Marandino v. Prometheus Pharmacy

The claimant was represented by Angelo P. Sevarino, Esq., Law office of Angelo Paul Sevarino, 110 Day Hill Road, Windsor, CT 06095.

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

This Petition for Review1 from the August 11, 2005 Finding and Award of the Commissioner acting for the First District was heard March 24, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present claim involves the award of temporary total disability benefits to a woman who had previously been awarded a permanent partial disability award via a voluntary agreement. The respondents appeal from that award and assert a variety of alleged errors on the part of the trial commissioner. The majority of those claims have no merit. In regards to the award itself, we are persuaded that it may be upheld based on the evidence in the record.

Following a formal hearing that commenced on February 10, 2004 and was continued to April 14, 2004, August 11, 2004, February 7, 2005, March 28, 2005 with the record being closed on June 3, 2005, the trial commissioner found the following facts. In February 1999, the claimant suffered a compensable elbow injury while working for the respondents. She had a number of surgeries intended to heal the fracture of her right (master) arm, which included bone grafts, a carpal tunnel release, and ulnar nerve transposition. Findings, ¶¶ 2-7. She began treating in 2000 with Dr. Steven Beck for pain management. Finding, ¶ 8. On January 1, 2000, the claimant suffered an injury at home falling down stairs. She twisted her knee when she tried to use her left arm to hold a handrail, as she was not able to use her right arm. Finding, ¶ 19. She had two knee surgeries performed by Dr. Vincent Santoro, who opined that the knee injury was the sequelae of the compensable elbow injury. Findings, ¶¶ 20-21.

In 2001 and 2002, the respondents had Dr. Andrew Nelson examine the claimant. He concluded the claimant’s right elbow had been permanently damaged and that this was causally related to the 1999 accident. He determined her ability to work was impaired due to ongoing narcotic medication in addition to her functional limitations. Finding, ¶ 26. He assigned a 41% permanent partial disability rating for the master arm. Finding, ¶ 28. A voluntary agreement for the master arm was reached on November 19, 2002, providing 85.28 weeks of benefits.

Following the execution of the voluntary agreement, the claimant continued to treat with Dr. Beck. By 2004, Dr. Beck concluded that the claimant was suffering from myofacsial pain and ongoing sympathetic fiber pain, and that her condition was not improving. Findings, ¶¶ 9-11. He believed her current prescription for narcotics would continue indefinitely and doubted she could hold a job. Findings, ¶¶ 13-15. Also following execution of the voluntary agreement, two vocational experts examined the claimant. The claimant’s expert, Albert Sabella, concluded that the claimant could not perform her previous job as a pharmacy technician due to her arm injury and that consequences of the injury (limited arm use, medications, constant pain) left her unable to meet the basic requirements of employment regarding attendance and productivity. Findings, ¶¶ 29-35. The respondents’ expert, Kerry Quint, testified that the claimant could find work in the community as a telemarketer, cashier or security guard. Findings, ¶¶ 36-41. The claimant herself testified at the hearing to her pain and her inability to perform a number of activities of daily living due to her inability to use her right arm. Findings, ¶¶ 42-44.

Based on these facts found by the trial commissioner, he reached a Finding and Award on August 11, 2005 that both her right arm and right knee injuries were compensable. He also found that Dr. Nelson was persuasive and the claimant had a 41% permanent partial disability rating; that the claimant, Dr. Santoro, Dr. Beck and Mr. Sabella were persuasive witnesses, while Ms. Quint was not persuasive. Therefore, he concluded that the claimant was totally incapacitated as per § 31-307 C.G.S. Findings, A-I.

On August 22, 2005, the respondents filed a Motion to Correct. They sought to eliminate the finding of compensability for the knee injury, to find that the claimant had reached maximum medical improvement in 2002, had not offered evidence of a change in medical condition since that time, and had not moved to reopen the original voluntary agreement. The trial commissioner rejected the proposed corrections. The respondents have pursued an appeal on the issues raised in their Motion to Correct.

A review of the various issues raised by the respondents indicate that many of their arguments are unpersuasive and inconsistent with the enormity of precedent developed over the past six decades. We will respond briefly to those claims and then discuss the more substantial concerns we have with the Finding and Award.

We note for the record that the parties were on notice that the issue of temporary total disability was being considered. The hearing notices all cite § 31-307 C.G.S., hence the respondents did have actual notice of the relief being sought notwithstanding the absence of a motion under § 31-315 C.G.S. to modify the voluntary agreement. The issuance of a § 31-307 award following a voluntary agreement merits further discussion, but we can immediately determine the parties received appropriate notice to conform to the requirements of due process.

