Mele v. City of Hartford

CASE NO. 5286 CRB-1-07-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 10, 2008

LYDIA J. MELE

CLAIMANT-APPELLANT

v.

CITY OF HARTFORD

EMPLOYER

and

CONSTITUTION STATE SERVICE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Mark E. Blakeman, Esq., Michelson, Kane, Royster & Barger, P.C., Hartford Square North, Ten Columbus Boulevard, Hartford, CT 06106.

The respondents were represented by James L. Pomeranz, Esq., and Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the October 3, 2007 Decision Pursuant to Remand of the Commissioner acting for the First District was heard June 27, 2008 before a Compensation Review Board panel consisting of Commissioners Charles F. Senich, Scott A. Barton, and Jack R. Goldberg.

OPINION

CHARLES F. SENICH, COMMISSIONER. The claimant has petitioned for review from the October 3, 2007 Decision Pursuant to Remand of the Commissioner acting for the First District. We find no error, and affirm the decision of the trial commissioner.1

The following background information is pertinent to our review. The claimant, a longtime employee of the City of Hartford Board of Education as a teacher and guidance counselor, sustained a series of compensable injuries over the course of a more than thirtyyear career with the school system. Germane to this appeal are two distinct compensable injuries, the first occurring on or about October 26, 1996 when the claimant fell in a freight elevator, and the second occurring on or about December 11, 2001 when the claimant was hit behind the knee with a handball thrown by a student who had escaped detention. It is the claimant’s position that the difficulties with her right hip she has experienced over the years and her current need for hip replacement surgery were caused by one or both of these incidents, a claim which the respondents have rejected.

This matter previously came before this board on May 13, 2005 when the claimant appealed a Finding and Award/Finding and Dismissal issued by the trial commissioner for the First District.2 In his decision, the trial commissioner determined the claimant had sustained a compensable injury on each of the two dates in question but found no causal connection between the workplace incidents and the claimant’s hip condition and need for hip surgery. The claimant appealed, alleging that the trial commissioner had committed reversible error by dismissing her claim for hip injuries and failing to grant the claimant’s Motion to Correct. The claimant also argued that the failure by the workers’ compensation district office to list the injury of October 26, 1996 on the hearing notice constituted a deprivation of due process in that it prevented her from putting evidence into the record regarding that injury and its role in the causation of her hip injuries.3

On appeal, with regard to the claimant’s contentions of a due process infringement relative to the allegedly insufficient hearing notice, this board observed that as a general rule, the topics which may come under discussion at a hearing are not strictly limited by the issues recited on the hearing notice. Notice “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.” Hartford Electric Light Co. v. Water Resources Comm., 162 Conn. 89, 110 (1971) (citations omitted).

However, we also noted that there had been no live testimony at the formal hearing, as the trial commissioner had indicated he would be relying exclusively on the medical reports in the record to formulate his findings. The lack of testimony in the record prompted this board to remark, “it is not clear to this panel at what juncture in the proceedings below the claimant should have been apprised that the causal relationship of a prior injury, i.e., the October 26, 1996 injury, would be an issue determined by the trier.” Mele v. Hartford, 4870 CRB10410 (September 29, 2005). As a result, we remanded the matter to the trial commissioner “so as to give the claimant an opportunity to be heard on the causal relationship of her claim and the October 26, 1996 injury.” Id.

In addition, this board affirmed the trial commissioner’s denial of the claimant’s Motion to Correct, given that the trial commissioner had granted the motion in part and “the remainder of corrections sought was either an expanded description of the exhibits submitted, or corrections suggesting a different credibility assessment than that assigned by the trial commissioner.” Id.

This board also affirmed the trial commissioner’s decision to reject the findings of the Commissioner’s Examiner, Myron Shafer, M.D. In his May 1, 2003 addendum to his report of February 24, 2003, Dr. Shafer stated that, “[i]t is my opinion that the [claimant’s] right hip and left shoulder symptoms are work related.” Claimant’s Exhibit AA (May 3, 2004). On review, we remarked that, “[w]e have previously explained that the usual purpose of a § 31-294f4 examination is to provide strong guidance to a commissioner,” and “[t]his board favors an articulation when a trial commissioner does not follow that opinion.” Id., quoting Galiardi v. Eagle Group, Inc., 4496 CRB2022 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). However, this board also stated that a trial commissioner “is not required to give an explanation when that opinion is not adopted,” because “the ultimate decision is always with the commissioner ….” Id., citing Gillis v. White Oak Corporation, 49 Conn. App. 630, 637 (1998) (emphasis in the original, internal citations omitted). We concluded that “in the instant matter the trial commissioner exercised his discretionary power and rejected Dr. Shaffer’s (sic) opinion as to causality. We cannot say that the trier abused his discretion in reaching this conclusion.” Id.

Pursuant to the remand order, the parties once again appeared before the trial commissioner at formal hearings held on March 15, 2007 and April 24, 2007. The claimant was given the opportunity to testify at length regarding the injuries she sustained on October 26, 1996 and December 11, 2001 and the various treatment modalities she has undergone since, specifically with regard to her right hip. Following the formal hearings, on October 3, 2007, the trial commissioner issued his Decision Pursuant to Remand, in which he reiterated his previous determination that no causal connection exists between the claimant’s hip condition and the compensable injuries of October 26, 1996 and December 11, 2001. Stating that he did not find the claimant’s history regarding her right hip clear or convincing, or the medical reports linking the claimant’s right hip problems to her workplace injuries credible and/or persuasive, the trial commissioner once again denied and dismissed all claims relative to the claimant’s right hip arising from the incidents of October 26, 1996 and December 11, 2001. Findings, ¶¶ D, E, F.

The claimant has once again appealed, contending the trial commissioner’s conclusions are legally inconsistent with the subordinate facts because (1) “the Claimant has established a Prima Facie Case which was not rebutted by the respondents,” Appellant’s Brief, p. 24, and (2) “the weight of the medical evidence indicates that the Claimant’s right hip problems are work related.” Id., at 29. In addition, it is the claimant’s position that the trial commissioner’s failure to correct several scrivener’s errors in his Decision Pursuant to Remand which had also appeared in his original Finding and Award/Finding and Dismissal indicates “a predisposition on the part of the Commissioner to issue the same decision despite overwhelming evidence presented proving compensability.…” Id., at 34.

We begin our analysis by reciting the standard of deference we apply to a trial commissioner’s findings and legal conclusions. As this board recently articulated in Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007),

… the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

Having reviewed the evidentiary record in the instant matter, we find the medical file contains numerous inconsistencies which serve to support the trial commissioner’s determinations. For instance, although the claimant testified at trial that she had been treating consistently for her hip injuries, the contemporaneous medical records belie that assertion.5 When the claimant saw Gerald Becker, M.D., on October 25, 1996 (the day after the fall in the freight elevator), he noted that the claimant “fell directly on her buttocks and since this time has had pain in her back, buttock area and also some bruising behind her right knee.” Claimant’s Exhibit A (March 15, 2007). Neither hip is mentioned. Similarly, when the claimant saw Susan Barksdale, a P.A.-C. in Dr. Zimmerman’s office, on October 28, 1996, Ms. Barksdale also noted the claimant had fallen backwards and reported some bruising behind the right knee but that the claimant’s “worst complaint at this time is her right shoulder.” Id. See also Respondent’s Exhibit 4. Again, no hip injury is referenced. Likewise, when Ms. Barksdale returned the claimant to work on November 4, 1996, the only limitation indicated was a five-pound lifting restriction for her right shoulder.

In 1997, the claimant returned to Orthopedic Associates of Hartford on January 27, February 20, March 7, March 14, March 31, April 21, May 12, June 20, July 17, August 4, September 29, and November 3. Claimant’s Exhibit A (March 15, 2007). A hip injury is not referenced in any of those reports. In 1998, the claimant returned to Hartford Orthopedics on January 5 and March 23, and a hip injury is not referenced in those reports either. Id. In fact, the first reference to the claimant’s hip problems occurs in a report of Michael S. Aronow, M.D., dated February 19, 1999 in which he indicates that the claimant “states that her right hip pain is gone.” Claimant’s Exhibit H (April 24, 2007).

