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Kisson v. Shawmut National Bank

CASE NO. 4188 CRB-5-00-2



MARCH 16, 2001















The claimant was represented by Edward T. Dodd, Jr., Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent employer and its insurer Travelers were represented by Matthias DeAngelo, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P. O. Box 2138, Hartford, CT 06145-2138.

The respondent employer and its insurer Cambridge Integrated Services were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the January 31, 2000 Finding and Award of the Commissioner acting for the Fifth District was heard October 27, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and Ernie R. Walker.


ROBIN L. WILSON, COMMISSIONER. The respondent employer, Shawmut National Bank, and its insurer Travelers have petitioned for review from the January 31, 2000 Finding and Award of the Commissioner acting for the Fifth District. They contend on appeal that the trier erred by finding that the claimant’s elbow problems were solely attributable to a 1995 injury she suffered at Shawmut. They have also moved to submit additional evidence to this board in support of their appeal. We deny the Motion to Submit Additional Evidence, but remand this case to the trial commissioner for further articulation of his decision.

The trier found the following relevant facts. Shawmut National Bank hired the claimant in 1982 as a bank teller, and she has maintained this job ever since. On May 1, 1995, she sustained a compensable repetitive trauma injury to her right master hand, for which she was treated by Dr. Gross. The claimant testified that she first developed these problems in 1995, experiencing symptoms in her right hand, wrist and elbow, and feeling an ache throughout her entire arm. She underwent right carpal tunnel surgery early in 1996, and surgery on her middle finger later that same year. The claimant stated that her carpal tunnel symptoms disappeared following the first surgery, but that she continued to feel pain in her right arm, especially the elbow. Her right hand reached maximum medical improvement on February 1, 1996 with a 3% permanent partial disability, and her finger reached maximum improvement on July 10, 1996 with a 4% permanency. Meanwhile, Shawmut was absorbed by Fleet Bank in approximately December 1995, whereupon a self-insurance administrator (currently Cambridge Integrated Services Group, Inc.) replaced the respondent insurer Travelers as the manager of the workers’ compensation risk for the claimant’s workplace. See January 28, 2000 Transcript, p. 33.

On January 14, 1998, the claimant returned to Dr. Gross with a two to three month history of aching pain in her right elbow. He diagnosed her with a progressing inflammation tendon condition of both upper extremities secondary to her daily work duties, and opined that her epicondylitis was a localized manifestation of a tendonitis condition related to her original injury. Findings, ¶ 15-16. He later opined that her stenosing tenosynovitis and possible radial tunnel syndrome were related to her fourteen-year history as a bank teller prior to her injury of May 1, 1995. Id., ¶ 19. After several months of conservative therapy between May and July 1998, the claimant decided not to have surgery. However, her work load increased a year later, as did her right arm pain. She returned to Dr. Gross on August 4, 1999, who removed her from work a few weeks later, and performed right elbow surgery on November 12, 1999. A Travelers’ claim representative sent an inquiry to Dr. Gross a few days afterward, and the doctor opined that the claimant’s job duties, including her recent work, had aggravated her right elbow to the extent that she had decided to undergo elective surgery. Id., ¶ 30-31.

The trier concluded that the claimant’s work as a bank teller through May 1, 1995 had caused her right lateral epicondylitis, and had placed her at risk to develop increased symptoms by continuing to perform that same job. He stated, “Prior to the Claimant’s November 23, 1999 surgery her work aggravated her right lateral epicondylitis producing symptoms, as opposed to a new injury, bringing the Claimant to the point where she decided not to live with these symptoms and elected surgery.” Id., ¶ G. He reasoned that the claimant did not sustain a new specific or repetitive injury between July 1998 and August 4, 1999, but rather suffered an aggravation of her earlier symptoms. Thus, he held that the claimant’s November 12, 1999 surgery was to correct a condition that had been caused by her work as a bank teller through May 1, 1995, and ordered that Shawmut and Travelers accept full responsibility for the surgery and all resulting indemnity benefits.1 That ruling is the subject of the present appeal.

