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Cervero v. Mory’s Association, Inc.

CASE NO. 5357 CRB-3-08-6



MAY 19, 2009











The claimant was represented by John A. Keyes, Esq., Keyes & Looney, Attorneys at Law, 420 East Main Street, Building 3, Suite 15, Branford, CT 06405.

Respondents were represented by Donald F. Babiyan, Esq., Law Office of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, First Floor, North Haven, CT 06473.

This Petition for Review from the June 9, 2008 Finding and Orders of the Commissioner acting for the Third District was heard December 12, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter is seeking to have her compensation insurer pay for a two level disk replacement responsive to her compensable injury. The respondents have contested this request; claming such a procedure does not constitute “reasonable and necessary medical care” within the meaning of § 31-294d C.G.S. The trial commissioner found this argument persuasive and denied the claimant’s request. On appeal, the claimant contends this decision constitutes legal error. We find the trial commissioner made a decision based on the weight of the evidence presented. Therefore we affirm the commissioner’s Finding and Orders and dismiss this appeal.

The following facts are pertinent to our appellate review. It is agreed that the claimant was injured on June 6, 2002 while employed by the respondent as a “waitress/bartender.” On that date she injured her lower back while “carrying heavy trays from the basement up to the first floor” of the respondent’s New Haven restaurant. A voluntary agreement for this injury was approved by Commissioner George A. Waldron on October 2, 2002.

Following her 2002 injury the claimant went to her primary care physician who referred her to Dr. Michael Connair, an orthopaedic surgeon. Dr. Connair prescribed conservative treatment including “lamp therapy,” a “Medrol dose pack,” prescription medications and physical therapy. On June 18, 2002 Dr. Connair diagnosed the claimant with “multi-level degenerative disk disease with spur formation at L4-5, L2-3 and L1-2 and T12-L1.” On September 24, 2002 Dr. Connair determined that after an MRI test that the claimant’s condition was “not severe enough to warrant surgical intervention at this time.” Claimant’s Exhibit A.

In October 2002 Dr. Connair referred the claimant to Dr. Josef K. Wang for a pain management evaluation. Dr. Wang suggested “lumbar epidural steroid injections to control her pain” and performed two such injections. The respondents asked the claimant to be evaluated by their expert, Dr. John J. Shine, on November 14, 2002. Dr. Shine’s review of the July MRI reports indicated the claimant had “severe disk degeneration at L4-5 with some slight narrowing of the foramen on the left side but no canal stenosis.” The report further showed “minimal disk bulging” at L5-S1. Dr. Shine recommended pool therapy and “use of a lumbar support” brace. Claimant’s Exhibit A.

In May 2003 the claimant sought a second opinion from another orthopedic surgeon, Kenneth M. Kramer M.D. The Claimant testified that Dr. Kramer provided “traction therapy” and “facet” injections. Dr. Kramer agreed with Dr. Connair that the claimant had a light duty work capacity and should be treated conservatively. He suggested a follow-up MRI scan to ascertain if the claimant would be an appropriate candidate for a “lumbar decompression at L4-5.” In August 2003 Dr. Kramer determined that the claimant was not “surgical under the circumstances” and recommended she return to physical therapy. Claimant’s Exhibit A; May 28, 2003 and August 25, 2003 reports of Dr. Kramer.

In January 2004 the respondents had the claimant examined by another expert witness, Dr. Robert N. Margolis. Dr. Margolis diagnosed “[l]umbar strain syndrome” and “[m]arked degenerative motion segment disease at L4-5.” Dr. Margolis noted that “virtually no form of treatment helps her.” Dr. Margolis concurred with Dr. Kramer and Dr. Connair that the claimant had a light duty work capacity. He determined she had reached maximum medical improvement and assigned a 12% permanent impairment to her lumbar spine. Dr. Margolis further concluded “[t]here is absolutely no question in my mind that she is not a surgical candidate for any type of procedure.” Claimant’s Exhibit A, January 8, 2004 report of Dr. Margolis.

In February 2004 Dr. Kramer opined that the claimant’s condition had “partly improved.” He determined that no additional formal treatment measures were “indicated or anticipated” and determined the claimant had reached maximum medical improvement with an 8% permanent partial impairment rating and a permanent sedentary work restriction. Claimant’s Exhibit A, February 11, 2004 report of Dr. Kramer.

