Numan v. Warnaco, Inc.

The claimant was represented by Dana P. Lonergan, Esq., Law Offices of Dana P. Lonergan, LLC, 4154 Madison Avenue, 1st Floor, Trumbull, CT 06611.

The respondents were represented by Thomas Galvin Cotter, Esq., Cotter Rooney LLP, 2336 Main Street, Stratford, CT 06615.

This Petition for Review from the September 26, 2005 Finding and Award of the Commissioner acting for the Fourth 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the September 26, 2005 Finding and Award of the Commissioner acting for the Fourth District. They bring forth on appeal challenges to the trier’s denial of their Motion to Correct, and the trier’s finding of a compensable cervical spine injury. We find no error, and affirm the trial commissioner’s decision.

The claimant was employed as a claims analyst for the respondent on May 4, 2000, during which employment she alleges that she injured her shoulders pushing a computer monitor on her desk. A voluntary agreement was approved on August 14, 2001 accepting the bilateral shoulder strain. The primary issue at trial was whether the claimant’s current cervical condition arises out of that injury. The claimant was involved in a motor vehicle accident on March 22, 1993, that resulted in injuries to her neck. At one point during her treatment for those injuries, Dr. Lewis, an orthopedic surgeon, identified a 50% loss of range of neck motion. A second motor vehicle accident on September 2, 1994, again resulted in neck injuries, and the claimant treated with Dr. Lewis for a contusion of the cervical spine until March 9, 1995.

Following the May 4, 2000 injury, the claimant again treated with Dr. Lewis. When she saw him on May 18, 2000, he diagnosed her with cervical radiculopathy, impingement syndrome of the right shoulder, and a tear in the trapezius muscle of the left shoulder. He also noted pain radiating into the right upper extremity and into the ring and little fingers. Dr. Lewis identified a 50% loss of motion in the cervical spine, though x-rays were negative. An MRI on November 8, 2000 revealed mild cord impingement at C4-5, with a probable disc protrusion at C6-7. Mild degenerative disc changes also existed at C5-6. A neurosurgeon, Dr. Mastroianni, on December 12, 2000 reported a herniated disc at C4-5 causing bilateral C5 radiculopathy, and advised an anterior cervical discectomy with bone graft fusion and cervical plate fixation.

The claimant had seemed to Dr. Lewis to be improving in May 2001, and he returned the claimant to work with no restrictions on May 21, 2001. However, Dr. Lewis suggested on June 7, 2001 that a cervical decompression would be in order at C4-5, as the cervical symptoms were more significant than the shoulder symptoms. He prescribed light duty restrictions for the claimant at that point. Though Dr. Lewis recommended a C4-5 disc excision several times during the summer of 2001, this was not performed. The claimant instead underwent right shoulder surgery on October 17, 2001.

Dr. Backe, a respondent’s examiner, had seen the claimant on June 26, 2001, and stated that the claimant’s main problem was an impingement syndrome of the right shoulder. He cautioned against proceeding with the cervical discectomy prior to doing more diagnostic testing. He again saw the claimant on May 29, 2002, and added acromioclavicular joint arthritis and a right shoulder rotator cuff tear to his diagnosis. He stated that it was unlikely she would ever be free of cervical or right shoulder symptoms. He recommended subacromial cortisone injections to relieve pain, which if ineffective would suggest that the neck was the source of the claimant’s symptoms.

In June 2002, Dr. Lewis totally disabled the claimant on account of cervical radiculopathy and shoulder symptoms. On July 3, 2002, he again disabled the claimant, but on account of cervical radiculopathy alone. Statements of disability in August, September and October 2002 cited cervical radiculopathy and shoulder impingement. Dr. Mastroianni ordered a new MRI, and opined on February 6, 2003 that it showed a sizeable disc herniation and cord compression at C4-5, and a smaller herniation at C6-7. In June 2003, he also identified a disc protrusion at C5-6, and strongly recommended surgery at C4-5 while also considering discectomies at C5-6 and C6-7.

