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CASE NO. 5478 CRB-3-09-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 17, 2010
TILCON CONNECTICUT, INC.
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Christopher DePalma, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, New Haven, CT 06511.
The respondents were represented by Lawrence R. Pellett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the June 8, 2009 Finding and Denial of the Commissioner acting for the Third District was heard December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed the decision of the trial commissioner in this matter, who determined the claimant’s right shoulder condition was not due to a compensable injury. The claimant argues that the trial commissioner improperly relied on the respondent’s examiner, Dr. Peter R. Barnett, who opined the claimant’s condition was not caused by a prior work-related incident. We conclude the commissioner could have chosen to rely on Dr. Barnett, who offered probative testimony to the tribunal. We also note that it is the claimant’s burden of persuasion before this commission that an injury is compensable, and we conclude the commissioner could have reasonably found that he did not meet this burden. We find no error, and dismiss this appeal.
The trial commissioner reached the following factual conclusions at the conclusion of the formal hearing. The claimant began working for the respondent in 1992 at their North Branford quarry. He operated a “tack truck” used for asphalt paving. Since 2004 he has been employed as a truck driver for O & G Industries. On November 12, 2003, the claimant was operating a tack truck for the respondent in Branford when he injured himself while cleaning the vehicle. He testified that he “landed on my left shoulder, neck area in the back” and while falling, he tried to break the fall by grabbing a “pull bar” with his right hand. There were no witnesses to the incident. He returned to the respondent’s business where a supervisor, Louis Calco, told him “go to the clinic or a hospital to be checked out.”
The claimant presented at the Hospital of St. Raphael’s emergency room. The emergency room medical report indicates the claimant was provided treatment for “shoulder pain” and did not expand upon the nature of the injury. The claimant testified he was given x-rays at St. Raphael and left with his arm in a sling. He said that at that time his chief complaint was pain in his “shoulders and the neck” and the left arm was in greater pain than the right arm. The claimant prepared a First Report of Injury presented to the respondents on November 13, 2003. The First Report of Injury noted that he had been directed to be examined at St. Raphael’s by the “safety director at Tilcon.” The report said the claimant injured his “[n]eck, [l]eft and [r]ight shoulder, left arm” as a result of the fall. The claimant presented on November 14, 2003 at St. Raphael’s Occupational Health and described the incident as follows. “Fell off truck landing on L shoulder. Tried to catch himself w/R arm. L & R shoulders & neck sore.”
The claimant said he received more x-rays at this visit, as well as ice and heat therapy and prescription medicine. He was referred to Dr. Norman Kaplan, an orthopaedic surgeon. The claimant said his right shoulder did not hurt much at that visit. The claimant presented to Dr. Kaplan on November 18, 2003. Dr. Kaplan’s medical report of that date referenced primarily complaints as to the claimant’s left shoulder and arm. Dr. Kaplan’s notes of a December 9, 2003 visit did not reference the right shoulder. On November 12, 2004 Dr. Kaplan determined the claimant was at maximum medical improvement and assessed a “12% permanent partial disability to the cervical spine, of which 4% pre-dates and 8% is due to the accident of 11/12/03.” Later medical reports of Dr. Kaplan in 2005 and 2006 did not reference the right shoulder. On July 21, 2006 Dr. Kaplan’s medical report indicated the claimant’s right shoulder had started bothering him over the prior month, and this was a “new problem.”
On October 19, 2007 Dr. Kaplan recommended surgical intervention for the claimant’s shoulders, noting that although there appeared to be preexisting arthritis with the shoulders, the problem, particularly the left shoulder became more severe following the fall from the employer’s truck in 2003. On April 11, 2008 Dr. Kaplan diagnosed a full thickness tear in the claimant’s right rotator cuff, and reiterated his recommendation for surgery. Dr. Kaplan testified at a deposition June 25, 2008 in which he stated the claimant had preexisting right shoulder problems which were asymptomatic prior to the claimant’s efforts to avoid falling from the truck in the 2003 incident. Dr. Kaplan also made statements pertaining to the relative severity of the claimant’s right shoulder injury as opposed to the left shoulder injury. The trial commissioner found this testimony was inconsistent with the medical reports regarding the injury. Dr. Kaplan also testified that the claimant did not seek treatment for his right shoulder until July 21, 2006 and that rotator cuff tears can occur due to degenerative changes, and not necessarily due to a specific trauma.
The trial commissioner noted that the claimant testified the pain in his right shoulder is worse than the left shoulder. He also noted that he had not treated for the shoulder from May of 2005 until March of 2006 and he had not missed work since December 2003. The claimant testified that he had not experienced pain in either shoulder prior to the November 12, 2003 incident.
The respondents had the claimant examined by their expert witness, Dr. Peter R. Barnett on June 10, 2008. Dr. Barnett issued two reports. The second report, after Dr. Barnett had been provided with all the claimant’s medical records, concluded there was a substantial work-related injury to the claimant’s left shoulder on November 13, 2003 but “in regard to the right shoulder, the additional information provided for review is insufficient to establish a causal connection between the current right shoulder problems and any sequelae stemming from the trauma relating to the fall in November of 2003.” Dr. Barnett was deposed on December 11, 2008 and testified the most common cause of rotator cuff tears “result with normal changes in the tendon from wear and tear.” He further testified that the claimant could have sustained a rotator cuff tear prior to November 12, 2003 and been unaware of it.
