CASE NO. 79-CRD-3-81Workers’ Compensation Commission
AUGUST 6, 1982
The Claimant-Appellant was represented by George Jaser, Esq. and Elizabeth Dorsey, Esq.
The Respondent-Appellee, The Travelers Insurance Company was represented by Edward D. O’Brien, Jr., Esq.
The Respondent-Appellee, Security Insurance Group was represented by James Pomeranz, Esq.
This Petition for Review from the July 30, 1982 Decision of the Commissioner for the Third District was argued February 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Edward Bradley and Robin Waller.
John Arcudi, Chairman, Edward Bradley, Commissioner, Rhoda Loeb, Commissioner
FINDING AND AWARD
1-7 Paragraphs 1 through 7 of the Commissioner’s Finding are affirmed and adopted as this Division’s Finding.
A-C Paragraphs A through C of the Commissioner’s Award are affirmed and adopted as this Division’s Award.
OPINION
Claimant-Appellant has had three accepted compensable injuries to his back while employed by the Respondent-Appellee, March 11, 1971, March 28, 1973 and January 9, 1975. The Respondent-Insurer, Travelers Insurance Company insured the employer for the March 11, 1971 injury, and the Security Insurance Group was the insurer for the other injuries. At issue before the Commissioner were the March 7, 1978 and November 16, 1978 back surgeries performed on the claimant and any resulting increase in the permanent partial disability of the back.
As the Commissioner found, there was conflict in the medical testimony. Dr. Harry P. Engel, a Milford neurosurgeon who performed the 1978 surgeries testified that they were related to the 1973 injury. Dr. William H. Cook, a Bridgeport neurosurgeon had been the claimant’s treating physician until the beginning of 1978. His office had performed previous back surgery on claimant, but that surgery had concerned the left side of the spine and the L-4, L-5 disc space. Dr. Engel’s surgeries concerned the right side of the same disc space as well as the right side of a lower space. Dr. Cook’s testimony differed from Dr. Engel’s. He did not relate the 1978 events to the previous compensable injury.
The Commissioner relied on Dr. Cook’s testimony and ruled that no indemnity or medical benefits were due claimant for the Engel 1978 surgery. Dr. Cook also testified that as a result of the 1973 work injury, Claimant-Appellant had a 25% permanent partial disability of the back. Accepting this conclusion, the Commissioner awarded claimant an increment of 5% permanent partial disability of the back to add to the 20% already paid by the two insurers. Under the holding of Mongillo vs. New Haven, 55-CRD-3-81, 8 CLT No. 16, Page 20, 1 CWCRO 90, and the authorities there cited, it would seem that Dr. Cook’s testimony provided sufficient basis for the Commissioner’s ruling, and that, as appellee argues, appellant simply seems to be contending that he has the better expert.
But appellant advances the proposition that Dr. Cook’s conclusions were fatally flawed in that they overlooked some evidence of right side pathology which he himself had noted in 1973 and 1976 reports. Building on this proposition, appellant then argues that the Commissioner could not, as a matter of law, rule that the 1978 right side disc excisions were not related to the 1973 injury. We do not agree. The fact that there may have been some inconsistencies in the expert’s testimony do not necessarily vitiate the expert’s conclusions. Especially is this true when we consider that that particular medical expert treated the patient from 1973 to 1978 and was the expert more conversant with the events immediately surrounding the 1973 injury.
Our determination above does not make it necessary for us to analyze the Commissioner’s reasoning with respect to Dr. Engel’s opinions on the causation of the 1978 surgery, but it is at least interesting to note that the claimant testified to a lifting incident at home in January, 1978. That testimony was certainly grist for the adjudicator’s mill and could properly have influenced the result.
The decision of the Commissioner is affirmed.