Nonetheless, the claimant began treating with Dr. Steven P. Novella, a neurologist, because her “back pain was getting worse.” The claimant paid for Dr. Novella’s treatment through her private insurance. The claimant testified Dr. Novella placed her on “a lot of medications” and placed her back on “traction therapy.” The claimant returned to work in September 2004 at Seaside Mattress where she worked up to four hours a day handling phone duties. She continued to work there until June or July of 2005 when she left because she could not commit to working there every day and she had to leave work sporadically because her back hurt.

About this time the claimant presented to Dr. John G. Strugar for a neurosurgical consultation. Dr. Strugar opined that “I cannot clearly recommend surgery for this patient at this point.” He suggested “there is an indication here for disk replacement at the L4-5, even at L2-3. However, that would be quite difficult to do at that level.” He recommended a more conservative course including an aqua therapy program. He further suggested the claimant consult Dr. James J. Yue, a neurosurgeon, regarding disk replacement. Claimant’s Exhibit A, May 25, 2005 report of Dr. Strugar.

Dr. Yue examined the claimant on October 17, 2005. He evaluated April 2005 MRI’s and diagnosed “L4-L5 discogenic changes with a central disk bulge, some mild L5-S1 discogenic changes and a normal appearing L4-L5 level.” He recommended a discogram that revealed “[m]ultilevel degenerative disk and facet degenerative changes” and a “small endplate cyst on the superior aspect of L5.” Dr. Yue directed the claimant to return to Dr. Wang for additional pain management treatment. Claimant’s Exhibit B. The claimant testified Dr. Wang has had her take Percocets for two years as of the date of the formal hearing.

Dr. Yue has recommended surgery for the claimant. On February 2, 2006, Dr. Yue states “[t]he patient desires to proceed with surgical correction of her issues.” He recommends “L4-L5 and L5-S1 disk replacement” but also suggested a cyst might make replacement of L4-5 impossible. On February 15, 2007, Dr. Yue opined that “a two-level lumbar disk replacement would give Ms. Cervero the ability to perform clerical and light-to-moderate duty work in the future.” Claimant’s Exhibit B. At his deposition Dr. Yue outlined his rationale for performing disk replacement surgery.

. . . if we can remove that pain generator, there’s a chance we may alleviate some of her pain. She’ll never have a pain-free back, it’s not something that I don’t think she will ever achieve because of her other levels of degeneration above but I think it would give her a better base to function...if...the replacement functions properly...she can expect about 70 to 75 percent relief of her pain . . .

Claimant’s Exhibit C, September 27, 2007 Deposition of Dr. Yue, pp. 13-14.

Dr. Yue testified that while bone density and the cyst might make a fusion the only feasible intervention, he preferred disk replacement. He cited three reasons, including that it tended to “protect the other levels above or below it from future degeneration at least on a rapid scale.” Id., at p. 16. He testified that he had performed between “five or six hundred” disk replacement surgeries. Id., at p. 18. While he testified that there are significant differences of opinion in the medical community on the effectiveness of disk replacements; he believed that they were statistically superior to a fusion for a number of reasons. He also testified while a successful fusion surgery would produce the same percentage of chance of relief of symptoms as a disk replacement, a disk replacement would speed the claimant’s return to work, which would be delayed six months with a fusion. Id., at p. 23.

The claimant was interested in having the disk replacement surgery, as she testified her condition is getting worse and her pain was an impediment to performing her daily activities. She said she could not sit without pain and could only stand fifteen or twenty minutes without pain.

Following an informal hearing, Commissioner Rhoda Loeb directed that the claimant should be examined by a commissioner’s examiner. Dr. William H. Druckemiller conducted this examination on November 8, 2006. Dr. Druckemiller, a neurosurgeon, diagnosed the claimant with “significant degenerative changes at the L4-5 level with a traction spur anteriorly and a suggestion of an early degenerative spondylolisthesis” as well as “moderate degenerative changes at L2-3.” Claimant’s Exhibit D. Dr. Druckemiller did not agree with Dr. Yue as to whether the claimant should undergo disk replacement surgery. On December 22, 2006 he wrote “[i]n my opinion, she is unlikely to get a good, long term result from surgery and that should be avoided at this point in time.” Id. On December 12, 2007 he wrote, after examining recent bone scan and MRI results, “[t]hese reports if anything confirm my previous opinion that surgery is not a good option for this patient.” Respondents’ Exhibit 1. He explained his reasoning as follows.