Based on these facts the trial commissioner determined the opinions of Dr. Barnett were more credible and persuasive than that of Dr. Kaplan. As Dr. Barnett opined there was insufficient medical evidence to establish a nexus of causation between the November 12, 2003 incident and the claimant’s right rotator cuff tear, the trial commissioner determined this ailment was not a compensable injury. The commissioner determined the claimant failed in his burden of proof that the right rotator cuff injury was work-related and therefore the commissioner denied the claim for surgery and dismissed the claim for benefits.
The claimant filed a Motion to Correct, which was denied in its entirety. The claimant has pursued this appeal. The gravamen of the claimant’s appeal is that the trial commissioner erred by relying on the testimony of Dr. Barnett, whom they believe did not have a sufficient basis to render his opinion. They cite DiNuzzo v. Dan Perkins Chevrolet- Geo, 99 Conn. App. 336 (2007), aff’d, 294 Conn. 132 (2009) for this proposition.
We find this argument unpersuasive. In DiNuzzo the Supreme Court affirmed the Appellate Court’s reversal of an award to the claimant. In so doing, the Supreme Court pointed to a number of substantive deficiencies of the testimony of the claimant’s witness which rendered his opinions unreliable. They pointed out “. . . the plaintiff’s claim to survivor’s benefits was predicated on a series of inferences, some of them quite attenuated, that the commissioner was required to draw from the fact the decedent had suffered a compensable injury in 1997.” Id., at 147-148. In light of the fact the claimant’s witness had not performed an autopsy on the decedent, and was unfamiliar with the decedent’s medications, the Supreme Court concluded his testimony failed to adhere to the standard of probative evidence delineated in Murchison v. Skinner Precision Industries, 162 Conn. 142 (1972).
We cannot reach the same conclusion regarding the testimony of Dr. Barnett, especially as the Supreme Court subsequently upheld the challenged expert opinions in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010). In Marandino, the Supreme Court pointed out “[i]t is axiomatic that the trier of fact has ‘wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.’” Id., at 593. Concluding that the claimant’s expert witness in Marandino offered admissible testimony, the court further stated “there is no rule establishing what precise facts must be included to support an expert opinion.” Id., at 594.
Dr. Barnett’s initial report of June 10, 2008, issued after examining the claimant, evaluated the 2003 neck injury and stated “it is improbable that either shoulder condition would be the result of the neck injury which may have sustained at that time.” Dr. Barnett noted the records available did not reference right shoulder pain prior to July 2006. Dr. Barnett specifically noted his June 10, 2008 opinion was rendered without reviewing medical reports from November 2003 and May 2005. Respondent’s Exhibit 1. Dr. Barnett’s addendum to his initial report, dated July 13, 2008, which was prepared after reviewing the additional medical reports stated it was “reasonable to conclude the current problems with the left shoulder . . . is causally related to sequalae stemming from the work-related injury on 11/12/03.” Dr. Barnett found the medical evidence insufficient to establish a causal connection between the current right shoulder problems and any sequalae from the November 2003 trauma. Respondents’ Exhibit 2.
The claimant responds with the argument that Dr. Barnett allegedly relied on “identical facts” to find the left shoulder injury compensable and the right shoulder injury noncompensable. Claimant’s Brief, pp. 10-11. In their view this makes reliance on Dr. Barnett’s opinion unreasonable. We find this argument unmeritorious for two reasons. First, we note the trial commissioner cited a number of factual distinctions in the treatment of the two shoulders during the period subsequent to the accident which would permit a medical expert or a fact-finder to reach a differing conclusion as to the scope and etiology of the injuries. See Finding, ¶¶ 17-18, 20 and 23-27. We note that in Finding, ¶ 27 Dr. Kaplan is quoted as describing the right shoulder injury as a “new problem” in 2006. We also note that in DiNuzzo the Supreme Court held “it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]” DiNuzzo, supra at 142. The claimant had the burden to prove causation before the trial commissioner and based on the evidence on the record, we cannot conclude that as a matter of law the trial commissioner was compelled to determine he met that burden.
Therefore, we simply cannot find this matter dissimilar from the usual “dueling expert” case where a trial commissioner finds one witness more persuasive and credible than the other party’s witness. Dellacamera v. Waterbury, 4966 CRB 5-05-6 (June 29, 2006), n.1. The claimant made a similar effort to contest the respondent’s expert testimony in O’Leary v. Wal-Mart Associates, Inc., 5395 CRB-3-08-11 (October 27, 2009); arguing alleged discrepancies rendered it unreliable. We pointed out it is the trial commissioner’s responsibility to resolve discrepancies in medical testimony. Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007). We also pointed out it is the trial commissioner’s responsibility “to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). It was the claimant’s burden to establish his injury was compensable, Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007), and he failed to sustain his burden.1 In the present case, we also find the claimant failed to prove his case and we must sustain the decision.
In Williams, supra, we quoted Dengler v. Special Attention Health Services, 62 Conn. App. 440 (2001) for this black letter law regarding our role on appeal. We find it dispositive of the issues herein.
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. (Internal citations omitted)
Since we find that Dr. Barnett’s opinions constitute competent evidence, we must affirm the trial commissioner’s Finding and Denial. The appeal is dismissed.2
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 See also Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) where even when a prior injury has been accepted as compensable it is the claimant’s burden to prove that a subsequent request for surgery is causally linked to the accepted injury. BACK TO TEXT
2 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s 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
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