Hirth v. MG Electric & Construction, Inc.

CASE NO 5301 CRB-6-07-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 17, 2008

RICCI HIRTH

CLAIMANT-APPELLEE

v.

MG ELECTRIC & CONSTRUCTION, INC.

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Jonathan A. Cantor, Esq., and Tushar Shah, Esq., Fazzano, Tomasiewicz & Barall, 96 Oak Street, Hartford, CT 06106.

The respondents were represented by Matthew S. Nicci, Esq., and Lisa Bunnell, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 14, 2007 Finding and Award of the Commissioner acting for the Sixth District was heard June 27, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case presents a single issue. Did the trial commissioner properly determine that the claimant’s left wrist degenerative joint disease was solely due to a May 14, 2004 compensable injury suffered while employed by the respondent MG Electric, or was the trial commissioner compelled to find a repetitive trauma injury which would have also made a subsequent employer (Ferguson Electric) partially liable? We determine that this case hinges on the trial commissioner’s evaluation of medical evidence. Since we find the trial commissioner had probative evidence supporting this conclusion and this panel cannot revisit this evaluation of evidence, we affirm the Finding and Award and dismiss this appeal.

The parties stipulated to the facts of this case before the trial commissioner. The facts relevant to our decision are as follows. The claimant has a compensable, accepted claim of bilateral carpal tunnel with a May 14, 2004 date of injury. Voluntary Agreements with the respondent MG Electric have been approved compensating the claimant for a 5% loss of use in both the right and left wrist. The claimant’s treating physician, Dr. Michael LeGeyt, rated the claimant and found him to be at maximum medical improvement effective September 6, 2005, following successful bilateral carpal tunnel release surgery.

The claimant stopped working for MG Electric in February of 2005 and commenced work at Ferguson Electric on March 7, 2005. He was employed as an electrician for both firms and had similar job duties and activities. The claimant started treating with Dr. LeGeyt on March 3, 2005 for complaints as to pain in his left CMC joint. The claimant now states that his current medical condition regarding the CMC joint is causally related to his compensable injury of May 14, 2004. Dr. LeGeyt produced medical reports associating the CMC joint pain with degenerative joint disease post carpal tunnel release. Dr. LeGeyt’s January 11, 2007 report states the CMC condition is a pre-existing condition which has been ongoing since 2004. The respondents’ medical examiner, Dr. Richard Linburg, concluded that to the extent the condition was job related, it was due to exposure at both MG Electric and Ferguson Electric, hence the condition would constitute a repetitive trauma claim.

Based on this evidence the trial commissioner concluded Dr. LeGeyt was credible and persuasive on the issue of the claimant suffering from degenerative joint disease. The commissioner did not find Dr. Linburg’s report in regards to causation to be credible and persuasive. Therefore, he found the claimant had suffered a compensable injury to his left CMC joint flowing from the date of injury of May 14, 2004 related to degenerative joint disease following the left hand carpal tunnel release. The commissioner ordered the respondents to accept the CMC joint injury as compensable.

The respondents filed a Motion to Correct the Finding and Award, which was denied by the trial commissioner. They have pursued this appeal based on their position that the evidence presented would lead a trier of fact only to the conclusion that the claimant’s CMC joint pain was a repetitive trauma injury which was incurred both while in the employ of the respondents and Ferguson Electric.

In their brief, the respondents attempt to distinguish this case from Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008), claiming the original injury had been fully resolved prior to the claimant’s subsequent employment. In the present case we note that the claimant commenced treatment for CMC pain on March 3, 2005, prior to his subsequent employment. Nonetheless, the respondents argue the symptoms of the claimant’s current medical condition did not present themselves until he commenced work for a subsequent employer. While there are some factual differences between these cases, we believe the holding in Lamontagne governs the present case.

In Lamontagne the claimant had suffered a back injury, changed employers, injured his back again, and sought to have surgery based on the initial compensable injury. The commissioner concluded the initial injury was wholly responsible for the need for surgery. The respondents sought on appeal to make the subsequent employer partially responsible and we upheld the trial commissioner’s decision playing the full burden on the initial employer.

The testimony credited by the trial commissioner included Dr. Arkins’ testimony at the deposition that the claimant’s need for fusion surgery was substantially caused by the July 2002 concrete chute lifting injury while working for F & F. Findings, ¶ H, Joint Exhibit 2, p. 46. The trial commissioner also cited Dr. Yannopoulos’s opinion that the claimant’s work subsequent to July 2003 did not worsen his degenerative back condition. Findings, ¶ E, Joint Exhibit 3, pp. 27-28, 39. We must respect the right of the trial commissioner to rely on competent evidence which she deems most probative to the issues at hand, and which support her ultimate conclusions. “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.” Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). Id.

We find the trial commissioner in the present case specifically rejected the theory of repetitive trauma advanced by the respondent’s examiner. See Findings, ¶ F. Conversely, the trial commissioner found the conclusion of Dr. LeGeyt as to causation of the claimant’s joint condition credible and persuasive.1 The respondents discuss at length various medical reports by Dr. LeGeyt which the trial commissioner did not reference which might infer the claimant’s condition had been exacerbated by his subsequent employment. The respondents claim the trial commissioner omitted material facts in rendering his decision by not citing these reports. The trial commissioner chose not to rely on these reports, however, and relied on the treating physician’s most recent determination of causation. Under our precedent in Gagliardi, supra, such a determination is reserved to his discretion. See also Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007) “[w]e have reiterated the maxim that a trial commissioner need not credit every opinion an expert witness offers when she relies on that expert for an opinion she does credit. See O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) and Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006).” See also Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007) “[t]he respondents are mistaken in believing the trial commissioner disregarded Dr. Spero’s testimony in toto; rather, it appears he credited the testimony of Dr. Spero which unequivocally linked the compensable injury with the current disc herniation. This is a decision within his discretion.”

From a legal standpoint, we find the present case indistinguishable from LaMontagne, supra. This case constitutes a “dueling expert” case. Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) where an appellate panel cannot reweigh the evidence to conclude one party’s expert witness should have been deemed more persuasive than the other. The trial commissioner has identified sufficient probative evidence to justify this Finding and Award and we are therefore obligated to affirm the result herein.2

We affirm the Finding and Award and dismiss this appeal.

Commissioners Charles F. Senich and Scott A. Barton concur in this opinion.

1 The trial commissioner cited reliance on a February 1, 2006 report by Dr. LeGeyt which assessed the claimant as having “CMC pain s/p CTR L” and an August 16, 2006 report which assessed the claimant as having “CMC pain s/p CTR L consistent with DJD.” Finding, ¶ E. We also note the trial commissioner referenced the treating physician’s January 11, 2007 report unequivocally linking the joint pain to the pre-existing condition. Findings, ¶ 21. BACK TO TEXT

2 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT