ANDERSON v. MERIDEN RECORD JOURNAL, NO. 5531 CRB-8-10-3 (1-20-2011)


JANUARY 20, 2011

The claimant was represented by Ross T. Lessack, Esq., The Dodd Law Firm, LLC, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.

The respondents were represented by Maribeth M. McGloin, Esq., Maher Williams, 268 Post Road, Fairfield, CT 06824.

This Petition for Review from the February 17, 2010 Finding and Dismissal of the Commissioner acting for the Eighth District was heard August 27, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Ernie R. Walker.

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The claimant in this matter has appealed from a Finding Dismissal which determined that he is not totally disabled. The trial commissioner found the claimant had not proved a causal relationship between his cubital tunnel condition and his work injury, and further determined two treatment modalities were not reasonable and necessary. Upon review we find the trial commissioner’s decision herein was consistent with the law and supported by probative evidence. As a result, we affirm the trial commissioner and dismiss this appeal.

The trial commissioner found the following facts which are pertinent to our consideration. The claimant was born in 1957 and was employed by the respondent Record-Journal on or about June 10, 2002 and March 10, 2003. In 2002 he suffered a compensable injury to his non-master hand. In 2003 he suffered a compensable injury to his lumbar spine. The claimant first began working in the printing industry in 1977 and commenced working for the Record-Journal in 1994. He had worked for a newspaper in Waterbury for 15 years prior to that point. The claimant’s occupation required a great deal of physical exertion, including repetitive bending, reaching, squatting and moving heavy rolls of paper to the printing presses.

The claimant suffered a left ulnar artery aneurysm which was caused by the claimant repetitively hitting his hand on a metal plate. He began treating with Dr. Andrew Nelson, who surgically removed the aneurysm in June 2002. Following surgery the claimant underwent physical therapy and consulted with Dr. Nelson. Although an arteriogram was performed which revealed a normal ulnar artery the claimant continued to complain of pain, even after Dr. Nelson released the claimant back to full duty. As a

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result, Dr. Nelson referred the claimant to Dr. David Kloth for pain management treatment. Dr. Kloth first examined the claimant in January 2003 and prescribed pain medication and recommended a Bier block, an Axial block and a Peripheral nerve block to address the pain (Exhibit G). Dr. Kloth later diagnosed chronic regional pain syndrome. The claimant reached maximum medical improvement for his arm injury in June 2003 and the respondents paid the claimant for a 10% permanent partial disability rating.

The claimant returned to Dr. Nelson in March of 2005 complaining of hand pain (Exhibit B). Dr. Nelson identified no atrophy of the arm and suggested that a repeat arteriogram and nerve conduction study be performed to re-evaluate the claimant’s condition. The claimant declined at that time, but in August of 2006 he agreed to have the test done. The claimant continued to suffer generalized hand pain, which Dr. Nelson believed was not explained by his mild cubital tunnel symptoms. The claimant underwent cubital tunnel injection at this time which provided some relief. The claimant declined the option of additional surgery. The claimant was examined again by Dr. Nelson on October 30, 2007, complaining of pain and once again declined additional surgery. At that time, Dr. Nelson opined that the claimant was capable of sedentary use of the left upper extremity.

The claimant also sustained a compensable lumbar injury on March 10, 2003. He treated with a chiropractor, Dr. Randall Howe, for his back injury. An April 9, 2003 MRI revealed mild degenerative disc changes and small bulges at the L2-3 and L4-5 and minimally noted at L3-4 with a small tear at the L2-3 as well. The claimant was released to work on April 20, 2003 with various restrictions including no operating hazardous

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machinery, no lifting over twenty five (251bs.) pounds, no climbing and to alternate between sitting and standing. The claimant also treated with Dr. Kloth for pain management of the lumbar spine injury. On May 22, 2006 a Form 36 was approved in which the claimant was found to be at maximum medical improvement with a ten (10%) percent permanent partial disability to the lumbar spine.

Dr. Kloth has provided a variety of treatments for the claimant’s pain including trigger point injections and ganglion blocks. He also has prescribed a large number of medications including Oxycodone and Xanax. The claimant testified that he is able to only sleep four hours per day though he is in bed for eleven to twelve hours a day. He said the extreme pain limited his ability to do housework and the amount of time he could sit or walk, and the pain rendered him unable to work. The claimant stopped looking for a job when his indemnity, permanency and post permanency benefits expired and has not contacted Vocational Rehabilitation for assistance in finding a job.

The trial commissioner considered conflicting medical evidence on the issue of total disability. The claimant presented the opinions of his pain management doctor and an orthopedist, Dr. William Flynn. Dr. Kloth opined that the claimant is totally disabled as a result of the combination of RSD (Reflex sympathetic dystrophy) of his left arm and the back injury which prevents the claimant from sitting for long periods of time. Dr. Kloth also opined the claimant has had a transactional segment, which is a congenital abnormality which can lead to a higher incidence of chronic lower back pain. Dr. Flynn examined the claimant on two separate occasions for his lumbar injury, examining him on July 21, 2003 and again on June 7, 2007. In 2007 Dr. Flynn opined the claimant was not employable.