The record also contains physical therapy referrals from Dr. Aronow dated April 17, 1999, July 23, 1999, January 26, 2000, February 8, 2000 and February 24, 2000. Claimant’s Exhibit C (March 15, 2007). In a report dated July 23, 1999, Dr. Aronow diagnoses trochanteric bursitis, Id., and notes in his report dated October 29, 1999 that the claimant “states that her right hip pain is better.” Claimant’s Exhibit H (April 24, 2007). The earliest mention of the claimant’s hip pain in the Orthopedic Associates’ chart occurred in Dr. Becker’s office note of January 3, 2001, wherein he indicates the claimant “has developed pain in her hip area with a question as to whether the pain is coming from her back or from her limping from her foot problem.” Claimant’s Exhibit A (March 15, 2007).

In light of the foregoing, we find the lack of contemporaneous medical reports in the evidentiary record which would serve to substantiate the asserted link between the claimant’s hip condition and the workplace incident of October, 1996 more than adequately supports the trial commissioner’s findings relative to the role this incident may have played in the claimant’s subsequent development of hip problems.

The trial commissioner also relied upon the deposition testimony of John C. Grady-Benson, M.D., with whom the claimant began treating on May 9, 2002. In his deposition, Dr. Grady-Benson drew a distinction between the claimant’s two hip diagnoses, namely, trochanteric bursitis and arthritis, and clarified that the contemplated hip replacement surgery was to correct the arthritis, and not the trochanteric bursitis.6 Respondent’s Exhibit 1, pp. 11-12. Although Dr. Grady-Benson testified that “it’s highly medically probable that the trochanteric bursitis of her right hip is directly related to at least two of the work-related injuries, most specifically the contusion she sustained on approximately 10/26/96, in which she fell and landed on her hip …”, Id., at 13-14, the doctor also opined that the trochanteric bursitis was only “[p]ossibly connected based on what the patient told me” to the injury of December 11, 2001. Id., at 14. With regard to this second incident, the doctor stated, “[t]he December 11, 2001 injury seemed to be predominantly injury to the knee with a secondary twisting of her hip, and because it did not involve a direct contusion, it’s not entirely clear to me that that was a causative factor in her bursitis, but it’s certainly possible.” Id., at 16.

The doctor then went on to testify that he could find no causal link between the claimant’s arthritis and subsequent need for hip replacement surgery and either of the claimant’s workplace injuries.7 The doctor stated that there are “numerous” causes of arthritis and he was unable to identify which one might have caused the claimant to develop the condition. Id., p. 23. While the doctor acknowledged that arthritis can be caused by trauma, Id., p. 24, he also remarked that, “I do not know of any patients, in my practice, who had a twisting injury to the hip resulted in arthritis seven months later.” Id., p. 26. The doctor essentially concluded, “I believe that it is more medically probable that Lydia Mele developed arthritis in her right hip from unknown causes, unrelated to her work injuries.” Id., p. 37.

In a report dated February 25, 2004, Dr. Grady-Benson noted “moderate degenerative arthrosis of the right hip joint which has progressed gradually since 2002” and found that “[t]here is indeed radiographic evidence of early degenerative arthrosis in the left hip.” Claimant’s Exhibit F (March 15, 2007). Dr. Grady-Benson also issued a follow-up report on February 26, 2004 in which he identified a typographical error involving the omission of the word “possibly” in his report of December 17, 2003 and confirmed that the sentence in that report should have been, “[i]t is my opinion based on the progressive arthritis since her workrelated hip injury of 12/11/01, that Lydia Mele’s hip arthritis is possibly directly related to at least this one work injury.”8 Id. Noting that “[i]n my first two visits with Lydia in 2002, she did not mention the injury of December 2001,” the doctor went on to conclude his report with the observation, “I cannot relate the degenerative arthritic condition that is developing in her left hip with any workrelated injury. Indeed, since she is developing arthritis in the left hip, this gives further confirmation to my opinion that she has arthritis of unknown etiology in both hips.” Id.

Thus, in addition to the paucity of contemporaneous medical reports in the file, we also find that the deposition testimony and medical reports of Dr. Grady-Benson provide ample support for the trial commissioner’s inferences with regard to the lack of causation between the two workplace incidents and the claimant’s hip injuries.