In my opinion, the patient is not a good surgical candidate and I personally would not perform that surgery. The reason for that is that she has significant, multiple level disease other than the areas noted to be positive on the MR scan and the previous discogram. If she has a two level fusion, she is highly likely to have significant pain early on from an adjacent level syndrome at L3-4 and L2 is already known to be positive on a bone scan. Id.

At a deposition in April 25, 2007 Dr. Druckemiller testified that while single level disc replacement generally had an 80% rate of success in improving the patient’s symptoms and the two level disk replacement had a 70% rate of success, he did not think the claimant would experience a dramatic difference in the level of pain were the surgery to be performed. He testified he did not think the surgery was going to work. He suggested the claimant might benefit from “a good back strengthening exercise program.” Respondents’ Exhibit 1.

Based on these subordinate facts the trial commissioner concluded that the claimant was credible and she was suffering a compensable injury: i.e., multi-level degenerative disk disease. He found that Dr. Yue had proposed performing either a multi-level or single level disk replacement for the claimant and had opined that this procedure provided the claimant the best opportunity to return to the workforce. The commissioner also noted that two of the claimant’s treaters (Dr. Connair and Dr. Kramer) had recommended conservative treatment, as had the respondent’s experts. In reviewing the testimony of the commissioner’s examiner Dr. Druckemiller, the commissioner concluded that Dr. Druckemiller opined that disk replacement surgery would not be reasonable or necessary medical treatment. He also found Dr. Druckemiller opined that the surgery proposed by Dr. Yue would not yield long term benefit to the claimant, and would result in medical problems to adjoining disks.

The trial commissioner found Dr. Druckemiller “fully credible and persuasive” and did not find Dr. Yue “fully credible and persuasive.” Therefore he found Dr. Druckemiller’s report and opinions are more persuasive regarding the need for surgical intervention than those of Dr. Yue. He determined that at this time neither two level nor single level disk replacement was “reasonable and necessary medical treatment,” but suggested that were the claimant’s condition to deteriorate, that another commissioner and a different physician reevaluate the merits of surgery.

The claimant filed a Motion to Correct seeking to substitute findings that the proposed surgery was medically necessary and appropriate. The trial commissioner denied this Motion to Correct and the claimant has pursued this appeal.

The claimant’s appeal is based on two theories. First she argues that the standard employed by Dr. Druckemiller, the commissioner’s examiner, was legally improper. The claimant believes that the commissioner was obligated to apply the “worthy of attempt” standard as applied in Cirrito v. Resource Group Ltd. Of Conn., 4248 CRB-1-00-6 (June 19, 2001) and not the more stringent “super long term approach” standard of the commissioner’s examiner. The claimant also finds the decision herein inconsistent, as it denies the request for surgery today, but leaves open the opportunity for the claimant to seek a future surgery. Upon review, we do not find reversible error present under either argument.

In Wiggins v. Middletown, 5300 CRB-8-07-12 (January 15, 2009) we outlined the deference we must apply to a trial commissioner’s evaluation of medical evidence. Although the dispute in Wiggins concerned the causation of the claimant’s injury, we find it applicable to issues where the necessity for surgery is in dispute.

A trial commissioner is entitled to substantial deference in his evaluation of medical evidence. “When the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner . . . . A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Dengler, supra, 451.” Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007).
If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). “We must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases.” (Internal citations omitted) Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006) n.1; Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007).

It is apparent that Dr. Yue and Dr. Druckemiller utilize a different standard for evaluating the efficacy of proposed surgery.1 It is also a matter of record that Dr. Druckemiller was the commissioner’s examiner and our precedent stands for the proposition that a trial commissioner may choose to give greater weight to the opinions of the commissioner’s examiner over that of the treating physician. Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). We also note that the trial commissioner found Dr. Druckemiller more persuasive and credible than Dr. Yue. This is his right as a trier of fact. Huertas, supra.

Therefore, for this panel to discount Dr. Druckemiller’s testimony we must determine the legal standard he subscribed to was inconsistent with the law or otherwise unreasonable. We look to the Cirrito case cited by the claimant and cannot reach this determination.

In Cirrito the respondent’s challenged the trial commissioner’s finding that the claimant should receive epidural injections. However, “both doctors recommended that the claimant pursue such therapy, even if the odds of its successfully furthering his recovery were relatively low.” Id. Unlike the present case, there was agreement amongst the medical witnesses on the efficacy of the proposed treatment. Moreover in Cirrito, the trial commissioner accepted this evidence and we upheld his decision on appeal; wherein in the present case the trial commissioner’s decision to rely on Dr. Druckemiller is being challenged.