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Other examiners did not share this conclusion, finding that neither the claimant’s back condition nor his upper extremity injury rendered the claimant totally disabled. Dr. Stephen Torrey examined the claimant on the respondents’ behalf on August 25, 2005, and considered the claimant’s back condition. He diagnosed the claimant with a chronic lumbar musculoskeletal strain and opined the claimant had a sedentary to light work capacity. He believed the claimant was at maximum medical improvement and assigned a five percent (5%) permanent partial disability to the lumbar spine. Dr. Stephen Calderon, a neurosurgeon, performed a commissioner examination of the claimant’s lumbar spine on April 18, 2006. Dr. Calderon noted the claimant’s MRI scans were “relatively benign” and concluded that the claimant had a ten percent (10%) permanent partial disability to the lumbar spine and assigned a sedentary to light duty work capacity.

Expert witnesses also disputed the claimant’s position that his upper extremity injury created total disability. The respondents had Dr. Matthew Skolnick examine the claimant’s left hand on August 22, 2007. Dr. Skolnick found it difficult to opine on the claimant’s level of disability due to the multiple, diffuse and highly subjective complaints the claimant had as to his left upper extremity. Dr. Skolnick believed that no further treatment orthopedically is indicated at the time and that the claimant had a work capacity with regards to his left upper extremity, subject to weight restrictions and avoidance of cold substances and vibrating tools. Dr. Nelson, the claimant’s treating physician, agreed the claimant had sedentary use of his left upper extremity. A Functional Capacity Examination on November 7, 2007 found the claimant was capable of performing a light duty physical demand level. A physician who offered a second opinion at the claimant’s request, Dr. Jeffrey Arons, examined the claimant’s hand on July 9, 2003. At that time

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Dr. Arons concurred with the treating physician’s opinion as to the claimant’s work restriction. Finally, Dr. Robert Tross performed a commissioner’s examination of the claimant’s left hand. Dr. Tross opined the claimant was capable of unrestricted regular work as regarding the hand with the use of an open fingered padded glove to protect the claimant’s palm from stimulation. Dr. Tross found the claimant to be at maximum medical improvement with a nine percent (9%) impairment.

The trial commissioner also considered three other issues. There were conflicting medical opinions on whether the claimant had cubital tunnel syndrome in his left upper extremity. Dr. Kloth concluded he had cubital tunnel syndrome and this was causally related to work. Dr. Skolnick did not find any specific problems with the claimant’s elbow when he examined him and said were he advised the claimant had such an ailment, this ailment would not be work related. Dr. Tross, the commissioner’s examiner, believed the claimant may have mild cubital tunnel syndrome of idiopathic nature and unrelated to his work injury. Dr. Tross suggested that it may well be that the cubital tunnel is an early manifestation of potential diabetes.

There also was a dispute on whether a spinal cord stimulator was medically necessary. Dr. Kloth recommended the claimant receive this device. Dr. Skolnick did not support treatment with a spinal cord stimulator. Dr. Flynn did not believe the claimant requires any formal orthopedic treatment for his left upper extremity. Dr. Tross did not address the issue of whether a spinal cord stimulator would be appropriate, but suggested the claimant was at maximum medical improvement and should continue pain management treatment with Dr. Kloth.

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The various witnesses also differed on the efficacy of percutaneous laser disc surgery. Dr. Torrey did not rule out this procedure, while Dr. Kloth, who had recommended this surgery in the past, said repeat MRI’s and a repeat discogram were a precondition to such surgery at this time. Dr. Calderon and Dr. Flynn both opposed further surgical intervention on the claimant.

Based on all these subordinate facts the trial commissioner concluded the claimant had sustained two work related injuries: one a repetitive trauma hand injury and the other a lumbar spine injury. Both injuries were at maximum medical improvement and the respondent had paid the respective permanency benefits commensurate with the ratings given. The trial commissioner found the opinions of the commissioners’ examiners, Dr. Tross, who examined the claimant’s upper extremity, and Dr. Calderon, who examined the claimant’s spine, credible on the issue of whether the claimant had a work capacity. As both physicians opined the claimant had a work capacity the trial commissioner dismissed the claim for temporary total disability benefits. The trial commissioner also found the claimant failed in his burden to establish he had cubital tunnel syndrome, finding Dr. Tross’ opinion credible and persuasive that any such ailment was idiopathic and not job related. Finding Dr. Skolnick’s opinion reliable, the trial commissioner dismissed the claim for a spinal cord stimulator. The trial commissioner also determined that in light of Dr. Kloth’s testimony, the issue of percutaneous laser disk surgery was not ripe for adjudication. Therefore the claimant’s claims for total disability benefits, for a work-related cubital tunnel injury, a request for a spinal cord stimulator and a request for authorization for a percutaneous laser disc surgery were all dismissed.