We begin by addressing the appellants’ Motion to Submit Additional Evidence. Pursuant to Admin. Reg. § 31-301-9, “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review [board], indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner.” The appellants seek to submit as additional evidence medical records that Dr. Gross prepared in 1995, which purportedly establish that the claimant was not then diagnosed with stenosing tenosynovitis in her elbow, contrary to the trier’s findings. They explain that these records are material, and “were not in the Respondent-Insurer’s file at the time of the January 28, 2000 formal hearing, nor were they produced by the Claimant.” At oral argument they added that they did not have enough time to obtain these records prior to trial.

The primary detail that supports the appellants’ contention is the fact that the January 28, 2000 formal hearing was an emergency hearing, for which this Commission issued notice only two days earlier. Had they been unaware of the pending issue prior to that date, it would be reasonable to suggest that they could not have obtained 1995 records from Dr. Gross in such a short time, even if such records were extant and discoverable. However, representatives of Travelers had been in contact with Dr. Gross since 1998 attempting to obtain his opinion regarding apportionment of the claimant’s elbow condition. Both Travelers and Cambridge filed Forms 43 contesting liability to pay compensation for the claimant’s hand/arm injury during September 1999. An informal hearing was then held in this matter on November 2, 1999, for which a May 1, 1995 date of injury was listed, with the following special instructions included in the hearing notice: “Old injury vs. new injury. Both carriers must attend hearing.”

Via a letter dated November 17, 1999, Travelers proceeded to inquire of Dr. Gross regarding the effect of the claimant’s recent workload on her elbow problems, noting that it was aware that the claimant “has had these troubles since the original work injury of 5/1/95 due to cumulative trauma.” Claimant’s Exhibit A. After receiving the doctor’s response (discussed above), Travelers filed a Form 36 on December 20, 1999, stating that “the attached medical letter from Dr. Stewart Gross . . . indicates that the employee’s current work is the cause of the current surgery of 11/12/99. . . . [T]herefore, the claim should be administered by the current employer.” Following an informal hearing on January 20, 2000, at which point Travelers declared that it would not split payment of the claimant’s surgery pursuant to the trier’s recommendation (see n.1, infra), the commissioner decided that he would schedule an emergency formal hearing, as the claimant would not otherwise receive the benefits due her.

Given that Travelers’ introduced no evidence at the formal hearing predating January 1998, it would appear that the insurer felt comfortable that it could prevail by relying mainly on the November 23, 1999 report of Dr. Gross, which is also part of Claimant’s Exhibit A. The transcript reveals no request to continue the proceedings for the introduction of further evidence, or any attempt to broach the subject of obtaining Dr. Gross’ earlier medical records. When the trier chose to interpret the totality of Dr. Gross’ recent reports differently than Travelers had expected, they reacted by attempting to introduce further evidence after a decision had been rendered. We do not believe that these circumstances suggest that there was a “good reason” within the meaning of Admin. Reg. § 31-301-9 for failing to introduce Dr. Gross’ 1995 medical reports at trial, as such evidence could easily have been obtained much earlier had Travelers anticipated its necessity. Osowiecki v. O&G Industries, 3993 CRB-5-99-3 (April 13, 2000); Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999). Indeed, we are unsure that the appellants would have tried the case any differently had the formal hearing been scheduled for two months after the January 20, 2000 informal, instead of two days. Therefore, we deny their Motion to Submit Additional Evidence.

The merits of the appellants’ argument consist of an attack on the evidentiary foundation supporting the trier’s finding that the claimant injured her elbow in 1995, and his legal conclusion that Fleet Bank was not liable for any portion of the instant claim. Whenever this board is asked to review a trial commissioner’s decision to rely upon the testimony of a witness, we must apply a very deferential standard in performing our inspection, because the “quintessence of a trier’s factfinding prerogative is the power to determine the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses.” Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000), citing Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). A doctor must declare his opinion within a reasonable degree of medical probability if it is to serve as the foundation for a commissioner’s findings, though no particular “magic words” need be uttered in his diagnosis. Struckman v. Burns, 205 Conn. 542, 555-56 (1987); Goldberg, supra. This board may disturb the trier’s factual findings only if they lack any support in the evidence, or if they omit undisputed material facts. Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). We may not retry a case on appeal and substitute our own findings for those of the trier. Tartaglino v. Department of Correction, 55 Conn. App. 190, 196 (1999); Vanstraten v. Hartford Courant, 3999 CRB-8-99-3 (March 23, 2000).

