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Ben-Eli v. Lowe’s Home Improvement Center

CASE NO. 5006 CRB-3-05-10



NOVEMBER 16, 2006











The claimant was represented by Joseph M. Porto, Esq., Parrett, Porto, Parese & Colwell, P.C., 2319 Whitney Avenue, 1-D, Hamden, CT 06518.

The respondents were represented by Margaret E. McGrail, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review1 from the September 30, 2005 Finding and Award of the Commissioner acting for the Third District was heard April 28, 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.


JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal concerns whether the commissioner for the Third District had sufficient evidence to support an award of benefits under § 31-308(a) C.G.S. for the claimant’s foot injury. After reviewing the record, we conclude that the commissioner had sufficient evidence to support his Finding and Award. We therefore dismiss the appeal.

There is no dispute the claimant suffered a compensable low back injury on or about May 15, 2000 while employed by the respondent. A voluntary agreement has been approved for the back injury. Findings, ¶¶ 1-3. The commissioner found the following facts concerning this claim. Shortly after the back injury, the claimant started complaining about foot pain. Finding, ¶ 8. One of his treating physicians, Dr. Alan Goodman, reported these complaints on June 6, 2000 and October 26, 2000. Findings, ¶¶ 8-9. In 2001, other physicians also examined the claimant and reported complaints of pain in the claimant’s left foot. Findings, ¶¶ 10-16. He was referred to Dr. Thomas Arkins for a surgery consultation. Finding, ¶ 21. An MRI determined that the claimant was suffering from two disc bulges. Finding, ¶ 23. While Dr. Arkins considered the claimant totally disabled in March 2002, he did not recommend surgery. Findings, ¶¶ 24-26.

On October 22, 2002, Dr. Arkins determined that the claimant had radiating pain in his left leg that went down into the left foot. He cleared the claimant for a four-hour workday. Findings, ¶¶ 28-29. In July 2003, the claimant was returned to an eight-hour light duty workday. Finding, ¶ 30. In October 2003, Dr. Arkins examined the claimant again, and believed he was walking abnormally. He prescribed inserts for the claimant’s shoes. Findings, ¶¶31-32. On October 28, 2003, Dr. Arkins determined the claimant was at maximum medical improvement for his back injury and issued a 20% impairment rating for the lumbar spine. Finding, ¶ 33. He referred the claimant in November 2003 to Dr. Pressman regarding his foot pain. Dr. Pressman had performed surgery on the claimant’s right foot about 13 years earlier. Finding, ¶ 36.

Dr. Pressman examined the claimant in February 2004. He diagnosed a neuroma on the claimant’s left foot, along with plantar fascitis and multiple plantar fibromatosis. He attributed the neuroma to abnormal gait resulting from the claimant’s back injury. Findings, ¶¶ 37-38. Following this examination, Dr. Arkins reduced the claimant to a four-hour workday. Finding, ¶ 40.

Dr. Pressman also limited the claimant to a four-hour workday following treatment of the claimant’s left foot neuroma on March 13, 2004. On March 11, 2005, Dr. Arkins continued to find the claimant could not work an eight-hour day, and attributed this limitation to difficulties with his leg resultant from his earlier back injury. Finding, ¶ 41.

Following a formal hearing that commenced on May 2, 2005 and was completed on June 9, 2005 the trial commissioner reached the following conclusions. Apart from the medical evidence submitted by the claimant’s treating physicians the commissioner considered the respondent’s examiner report prepared by Dr. Enzo Sella, who examined the claimant on July 2, 2004. The commissioner also reviewed the reports prepared by the commissioner’s examiner, Dr. Robert Margolis, who examined the claimant on two occasions. Finding, ¶ 48. Dr. Sella and Dr. Margolis opined that the claimant’s foot condition was unrelated to the claimant’s back condition. The critical issue before the commissioner was an apparent reference in Dr. Sella’s report to the claimant having had surgery on his left foot. Finding, ¶ N. Since the record indicated the claimant had previously had surgery to his right foot, the trial commissioner discounted Dr. Sella’s opinion, as well as that of Dr. Margolis, who referred to Dr. Sella’s conclusions in his report. Findings, ¶¶ Q-R. In his Finding and Award of September 30, 2005 the trial commissioner agreed with Dr. Arkins and Dr. Pressman that the claimant’s left foot condition was related to his accepted back injury and he was entitled to benefits under § 31-308(a) C.G.S. for his reduced earnings due to his reduced workday. Findings, ¶¶ S-T.

The respondents filed a motion to correct which sought to replace the trial commissioner’s findings with findings based on the opinions of the commissioner’s examiner, Dr. Margolis. The trial commissioner denied the Motion to Correct and the respondents proceeded to appeal the Finding and Award.

The main points of the respondents’ appeal are that Dr. Sella’s medical report did not erroneously identify the foot on which the claimant had surgery earlier and that the commissioner should have relied on the report of the commissioner’s examiner, or in the alternative, have specifically identified why it was not relied upon. Upon review of the evidence, we are left unpersuaded by these arguments.

