5356 CRB-6-08-6 (2009). Dahle v. Stop & Shop Companies, Inc.
Court | Connecticut |
Connecticut Workers Compensation
2009.
5356 CRB-6-08-6 (2009).
Dahle v. Stop & Shop Companies, Inc
CASE NO. 5357
CRB-3-08-6COMPENSATION REVIEW BOARD
WORKERS' COMPENSATION COMMISSION JUNE 5, 2009BARBARA DAHLE CLAIMANT-APPELLANT v. STOP & SHOP
COMPANIES, INC. EMPLOYER and MAC RISK MANAGEMENT INSURER RESPONDENTS-APPELLEES
APPEARANCES: The
claimant was represented by Barbara J. Collins, Esq., 44 Capitol Avenue, Suite
402, Hartford, CT 06106. The respondents were represented by Clayton J. Quinn,
Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460. It
appears the Second Injury Fund was involved in the initial proceedings before
the trial commissioner. They were notified and did appear at oral argument
before the board. However they did not file a brief or participate in the
appeal proceedings. Appearing on behalf of the Fund, Lisa G. Weiss, Esq.,
Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O.
Box 120, Hartford, CT 06141-0120. This Petition for Review from the June 4,
2008 Finding and Award/Finding and Dismissal of the Commissioner acting for the
Sixth District was heard on December 12, 2008 before a Compensation Review
Board panel consisting of the Commission Chairman John A. Mastropietro and
Commissioners Charles F. Senich and Jack R. Goldberg. OPINIONJOHN
A. MASTROPIETRO, CHAIRMAN.The claimant has petitioned for review from
the June 4, 2008 Finding and Award/Finding and Dismissal of the Commissioner
acting for the Sixth District. We find no error, and affirm the decision of the
trial commissioner.The parties stipulated to the following factual determinations.
On August 8, 2003, the claimant suffered a compensable injury to her left hip
and right shoulder. Scott Organ, M.D., the claimant's treating physician,
assigned the claimant a five (5%) percent permanent partial disability rating
of the right shoulder. By agreement of the parties, the claimant was paid the
permanency award based on a maximum medical improvement date of September 5,
2006. Although the claimant has complained since the date of injury about pain
in and problems with both her right shoulder and her left hip, no permanency
rating was ever assigned to the left hip.
The issues before the trial commissioner were the claimant's
eligibility for wage differential benefits pursuant to § 31-308a
C.G.S.(fn1) and additional medical treatment pursuant to § 31-294d
C.G.S.(fn2) The trial commissioner, citing as credible and persuasive the
deposition testimony of Dr. Organ wherein the doctor opined that additional
treatment for the claimant's injuries would be palliative and not curative,
determined the additional medical treatment sought by the claimant was neither
reasonable nor necessary and dismissed the claim. However, relative to the
claimant's entitlement to § 31-308a C.G.S. benefits, the trial
commissioner, noting the restrictions ascribed to the claimant by Dr. Organ in
his report of February 15, 2006, found the claimant eligible for the benefits
and awarded the full amount as permitted by statute.(fn3) The trial
commissioner also awarded the claimant's attorney a twenty (20%) percent
attorney's fee on the full amount of the § 31-308a C.G.S. award in light
of the respondents' decision to contest that claim.
The claimant filed a Motion to Correct which was denied in its
entirety. On appeal, the claimant challenges the trial commissioner's
conclusions regarding the efficacy of additional medical treatment. In essence,
the claimant argues that the trial commissioner's reliance on the opinions
expressed by Dr. Organ relative to whether the additional medical treatment
sought by the claimant would be palliative or curative was improper because Dr.
Organ, in his capacity as an orthopedic surgeon, was insufficiently qualified
to render such an opinion. The claimant contends that "[a]n orthopedic surgeon
can not [sic] definitively state the curative or palliative treatment of a
wholly separate specialty. Orthopedic surgeons and pain management doctors
treat injuries in a separate and distinct manner. Therefore, neither doctor can
offer qualified expert testimony on the intricacies of each others' specialty."
Appellant's Brief, p. 11.
The claimant also asserts that the trial commissioner's decision
to deny the claimant additional medical treatment on the basis of the opinion
proffered by an unqualified expert witness contravenes the broad humanitarian
purpose of the Workers' Compensation Act. Asserting that ". the Act does not
allow the Commissioner the latitude to disregard basic principles regarding
witness qualification," id., at 17, the claimant requests that this "Board
consider the ramifications of allowing unqualified doctors opining on the
merits of treatment rendered by doctors of a wholly separate field." Id.
We begin our analysis by reciting the well-settled standard of
deference we are obliged to apply to a trial commissioner's findings and legal
conclusions.
. the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App....
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