During 2003, 2004 and into 2005, Dr. Lewis diagnosed cervical radiculopathy and herniated discs at C4-5 and C6-7. He repeatedly recommended cervical surgery with disc excision, neural decompression and bone grafting with plate and screw fixation, stating that delays would result in further nerve damage. The trial commissioner found that, when his deposition was taken on November 13, 2003, he could not say with a reasonable degree of probability that the claimant’s cervical condition was caused by her May 4, 2000 workplace incident, or whether a pre-existing condition was aggravated by that event. The trier also found that his office notes were inconclusive and inconsistent.

As to causation, the trier ultimately relied on the opinions of Dr. Dawe and Dr. Backe. Dr. Dawe, an orthopedist specializing in spinal surgery, evaluated the claimant on February 12, 2003. He stated that the claimant’s bilateral finger numbness and tingling were inconsistent with neurological involvement. As she was still recovering from shoulder surgery, he could not say if her shoulder complaints were related to C4-5 problems or to intrinsic shoulder problems. He thought further diagnostic testing needed to be carried out. He also opined that the C4-5 problems were a spondylitic bar rather than an acute disc herniation. Because the claimant had experienced no neck symptoms between 1993 and 2000, he opined that the May 2000 injury had exacerbated her underlying cervical spondylosis. He did not think that the neurological findings in Dr. Lewis’ 2000 office notes were consistent with a disc herniation at C4-5. He also found no significant impingement on the nerve root of the cervical spine, and noted that a bone spur seen in the claimant’s 2000 x-rays was already present in 1993.

Dr. Backe was deposed on December 15, 2004, and testified that the claimant had not mentioned a 1993 neck injury. He was hesitant to advise cervical surgery because her MRIs never showed any evidence of right-sided impingement of the nerve roots. He further explained that a C4-5 disc herniation on the left side of the neck would be unlikely to produce numbness and tingling in the fingers on the right hand. He did not think that the C4-5 disc herniation was caused by a May 4, 2000 work injury.

Based on the opinions of Drs. Dawe and Backe, the trier concluded that the claimant had a pre-existing degenerative condition in her neck that was aggravated by the pushing or lifting incident at work on May 4, 2000. The neck condition was thus compensable. However, surgical intervention on the cervical spine was not reasonable or necessary at this time, and would require further diagnostic testing before an etiology of the claimant’s pain could be determined and the authorization of surgery could be considered. The trier also authorized a change in the claimant’s treating physician.

The respondents filed a petition for review on October 18, 2005, 22 days after the commissioner’s decision was sent to the parties. Section 31-301(a) C.G.S. prescribes a twenty-day appeal period from a commissioner’s award or decision on a motion. The claimant has filed a motion to dismiss this appeal on the ground that it was filed late. On October 11, 2005, the respondents had requested a two-week extension of time to file a Motion to Correct and an appeal. The commissioner granted the extension of time to file the Motion to Correct, while noting that she had no authority under § 31-301(a) C.G.S. to extend the time to file the petition for review. The Motion to Correct was also filed on October 18, 2005, and was denied in its entirety by the trier on both its merits and because the petition for review was untimely.

This board lacks jurisdiction over appeals filed after the expiration of the statutory period. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); Downer v. Mark IV Construction, Inc., 4462 CRB-3-01-11 (November 15, 2002). However, we have held in past cases that the filing of a Motion to Correct or a Motion for Extension of Time to file a necessary appeal document can constitute substantial compliance with the filing requirements of § 31-301(a). Riebe v. Ralph Silvestro, Jr., 3886 CRB-4-98-9 (November 30, 1999)(Motion to Correct); Capra v. State/Dept. of Correction, 3791 CRB-4-98-4 (April 27, 1999)(Motion for Extension of Time to File Reasons of Appeal); Algiere v. General Dynamics Corp./Electric Boat Division, 3466 CRB-8-96-11 (January 27, 1998)(Motion to Correct and Motion for Extension of Time to File Reasons of Appeal). This board has no authority to expand the appeal period, but we can construe documents that communicate a desire to appeal as requests to review the commissioner’s decision. Downer, supra; Algiere, supra.