Finally, the trial commissioner also relied on the Independent Medical Examination of September 18, 2002 performed by Wells C. Jacobson, M.D. The doctor begins his report by remarking,

It has been difficult to parse out what symptoms come from what injury because of the multiplicity of injuries and because of the multiplicity of physician input. The patient has, I believe, seen 13 orthopedists, a vascular surgeon and rheumatologist and an occupational health physician during the course of her employ.

Respondent’s Exhibit 2.

After reviewing the “highlights” of the claimant’s treatment history, the doctor recited the list of permanency ratings the claimant has been awarded over the years, concluding with the observation, “[i]t is frankly not clear to me what percent of each of these disabilities has been directly attributed to a work injury and what percent related to preexisting factors, body habitus or attritional change.” Id. With regard specifically to his assessment of the claimant’s right hip, the doctor acknowledged that the claimant did have a disability which could not yet be evaluated for permanency. Id. However, the doctor also stated, “I don’t feel that the medical record demonstrates a distinct causal relationship the (sic) patient’s right hip and any workrelated injury.” Id. Dr. Jacobson concluded his report with the following:

In summary, the patient has disabilities which I believe are attributable to work but this copious medical record reads as though every complaint over the last 23 years must be tied to work activity and unrelated to other daily activity of living. I frankly think this has been a difficult issue for treating orthopedists to get a handle on because I am certain that none of them ever had the entirety of the medical record before them and certainly, if they did, did not have the inclination to plow through it. Evaluation in this regard has also been complicated by the fact that there was so many treating orthopedists and virtually none of them were able to follow a condition from beginning to end. I believe my evaluation of Ms. Mele is unbiased and both fair to her and to the system of which she is a part.

Id.

The claimant saw Dr. Jacobson again on May 17, 2004 for another Independent Medical Examination. With regard specifically to the claimant’s right hip, the doctor indicated that Dr. Grady-Benson had initially treated the claimant’s trochanteric bursitis with injections which afforded some short-term relief but that the current “diagnosis has tended toward degenerative arthritis in the right hip.” Claimant’s Exhibit G (March 15, 2007). Further, “[b]ecause of her symptoms in the hip, it was suggested that a total hip replacement might not be unreasonable. Patient has also had a MR scan of her right hip on 4/29/03 and this demonstrated moderate degenerative disease, no labral tear and no avascular change.” Id.

In his assessment of the claimant following his physical examination, the doctor stated, “[i]n terms of the patient’s right hip, I have a difficult time examining her because with any internal or external rotation she screams in discomfort.” Id. Noting his concurrence with a diagnosis of degenerative arthritis, the doctor opined,

Certainly her clinical presentation is somewhat out of proportion with what one would normally expect with moderate degenerative change as noted on her x-ray and MR study. As mentioned, I do not feel that there is any relationship between work injury and the patient’s degenerative arthritis in her hip. The patient does have some tenderness over the trochanter and has been treated for trochanteric bursitis in the past and that may be related to work injury or an abnormal gait secondary to other lower extremity malady which was work related. In terms of the trochanteric bursitis which the patient states is persistent, I would estimate that she has a 1% permanent partial disability of her hip that is work related. Again, the degenerative change here I strongly feel should not be considered work induced. I do note today that a deposition by Dr. Grady Benson has been faxed and he concurs with that feeling. I suspect that other examiners who have differed and suggested that her hip arthritis was secondary to work injury were not sufficiently well versed in the full medical record. At this time, I believe 14 orthopedists have been involved in the patient’s care and at some point the multiplicity of physician input presents a problem and not a solution.

Id.

In his summary, the doctor concluded,

As I read through this medical record which encompasses extensive treatment over many years, I note that each individual medical encounter seems to result in appropriate care. It is nevertheless difficult to not come to the conclusion that the patient’s overall medical care has been less than optimal and this fact is directly related to the multiplicity of physician input and this pattern continues to date. No individual physician seems to maintain a complete picture of this patient’s multiple maladies and rarely has an individual physician cared for given (sic) problem to its conclusion. This pattern is also one of the problems relating to the issue of compensability through the workman’s compensation system. A given physician would frequently not be privy to the entirety of the medical record and would simply recount what the patient stated or determine compensability by the previous physician’s statement. The patient does have ongoing physical maladies and some of these may require intervention; however, the bedrock of her treatment I believe should be through a pain clinic heavily laced with psychologic evaluation rather than simply adding a potentially endless list of invasive procedures.