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The claimant then submitted a Motion to Correct. The Motion sought to add findings of medical evidence favorable to the claimant’s position and to substitute conclusions that the claimant was totally disabled, the spinal cord stimulator was medically necessary and that the cubital tunnel condition was compensable. The trial commissioner denied this motion in its entirety and the claimant has pursued this appeal.

The claimant’s appeal is based on his opinion that on the various issues the trial commissioner found against the claimant the trial commissioner reached “impermissible or unreasonable factual inferences”. The claimant relies heavily on Piscitelli v. Textron Lycoming Division, 4793 CRB 4-04-3 (July 7, 2005) for the proposition that a trial commissioner must rely solely on medical opinions that evaluate multiple body parts in reaching a disability determination. For that reason, as the claimant views the record, only the treating physicians should have been relied on in this matter. We are not persuaded that the precedent inPiscitelli stands for overturning the trial commissioner’s determination herein. We are satisfied that upon review of the extensive record the trial commissioner reached a reasonable conclusion based on what he viewed as the weight of the probative evidence.

In Piscitelli the claimant sought temporary total disability benefits, just as the claimant in this instant case sought such benefits. In both cases, the trial commissioner denied the claim for temporary total disability. We upheld the trial commissioner’s denial in Piscitelli. The claimant argues, nonetheless, that in the present case we should reverse the trial commissioner. We are puzzled as to this reasoning. While inPiscitelli “[t]he claimant contends that the trier must rely on an opinion that takes into account the combination of all of the claimant’s injuries” this panel instead affirmed the trier’s

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findings. This opinion let stand the decision that the claimant failed to prove total disability. Id. We noted “[t]he commissioner is entitled to credit which ever medical opinion he regards as the most persuasive as long as the opinion is made with a reasonable degree of medical probability. Orlando v. Reliable Construction Services, 4791 CRB-8-04-3
(April 6, 2005); Byrd v. Bechtel/Fusco. 4765 CRB-2-03-12 (December 17, 2004).” Piscitelli, supra.

We considered somewhat similar issues in Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009). In Damon, the claimant challenged the trial commissioner’s reliance on the opinion of the commissioner’s examiner, who opined the claimant was not totally disabled. We citedCarroll v. Flattery’s Landscaping, Inc., 5385 CRB-8-08-10 (September 24, 2009) for the proposition that “while the trial commissioner was not bound to accept (the commissioner’s examiner’s) opinion, generally he would need to proffer a reason why he found another expert more persuasive. See Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10
(November 16, 2006), Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009), and Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009).” Damon, supra. We also cited in Damon
that we have consistently held it is the claimant’s burden to establish that he is totally disabled. See Franklin v. State/Department of MentalHealth Addiction Services, 5224 CRB-8-07-4 (April 11, 2008) andHernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). The trial commissioner in the present case determined the claimant failed to persuade him he was totally disabled. In reaching this decision, he cited probative evidence proffered by the commissioner’s examiners. It is the trial commissioner’s duty to weigh medical evidence, see Wiggins v.Middletown,

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5300 CRB-8-07-12 (January 15, 2009) and O’Reilly v. General DynamicsCorp., 52 Conn. App. 813 (1999). We cannot second-guess such an evaluation and we do not find error in the commissioner’s conclusion.

The claimant also challenges the reasoning of Dr. Tross (whom the commissioner relied on) as to the issue of cubital tunnel syndrome, specifically his suggestion the condition might be an early symptom of potential diabetes. Dr. Tross’ report (Exhibit Q) specifically identified the claimant’s family history as the basis for this reasoning, and therefore this evidence meets the standard delineated in Strong v.UTC/Pratt Whitney, 4563 CRB-1-02-8 (August 25, 2003). We also note it is the claimant’s burden to prove an ailment was caused by a compensable injury. See Smith v. Waterbury, 5326 CRB-5-08-3 (February 4, 2009) andMarandino v. Prometheus Pharmacy, 294 Conn. 564 (2010). The claimant failed in this effort regarding his cubital tunnel condition and we find the trial commissioner’s decision supported by competent evidence.

The claimant also challenges the decision to reject the spinal cord stimulator. We delineated the appropriate standard for a decision as to medical treatment in Cervero v. Mory’s Association, Inc., 5357 CRB-3-08-6
(May 19, 2009), aff’d, 122 Conn. App. 82 (2010) “`[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).” Id. The trial commissioner could properly find Dr. Skolnick’s opinion more persuasive than Dr. Kloth’s opinion on this issue.

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This case essentially turned on the trial commissioner’s evaluation of a very substantial amount of medical evidence.[1] An appellate body must defer to the trier’s determination unless such a determination is unsupported by probative evidence. Finding that the commissioner’s decision was grounded in evidence and finding no legal error, we affirm the Finding Dismissal and dismiss this appeal.

Commissioners Nancy E. Salerno and Ernie R. Walker concur in this opinion.

[1] 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. To the extent “undisputed” facts were not added to the record, they either would not have compelled a different result, Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amicov. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), or the trial commissioner did not find the evidence probative or persuasive, Brockenberry v. Thomas Deegan d/b/a Tom’s ScrapMetal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam).

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