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Irizarry v. Purolator Courier Corp.

CASE NO. 4382 CRB-4-01-4



MAY 2, 2002







ACE USA (formerly CIGNA)




The claimant was represented by James Baldwin, Esq., Coles, Baldwin & Craft, LLC, 1261 Post Road, P.O. Box 577, Fairfield, CT 06430.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the April 10, 2001 Finding and Award of the Commissioner acting for the Fourth District was heard January 25, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the April 10, 2001 Finding and Award of the Commissioner acting for the Fourth District. They contend on appeal that the trier erred by ordering them to assume responsibility for the claimant’s proposed lumbar surgery, by failing to specify the nature of the authorized surgical procedure, by failing to address the claimant’s disability status, and by failing to address his entitlement to narcotic medication. We affirm the trial commissioner’s decision on all grounds except for the narcotic medication issue, which must be remanded for further proceedings.

The trial commissioner found that the claimant’s compensable back injury of June 23, 1975 was accepted by the respondents. He was awarded a 20% permanency of the back as of August 1, 1980. By then, he had already undergone a left partial hemilaminectomy at L-4 on November 2, 1978, and a second back surgery on August 6, 1979. Further surgeries were performed in 1982 and in 1984, and the claimant received temporary total disability benefits through September 1990. The Social Security Administration deemed him totally disabled as of 1994.

The claimant began treating in April 1994 with Dr. Brennan, a rehabilitation specialist, who continued to treat the claimant through the formal hearings. He also referred the claimant to Dr. Kirschenbaum, who recommended the implantation of a morphine pump to allay the claimant’s pain, and Dr. Mintz, a neurosurgeon who on June 1, 1999 recommended either pain management or another back surgery involving a 360° procedure that would require anterior and posterior entries to the lumbar spine. The claimant then saw Dr. Girasole, an orthopedic surgeon, who recommended anterior back surgery as a salvage procedure. Dr. Becker, an independent medical examiner, advised against any further surgery, while a § 31-294f examiner, Dr. Shear, recommended anterior fusion back surgery with interbody cages at L4-L5 and L5-S1 as a means of possibly improving the claimant’s quality of life.

At the January 15, 2001 formal hearing, the parties entered into a Stipulation to Date Through October 1, 1999 that settled all issues of disability through October 1999, while leaving open any claims for medical and surgical treatment beyond that date. After including the above findings in his April 10, 2001 award, the trial commissioner entered a single, brief order “that the procedures recommended by Dr. Shear, Dr. Girasole and Dr. Mintz and desired by the claimant be performed at respondents’ expense.” The respondents have filed an appeal from that decision, thus bringing the instant case before this board.

Useful as a starting point in our analysis of this appeal is a clarification of the deferential standard that we apply on review to the factual findings and legal conclusions of a trier of fact. It is axiomatic that, in a workers’ compensation proceeding, the power to resolve issues concerning the weight and credibility of the evidence is vested solely in the trial commissioner. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). The testimony of lay and expert witnesses, including all medical evidence, is subject to the trier’s factfinding discretion, and he or she is free to credit all, part or none of any medical opinion in the record, so long as the diagnoses that the trier accepts have been given within a reasonable degree of medical probability. Tartaglino, supra; Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). On appeal, this board cannot retry the case by second-guessing the trier’s assessments of evidentiary credibility. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). We may disturb only those findings that are without support in the evidence, or those that fail to include material facts that are admitted and undisputed. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Similarly, we may disturb only those legal conclusions that result from an improper application of the law to the facts found, or from an unreasonably drawn inference. Fair, supra; Mosman, supra.

The first argument we address on appeal is the respondents’ contention that the trier approved surgery without finding that a physician had deemed it “reasonable or necessary” medical treatment as contemplated by § 31-294d. They contend that the mere “possibility” that surgery would improve the claimant’s quality of life was insufficient to meet that standard. Whether a proposed course of treatment is reasonable or necessary is a factual issue to be decided by the trier based on the medical opinions in the record. Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001); Caprio v. Stop & Shop, 4028 CRB-3-99-4 (July 26, 2000). With regard to the probability of success of a given procedure, we have explained, “There is nothing in § 31-294d limiting ‘reasonable and necessary’ medical care to courses of treatment that will probably be successful, nor would the humanitarian spirit of the Workers’ Compensation Act be furthered by our reading such a limitation into the statute. If a doctor believes that, under the circumstances of a case, a particular type of treatment is worth attempting, the trial commissioner would normally be justified in approving such treatment.” Cirrito, supra (epidural injections with 5% efficacy rate were worth trying in doctors’ view).