Id.

In conclusion, we find the foregoing analysis provides more than sufficient justification for the trial commissioner’s determinations in this matter. While it cannot be denied that there are a number of medical opinions in the evidentiary record which could have led to different inferences, it is well settled that, “[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted, emphasis added.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). “It is … immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

In addition, as Dr. Jacobson pointed out in both of his reports, due to the lack of consistency in the claimant’s medical treatment, later medical assessments were either largely based on prior medical reports already in the file or were “derivative of the claimant’s narrative.” Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). In Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008), this board affirmed the decision of a trial commissioner to dismiss a claim after having “deemed [a doctor’s] report flawed based on an inaccurate patient history.” It is well within the trial commissioner’s discretion to conclude that the testimony of a witness is unreliable; in such a situation, “[t]he trial commissioner could decide to disregard the totality of a medical report, even if it was undisputed by the respondents.” Id. Such determinations cannot be reversed on appeal, as they fall squarely within the trial commissioner’s purview.

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.

Id., quoting Burton v. Mottolese, 267 Conn. 1, 40 (2003).

“As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton, supra, at 54. The analysis herein attests to the complexity and sheer expanse of the evidentiary record; it also provides extensive justification for the inferences drawn by the trial commissioner. Having concluded that the trial commissioner’s inferences in this matter were reasonable, we hereby affirm the Decision Pursuant to Remand of the Commissioner acting for the First District.

Commissioners Scott A. Barton and Jack R. Goldberg concur in this opinion.

1 We note that a Motion for Extension of Time was granted during the pendency of this appeal. BACK TO TEXT

2 See Mele v. Hartford, 4870 CRB-1-04-10 (September 29, 2005). BACK TO TEXT

3 The claimant also filed a Motion to Submit Additional Evidence, which motion this board did not rule upon as the matter was remanded to the trial commissioner. BACK TO TEXT

4 Section 31-294f (a) (Rev. to 2003) states, in pertinent part:

An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. BACK TO TEXT

5 Q: Besides the physical therapy you had had ordered by Dr. Aranow (sic) for the right hip this is when you really started actively treating for the right hip in the spring of 2002? [May of 2002]

A: No, I’ve been treating for the right hip all along but I was referred finally to a hip specialist.

March 15, 2007 Transcript, pp. 24-25. BACK TO TEXT

6 Q: That’s a separate diagnosis, this diagnosis of hip arthritis from the trochanteric bursitis which I gather is just another name for abductor tendonitis?

A: Trochanteric bursitis and abductor - a-b-d-u-c-t-o-r - tendonitis are basically synonymous terms and that is a separate diagnosis from hip arthritis which refers more specifically to the cartilage of the hip joint as opposed to the muscle attachment to the greater trochanter.

Respondent’s Exhibit 1, pp. 11-12. BACK TO TEXT

7 A: Total hip replacement I cannot, with any degree of medical probability, assign the hip arthritis from which Lydia Mele suffers as a direct result of any of the work related injuries that she described to me that I know of.

Q: Why not?

A: She had a contusion to the hip which is documented in 1996. If she’d had hip arthritis as a result of that, one would have had objective evidence of hip arthritis, typically, prior to my visit with her on May of 2002.

The twisting injury that’s discussed, December 11, 2001, could aggravate muscle pain around the hip, but without a significant direct contusion would be unlikely to cause degenerative arthritis of the hip joint.

Respondent’s Exhibit 1, pp. 16-17. BACK TO TEXT

8 With regard to this typographical error, Dr. Grady-Benson testified that it occurred in his report of December 17, 2003, wherein he stated that the claimant’s arthritis was “directly” related to the injury of December 11, 2001. See Claimant’s Exhibit DD (May 3, 2004). The doctor explained that, “I believe what I dictated at that time was it is possible that there is a relationship” but “[m]y opinion is it’s not probable. And if you note on the bottom of the page, says (sic) dictated but not read, and the note is not signed by me.” Respondent’s Exhibit 1, p. 34. The doctor ascribed the error to the fact that, “It’s a long report. I talk quickly when I dictate and I feel this dictation is in error.” Id., p. 35. BACK TO TEXT