party objected to this report’s lack of “full exhibit” status on appeal. In light of all these factors, we will treat Dr. Ferraro’s report as a full exhibit in this case. BACK TO TEXT

2 The claimant maintained at oral argument that he did not depose Dr. Ferraro because he was afraid that he would have been forced to bear the cost of Dr. Ferraro’s fee should the doctor prove able to sufficiently articulate a sound medical basis for his opinion. Section 31-298 allows a claimant who prevails in a dispute over extent of disability to recoup payment for “oral testimony or deposition testimony rendered on his behalf by a competent physician.” Section 31-312(b) also allows a claimant who prevails on final judgment after a formal hearing contesting extent of disability to recover payment for services rendered him “by a competent physician or surgeon for examination, x-ray, medical tests and testimony in connection with the claim, the commissioner to determine the reasonableness of such charges . . . .” Because the issue of payment for Dr. Ferraro’s hypothetical testimony is not before us, we cannot make a ruling on that point. We would not categorically rule out the inclusion of such testimony in either § 31-298 or § 31-312, however, based on the language of those statutes. BACK TO TEXT