First, we do not believe that the evidence fails to support the notion that the claimant’s elbow injury was traceable to her May 1, 1995 claim. She testified that her whole arm ached, including her elbows, while she was suffering from carpal tunnel in 1995, and that her arms “always bothered [her],” particularly her right elbow. Transcript, pp. 12-15. She also said that her trigger finger symptoms “didn’t affect [her] elbow that much,” implying that the elbow was a lingering source of discomfort during 1996. Id., p. 28. This testimony tends to corroborate Dr. Gross’ medical opinion, which firmly attributes the claimant’s stenosing tenosynovitis and her possible radial tunnel syndrome to her “entire 14-year history as a bank teller.” See May 5, 1998 letter (Claimant’s Exhibit A). He described a “progressing inflammatory tendon condition of both upper extremities” with “localized forms of tendonitis in the elbow” in January 1998. Respondents’ Exhibit 1. The trial commissioner accepted this evidence as persuasive, and it would not be our place to second-guess his decision on appeal. Tartaglino, supra.

However, we agree with the appellants’ assertion that the evidence and factual findings may require that some liability for the claimant’s injury be allocated to the respondent employer Fleet Bank. According to Dr. Gross, the claimant had been contemplating surgery on her elbow since 1998 in order to relieve her ongoing pain, but had hesitated because she was reluctant to undergo further surgery if she could possibly tolerate the discomfort. Claimant’s Exhibit A. The claimant also testified that she had been doubtful about the surgery because she understood that the tendonitis recovery rate fell between thirty and fifty percent. Transcript, p. 17. On August 4, 1999, Dr. Gross reported that recent layoffs at the bank had left the claimant with an excessive workload, “reproducing the symptoms” of right lateral epicondylitis, and reaggravating that condition. Claimant’s Exhibit A. Because her work activities “continued to aggravate the right elbow to the extent that the patient, who truly did not want surgery, decided to undergo this elective procedure,” Dr. Gross performed an operation on November 12, 1999. November 23, 1999 letter, Claimant’s Exhibit A.

In evaluating the legal consequences of his factual findings, which were based primarily on Dr. Gross’ medical reports, the trial commissioner reasoned that the claimant’s post-1995 work at Fleet Bank did not leave her with a new specific or repetitive injury, but rather “an aggravation of symptoms of her right lateral epicondylitis which was caused by the fourteen years of work as a bank teller prior to May 1, 1995.” Findings, ¶ H. Clearly, he drew a distinction between the legal consequences of work activities that merely aggravate symptoms periodically produced by an existing condition and work activities that substantively worsen such a condition or the symptoms resultant from it. Such a distinction is likely intuitive, as one may reasonably perceive a categorical dichotomy between these two forms of “aggravation.” Nevertheless, in Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996), our Appellate Court stated that this intuitive distinction is not material under the law.

In Epps (which neither party discusses in its brief), the trial commissioner had chosen to credit Dr. Godar’s medical testimony stating that a claimant’s workplace chemical exposure was not the cause of his industrial bronchitis, “but was an aggravating factor on his already existing hyper-reactive airways, upon which was superinposed [sic] claimant’s 1987 viral infection, including clinical asthma.” Epps, 14 Conn. Workers’ Comp. Rev. Op. 57, 1733 CRB-7-93-5 (May 11, 1995). “Noting that the claimant’s symptoms did not decrease when he left the workplace and that dust, smoke or household products such as bleach could trigger those symptoms, the commissioner concluded that the claimant had failed to sustain his burden of proving that his injury arose out of and in the course of his employment.” Id. The claimant argued that the commissioner could not have relied on Dr. Godar’s testimony in finding the claimant’s injury noncompensable, for at the very least, it established that the claimant’s workplace chemical exposure was an “aggravating factor” operating on the claimant’s pre-existing hyper-reactive airways within the meaning of § 31-275(1)(D) C.G.S. However, this board upheld the trier’s decision, reasoning as follows:

Dr. Godar testified that the chemicals that the claimant had been exposed to in the course of his employment were not regarded as toxic and did not appear to be hazardous enough to cause significant lung injury. He stated that it appeared that the claimant was treated for a respiratory infection in 1988 (described as 1987 by the commissioner) that progressed into a post-viral type of bronchitis, at which time coughing and shortness of breath became a problem for the claimant. In his opinion, this was significant “in that the workplace chemicals that previously were not a problem for him could now become nonspecific irritants. . . . It’s common in non-occupational disease to find that adults may acquire a low grade asthma which is manifested mostly by cough and shortness of breath.” (Transcript, p. 13).
Dr. Godar then testified that, within a reasonable degree of medical certainty, the claimant’s sensitivity to the chemicals at work developed as a result of the viral infection. Although he described the workplace exposure as an “aggravating factor” throughout his testimony, it is clear from the substance of his testimony that he was referring to the tendency of the chemicals to irritate the condition the claimant had acquired as a result of the viral infection, and not to a worsening of the claimant’s condition caused by his exposure to “nonspecific irritants.” This diagnosis of the claimant’s malady is devoid of the causal relationship between employment and disease contemplated in cases such as Hansen v. Gordon, [221 Conn. 29 (1992)], and Prisco v. North & Judd, [10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1990 CRD-8-91-3 (June 30, 1992)], and would support the conclusion that the claimant’s disease was not aggravated by his employment within the meaning of § 31-275(1)(D).

This decision, which seems to follow a similar train of thought to that of the trier in the instant case regarding the meaning of the word “aggravated,” was subsequently reversed. Our Appellate Court observed that two physicians had testified before the trial commissioner: Dr. Jackson, the treating physician, who stated that the claimant’s industrial bronchitis “is more probably than not a direct result of [his] employment,” and Dr. Godar, who testified that the claimant’s workplace exposure was “an aggravating factor on his already existing hyper-reactive airways.” Epps, supra, 41 Conn. App. 435. The court then stated, “The board interpreted this testimony to support the conclusion that the plaintiff’s exposure irritated, but did not aggravate, his preexisting respiratory condition within the meaning of § 31-275(1)(D). This interpretation, however, overlooks a fundamental tenet of workers’ compensation law, namely that an employer takes the employee in the state of health in which it finds the employee. . . . Furthermore, Dr. Godar uses the word ‘aggravating’ and not ‘irritating.’” Id., citing Cashman v. McTernan School, Inc., 130 Conn. 401, 409 (1943); Prisco, supra. The court concluded that the claimant had in fact established that his condition was aggravated by his employment as a chemical compounder within the meaning and spirit of § 31-275(1)(D), and held that the trier’s contrary finding was unsupported by the subordinate facts. The court then remanded the case for a determination as to what proportion of the liability for the compensable injury was attributable to the employer. Id., 436-37.

Although Epps concerned a statute that specifically declares an “aggravation of a preexisting disease” to be compensable, the reasoning that underlies the Appellate Court’s decision would likely apply to any work-related aggravation of a previous injury. See, e.g., § 31-349 C.G.S. Because the trial commissioner in the instant case does not appear to have considered the probable relevance of Epps to the set of facts before him, we believe that the proper solution is to remand this case to him so that he may readdress his conclusions in light of the language of Epps. Of course, the trier is always entitled to accept all, part, or none of a doctor’s opinion; Tartaglino, supra; and we recognize that the trier here was simply placing greater weight on Dr. Gross’ statements that attributed causation to the claimant’s pre-1995 employment than he did on those remarks that tend to emphasize the role of her subsequent exposure in worsening her elbow malady. Still, he cited Dr. Gross’ description of the claimant’s more recent employment with Fleet Bank as having “aggravated” her symptoms, which had “increased” by March 1998. These words carry with them certain legal implications, in light of Epps.

Therefore, we deny the claimant’s Motion to Submit Additional Evidence, but remand the case for reconsideration consistent with this opinion.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 The trial commissioner indicated in ¶ 36 of his findings that the respondent Cambridge, “while maintaining denial of any responsibility,” agreed to provide the claimant with 50% of her total disability benefits without prejudice pursuant to an informal hearing recommendation that the parties split the bill pending a clarification of Dr. Gross’ opinion on responsibility. Travelers, however, refused to contribute a share of the total disability benefits, as it claimed that Cambridge was required by § 31-299b to administer this case. Id., ¶ 37. However, Travelers did accept responsibility for the claimant’s right arm, and paid benefits in 1998 and up to and including November 1999. Id., ¶ B. BACK TO TEXT

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