CASE NO. 5027 CRB-3-05-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 29, 2006
ANN TAYLOR STORES CORP.
ATLANTIC MUTUAL/GAB ROBINS
The claimant was represented by Thomas McNamara, Esq., McNamara & Goodman, Attorneys at Law, 142 Temple Street, New Haven, CT 06510.
The respondents were represented by Dominick Statile, Esq., Montstream & May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review1 from the November 10, 2005 Finding and Award of the Commissioner acting for the Third District was heard June 23, 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. It is black letter law that an appellate panel cannot retry decisions which were reached on evaluating the facts. Tovish v. Gerber Electronics, 32 Conn. App. 595, 598-599 (1993). In the instant appeal, the respondents seek to overturn a Finding and Award which determined the claimant was totally disabled, was entitled to receive pain management treatment and sanctioned the respondents for unreasonable contest. While the respondents claim the Finding and Award was based on legally impermissible grounds, we disagree. We find the trial commissioner had sufficient legal basis for his Finding and Award and dismiss the appeal.
Following a formal hearing that commenced September 24, 2004 and concluded May 9, 2005 the trial commissioner found the following facts. The claimant, Michael Marra, was employed by the respondent Ann Taylor Stores on December 10, 1990 and suffered a compensable knee injury. A number of voluntary agreements have been issued in the case. Findings, ¶¶ 1-3. The claimant commenced treating with Dr. David Gibson shortly after the accident. He has had three surgeries on his knee, the latest one being in 2001. Findings, ¶¶ 4 and 8. Since the 1990 accident, he has complained of knee pain, which occasioned Dr. Gibson to refer the claimant to a pain management doctor, Dr. Levin, in February 2002. Findings, ¶¶ 5-6 and 9. The respondents reacted by filing a Form 43 in April 2002 contesting the treatment alleging the claimant was not suffering from reflex sympathetic dystrophy (RSD) and that the pain management was palliative in nature. They sought an IME for the claimant. Findings, ¶ 10.
The IME was performed by Dr. Enzo Sella, who has examined the claimant on three different occasions (October 1, 2001, May 13, 2002, and June 30, 2003). Findings, ¶ 29. Dr. Sella recommended in 2002 that the claimant continue on pain management. Findings, ¶ 30. In 2003, he reached additional conclusions, diagnosing the claimant with chronic intractable benign pain syndrome, determining the claimant was totally disabled, and identifying the causation of the claimant’s pain issues as the 1990 compensable injury. Findings, ¶¶ 32-40.
In August 2002, the claimant had been able to return to work as a cashier at Yale University as a result of the pain management treatment. Findings, ¶¶ 12-14. On April 8, 2003, the claimant’s treating physician declared him totally disabled and took him out of work. Findings, ¶ 15. The treating physician also increased the claimant’s permanent partial disability rating for his knee from 20% to 50%. Findings, B6 9. During this period, Dr. Gibson referred the claimant to Dr. Holzman to treat his depression resulting from the knee pain. Findings, ¶¶ 23-27. As a result of the respondents’ contest of the claim, the claimant needed to pay Dr. Levin and Dr. Holzman from his wife’s insurance policy and had to pay co-pays. Findings, ¶¶ 21, 28 and 50. He also could not afford a recommended prescription drug because the insurer would not pay for it. Findings, ¶ 58. A bill for a bone scan also remained unpaid. Findings, ¶¶ 53-55. The respondents did not pay for pain management treatment even after the IME with Dr. Sella confirmed he found it remedial in nature. Findings, ¶ 65.
Two vocational experts testified at the hearing. Raymond Cestar testified he was in agreement with Dr. Gibson and Dr. Sella that the claimant was totally disabled. Findings, ¶¶ 66-68. Kerry Quint testified that after interviewing the clamant and reviewing his medical records that he had a work capacity. The trial commissioner opined Ms. Quint’s opinion was unrealistic, Findings, ¶ 70. The trial commissioner also took note of the billing of the claimant’s attorney, attributing the entire bill to events postdating Dr. Sella’s May 13, 2002 opinion that the claimant should receive pain management treatment. Findings, ¶¶ 72-74.
