AUGUST 26, 2010

This Petition for Review from the July 9, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District was heard April 30, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

The claimant was represented by B.T. Canty, Esq., B.T. Canty, P.C., 193 East Avenue, Norwalk, CT 06855.

The respondents were represented by Jeffrey Klein, Esq., Maher Williams, P.O. Box 550, Fairfield, CT 06824.


The claimant appeals from the July 9, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District.[1] In that Finding and Dismissal the commissioner dismissed the claimant’s claims for benefits relating to a second surgery on her lower spine. The pertinent facts in this matter are as follows.

On August 24, 2004, the claimant sustained a compensable injury to her lower spine. The claimant was treated conservatively by Dr. Roger Kaye, M.D., a neurosurgeon. Dr. Kaye diagnosed the claimant as having suffered a disc protrusion at L4-5. Over time the claimant’s symptoms increased. On April 24, 2007, Dr. Kaye performed a discectomy. Following surgery the claimant still had some degree of pain. In August 2007, Dr. Kaye ordered another MRI which revealed a small protrusion at L4-5.

On December 5, 2007, the claimant was involved in a motor vehicle accident. Following the motor vehicle accident, the claimant’s pain increased dramatically. The claimant who had not used narcotic pain medication since the date of her first lower back surgery was prescribed narcotic pain medication. The severity of the claimant’s pain was such that she consumed 100 percocet pills in a 2 week period. On January 25, 2008 another MRI study was done. That MRI showed a large disc herniation at the same site as the April 2007 surgery. The claimant’s treating physician recommended that the claimant undergo a second surgery.

The issue before the commissioner was whether the August 24, 2004 compensable injury was a substantial factor in the need for a second back surgery. In support of this claim the claimant proffered the deposition and medical reports of Dr. Kaye. In their defense of the claim, the respondents proffered the deposition testimony of Dr. Jacob Mushaweh, M.D., also a neurosurgeon. No live testimony was taken.

In her July 9, 2009 Finding and Dismissal, the commissioner referenced both physicians’ opinions. Dr. Kaye opined that the claimant’s compensable August 24, 2004 injury was a substantial contributing factor in the recurrent disc herniation suffered by the claimant following her December 5, 2007 motor vehicle accident. See Finding, ¶ 8. The respondents’ examiner, Dr. Mushaweh opined that the August 24, 2004 injury and the April 2007 surgery relating to that injury were not substantial factors in the need for a second back surgery. The commissioner accorded greater weight and credibility to the deposition testimony and expert opinion of Dr. Mushaweh. The commissioner dismissed the claimant’s claim and the claimant filed this appeal.

The issue presented for review is whether the commissioner erred in dismissing the claimant’s claim for benefits relating to a second back surgery. The claimant argues that in reaching her conclusion the commissioner misapplied the law. The claimant contends that the commissioner ruled that the December 5, 2007 motor vehicle accident was “the substantial factor” in the proximate cause of the need for a second back surgery indicates that the commissioner failed to determine whether the compensable injury was “a substantial factor.” We disagree. By finding and concluding that the December 2007 motor vehicle accident was “the substantial factor” we believe the commissioner excluded the August 2004 compensable injury and related surgery as “a” substantial factor. Cf. Fratino v. Harry Grodsky Co., Inc., 5087 CRB-7-06-5 (May 8, 2007) (commissioner’s finding that a prior injury was “the” substantial factor connotes that it was the only factor and thus, subsequent injury was not “a” substantial factor.)

Additionally, the claimant argues that the commissioner’s misapplication of the law is also indicated by her reference to the doctrine of superseding cause. Since the time of oral argument in this matter the Appellate Court issued its opinion in Sapko v. State, 123 Conn. App. 18 (2010). In Sapko the court reviewed our Supreme Court’s holding in Barry v. Quality Steel Products, Inc., 263 Conn. 424
(2003), where the court abrogated the doctrine of superseding cause. While the Appellate Court ultimately upheld our holding in Sapko v. State, 5335 CRB-8-08-4 (March 23, 2009) on other grounds, it advised that, except in the most limited circumstances, the doctrine of superseding cause was no longer a viable defense to a respondent’s liability in a workers’ compensation claim.

The Appellate Court did, however, affirm our ultimate conclusion on the basis of the proximate cause analysis applied by this board. On that issue the court held that the legal analysis employed by the board correctly stated the proximate cause standard as:

The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace [the] resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. (Internal quotation marks omitted.)

Sapko, supra at 29 quoting Ryker v. Bethany, 97 Conn. App. 304, 309
(2005), cert denied, 280 Conn. 932 (2006).

Applying the above to the commissioner’s conclusion at issue here, leads us to conclude that the commissioner found that the need for a second surgery was due to “some other agency.” We must ask whether a rational mind could trace the need for a second surgery to a proximate cause set in motion by “some other agency” other than the claimant’s employment.

As an appellate body we do not engage in de novo review. See Anderton v. WasteAway, 91 Conn. App. 345 (2005). In reviewing a commissioner’s determination as to causation we are limited to determining whether the conclusion is without evidence, based on unreasonable or impermissible factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In her findings the commissioner described the causation theory espoused by Dr. Kaye as a “weak link” theory. Dr. Kaye opined that the claimant’s disc surgery some months prior to the December 5, 2007 motor vehicle accident made that surgical site a weak link due to post surgical swelling and healing process. The commissioner, as is her exclusive right, accepted some portions of Dr. Kaye’s opinion and rejected other portions. See e.g., Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). The commissioner specifically noted that she was not persuaded by Dr. Kaye’s “weak link” theory of causation. Without according credence to Dr. Kaye’s weak link theory, the evidentiary support for the conclusion sought by the claimant fails.

The analysis we have employed in this matter largely follows that of the Appellate Court in Sapko, supra. There the court held that this board’s rejection of the claimant’s argument that the trial commissioner’s finding and conclusion that the decedent’s cause of death was the result of a superseding cause was legally incorrect. However, after analyzing the trier’s conclusion under appropriate concepts of proximate causation, the court held the commissioner’s conclusion could stand as there was legal support for the conclusion on other grounds. We believe the same is true in this matter. The ultimate conclusion reached by the commissioner, i.e., that the need for a second back surgery was solely the result of the December 5, 2007 motor vehicle accident, is a conclusion that may stand without applying the doctrine of superseding cause.[2]

We therefore affirm the July 9, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur.

[1] We note that oral argument was postponed in this matter at the request of the appellant.
[2] In paragraphs H and J the commissioner found the following:

H. That the testimony of the Respondent’s examiner, Dr. Mushaweh, is credible and persuasive in regards to the motor vehicle accident being the sole proximate cause and only substantial factor leading to the recurrent disc herniation at the L4-5 level. If there had not been a pre motor vehicle and post motor vehicle MRI scans it would have been difficult to conclude what impact the motor vehicle accident had on the lumbar spine. However, because the two MRI scans were presented as evidence and there is a clear difference between the two, after the intervening occurrence (the motor vehicle accident), I find the two MRI scans to be very compelling evidence supporting that the motor vehicle accident was the substantial factor of the recurrence of the herniated disc. (emphasis ours). . . .
J. That the December 2007 motor vehicle accident was the superseding intervening act and was the substantial factor in the recurrence of the Claimant’s herniated disc and therefore, was the cause for the second surgery in 2008.