The respondents claim that the trial commissioner’s finding that Dr. Sella improperly concluded the claimant had had prior surgery on the left foot was a “clearly erroneous” finding for the trial commissioner to reach. In reviewing the July 2, 2004 report of Dr. Sella, such a determination seems reasonable based on the actual wording of the report. “As far as causation is concerned therefore it is not medically reasonable to assume that the lumbar disc problem in the lifting incident of May 9, 2000 [sic] caused his left 5th metatarsal pain three years later, especially in the presence of pervious [sic] surgery in the same area.” Claimant’s Exhibit A. While the respondents may believe the rest of the report does not reach this inaccurate conclusion, it seems rather difficult to fault the trial commissioner in this instance. His conclusions are a reasonable interpretation of the actual report. To the extent the respondents submitted expert testimony which was inaccurate, confusing or vague, equity does not serve to protect their interests. One can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.

The respondents believe that the trial commissioner should have relied on the medical opinions expressed by the commissioner’s examiner, Dr. Robert Margolis. They cite Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003) for the proposition a trial commissioner must accord great deference to the findings of a commissioner’s examiner. However, Gagliardi also stands for the proposition the “inconsistencies in the evidence must be resolved by the trier, and she may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Id. In this matter, the trial commissioner specifically identified one factor that caused him to deem the commissioner’s examination unreliable.

Dr. Margolis’s December 2, 2004 report did identify a “mild antalgic gait” for the claimant, but concluded it was unrelated to the back injury. Dr. Margolis however stated, “I have read Dr. Sella’s report and I agree with it in its entirety.” Having determined Dr. Sella’s report was materially flawed, it was within the commissioner’s discretion to determine any medical evidence that relied on Dr. Sella’s opinions to be equally unreliable. The trial commissioner adequately explained his rationale for not relying on the commissioner’s examiner. While Finding ¶ R, stating “Dr. Margolis adopted the opinion of Dr. Sella,” is somewhat inaccurate insofar as the term “adopted” does not appear in Dr. Margolis’s report, we believe it provides support for the commissioner’s failure to rely on Dr. Margolis’s report.

The respondents appear to argue that the trial commissioner should have disregarded Dr. Sella’s influence on the Margolis report and searched the report for independent grounds to accept his expert opinions. We can find no precedents mandating that the trial commissioner is obligated to do this, however. Conversely, having entertained doubts about a material element of the commissioner’s examiner’s report (i.e. his apparent reliance on Dr. Sella); he was entitled to disregard the report in toto. “[C]ases such as Tartaglino, supra, and Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997), establish that the trier of fact is not absolutely bound to accept any doctor’s opinion, including that of a commissioner’s examiner, and that a trier’s decision is not erroneous as a matter of law simply by virtue of the fact that he or she has not given a reason for failing to adopt such an opinion.” Gagliardi, supra.

We can ascertain why the trial commissioner decided the respondent’s expert witness and the commissioner’s examiner were not persuasive. In order to uphold the Finding and Award we must also confirm that the trial commissioner had sufficient evidence establishing a causal relationship between the compensable back injury and the foot injury to justify the decision. As we stated in Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006):

The burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). In this matter, conflicting medical evidence was presented to the trial commissioner. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004).

In Strong v. UTC/Pratt & Whitney, 4563 CRB 1-02-8 (August 25, 2003) we delineated the standard for review of medical evidence.

In order to constitute competent medical evidence under our law, the opinion of an expert must be based on a reasonable probability rather than mere speculation or conjecture. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817 (1999). “As long as it is clear that the expert’s opinion was based on more than mere conjecture, the entire substance of the expert’s testimony should be examined . . . . An expert’s testimony as to the reasonable probability of the occurrence of an event does not depend on semantics or the use of any particular term or phrase . . . .” Id., 817-18, citing Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 46 (1986). If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis. Landry v. Light Metals Coloring Co., 4514 CRB-6-02-4 (April 3, 2003); Napolitano v. Bridgeport, 4388 CRB-4-01-5 (September 6, 2002).

The trial commissioner had the following medical evidence presented on behalf of the claimant from his treating physicians, Dr. Pressman and Dr. Arkins. On February 10, 2004 Dr. Pressman concluded, “[i]t is my opinion, with reasonable medical certainty that the neuroma under the fourth interspace is related to abnormal gait mechanics from his back injury, which forces him to walk on the outside of his foot and therefore create increased pressure on these nerves and subsequently damage.” On March 11, 2005, Dr. Arkins offered the following opinion. “It is my believe [sic] that the reason Mr. Ben-Eli cannot work an eight hour shift is not because of his back, but because of difficulty with his leg. It is my opinion that the leg damage is caused by postural imbalance related to his back injury.” Claimant’s Exhibit A.

This evidence was adequate under the terms of the Struckman test to support a finding that the claimant’s foot injury was a sequelae to his compensable back injury. Since the trial commissioner was presented with sufficient competent evidence to support an award for § 31-308(a) C.G.S. benefits this board cannot substitute its evaluation of the evidence for that of the trial commissioner. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).2

Accordingly we uphold the Finding and Award and dismiss this appeal.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

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

2 Accordingly, since the respondents’ Motion to Correct essentially sought to interpose the respondents’ evaluation of the medical evidence for that of the trial commissioner, we find no error in its denial. See, D’Amico, supra. BACK TO TEXT

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