In his Finding and Award of November 10, 2005, the trial commissioner concluded that the pain management treatment with Dr. Levin and psychological counseling with Dr. Holzman should continue as they were curative. Findings, ¶ A. He awarded temporary total disability benefits from April 9, 2003 forward. Findings, ¶ B. He ordered the respondents to pay a Blue Cross/Blue Shield lien, the bone scan bill, prescription co-pays and mileage reimbursements. Findings, ¶¶ C and I-J. He found the claimant now had a 50% permanent partial disability of the leg and directed that a new voluntary agreement be issued. Findings, ¶ D. Finally, he found the respondents had unreasonably contested liability in this matter and unduly delayed payments. Findings, ¶¶ E-F. He ordered the respondents to pay interest on the award as well as the claimant’s attorney’s fees. Findings, ¶¶ G-H.
The respondents responded with a Motion to Correct, which the trial commissioner denied in its totality. This appeal ensued.
The respondents assert a number of legal deficiencies with the Finding and Award. They claim the medical evidence was inadequate to prove a causal connection between the claimant’s condition and his compensable injury; they claim the treatment being provided to the claimant is palliative and not curative; they believe the award seeks to issue Temporary Total and Permanent Partial benefits at the same time creating an improper double recovery and they believe the finding of unreasonable contest and the sanction levied regarding claimant’s legal fees was unjustified. We will address each issue separately.
In regards to the issue of causation the claimant needed to present evidence which to a reasonable medical probability linked the claimant’s present condition to the compensable injury. The respondents correctly cite Murchison v. Skinner Precision Industries, 162 Conn. 142, 152 (1972) for the proposition expert testimony is required on this issue. The respondents appear not to recognize this evidence does appear in the record from the treating physician. On August 10, 2001, Dr. Gibson wrote, “I categorically state that his injury of December 10, 1990 is directly related to his current knee condition.” On August 20, 2001, Dr. Gibson wrote the claimant’s articular surface issues “are directly related to his initial injury of 1990.” Following a January 22, 2003 examination Dr. Gibson increased the claimant’s disability rating and concluded, “This pain management is directly related to his work-related injury and this secondary causalgia.” On May 27, 2003, Dr. Gibson wrote of the claimant, “This pain syndrome is directly related to his work-related injury of December 10, 1990.” On February 4, 2005, Dr. Gibson again opined the pain management treatment “is directly related to his work injury of several years ago.” Claimant’s Exhibit A.
The treating physician offered substantial evidence in an unequivocal fashion which opined that claimant’s current knee condition was caused by his earlier work related injury. Perhaps even more detrimental to the respondents’ argument is that their own expert witness agreed.
At his February 19, 2003 deposition, the respondents’ examiner, Enzo Sella, M.D. testified as to the issue of causation.
Q: And Doctor, within a reasonable degree of medical probability, do you have an opinion whether or not the recommended need for pain management was due to Mr. Marra’s injury of 12-10-1990?
A: It is.
. . .
Q: Okay. And do you believe that all of Mr. Marra’s symptoms with regard to his knee were caused by the work-related incident of 12-10-1990?
Respondent’s Exhibit 1, February 19, 2003 Deposition, p. 25.
This evidence offered by both physicians meets the standard of Struckman v. Burns, 205 Conn. 542, 555 (1987).
Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. Id.
It appears that the respondents believe the word “substantial” must appear in a medical opinion to make it probative evidence as to causation. We believe the Supreme Court has rejected the “magic words” approach in Struckman. Looking at the entirety of the evidence presented to the trial commissioner, we are satisfied sufficient competent evidence was presented to uphold an award. To that end, the respondents’ reliance on Dixon v. United Illuminating, 57 Conn. App. 51 (2000) is unavailing. That opinion upheld the discretion of a trial commissioner to determine what factors were “substantial” in causing the events which triggered a claim. In Dixon the trial commissioner concluded non-work related factors were the substantial cause behind the injury the claimant’s decedent suffered; in this case the trial commissioner reached a different determination of fact. This decision is reserved for the trier of fact. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006).
The respondents also place great weight in the differing labels or explanations various physicians have placed on the claimant’s chronic pain. This overlooks the overall agreement of Dr. Gibson and Dr. Sella as to the claimant’s condition, and indeed as to causation. It also overlooks the right of the finder of fact to disregard medical evidence he does not agree with and to credit some elements of an expert’s opinion while not crediting his opinion on other issues. Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006).
The treating physician and the respondents’ examiner, Dr. Sella, differ on whether the claimant has RSD. In his June 30, 2003 report Dr. Sella opined that he saw “no evidence” the claimant had RSD, citing a negative bone scan, but also declared the claimant totally disabled “because of pain syndrome.” Claimant’s Exhibit G. On June 4, 2003, Dr. Gibson opined that “clearly the patient has RSD of the knee.” In response to Dr. Sella’s report, he opined on December 10, 2003 that he agreed with Dr. Sella regarding the claimant’s disability, but disagreed with him on the RSD issue, stating in 20% of cases it occurred without a positive bone scan. Claimant’s Exhibit A.
Our review of the evidence demonstrates little was proffered to the trial commissioner that challenged the finding of pain syndrome or disability.2 The issue of whether the undisputed pain syndrome was due to a compensable injury was a determination of fact which is reserved to his judgment and which there appears to have been agreement. Where the medical opinions are in conflict the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). “As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not . . . .” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).3
As the treating physician and the respondents’ examiner clearly agreed on the material issues of the claimant’s total disability, the presence of some form of pain syndrome associated with the claimant’s knee and the causation of this pain syndrome, we find the respondents’ argument that the trial commissioner lacked a foundation for his award baseless. In reviewing the issue as to whether the treatment provided the claimant was palliative or curative we find the same questions of fact are presented and, once again, conclude this is a decision for the trial commissioner to make.
The respondents argue vehemently that the pain management provided to the claimant fails to comport to the definition of curative care as delineated in the case of Bowen v. Stanadyne Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD 1-83 (June 19, 1984). “Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work.” We have frequently held this is a factual determination for the trial commissioner to make. “We have in past cases addressed the subject of the ‘curative/palliative’ distinction upon which the compensability of his medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the ‘reasonable and necessary’ standard of § 31-294d C.G.S.” Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) (Emphasis added).
The treating physician opined on May 27, 2003 that “[t]he pain management therapy is designed to keep him at work if possible. The pain management will make his syndrome hopefully manageable so he may return to work . . . . He did return to work for a time because of pain management.” Claimant’s Exhibit A. The trial commissioner accepted this rationale. The fact that the respondents presented a contrary viewpoint to the commissioner does not implicate Bowen; he was under no obligation to defer to their position. Since “therapy designed to keep the employee at work or to return him to work is curative.” Palumbo v. Bridgeport, 4991 CRB-4-05-9 (September 7, 2006). We believe the trial commissioner’s determination here that the treatment is curative must be upheld, as the issues herein are similar to Palumbo.
The respondents have challenged the issuance of benefits for both permanent partial disability and temporary total disability in the Finding and Award. They argue that the Finding and Award constitutes an impermissible double recovery prohibited by the holding of Pasternostro v. Edward Coon Co., 217 Conn. 42 (1991). We reject this argument as it is not apparent to us that the award herein is to run concurrently as were the awards overturned in Pasternostro. Id., 49.
Since Pasternostro, appellate courts have clarified the intent of that ruling.
