5334 CRB-6-08-4 (2009). Sockbeson v. AJS Enterprise.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5334 CRB-6-08-4 (2009). Sockbeson v. AJS Enterprise CASE NO. 5334 CRB-6-08-4COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION APRIL 1, 2009RONETTE M. SOCKBESON CLAIMANT-APPELLEE v. AJS ENTERPRISE EMPLOYER and PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURER RESPONDENTS-APPELLANTS APPEARANCES: The claimant was represented by Gary Friedle, Esq., Old Post Office Plaza, 114 West Main Street, Suite 105, New Britain, CT 06051. The respondents were represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033. This Petition for Review from the March 19, 2008 Finding and Award of the Commissioner acting for the Sixth District was heard October 24, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Stephen B. Delaney. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN.The respondents have petitioned for review from the March 19, 2008 Finding and Award of the Commissioner acting for the Sixth District. We find no error, and affirm the decision of the trial commissioner.(fn1) The following factual determinations are pertinent to our review. On January 18, 2007, the claimant, who was employed as a cook, sustained an injury to her lumbar spine when she attempted to lift a box of frozen hamburgers. The claimant initially sought treatment with Sandor Nagy, M.D., at Alliance Health Care, who diagnosed a lumbar strain and took the claimant out of work until March 15, 2007. On March 16, 2007, Dr. Nagy returned the claimant to work with restrictions; however, in the interim Dr. Nagy had also referred the claimant to Jeffrey Steckler, M.D., an orthopedist; Dr. Steckler again took the claimant out of work following her first office visit with him on March 28, 2007. Dr. Steckler diagnosed a lumbar strain superimposed on a quiescent preexisting facet arthropathy at L4-5. He further opined that the strain had activated the claimant's facet arthropathy and led to her current symptoms.(fn2) At the respondents' request, the claimant saw Patrick R. Duffy, M.D., on May 30, 2007. Dr. Duffy concurred with Drs. Nagy and Steckler in concluding that the claimant had sustained a lumbar strain in the lifting incident of January 18, 2007 and also opined that the strain was "superimposed on preexisting lumbar spondylosis, greatest at L5-S1." Respondents' Exhibit 3, p. 16. On February 4, 2008, the claimant saw William Druckemiller, M.D., for a commissioner's examination. Consistent with preceding medical diagnoses, Dr. Druckemiller diagnosed a lumbar strain, also remarking that "[i]t appears that she probably does have a preexistent lumbar spondylosis." Respondents' Exhibit 6, p. 2. In addition, Dr. Druckemiller indicated he had not been provided the opportunity to review the claimant's prior xrays but opined that the incidents which prompted xrays in 1998 and 2005 were probably not "significant." Id. In addition to the foregoing medical evidence, the trial commissioner also reviewed with the parties a videotape of a motor vehicle accident involving the claimant which occurred on May 19, 2007. The claimant was sitting in the passenger seat of a friend's automobile parked in the lot of a local convenience store when another patron of the store accidentally backed his vehicle into the automobile in which the claimant was sitting. Subsequent to the accident, the claimant admitted feeling shaken and was taken by ambulance to the hospital, where she reported she was experiencing neck pain. The trial commissioner heard the testimony of the claimant with regard to the injuries she suffered in the motor vehicle accident and found her testimony credible relative to her assertion that she did not injure her lumbar spine in the accident. The trial commissioner ultimately determined that the claimant had suffered a compensable injury in the lifting incident of January 18, 2007 and awarded temporary total benefits for the period of January 22, 2007 through March 15, 2007, temporary partial benefits for the period of March 16, 2007 through March 27, 2007, and temporary total benefits commencing on March 28, 2007 and continuing through the date of the formal hearing.