VANNOY-JOSEPH v. STATE, NO. 5164 CRB-8-06-11 (2-25-2008)

ALICE VANNOY-JOSEPH, CLAIMANT-APPELLEE v. STATE OF CONNECTICUT, DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES, EMPLOYER, SELF-INSURED, RESPONDENT-APPELLANT and GAB ROBINS OF NORTH AMERICA, ADMINISTRATOR

CASE NO. 5164 CRB-8-06-11 CLAIM NO. 800001180CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
FEBRUARY 25, 2008

ERRATA SHEET
Please replace page sixteen of the Compensation Review Board’s Opinion dated January 29, 2008 with the attached page sixteen.

John A. Mastropietro, Chairman Compensation Review Board Workers’ Compensation Commission is more persuasive than another. See Admin. Reg. § 31-301-3 (finding should not contain reasons for trier’s conclusions, which better suit a memorandum of decision)

Drawing from our opinion in Cabral v. Metropolitan DistrictEmployees, 3770 CRB-1-98-2 (May 13, 1999) (commissioner adopted opinion on permanency based on a controversial diffusion capacity test), and our Supreme Court’s opinion in Porter, supra, we observe that our courts do not use a generic, mechanical test to assess the admissibility[1] of scientific evidence, instead favoring a flexible, overarching approach using factors whose relevance varies on a case-by-case basis.Porter, supra, 80; Maher, supra, 168. In the workers’ compensation setting, methodological issues that are relevant to the scientific validity of evidence might include the quality of testing and peer review given to the reasoning or technique, its known and potential rate of error, to what degree conclusions rely on subjective assessments rather than objectively verifiable criteria, and the background and reputation of the doctor. This is not a checklist. Other factors may be relevant in addition to, or in lieu of, these factors, depending on the specific context.[2]

[1] The inclusive evidentiary standard of § 31-298 C.G.S. makes the threshold admissibility of scientific evidence less of an issue in this forum, as does the absence of a structure in which a judge functions as a gatekeeper for a fact-finding jury. See Porter, supra, 77 (discussing proper approach for judges to follow in performing gatekeeper role). Questions affecting the admissibility of a medical opinion in Superior Court because of its methodology are generally resolved by a workers’ compensation commissioner when he or she evaluates the credibility and weight to assess that medical opinion. Indeed, the Porter court recognized that, because evidence is admissible as long as it tends to support a relevant fact, even slightly, questions concerning the methodological validity of scientific testimony will most often go to the weight of the evidence rather than to its admissibility.
[2] As an example of an in-depth critique of methodology, we refer to CMS’ published national coverage determination for lumbar artificial disc replacement discussed in n. 8, supra (though we do not rely on its findings). [We note that CMS must disclose the factors it considers in making NCDs by making guidance documents publicly available, which CMS does through the Internet. 42 U.S.C. § 1395y(l)(1); documents available at http://www.cms.hhs.gov/MedicareCoverageGuideDocs/] An NCD may entail consultation with outside technological or clinical experts, and a public comment period is provided following the Internet-based publication of an NCD draft decision. 42 U.S.C. § 1395y(l)(2)-(4).] When CMS set out to determine if the ProDisc was a reasonable and necessary treatment for Medicare patients with chronic low back pain caused by DDD, its first step was to assess the strength of published clinical studies by using methodological criteria that rate (1) the scientific validity of findings asserting a causal connection between treatments and outcomes, and (2) the absence of study biases. Appendix A: General Methodological Principles of Study Design, located athttp://www.cms.hhs.gov/determinationprocess/downloads/id197d.pdf

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