Here, the respondents filed a Motion for Extension of Time during the 20-day appeal period that indicated an intent to file both a Motion to Correct and a petition for review. Though the trial commissioner correctly stated that she did not have the power to extend the time for filing a petition for review, the extension request in and of itself also demonstrated an intent to appeal her decision. Therefore, we deny the claimant’s Motion to Dismiss the instant appeal.

The respondents’ Motion to Correct sought to delete the finding that the claimant’s pre-existing degenerative cervical condition was aggravated by the May 4, 2000 pushing or lifting incident at work, and the findings of compensability that resulted. The trier stated that she was denying the motion in its entirety on two grounds, including on its merits. We have never held that a trial commissioner is required to explain her reasoning for denying the requested corrections in a Motion to Correct. Though Admin. Reg. § 31-301-6 lists the denial of a motion to correct as an assignable error, it does not require the commissioner to provide reasons for denying requested corrections. See Beedle v. Don Oliver Home Improvement, 4491 CBR-3-02-2 (February 28, 2003)(denial of corrections implies that trier did not find cited testimony credible); see also, Admin. Reg. § 31-301-3 (finding should not contain reasons for trial commissioner’s conclusions, which are more appropriately included in a memorandum of decision). Insofar as the respondents contend that the case must be remanded for a more detailed ruling on the Motion to Correct, we disagree.

The respondents’ primary evidentiary challenge is to ¶ F of the trial commissioner’s findings, which states, “The claimant had a pre-existing degenerative condition in her neck which was aggravated by the pushing or lifting incident at work on May 4, 2000.” The respondents argue that the only medical testimony in the record is directly contrary to these findings, as neither the opinion of Dr. Dawe nor Dr. Backe states that the claimant’s cervical condition was aggravated by her work-related injury within a reasonable degree of medical probability. As noted above, the trier found that those two physicians were credible with respect to causation.

In Dr. Dawe’s latest report, he questions the wisdom of C4-5 surgery because of the possibility that the claimant’s shoulder complaints are not related to the C4-5 disc, and because her main neurological dysfunction (paresthesia in the fingers) is not consistent with C4-5 neurologic involvement. However, he also reasons that the absence of neck symptoms from 1993 to 2000 leads to the conclusion that her May 2000 injury exacerbated her underlying cervical spondylosis. Respondent’s Exhibit 2. In his deposition, Dr. Dawe twice stated point-blank that, within a reasonable degree of medical probability, the claimant’s pre-existing C4-5 condition was aggravated or exacerbated by an incident at work on May 4, 2000. Respondents’ Exhibit 3, pp. 51, 66.

We acknowledge that the severity of that injury was left open for debate, as Dr. Dawe saw little degeneration of the bone spur between 1993 and 2000. He explained that the MRI showed that the disks in question had a general central bulging out that did not impinge on a specific nerve root, signifying a broader degenerative process within the disk narrowing the volume of the spinal canal, as opposed to a broken-off fragment of disk rupturing into the disk space or a central part of the disk rupturing into the spinal canal. Id., pp. 17, 22-26. His concerns about recommending surgery related to the nature of the claimant’s continuing symptoms of tingling in the third, fourth and fifth fingers of her hands, as it was possible that they stemmed from other causes. Id., p. 53. However, these concerns need not negate the finding of an exacerbation of the claimant’s cervical condition based upon the reappearance of symptoms after six or seven years of her having been asymptomatic. Therefore, there is sufficient evidence in Dr. Dawe’s testimony to support the finding of a compensable injury to the cervical spine.