The respondents appeal from the finding of compensability of the knee injury. They argue the medical evidence did not support such a finding and what medical evidence that did support such a finding should have been excluded as inadmissible hearsay. We disagree for a number of reasons. First, the central finding of total disability by the trial commissioner was not dependent on the injury to this specific body part, limiting its overall impact. Determining the weight of evidence and the duty to evaluate the evidence is reserved for the trial commissioner. We note the similarity of this case with that of Hicking v. State/Department of Correction, 4825 CRB-2-04-6 (July 14, 2005) where we upheld a finding that a subsequent household fall was the sequelae of a previous compensable injury. “Here, it is reasonable that the trier could infer by the medical report and the claimant’s testimony that the home incident was not a new injury but instead occurred as a result of her weakened condition caused by the July 13, 2002 injury. Therefore, we will not overturn this determination on appeal.” The respondents in Hicking argued that the claimant’s testimony and the medical evidence were unpersuasive as to the link between the initial and subsequent injury, and the same argument is presented herein. We reach the same conclusion as we reached in Hicking, that such a factual determination cannot be disturbed on appeal.

The respondents claim the key piece of medical evidence on this issue, Dr. Santoro’s April 5, 2002 letter opining as to causation of the knee injury, should have been deemed inadmissible hearsay. As we have recently pointed out, however “it has been long standing law in Connecticut the trial commissioner is not strictly bound to the rules of evidence as applied to judicial proceedings. ‘The commissioner is not bound by common law or statutory rules of evidence or procedures. He may make inquiry in the manner best calculated to do so to ascertain the rights of the parties . . . .’ (Internal citations omitted).” Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006). Once the claimant presented the letter as evidence, the respondents had an opportunity to depose Dr. Santoro and chose not to do so, obviating any parallel with Balkus v. Terry Steam Turbine, 167 Conn. 170, 177 (1975). We also agree with the claimant that the evidence in question is indistinguishable from the evidence from a treating physician deemed admissible in Bruneau v. Seabrook, 84 Conn. App. 667 (2004), “when viewed in the context of Ruwe’s entire treatment of [the plaintiff ] . . . the letter was not created for the purposes of litigation nor is it unreliable.” Id., 672.

In regards to the overall issue of whether the claimant is totally disabled, the respondents attack on a number of fronts. They question the reliance of the trial commissioner on the testimony of a vocational specialist, Albert Sabella. They also seek to cast aside six decades of legal precedent following the Supreme Court’s decision in Osterlund v. State, 135 Conn. 498 (1949). We reject both arguments.

In their brief, the respondents appear to argue that an injury to only one extremity is legally inadequate for the trial commissioner to reach a finding that the claimant is totally disabled. At the formal hearing, however, they did not make this argument; rather they presented a factual argument through their expert witness Kerry Quint that the claimant could in fact perform a number of jobs in the labor market. The claimant’s expert, Albert Sabella, testified that the level of physical limitation, when coupled with her pain, rendered the claimant incapable of regular employment. The trial commissioner agreed with Mr. Sabella. This conclusion was indistinguishable from the factual conclusion reached in Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006), where we held, citing Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998). “In both cases, a vocational expert testified the claimant was essentially unmarketable due to their physical limitations.” We believe the evidence as to vocational limitation here is similar to Dellacamera and Hidvegi.

Facing these unfavorable facts, respondents urge a reexamination by this board of the Osterlund decision. We decline. Barring compelling circumstances, the principle of stare decisis makes such a venture injudicious. “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” Buser v. G.R. Cummings Co., 4963 CRB-5-05-6 (June 8, 2006) citing Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998). We also note that the Supreme Court in Hanson v. Transportation General, 245 Conn. 613 (1998) held that the General Assembly is inferred to have ratified judicial interpretations of the Workers’ Compensation statute left unaffected by subsequent legislation. Id, 618-619. The respondents’ reliance on Bidoae v. Hartford Golf Club, 4693 CRB-6-03-7 (June 23, 2004) as precedent to revisit Osterlund is without merit. The trial commissioner in that case made a factual finding the claimant was not totally disabled. There is no legal precedent in that decision which would cause us to revisit the legal reasoning behind Osterlund. We uphold Osterlund for the same rationale as we adopted in our holding in Chambers v. General Dynamics Corp./Electric Boat Division, 4952 CRB-8-05-6 (June 7, 2006), “[w]e have not been presented with compelling reasons that necessitate that our decision in Buck must be overruled, hence we uphold that precedent . . . .”2

