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CASE NO. 4838 CRB-7-04-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 17, 2005
TIG INSURANCE CO.
The claimant was represented by Jonathan Dodd, Esq., Dodd, Lessack, Ranando & Dalton, LLC, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondents were represented by James Sullivan, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.
This Petition for Review from the July 23, 2004 Finding and Order of the Commissioner acting for the Seventh District was heard May 13, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Michelle D. Truglia and Donald H. Doyle, Jr.
STEPHEN B. DELANEY, COMMISSIONER. The claimant has petitioned for review from the July 23, 2004 Finding and Order of the Commissioner acting for the Seventh District. She argues on appeal that the trier erred by finding facts related to her permanent partial impairment rating that were unsupported by the medical evidence. We find no error, and affirm the trial commissioner’s decision.1
On March 10, 1999 the claimant suffered a compensable injury when she was stuck by a pair of scissors while working as a surgical technologist at Danbury Hospital. Several months later, she tested positive for Hepatitis C. The claimant received one Hepatitis C test in August 1999 that was positive. Subsequent tests performed on September 7, 1999, however, turned out to be negative for Hepatitis C.2 The claimant began treating with Interferon and Ribavarin at the recommendation of physicians. About a month later, she began experiencing vision problems such as impaired night vision and depth perception, focusing delay, blurring, headaches, and eye strain. She was unable to continue working in her position at the hospital because of these problems.
Dr. Mathias, the treating ophthalmologist, diagnosed superior oblique palsy3 of the left eye and prescribed prismatic eyeglasses. When the claimant’s vision problems continued, he performed surgery, disinserting the left inferior oblique muscle on the left eye. Afterward, the claimant began experiencing convergence insufficiency4, resulting in focusing delay, depth perception problems when looking up and down, and intermittent blurred vision. In Dr. Mathias’ opinion, this left her at risk for further injury while working as a surgical technologist. His medical reports estimated a permanency rating of 100% impairment of ocular motility, functionally translating to the total loss of vision in one eye, or a 25% impairment of the visual system. However, the claimant had no loss of central visual acuity, and no loss due to visual field impairment. The trial commissioner noted that Dr. Mathias’ description of the impairment rating being equal to a 100% loss of vision in one eye was inconsistent with these comments, and with the reports of the other two physicians who offered medical opinions.
Dr. Konrad, the commissioner’s examiner, saw the claimant in December 2002. She performed her own strabismus5 measurements of the claimant, and also reviewed Dr. Mathias’ measurements from a year earlier. She agreed that the claimant’s visual problems (double vision, inability to focus clearly at a distance or too near, convergence insufficiency) resulted from the medications she took for Hepatitis C. She initially concurred with Dr. Mathias’ rating of “total loss of vision in one eye” even though the claimant’s vision in both eyes individually was 20/20, and assigned her a 25% loss of the visual system.
At her deposition, Dr. Konrad explained that the claimant’s strabismus caused the need for her January 2001 surgery, which had a good result in her opinion, but nevertheless left the claimant with convergence insufficiency. The claimant does not need glasses for distance vision, and her central vision at a distance is normal; Dr. Konrad characterized the convergence insufficiency measurement as a “mild deviation.” Findings, ¶ 34. She concluded that the only abnormal finding was a mild muscle imbalance disorder. When questioned with regard to the claimant’s impairment rating, Dr. Konrad stated that her left eye was not impaired to the extent that it was equivalent to a loss of the eye. In fact, Dr. Konrad agreed that a 50% loss of use of the left eye would translate to a 25% loss of the overall visual system. The trier also observed that the doctor’s 50% loss of use assessment for this claimant was not derived from the Physician’s Desk Reference, but from the doctor’s training, education and experience.
Dr. Mitchell, a respondent’s examiner, is a specialist in adult eye muscle disorders, in particular ocular motility and strabismus. He has published extensively in this area. He reviewed Dr. Mathias’ reports in conjunction with his October 18, 2001 examination of the claimant, and performed an “extensive battery” of his own tests. Findings, ¶ 44. He stated that only one of them revealed any abnormality at all, which was small and correctable. He detected no double vision either near or at a distance after performing the Worth Four Dot Test (which detects eye misalignment), and pointed out that the claimant had not been told what to look for prior to testing, which increased its objectivity. He also performed a Random Dot Test to measure binocular vision (whether the eyes can work together). The claimant achieved a perfect score on that test. She was also able to follow targets with her eyes, and showed no significant misalignment, the only deviation being too small to be outside the standard deviation. Thus, the claimant did not need glasses for distance vision, and in fact had normal vision in Dr. Mitchell’s opinion. As for any deviations that were shown by Dr. Konrad’s testing, Dr. Mitchell opined that they could be reduced or eliminated with the help of eye exercises.
The trial commissioner considered these opinions, and also noted that the claimant has no restrictions on her driver’s license that require visual aids or prevent her from driving at night. In light of Dr. Mitchell’s expertise and the objective tests he performed on the claimant, the trier accepted his opinion that the claimant had normal vision, and that she had not suffered any permanent partial disability as a result of her compensable injury. The commissioner accordingly dismissed the claimant’s request for permanency benefits, which has resulted in this appeal.