Both Dr. Mintz and Dr. Girasole offered the option of surgical “salvage procedures” after considering the claimant’s condition and his frequently excruciating back pain. Claimant’s Exhibits C, D. Dr. Shear stated that the claimant should consider the surgical option of having anterior cages placed at L4-L5 and L5-S1, as “there is a chance of improving the patient’s quality of life” that he later estimated to be around 60 percent. Claimant’s Exhibit E; Respondent’s Exhibit 1, pp. 27, 31, 40-41 (November 13, 2001 Deposition). Only Dr. Becker was of the opinion that this type of “salvage” surgery was not a wise option, as a bone scan had failed to turn up anything concrete that might be fixed by surgery and thereby improve the claimant’s function. Respondent’s Exhibit 2, pp. 16-17 (Jan. 4, 2001 Deposition). As it was well within the trier’s factfinding discretion to credit the opinions of Drs. Mintz, Girasole and Shear over that of Dr. Becker, we find no error in his determination that surgery should be authorized.

We acknowledge that the 360° procedure recommended by Dr. Mintz appears to materially differ from the anterior surgery proposed by Drs. Girasole and Shear. There is not a lot of information in the record regarding the type of surgery proposed by Dr. Mintz, and no explanation is provided as to why he felt that a posterior and anterior approach would be superior to anterior surgery only. It is likely that the trier wanted the parties to decide which procedure would best avail the claimant, and then agree on an appropriate surgeon. We will provide them an additional opportunity to do so via our decision here. If the parties cannot agree on a surgeon, then the trial commissioner may be called upon to consider the options and choose a “treating physician” himself.

With regard to the issues of total disability benefits and narcotics medication: the claimant’s attorney stated at the outset of the August 15, 2000 formal hearing that, in addition to authorization for surgery, he wished to address temporary total benefits since 1991. Transcript, p. 3. Of course, this predated the January 15, 2001 stipulation that settled the issue of total disability through October 1, 1999. The respondents’ counsel then brought up an issue that the claimant’s counsel had failed to mention: the claimant’s continuing use of prescribed narcotics, from which Dr. Becker had advised that the claimant be weaned, as he felt that such drugs should not be used long-term. Transcript, p. 7; see also Respondent’s Exhibit 2, pp. 19-20. Later, the medication issue was again raised in both parties’ proposed findings. As the trier clearly failed to address this important matter, we must remand the case to him for further consideration and a ruling.

More doubtful is the viability of any remaining total disability issue at the close of the formal hearings. The stipulation, which was signed by the parties on November 15, 2000, states that the respondents were denying total disability benefits “through December 31, 1993 and also [denying] that the claimant was entitled to any further benefits until October 1999.” That issue was therein settled by the compromise agreement, and did not need to be further addressed. Meanwhile, one doctor—Dr. Shear—acknowledged a possibility in his November 13, 2000 deposition that the claimant might possibly be able to perform light duty work, though he stressed that he had not evaluated the claimant for functional capacity. Respondent’s Exhibit 1, pp. 28-29, 42. Legally, this testimony implicated the separate issue of whether the claimant currently had a light duty capacity, and it was unrelated to the settled disability issues.

In order for the respondents to take action on that count, they were required to file a Form 36 with an attached report as per § 31-296 C.G.S, as the claimant was clearly maintaining that he remained totally disabled. See, e.g., Hyde v. Stop & Shop Companies, 3728 CRB-4-97-11 (Feb. 18, 1999); Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997). That Form 36 was not filed until January 29, 2001, after the formal hearings had already concluded (save the pro forma hearing for the introduction of proposed findings on March 23, 2001. As the evidence supporting that Form 36 was scant—the attached “report” in this case was the one page of Dr. Shear’s testimony in which he stated that it was reasonably probable that the patient had a sedentary work capacity (p. 45)—the trier was not in a suitable position to address it in his Finding and Award, having taken no evidence on the issue and having not been aware of that issue until just before the conclusion of the proceedings. Further, the January 29, 2001 Form 36 has subsequently been made the subject of additional informal hearings. We thus find no error in the trier’s omission of a finding concerning total disability after October 1, 1999, as the subject was not properly raised in time for the formal hearings at issue here.

The trial commissioner’s decision is accordingly remanded for a determination on the issue of narcotic medication. The remainder of his award is affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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