While we find the bulk of the respondents’ legal arguments unpersuasive, we must still determine whether the Finding and Award comports with the administrative requirements necessary to award benefits for temporary total disability after a prior determination or agreement was reached conferring partial disability benefits on the claimant. As we held in Dellacamera, supra, “[w]e believe a claimant who can proffer medical evidence of a deteriorating condition can seek § 31-307 benefits even if they had not been awarded or sought previously. See Valletta v. State/ DMR, 4543 CRB 5-02-6 (March 26, 2003).” We must then ascertain if (a) there was a necessity to formally reopen the previous agreement pursuant to § 31-315 C.G.S. and (b) if the record reflects that the claimant’s condition has deteriorated since the date of the earlier voluntary agreement.

Upon review of the circumstances, we cannot conclude that the failure of the trial commissioner to formally reopen the prior award pursuant to § 31-315 C.G.S. renders the present award ineffective. The respondents did not object at the start of the formal hearing to proceeding in this fashion. “If a claim covering a certain period of time is denied based on a lack of proof that a compensable injury led to total disability during that period, that decision need not be reopened pursuant to § 31-315 before a claimant may seek benefits for a later time period. Valletta v. State/DMR, 4543 CRB-5-02-6 (March 26, 2003).” Bailey v. Striping’s Auto Sales, Inc., 4516 CRB 2002-4 (May 8, 2003). We can infer from the circumstances herein that the present award is to run consecutively with the prior voluntary agreement and that the award of § 31-307 C.G.S. benefits shall commence upon the exhaustion of the § 31-308(b) benefits awarded under the 2002 voluntary agreement. The respondents’ counsel understood this was the relief under consideration at the formal hearing. February 5, 2004 Transcript, p. 5. We cannot find any actual prejudice herein. Consequently, whatever administrative omission occurred had no substantive impact.

The presence of a deteriorating condition is an essential jurisdictional fact to award § 31-307 benefits when they have not been ordered previously, see Bailey, Id. The review of the record indicates such evidence is present in Claimant’s Exhibit G. See Dr. Beck’s notes of September 19, 2003 “pain is referred more sharply into the right arm” and “Musculoskeletal examination reveals increased suboccipital pain on the right side with cervical extension and right rotation . . . .” In his notes of April 1, 2004, “[s]he reports increased right forearm and elbow pain over the last couple of weeks.” His notes also state, “Ms. Marandino has exacerbation of what appears to be predominantly sympathetic mediated pain right side.” The trial commissioner found Dr. Beck a credible witness Finding, ¶ C.

We also review the impact Dr. Beck’s medical reports had on the conclusions of the vocational expert, Albert Sabella. Mr. Sabella’s initial contact with the claimant occurred in January of 2003, after the 2002 voluntary agreement had been reached. February 10, 2004 Transcript, p. 28. In his testimony, Mr. Sabella makes clear that he considered Dr. Beck’s opinion regarding the claimant’s pain situation and noted her need for increasing dosages of pain medication. Id., 38-39. Mr. Sabella stated that the level of narcotic medication the claimant was on limited her employability. February 7, 2005 Transcript, p. 30. Mr. Sabella noted the increased amount of narcotic medication (as outlined in Dr. Beck’s September 19, 2003 report) in his February 10, 2004 report finding the claimant totally disabled. Claimant’s Exhibit D.

Therefore, the record reflects further medical examinations since the 2002 voluntary agreement, the prescription of additional pain medication, and the evaluation of these medical reports by a vocational expert who did not examine the claimant prior to the 2002 voluntary agreement. As a result, the trial commissioner was presented with new evidence that if credited, would support a finding that the claimant’s situation had actually gotten worse since 2002. Since the trial commissioner did credit these witnesses and did find the claimant totally disabled, we can infer the Finding and Award was based on the same foundation as the Finding and Award in Dellacamera, supra. We exercise our equitable powers construing the Finding and Award as modifying the prior award based on changed condition of fact under § 31-315. See Murphy v. West Haven, 14 Conn. Workers’ Comp. Rev. Op. 300, 2197 CRB-3-94-10 (September 11, 1995).

For those reasons, we dismiss this appeal. Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 We note an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 Claimant’s counsel cites over 25 decisions in his brief which are in accord with Osterlund, supra. This certainly would weigh against a deviation from the legal standards in that case based on the principle of stare decisis, but we also note that we have rejected legal arguments which were based solely on the volume of evidence presented. See Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). BACK TO TEXT