As a matter of common sense, it is clear that a worker can at once be temporarily totally disabled and permanently partially disabled; see Osterlund v. State, 129 Conn. 591, 600, 30 A.2d 393 (1943); although he cannot collect for both at the same time. Cappellino v. Cheshire, 226 Conn. 569, 577-78, 628 A.2d 595 (1993). McCurdy v. State, 227 Conn. 261, 267 n.8 (1993).
The Finding and Award establishes a new permanent partial disability rating of 50% for the claimant’s left leg and requires a new voluntary agreement issue for the additional 30% disability rating. Findings, ¶ D. The respondents argue that no date of maximum medical improvement has been set. We believe that this is an administrative issue, not a substantive matter warranting a remand or reversal. The voluntary agreement can issue as of the date of the Finding and Award.
Consistent with the reasoning in the Cappellino case we infer the intent of the trial commissioner in this Finding and Award was for the temporary total award in Findings, ¶ B to be paid immediately and the permanent partial award in Findings, ¶ D to be paid upon conclusion of the temporary total award. The Finding and Award contains no direction that the separate awards are to be paid concurrently and as a result, we believe the plain language of the Finding and Award cause the awards to have been issued in conformance with the precedent in the Cappellino case.
The respondents finally challenge the award of attorney’s fees to the claimant as a sanction for unreasonable contest under § 31-300 C.G.S. They present a number of specific arguments ranging from an apparent scrivener’s error regarding the date of a bill to a substantive issue regarding whether the claimant should be fully reimbursed for legal fees incurred in seeking a trial de novo after the original commissioner was appointed to the Superior Court.4 The respondents however do not point to any precedent which addresses their specific legal claims of error herein; they simply argue that the award was excessive and an abuse of discretion.
“We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). This board’s scope of review is limited to whether the trial commissioner’s decision constituted an abuse of discretion. “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006).
We find our precedent in Duffy, supra, controlling. Similar to that case, the trial commissioner herein concluded the evidence provided by the respondents’ medical expert actually concurred with the treating physician on the decisive issues, and penalized the respondents for not reaching a timely agreement with the claimant. We do not find the trial commissioner’s evaluation of Dr. Sella’s testimony as “vitiating logic.” While the trial de novo might have caused the trial commissioner not to accept the full bill submitted by the claimant’s counsel, he chose to do so. Pursuant to our precedent in Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (January 8, 1999) we believe he acted within his discretion in doing so, as we held “[a]n attorney who takes a claimant’s case and encounters a party who unreasonably contests his client’s claim is forced to spend more time than expected representing his client.”
As a result, we uphold the Finding and Award and dismiss the 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 this appeal. BACK TO TEXT
2 A review of the respondents’ Motion to Correct indicates that although the respondents sought to delete certain findings related to Dr. Sella’s testimony and replace them with other statements more favorable to their position, they did not claim the trial commissioner failed to consider the evidence presented or direct the trial commissioner to material evidence not appearing in the Finding and Award. Since the Motion to Correct essentially was an effort to change the record in a direction rejected by the trial commissioner, we find no error in its denial. See Lopez, supra citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 (1951); also D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT
3 Counsel for the claimant points out that the trial commissioner never specifically identified the claimant’s ailment as RSD in the Finding and Award. Respondents do not present an argument that he needed to do so. They simply presume a Finding of RSD which is not in the record and criticize the adequacy of supporting evidence for the nonexistent finding. We believe sufficient evidence is in the record to uphold the commissioner in any event. BACK TO TEXT
4 This matter commenced before then Commissioner Robin Wilson on or about December 16, 2002. Upon Commissioner Wilson’s departure from the Commission, the claimant decided rather than to have the record at that point stand to pursue a new hearing before a different commissioner. Commissioner Marcarelli took over this matter in September 2003. Respondents offer no precedent challenging the claimant’s right to proceed in this fashion. BACK TO TEXT