Moreover, a close reading of the Cirrito opinion indicates it stands for the discretion of a trial commissioner to approve treatments which may have a relatively low percentage of success. It does not, as the claimant suggests, establish that once the “worthy of attempt” threshold is reached the commissioner is obligated to approve surgery.

There is nothing in § 31-294d limiting “reasonable and necessary” medical care to courses of treatment that will probably be successful, nor would the humanitarian spirit of the Workers’ Compensation Act be furthered by our reading such a limitation into the statute. If a doctor believes that, under the circumstances of a case, a particular type of treatment is worth attempting, the trial commissioner would normally be justified in approving such treatment. It follows that we find no error in the trier’s approval of a course of epidural injections. Id. (Emphasis added)

Cirrito does not stand for the proposition that a trial commissioner must approve surgery or treatment when the experts believe it has some likelihood of success. The claimant in that case persuaded the trial commissioner that notwithstanding the low probability of success epidural injections should be authorized. In the present case the claimant and her expert did not persuade the trial commissioner disk replacement surgery was warranted. Cirrito stands for the proposition the commissioner makes the determination herein “[w]hether a proposed course of treatment is reasonable or necessary is a factual issue to be decided by the trier based on the medical opinions in the record.” Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002).2 Dr. Druckemiller may well take a different approach in evaluating the efficacy of disk replacement surgery, particularly in seeking a greater probability of significant long term improvement than Dr. Yue, but we cannot deem his approach “unreasonable,” Goncalves v. Nutmeg Big Brothers/Big Sisters, 5180 CRB-1-07-1 (January 22, 2008), particularly as the witness identified specific reasons for his concern over the efficacy of surgery.

The claimant also argues that the trial commissioner’s decision is “inconsistent” in that he decided not to authorize surgery at this point, but left open the opportunity for the claimant to seek authorization for surgery at a later date. The claimant argues this result is inconsistent with the evidence submitted on the record. We disagree as we have pointed out that the commissioner could rely on Dr. Druckemiller’s opinion that he did not favor surgery on the claimant. Evidence on the record supports the conclusion of the trial commissioner and we must defer to the commissioner’s conclusions. Dengler, supra.

In any event, precedent supports a trial commissioner who determines that a claimant’s present medical condition does not warrant approving a certain form of medical treatment while leaving the door open to reconsider the issue at some later date. See Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007). In Serluca we pointed out this is the type of decision where a present trial commissioner cannot bind a future trial commissioner.

This determination of the claimant’s current medical treatment is not probative of what determination the Commission may reach regarding the claimant’s future medical treatment. At such time as the claimant seeks to establish that future treatment constitutes reasonable and necessary treatment for the compensable injury he will be able to pursue this request de novo.

Since the trial commissioner’s order is consistent with the precedent in Serluca, we find no error. If the claimant’s condition worsens, the possibility exists to revisit the issue of disk replacement surgery and explain that it is now a more compelling option than it was at time the record in this matter closed on February 14, 2008.3

As there is no reversible error, we affirm the decision of the trial commissioner and dismiss this appeal.

Commissioners Charles F. Senich and Amado J. Vargas concur in this opinion.

1 The claimant went to some length to identify statements in Dr. Druckemiller’s testimony which would support approving surgery at this time. Claimant’s Brief, p. 10-14. We however, generally defer to the trial commissioner to resolve any ambiguities in a witness’s testimony Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). BACK TO TEXT

2 Further support for this view is stated in our opinion in Vannoy-Joseph v. State/Department of Mental Health and Addiction Services, 5164 CRB-8-06-11 (January 29, 2008) where we held, “[e]valuating the appropriateness of a proposed medical treatment is a delicate task. While respecting the complex diagnostic and outcome-predictive skill that is central to a physician’s expertise, a workers’ compensation commissioner must assess the credibility of the evidence supporting the various treatment options and decide which is the most reasonable under all of the circumstances.” BACK TO TEXT

3 The claimant argues that it was error to have denied her Motion to Correct. Since the motion to correct sought to interpose the claimant’s conclusions as to the facts for that of the trial commissioner, there is no error. 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


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   Connecticut Workers' Compensation Commission.

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   information is now located at our NEW site: