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Somma v. Norwalk Hospital

CASE NO. 5208 CRB-7-07-3



JULY 24, 2008














The claimant was represented by Judith Rosenberg, Esq., Wofsey, Rosen, Kweskin & Kuriansky, 600 Summer Street, Stamford, CT 06901.

The respondent was represented by Thomas Mulligan, Esq., McNamara & Kenney, LLC, 815 Main Street, 2nd Floor, Bridgeport, CT 06604.

This Petition for Review1 from the March 5, 2007 Finding and Award of the Commissioner acting for the Seventh District was heard November 16, 2007 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 5, 2007 Finding and Award of the Commissioner acting for the Seventh District.2 She argues on appeal that the trier erred by considering an issue that went beyond the scope of the formal hearing. We affirm the trial commissioner’s decision.

The trier found that the claimant, an employee of the Norwalk Hospital housekeeping department, injured her back lifting a garbage bag on September 4, 1998. Her injury was accepted, and the self-insured respondent has paid benefits resulting from her claim. According to her treating orthopedist, Dr. Marks, MRI results suggested a right-sided L5-S1 disc herniation and some facet arthropathy with possible nerve root impingement. A December 22, 1998 note described the herniation as being “on the small side.” The claimant was treated with medication and epidural blocks, instead of surgery. Dr. Marks returned her to light duty work for four hours daily for two weeks, planning to gradually increase her hours to six per day. The claimant contends that she returned to light duty work in January 1999, but lasted only one hour before an inability to perform her desk-cleaning duties caused her to leave the job. After seeing Dr. Marks again, the claimant was re-authorized for sedentary work effective January 29, 1999. The claimant flew to Italy for a month-long stay on February 1, 1999, which involved an eight-hour flight each way. The claimant also flew round-trip to Italy in the summers of 2000, 2001, and 2004. Temporary total disability benefits were discontinued upon the respondent’s February 24, 1999 filing of a Form 36.

Dr. Marks’ office notes from the spring of 1999 indicate that the claimant’s condition was not improving, with pain continuing down her right leg and associated paresthesias. Surgery was discussed. An MRI on May 15, 1999 revealed the persistence of foraminal right-side L5-S1 disc herniation with bilateral stenosis, along with small mid-line disc protrusions at L2-3, L3-4 and L4-5. These had not appeared in diagnostic images taken prior to the Italy trip. The claimant underwent a hemilaminectomy and discectomy at L5-S1 on June 10, 1999, after which she was totally disabled. The claimant reported post-operative pain to Dr. Marks on July 7, 1999 and August 2, 1999, despite a clean and dry incision site with no swelling. A caudal epidural was performed, which the claimant said was helpful only for a few days before low back and right leg pain returned. On October 28, 1999, improvement was noted, and no evidence of recurrent disc herniation, discitis or osteomyelitis was found.

MacEllis Glass, an orthopedist, conducted a medical examination for the respondent on March 1, 2000, and opined that the claimant was totally disabled on account of post-operative epidural scarring in the surgical area. Dr. Glass related her condition to the September 4, 1998 work injury, and felt she posed a “substantial pain management problem” with a poor prognosis. A Form 36 was approved on June 22, 2000 returning the claimant to light duty with a twenty-pound lifting restriction and no repetitive bending or twisting. Another Form 36 approved effective July 27, 2000 placed the claimant at maximum medical improvement. She had a 14% permanent partial disability rating as per the opinion of another treating physician, Dr. Solomon, for which the corresponding benefits were paid in full. The claimant did not contest these orders.

On October 5, 2004, Dr. Mastino, a treating physician with expertise in physical medicine, identified denervation at L3-L4 that suggested a nerve pinch and lumbar radiculopathy at both levels, consistent with an October 15, 2003 MRI that had also revealed extruded disc material at L3-4. The other spinal levels appeared normal. The claimant was given a functional capacity evaluation (FCE) on February 28, 2006, on which she exhibited pain bias without overt non-organic presentation. The FCE suggested that the claimant’s work capacity would increase if her coping skills were enhanced. Dr. Knoploch wrote in an undated letter that she has treated the claimant since January 10, 2001 for chronic and severe low back pain and lower extremity pain resulting from failed back syndrome, and described the claimant as having no work capacity.

Meanwhile, the respondent raised credibility issues when it learned that the claimant had not told her treating physicians about her extensive history of back pain pre-dating the September 4, 1998 injury. This history included complaints of severe low back pain in 1985, 1992 (resulting in a diagnosis of acute lumbar strain), 1994 (involving an x-ray that showed mild degeneration of vertebral bodies in the lumbar spine), and 1996 (a lumbar strain was diagnosed after the claimant lifted a heavy bag of trash). As recently as May 30, 1997, the claimant had presented at the emergency room complaining of low back pain with leg numbness and difficulties sleeping and walking, resulting in an acute lumbar sprain diagnosis.

In the proceedings below, the claimant sought to set aside three Form 36 approval orders and three orders involving § 31-308a benefits from February 24, 1999 through December 10, 2002, in favor of a finding of continuous total disability throughout that time span. The trial commissioner found that the claimant was temporarily totally disabled through February 24, 1999, when she was cleared for light duty work. The trier also found that the claimant’s numerous trips to Italy called her disability status into question. Following the claimant’s post-surgical term of total disability, she had not appealed the Form 36 approvals on June 22, 2000 and July 27, 2000, and they were not subject to de novo review in this proceeding. At the claimant’s request, 52.36 weeks of § 31-308a benefits from January 18, 2002 through May 1, 2003 had been issued, and no evidence was offered to show that any of these orders had been made without prejudice so that the benefits might be subject to later reclassification. The trier declined to vacate those orders in order to consider a finding of total disability for those periods.

The trier also held that the claimant was unsuccessful in proving a subsequent disability. The doctors had not acknowledged her pre-existing back problems in their reports, which weakened their credibility with respect to causation. The claimant’s failure to disclose prior back problems to her physicians also detracted from her own credibility. The trier thus determined that she had not proven the 1998 compensable injury was a substantial factor in her total disability status after May 2, 2003. The trier also noted credibility issues stemming from the claimant’s departure for a month-long vacation two days after leaving work on January 29, 1999, and the disc protrusions that appeared in testing only after she returned from Italy. The trier concluded that the claimant’s disability status from September 5, 1998 through February 24, 1999 and from June 10, 1999 through June 21, 2000 remained “totally disabled,” with all other claims through May 2, 2003 dismissed with prejudice. The trier also dismissed disability claimed after May 2, 2003 without prejudice, with reconsideration contingent on both parties addressing the substantial factor rule in the medical evidence. Following the respondent’s Motion to Correct, the trier revised her conclusion to dismiss that claim with prejudice. The claimant has appealed from that ruling.

On appeal, the claimant contends that the trial commissioner went beyond the scope of the formal hearings by considering whether the claimant’s 1998 injury was a substantial factor in causing her ongoing disability. Notices for the formal hearing listed the issue as “31-307 Total Incapacity Benefits.” We have stated that a hearing notice should usefully synopsize the issues scheduled for discussion. “It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001), quoting Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971)(citations omitted). Under § 31-307(a) C.G.S., a claimant may receive benefits for “any injury for which compensation is provided under the provisions of this chapter [that] results in total incapacity to work.” Part of the claimant’s burden under that statute is the need to prove that the compensable injury is a substantial factor in bringing about the condition of total disability. Dixon v. United Illuminating Co., 57 Conn. App. 51, 60 (2000)(test for determining whether conduct proximately caused injury is whether it was a substantial factor in producing result); Birnie v. Electric Boat Corp., 4947 CRB-2-05-5 (May 15, 2006)(employment must be “substantial,” “significant,” or “important” factor in causal chain); Doran v. Conn. Dept. of Mental Retardation, 4519 CRB-6-02-4 (April 16, 2003)(applying “substantial factor” test to cause of disability).