(fn3) In light of Dr. Druckemiller's inability to review the claimant's prior xrays, the trial commissioner indicated that he found Dr. Steckler more credible and persuasive "in regards to the facet arthropathy which I believe is the main point of contention in this particular matter .," Findings, ¶ 18, and also concluded Dr. Duffy's deposition and reports were not as credible or persuasive as Dr. Steckler's. The trial commissioner authorized Dr. Steckler as the claimant's treating physician and approved Dr. Steckler's referral of the claimant to Dr. Kost for ESI treatment and/or injections. The trial commissioner further concluded the claimant was entitled to "medical treatment, prescriptions, mileage, out-of-pocket and all other benefits in regards to the January 18, 2007 injury." Findings, ¶ N. Finally, the trial commissioner specifically left open the issue of the claimant's future potential need for a facet or lumbar fusion pending the results of the ESI testing and/or injections with Dr. Kost. Following the issuance of the trial commissioner's Finding and Award dated March 19, 2008, the respondents submitted correspondence to the trial commissioner dated April 2, 2008 which consisted of a draft of a letter intended for Dr. Druckemiller inquiring whether he thought the opportunity to review the claimant's x-rays would have made a material difference in his opinion. The trial commissioner denied the respondents' request to forward the letter to Dr. Druckemiller. The respondents also filed a request to submit additional evidence in the form of correspondence from Dr. Steckler dated March 28, 2008 indicating Dr. Steckler agreed with the results of the Commissioner's Evaluation performed by Dr. Druckemiller.(fn4) The trial commissioner likewise denied that request, stating that the March 28, 2008 letter from Dr. Steckler neither addressed nor changed the issues which had been decided at the formal hearing of March 18, 2007. On April 21, 2008, the trial commissioner issued a § 31-301(f) Order.(fn5) On April 24, 2008, the claimant filed an objection to the various motions, deposition notices and additional medical evaluation requests propounded by the respondents, essentially protesting the respondents' decision to continue their prosecution of the claim "as if no Finding and Award had been entered." Claimant's Objection to Respondent's Motions and Deposition Notices, p. 2. Apparently the respondents had, inter alia, notified the claimant on April 8, 2008 she was scheduled for additional evaluations with Gerald Becker, M.D. and Michael Karnasiewisz, M.D., which evaluations the claimant characterized as "nothing short of harassment." Id., at 3. The trial commissioner granted the claimant's objection. On May 6, 2008, the respondents' filed a Motion to Correct which was denied in its entirety. On May 7, 2008, the respondents filed a Motion to Submit Additional Evidence to this board along with separate correspondence seeking appellate review of a number of "ancillary matters" primarily related to the wording of the § 31-301(f) Order and the trial commissioner's order granting the objection of the claimant's attorney to the post-judgment medical evaluations sought by the respondents. The respondents also requested review of the trial commissioner's denial of the other postjudgment motions filed by the respondents. On May 15, 2008, the respondents filed a request with this board again seeking permission to forward correspondence to Dr. Druckemiller querying whether he believed the opportunity to review the claimant's x-rays would have changed any of the conclusions contained in his report. In correspondence dated May 19, 2008, the chairman of this board indicated it would be inappropriate for him to comment on the points raised in the respondents' letter given that the claim was currently under appeal. The respondents advance a number of claims of error. They contend the trial commissioner's decision to find the claimant credible regarding her medical history constituted an abuse of discretion in light of the various inconsistencies and "fabrications," Appellants' Brief, p. 7, contained in the claimant's medical records and testimony and the claimant's alleged failure to cooperate with Drs. Duffy and Druckemiller during her evaluations with them. The respondents also argue that the trial commissioner's decision to "disregard," id., at 14, the findings in the commissioner's examination performed by Dr. Druckemiller constituted reversible error, while the trial commissioner's failure to allow the respondents to obtain post-judgment clarification from Dr. Druckemiller relative to the claimant's x-rays was a denial of due process. Finally, the respondents allege that the trial commissioner erred in denying the respondents' Motion to Correct and by refusing to allow into the record the March 28, 2008 correspondence of the claimant's treating physician, Dr. Steckler. We begin our analysis with the respondents' contention that the trial commissioner's decision to find the claimant credible constituted reversible error. In support of this position, the respondents rely on what they identify as a pattern of mendacity adopted by the claimant relative to...