Kulesza v. O & G Industries

The claimant was represented by Christine Engel, Esq., Nicholas & Johnson, LLC, Attorneys At Law, 373 Prospect Street, Torrington, CT 06790.

The respondents were represented by Richard Stabnick, Esq., Law Offices of Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the June 26, 2003 Finding and Award of the Commissioner acting for the Fifth District was heard January 23, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, O & G Industries and Hartford Insurance Group, have appealed from the June 26, 2003 Finding and Award of the Commissioner acting for the Fifth District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant had been under the care of Dr. Brian McCarthy, an orthopedist, since July 1994 when he sustained a back injury while playing football. An MRI performed shortly after that injury showed an L5-S1 disc herniation and a bulge at L4-5. These abnormalities were considered to be degenerative changes from an earlier MRI the claimant underwent in 1991 which revealed a minimal bulging/herniation at L5-S1. The claimant also reported an injury to his back when he lifted his nephew in a swimming pool, however, he did not recall having received any medical treatment for that injury. The claimant continued to treat with Dr. McCarthy for increasing and diminishing back pain. In December 1996 the claimant was scheduled to undergo a microdiscectomy on his back, however, this surgical procedure was cancelled because of the claimant’s reported improvement in his condition.

On March 5, 1999 the claimant was working for the respondent-employer as a carpenter on a bridge construction job. While lifting a heavy wooden beam, he felt pain in his back and down his legs which brought him to his knees. Despite the pain he felt, he finished out his shift on that date and continued to return to work in pain for several subsequent days so as not to put his employment at risk. The claimant had a long history of degenerative back disease. The claimant reported his injury to a superior on March 16, 1999 because he was in severe pain. He was referred to the Bridgeport Medical Center where he was found to be disabled and advised to see his family physician.

The respondent-insurer sent the claimant to Dr. Frank Schildgen who prescribed physical therapy and ordered an MRI which was performed on April 2, 1999. Dr. Schildgen released the claimant to light duty work on June 11, 1999. The employer allowed the claimant to clean and stack shelves. However, these duties required a lot of bending and stretching which the claimant could not perform. The respondents directed the claimant to see Dr. Michael Karnasiewicz, a neurosurgeon who examined the claimant on April 16, 1999, May 5, 1999, April 14, 2000 and May 23, 2002.

The claimant underwent various conservative treatments for his back pain, none of which offered him lasting relief. In September 1999 Dr. McCarthy ordered a lumbar discography to determine the exact area causing the claimant’s pain. The discogram revealed a herniated disc at L4-5. The L-5-S1 disc was so degenerated it was not tested. Dr. McCarthy recommended a fusion at the L4-5 and L5-S1 which he performed on September 24, 1999. This fusion was more difficult and extensive than that which was scheduled, but not performed, in 1996.

Initially, we note the respondent has not filed a Motion to Correct. Therefore, on review we are limited to the trial commissioner’s factual findings. Spak v. Shelton Lakes Residence, 4372 CRB-4-01-3 (December 7, 2001); Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 1474 CRB-7-92-7 (February 28, 1994).

The respondents appealed the Finding and Award for two reasons. First, the respondents contend the trial commissioner erred in finding that an injury took place on March 5, 1999. The respondents allege since the underlying findings of fact specifically refer to activities taking place on November 5, 1999 the trial commissioner cannot determine that an injury arose out of and in the course of the claimant’s employment on March 5, 1999. Our examination of the record below reveals all of the documents and testimony relating to the injury refer to the March 5, 1999 date. Claimant’s Exhibits A, C, Respondent’s Exhibits 1-4, and July 11, 2002 Transcript, pp. 34, 36. The only finding that mentions the November date is paragraph 2. All of the other findings which mention the date of injury clearly state the date as March 5, 1999. Findings, ¶¶ 38, 39, 41, IV, VIII, and A. Therefore, we find the date of November 5, 1999 listed in paragraph two of the Finding and Award is a scrivener’s error and should be overlooked on review. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933; Murray v. Mass Mutal Life Ins. Co., 4590 CRB-1-02-11 (November 20, 2003).

Next the respondents contend there was no medical evidence to support the commissioner’s finding that the claimant’s injuries which led to his surgery arose out of and in the course of his employment with the respondent-employer. The respondents allege the claimant failed to meet the reasonable medical probability standard necessary to prove compensability of his claim. The claimant has the burden of proof to show his injury was causally connected to their employment and to do so via competent evidence. Keenan v. Union Camp Corp., 49 Conn. App. 280, 282 (1998). The trier of fact can evaluate the medical opinions and draw his own conclusions regarding credibility which will not be overturned if they are founded in reasonable probability. Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998). We will not overturn the findings and conclusions of a trial commissioner unless they are without evidence, based on impermissible or unreasonable factual inferences, and/or based on an incorrect application of law to the subordinate facts. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

When Dr. McCarthy was asked whether “the 1999 injury was one of the factors in the need for surgery but not the most significant factor.” the Dr. answered that this statement was correct. Respondent’s Exhibit 4, Deposition October 11, 1002, p. 31. However, Dr. McCarthy went on to testify that when he saw the claimant in June 1999 there was a “definite worsening of degenerative disc disease at the L4-5 with a more herniation (sic)” and he stated, “there was a new heriniation that wasn’t there previously.” Id., p. 33. When Dr. McCarthy was asked whether the new disc herniation had a significant impact on the claimant’s symptoms and/or his need for surgery, Dr. McCarthy responded, “Yeah, I think the new herniation did – was what kind of tipped him over the edge.” Id. He further stated, “this new herniation certainly seemed to exacerbate everything.” Id. He said that without the L4-5 herniation, the claimant may not have needed the eventual fusion surgery. Id. pp. 33-34.

Dr. Karnasiewicz’s opinion was different than that of Dr. McCarthy. He opined the claimant’s 1999 injury was one of many factors which contributed to the claimant’s need for surgery, however he did not feel the injury was the most significant factor. Claimant’s Exhibit A, April 14, 2000 report of Dr. Karnasiewicz. Dr. Karnasiewicz stated he believed the claimant’s long standing lumbar disc degeneration caused the need for the claimant’s surgery. Id.

“A claimant generally need prove that, within a reasonable degree of medical probability, employment-related events were a substantial factor in producing his injury or disability.” Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (September 8, 1998). “The term ‘substantial’ generally means ‘worthwhile’ or ‘significant’, as opposed to ‘the most important’ or ‘primary.’” Id. Here, the trial commissioner was faced with conflicting medical opinions. “The trial commissioner is the arbiter of the credibility battle among medical expert witnesses.” Doyle v. New Haven, 3038 CRB-3-95-4 (January 3, 1997). We think it was reasonable for the trier to rely on Dr. McCarthy’s opinion and conclude from it the March 5, 1999 injury was a substantial factor which contributed the claimant’s disability and need for surgery. Therefore, the trial commissioner’s finding regarding causation shall stand.

Therefore, we affirm the June 26, 2003 Finding and Award of the Commissioner acting for the Fifth District. Insofar as benefits already due may not have been paid to the claimant, interest must be added onto the award in accordance with § 31-301c(b) C.G.S.