CASE NO. 515 CRD-4-86Workers’ Compensation Commission
DECEMBER 2, 1988
The claimant was represented by Vincent M. Zanella, Jr., Esq., Zanella Gilardi.
The respondents were represented by Lucas D. Strunk, Esq. and Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the September 12, 1988 Finding and Award of the Commissioner for the Fourth District was heard on February 26, 1988 before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, A. Thomas White, Jr. and Darius J. Spain.
OPINION
GERALD KOLINSKY, Commissioner.
The facts of this case reveal that the claimant-appellee sustained a compensable back injury on May 16, 1980, and as a result underwent a laminectomy in July, 1980. The claimant continued to experience problems in his back and had a second laminectomy performed in November, 1981.
Following said second surgery, the claimant continued to complain of back pain, which his surgeon believed to be a recurrent disc. In July, 1983, the claimant underwent a myelogram which revealed a large defect at the level of the fourth lumbar disc, for which problem the claimant’s surgeon recommended a third laminectomy and fusion to be performed.
The claimant had been unemployed since the second surgery of November, 1981 and in recommending the third surgical procedure, the physician felt that such surgery was the claimant’s only chance to return to some form of gainful employment. The physician also believed that a third surgery involved minimal risks in the proposed procedure, such as death, the possibility of nerve damage during surgery, increased blood loss which might necessitate blood transfusions, which risks were minimal, and indicated that there was only a fifty percent (50%) chance of the claimant obtaining significant help from the procedure, and that there was nothing further in the way of medical treatment to offer to the claimant; that the proposed procedure was the medically reasonable course of treatment for the claimant to follow in order to return to the mainstream of life.
The claimant had a thirty percent (30%) permanent partial disability of the back, which disability would not be reduced by the recommended surgery.
The claimant refused to undergo the third surgery because he had already had very poor results from the prior two surgeries, and he was frightenend [frightened] of the third procedure.
The issue which came before the Commissioner was whether or not the claimant’s refusal to undergo the third laminectomy and a spinal fusion was so unreasonable as to require a suspension of his benefits.
The Commissioner determined that such refusal was not unreasonable and ordered that the respondent-appellant pay benefits to the claimant. It is from such order that this appeal was taken, the respondents contending that the claimant’s physician had recommended further surgery, and the claimant’s refusal of further surgery was contrary to Sec. 31-294, C.G.S., and to the ruling in Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684 (1953).
In Acquarulo, the Commissioner had concluded that the surgery recommended by the claimant’s physician was reasonable, and that the claimant’s rights to compensation should be suspended during the continuance of his refusal and failure to undergo surgery, and on appeal to the Connecticut Supreme Court, the Commissioner was upheld, however the court, in Acquarulo, further stated “[i]t is still true, however, that the power and duty of determining the facts rests on the commissioner, the trier of the facts”, Acquarulo, supra, at 687, unless the conclusions of the commissioner result from an incorrect application of the law.
In the concurring opinion, Justice Baldwin stated at page 690: “[i]f the proposed medical or surgical procedure involves real danger and suffering without fair assurance of effecting an improvement or restoration of health, an injured employee should not be denied compensation for refusing to submit to it, for in this event his refusal could not be labelled unreasonable”.
In the instant case, the Commissioner found that the recommended surgery would not give the claimant “a better than 50-50 chance of getting significant help from the procedure”.
Viewing the facts as offering the claimant no more than a fifty percent (50%) chance of receiving significant help from a third surgery, which his physician stated would not reduce the degree of permanent disability, we cannot say as a matter of law that the Commissioner’s conclusions resulted from an incorrect application of law to the subordinate facts or from an inference illogically or unreasonably drawn from them, Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951), and accordingly we will not disturb the trial Commissioner’s conclusions.
The respondents’ appeal is dismissed.
Commissioners A. Thomas White, Jr. and Darius J. Spain concur.