In this case, based on the representations of claimant’s counsel at the outset of the August 14, 2006 formal hearing, the issue identified for discussion was “the claimant’s entitlement to temporary total disability benefits for various periods of time.” Transcript, p. 5; and her claim “that she’s been totally disabled since her date of injury for one reason or another . . . because she couldn’t work or she had surgery and was recovering or never made a full recovery.” Id., p. 7. When asked if he agreed with the statement of the issue by claimant’s counsel, the respondent’s attorney pointed out that her one-disk surgery in June 1999 was the only surgery she’s undergone, and argued that “looking at all of the facts of the case in totality, . . . she is not permanently totally disabled.” Id., pp. 18-19. He also cited the precedential importance of the prior orders, and the untimeliness of the claimant’s challenge to those rulings. Id., pp. 19-20. The claimant cites these statements as showing that the sole issue in the formal hearing was to determine the periods of time during which the claimant had been totally disabled. “At no time whatsoever did Respondent claim that Claimant’s condition requiring surgery in 1999 resulted from anything other than her September 4, 1998 work injury or that any subsequent ongoing disability results from anything other than the poor surgical outcome [failed back syndrome] noted by both the treating and examining physicians.” Brief, p. 7.

We disagree with the claimant’s characterization of the formal proceedings. Though the issue of prior back injuries was not raised immediately, during cross-examination of the claimant, the respondent began focusing on prior conditions, and asked if any back injuries had occurred prior to her 1998 work injury. Transcript, pp. 47-71. When the claimant acknowledged that she had experienced back problems, counsel asked whether Dr. Marks or Dr. Solomon had inquired about prior back injuries while examining her. Id., pp. 57-58. Following claimant’s answer in the negative, counsel then introduced medical reports from Norwalk Hospital showing prior treatment for back injuries. When the claimant’s attorney questioned their relevance to this accepted case, respondent’s counsel stated, “I think there still must be proven that total disability is as a result of the September 1998 incident.” Id., p. 62. The commissioner agreed, and overruled the claimant’s objection to those records. Id. Shortly thereafter, in discussing the issues to be addressed in the parties’ proposed findings, the trier described the respondent’s goal as “trying to show that . . . [the claimant is] not totally disabled, and to the extent she is, a substantial factor in her disability status is not . . . the injury of September 4th, 1998, but some pre-existing events that occurred in her life.” Id., p. 70.

These statements during the formal hearing plainly raise the substantial factor issue. Also, a hearing notice listing total incapacity as the scheduled issue normally encompasses the need to demonstrate a causal connection between the injury and the claimant’s incapacitated condition. Thus, the existence of other causes for a claimant’s disability would be relevant.

Here, claimant’s counsel reacted to the introduction of the Norwalk Hospital exhibits dated December 13, 1992 through May 30, 1997 by stating, “I thought I would object, Commissioner, except that I’m wondering what this does. This is an accepted case.” Transcript, p. 61. After the participants discussed the need for the 1998 injury to be a substantial factor in the claimant’s current disability, the trial commissioner overruled the objection, and stated that she would base her decision more on the medical records than on the claimant’s testimony. Id., pp. 62-63. Counsel then asked the claimant on redirect testimony if she had ever missed work as a result of prior occasions when she went to the emergency room for a bad back, and was told “no.” Id., p. 81. She also clarified that the claimant had used a wheelchair to move around the airport when she traveled to Italy. Perhaps, claimant’s counsel was of the opinion that the claimant’s credibility had been successfully rehabilitated by claimant’s testimony on redirect examination and further efforts in this regard were not necessary. Nonetheless, counsel did not request an opportunity to obtain further evidence addressing the effect of the claimant’s prior injuries on her current status. It should also be noted that counsel representing the claimant at this point in the pursuit of her claim was not the claimant’s original legal representative.

Finally, it appears that the claimant’s entitlement to total disability benefits for the periods in question turned on the weight and credibility the commissioner assigned to the claimant as a witness and historian of her medical history. Such determinations are within the purview of the trial commission and this board cannot override a trial commissioner’s determinations of credibility on appeal. Mosman, supra, citing Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

The trial commissioner’s decision is hereby affirmed.

Commissioners Amado J. Vargas and Scott A. Barton concur.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 The respondent also filed a petition for review in this case, but withdrew the appeal on October 15, 2007. Motions for Extensions of Time to file appeal documents were granted in this matter. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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