The claimant alleges error insofar as the trial commissioner granted several of the corrections requested in her Motion to Correct, but failed to strike arguably conflicting findings, and failed to change his ultimate conclusions. We remind the parties of our standard of review. A trial commissioner has the sole authority to decide which, if any, of the evidence in the record is reliable, and the trier is always free to reject a particular medical opinion or the testimony of a witness, even if there is no evidence that appears to be directly contradictory. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). On appeal, this board may not retry a case by second-guessing inferences of relative credibility that a commissioner has drawn from the evidence. Id. We may only review the findings to determine whether there is evidence in the record to support them, and to determine whether the trier may have incorrectly omitted material facts that are admitted and undisputed. Duddy, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). Material facts are those facts which would affect the outcome of a case.
The trial commissioner’s finding was premised on his acceptance of Dr. Mitchell’s opinion, which he found more persuasive than the other two doctors’ opinions “because of the expertise of Dr. Mitchell and the objective tests which he performed.” Findings, ¶ A. The trier also found that “Dr. Mitchell acknowledged that Dr. Konrad did perform some testing, although not the extent of testing which he performed.” Findings, ¶ 53. The claimant, however, focuses more on Dr. Konrad’s opinion. She challenges the accuracy of ¶ 35 of the trier’s findings, which states, “Dr. Konrad acknowledged that a number of the tests which she performed on which the Claimant alleged double vision were subjective in nature, and perhaps were not substantiated by her objective observations of the individual eye movement which were normal.” The claimant asserts that this paragraph of the findings is misleading, in light of corrections granted by the trier providing that, in Dr. Konrad’s opinion, the subjective and objective findings of the claimant’s double vision tests were entirely consistent. She argues that this finding is a material fact, as it negates an objective basis for the claimant’s disability, contrary to the corrected paragraphs 65 and 66 of the trier’s factual findings.
We do agree that the trier’s description of Dr. Konrad’s testimony is inaccurate. She in fact did state that the claimant’s subjective tests (reporting when she began to experience double vision during a diplopic field measurement) and objective tests (strabismus measurements that revealed mild prism deviations) were “entirely consistent” with one another. Respondent’s Exhibit 1, pp. 15-19. In her view, the claimant had a muscle imbalance disorder of two kinds, both of which contributed to her double vision and inability to focus at near. Id., p. 20. The only treatment for these conditions was the use of two separate pairs of special glasses (distance prism glasses and reading glasses). Dr. Konrad also explained that, despite the use of glasses, the claimant’s eyes are unable to align themselves vertically when she looks to the right side, requiring her to either wear an eye patch or to maintain a constant head tilt in order to avoid diplopia (double vision). Id., p. 25.
Even though Dr. Konrad’s opinion may have been more consistent with itself than would be suggested by ¶ 35 of the trier’s findings, the trial commissioner does not appear to have been persuaded by that opinion. The trier did, after all, grant the corrections requested in ¶¶ 12-14 of the claimant’s Motion to Correct, which clarified that Dr. Konrad’s subjective and objective tests for double vision produced consistent findings. Yet, he did not change his ultimate conclusion, which rested on Dr. Mitchell’s medical opinion. That opinion was expressed with a good deal of certainty, and explains how Dr. Mitchell conducted his tests and reached his findings that the claimant is capable of keeping her eyes together in parallel use when near, has no eye misalignment, and shows no significant deviation with regard to focus on both near and distant targets. Respondents’ Exhibit 2, pp. 13-23. Dr. Mitchell stated that the claimant’s use of eyeglasses was unnecessary. In his opinion, the amount of deviation in her eyes was insufficient in degree to create a disability. Id., p. 27.
It was within the trier’s prerogative to accept as credible Dr. Mitchell’s medical opinion, which appears to have been given with a reasonable degree of medical probability. As such, any misstatement in ¶ 35 of the commissioner’s findings is harmless error at most, though even an inconsequential error was likely negated by the trier’s acceptance of the above-mentioned corrections to his findings, which did not change the outcome of the case.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Michelle D. Truglia and Donald H. Doyle, Jr., concur.
1 We note that oral argument was postponed in this case for several months upon the motion of the appellant. BACK TO TEXT
2 Pursuant to the Compensation Review Board’s March 9, 2010 Ruling on the claimant’s Motion for Technical Revision filed February 18, 2010 and offered with consent of the respondent the foregoing sentence [“The claimant received one Hepatitis C test in August 1999 that was positive. Subsequent tests performed on September 7, 1999, however, turned out to be negative for Hepatitis C.”] was added to the board’s October 17, 2005 Opinion. BACK TO TEXT
3 The superior oblique muscle originates above the medial margin of the optic canal, with insertion by a tendon that passes through the trochlea to the sclera. Its action directs the pupil of the eye downward and outward. Palsy refers to complete or partial muscle paralysis, often accompanied by loss of sensation and uncontrollable movement or tremors. Both definitions are drawn from Stedman’s Medical Dictionary. BACK TO TEXT
4 Convergence insufficiency is the condition in which an esophoria (the tendency of the eyes to deviate inward) or esotropia (the form of strabismus in which the visual axes converge) is greater for far vision than for near vision. Definitions drawn from Stedman’s Medical Dictionary. See also n.4, infra. BACK TO TEXT
5 Strabismus is defined by Stedman’s Medical Dictionary as a visual defect in which the eyes are unable to focus in unison on an objective because of an imbalance in the eye muscles. BACK TO TEXT
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