Halstead v. Wild Oats Markets, Inc.

The respondents were represented by John P. Clarkson, Esq., Law Offices of Charles G. Walker, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the June 29, 2009 Finding and Award/Finding and Dismissal of the Commissioner acting for the Eighth District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the June 29, 2009 Finding and Award/Finding and Dismissal [hereafter Finding] of the Commissioner acting for the Eighth District. In that Finding the trial commissioner denied claimant’s request for the authorization of surgery. Claimant’s request was prompted by a May 1, 2005 injury to his back sustained, when in the course of his employment, he lifted and dumped a bucket of water. The claimant sought payment of various Workers’ Compensation disability benefits including; temporary total, temporary partial, permanent partial, wage loss differential as well as authorization for spinal surgery.

A number of medical reports were submitted to the trial commissioner offering various opinions as to the causal relationship of subsequent physical complaints alleged to relate to the May 1, 2005 work injury. The day after the work incident the claimant treated with Concentra Medical Center. The claimant was diagnosed as suffering from a lumbosacral sprain and was prescribed physical therapy.

The month following the claimant’s injury, the claimant sought a second opinion from Dr. Pietro Memmo. When the claimant consulted with Dr. Memmo the claimant complained of low back pain and left leg difficulties. Dr. Memmo opined that the claimant had a severe back strain/sprain but was not suffering from lumbosacral radiculopathy and that some of his complaints might relate to underlying degenerative disc disease.

In October 2005 the claimant underwent a respondent’s examination by Dr. David Kruger, an orthopedic surgeon. Dr. Kruger opined, inter alia, that the claimant would not benefit from surgery and in the alternative proposed physical therapy and epidural injections. See Finding, ¶ 13. Subsequently, Dr. Stephen Lange, a neurosurgeon became claimant’s treating physician. Dr. Lange also opined that the claimant would not be helped by surgery.

At the request of the commissioner, Dr. William H. Druckemiller examined the claimant in September 2006. In his commissioner’s examiner’s report, Dr. Druckemiller opined that claimant was at maximum medical improvement and had a five percent (5%) permanent partial disability to his lower spine. Dr. Druckemiller was also of the opinion that the claimant was not a candidate for surgery to his lower spine and that his left foot complaints were not related to his back injury. He further suggested that the claimant be seen by a podiatrist or orthopedist as he believed that the claimant’s left foot pain was plantar fasciitis. He also recommended that the claimant undergo additional testing.

The claimant was then seen by an associate of Dr. Lange, Dr. Stephen Calderon. See Finding, ¶ 17. Dr. Calderon arranged for the claimant to undergo a discogram. The claimant was also examined by Dr. Raymond Sullivan who served as the commissioner’s examiner and opined in his January 2007 report that claimant’s foot problem did not require further treatment nor did the claimant’s foot problem provide a basis for an additional permanent partial disability beyond that given for claimant’s back.

In a follow up report of Dr. William Druckemiller dated July 25, 2007, Dr. Druckemiller opined that the claimant was not a surgical candidate. Ultimately, the claimant came under the care of Dr. Hilary Onyiuke who was of the opinion that the claimant was a candidate for back surgery. The trial commissioner found that Dr. Calderon initially expressed an opinion that the claimant was a candidate for surgery but later retracted that assessment in his June 2, 2008 report.

In the period following the claimant’s May 1, 2005 injury the claimant has treated with and been examined by a number of physicians. Clearly, the medical opinions as to whether the claimant should undergo lumbar surgery vary and are conflicting. Therefore, the resulting determination of the trial commissioner rests on the weight and credibility he assigned to the evidence presented before him.

In his June 29, 2009 Finding the trier concluded that the claimant was entitled to temporary total disability and/or temporary partial benefits through July 25, 2007 the date of Dr. Druckemiller’s report in which he concluded that the claimant was at maximum medical improvement. The trier was also presented with varying assessments as to the percentage of permanent partial disability sustained by the claimant in the loss of use of his back. From these various permanent partial disability ratings the trial commissioner relied on the five percent (5%) permanent partial disability rating provided by the commissioner’s examiner, Dr. Druckemiller.

We note that while the claimant had legal representation in proceedings at the trial level, he elected to pursue this appeal on a pro se basis. It is our usual practice to accord pro se litigants some latitude in their attempt to navigate the unfamiliar path of appellate legal process. Harrison v. New Country Motor Cars of Greenwich, Inc., 5329 CRB-7-08-3 (December 1, 2009). See also, Sellers v. Sellers Garage, Inc., 110 Conn. App. 110 (2008).

In the claimant’s Reasons of Appeal filed July 16, 2009 he asserts that the basis of his appeal is that the record before the trial commissioner contained inconsistent medical opinions and the conclusion drawn by the trial commissioner was not in the claimant’s favor. The claimant has captured the essence of the trial commissioner’s function, which is to draw a conclusion on the basis of the weight and credibility accorded to conflicting medical opinions. After reviewing the opinions of the various physicians, the trial commissioner awarded benefits in accordance with the opinions to which he accorded greater credibility. On the basis of the trier’s assessment, the claimant’s request for the authorization of surgery to his lower spine was denied.

Authorization of a particular surgery or treatment modality requires a trial commissioner to determine if it is “reasonable or necessary” under the factual circumstances in a given case. See § 31-294d(a)(1); Anderson v. R & K Spero Co., 107 Conn. App. 608 (2008); Vannoy-Joseph v. State/DMHAS, 5164 CRB-8-06-11 (January 29, 2008). The conclusion drawn by the trial commissioner in such instances will not be disturbed unless without evidentiary support, contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). See also, Vannoy-Joseph, supra.

As an appellate body we do not engage in de novo review. Dzialo v. B & B Industries, 4509 CRB-2-02-3 (March 5, 2003). Great deference is accorded to the factual findings of the trier and unless it can be demonstrated that the trier abused his discretion the conclusion must stand. Here, the medical evidence contained opinions both supporting and opposing the proposed surgery. Thus, the trier’s conclusion withstands appellate review.

We therefore affirm the June 29, 2009 Finding of the Commissioner acting for the Eighth District.