5423 CRB-3-09-2 (2010). Bode v. Connecticut Mason, The Learning Corridor OCIP.

• Court: Connecticut

Connecticut Workers Compensation 2010. 5423 CRB-3-09-2 (2010). Bode v. Connecticut Mason, The Learning Corridor OCIP CASE NO. 5423 CRB-3-09-2COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONMARCH 3, 2010PETRAQ BODE CLAIMANT-APPELLANT v. CONNECTICUT MASON, THE LEARNING CORRIDOR OCIP EMPLOYER and HARTFORD INSURANCE GROUP INSURER RESPONDENTS-APPELLEES APPEARANCES: The claimant was represented by Angelo Cicchiello, Esq., Cicchiello and Cicchiello, 364 Franklin Avenue, Hartford, CT 06114. Respondents Connecticut Mason, The Learning Corridor OCIP and Hartford Insurance Group were represented by Anne Kelly Zovas, Esq., and James L. Pomeranz, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. This Petition for Review from the January 21, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District was heard on August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Randy L. Cohen. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 21, 2009 Finding and Dismissal of the Commissioner acting for the Fifth District. We find no error and affirm the decision of the Commissioner.(fn1) The following factual findings are pertinent to our review. On October 29, 2002, the claimant suffered fractures of the cervical spine, lumbar spine, and right shoulder and a right inguinal hernia when he fell approximately twenty-five to thirty-five feet from scaffolding while in the employ of Connecticut Mason, The Learning Corridor OCIP. Following the accident, the claimant was hospitalized until November 1, 2002 and then transferred to an acute rehabilitation facility where he remained for two weeks. Pursuant to a voluntary agreement approved by the Commission on June 15, 2004, the parties agreed that the claimant had reached maximum medical improvement on July 29, 2003 having sustained a ten percent (10%) permanent partial disability to his lumbar spine, a fifteen percent (15%) permanent partial disability to his cervical spine, and a seventeen percent (17%) permanent partial disability to his right master arm. At trial, the claimant testified at length regarding his physical condition, contending that he has been totally disabled since the accident and currently suffers from tremors and shoulder pain which did not exist prior to the accident. He testified that he can only stand for ten to fifteen minutes at a time and that he could "never" remain sitting at a desk for two hours continuously. June 3, 2008 Transcript, p. 23. The claimant stated that his wife helps him dress and that he spends most of his day watching television. The claimant also indicated that he does not attend social events and "cannot work because he is in too much pain." Findings, ¶ 26. See also June 3, 2008 Transcript, pp. 25-26. The claimant testified that he could not complete a job application in English and does not read English newspapers. The claimant denied being able to work in the capacity of a parking lot attendant, coat room attendant, small parts inspector, or janitor. The claimant also testified that because of his constant pain, he began to experience symptoms of depression. Finally, the claimant "stated that he has been walking with the aid of a cane since 2003 because, without it, he would start feeling dizzy and fall." Findings, ¶ 31. See also June 3, 2008 Transcript, p. 30. Because of a complaint of ongoing right shoulder tremors, the claimant saw Peter Wade, M.D., on November 16, 2004 for a neurological consult. Dr. Wade concluded that the claimant did not have a neurologic problem. The claimant moved to Worcester, Massachusetts at the end of 2004 and began treating with doctors in that geographic location. He underwent arthroscopic surgery to his right shoulder on September 16, 2005, but his symptoms returned after several months, and on April 27, 2006, Nicola A. DeAngelis, M.D., indicated that the claimant's "best option" was a hemiarthroplasty or a total shoulder replacement. Claimant's Exhibit A. The claimant then consulted Michael A. Brown, M.D., regarding the risks and benefits of the proposed surgery, and on May 15, 2006, Dr. Brown reported the claimant would "schedule surgery sometime in August or at his convenience." Id. However, when the claimant saw Theodore Shoemaker, M.D., on July 20, 2006, the doctor noted that the claimant "at this time is not interested in any surgical intervention." Claimant's Exhibit N. The claimant underwent a respondent's medical examination with Peter Barnett, M.D., on September 19, 2006.(fn2) Dr. Barnett diagnosed the claimant with degenerative arthritis in the right shoulder and opined at his deposition that the reasonable treatment option for that condition is surgical shoulder joint replacement. Dr. Barnett testified that if the claimant "decides to live with the present condition and not opt to proceed with surgery, his condition won't improve, but it can actually get worse." Findings, ¶ 43. See also Respondents' Exhibit 1, pp. 10, 11. However, Dr. Barnett also stated that if the claimant had the surgery, he "would have at least 90% of normal function, be able to raise the arm overhead, and essentially a complete elimination of his pain." Findings, ¶ 43. See also Respondents' Exhibit 1, pp. 7, 8. "The improvement would be - if he had a good result - would be dramatic." Id., at 8. Dr. Barnett also opined that the claimant had a work capacity and could "use his right arm below the shoulder level in a nonrepetitive fashion with a 5pound lifting restriction." Findings, ¶ 42. See also Respondents' Exhibit 1, p. 7. The claimant returned to Dr. Brown on January 26, 2007, at which time Dr. Brown noted the claimant was still experiencing tremors in his upper extremities and referred the claimant to another neurologist. The claimant saw Banu Sundar, M.D., on September 1, 2007, who reported that neither an MRI of the cervical spine nor EMG studies demonstrated "evidence of radiculopathy or changes . . . that could explain the right upper extremity symptoms." Claimant's Exhibit I. Dr. Brown then referred the claimant to Dr. Goss, whom the claimant saw on May 14, 2008 and May 18, 2008. In his report dated May 14, 2008, Dr. Goss indicated that he told the claimant he essentially had two options: either live with his current symptoms and adjust his lifestyle accordingly, including the use of over-the-counter anti-inflammatory medications, or undergo a right shoulder arthroplasty. Claimant's Exhibit U. On February 5, 2004, the claimant underwent a vocational assessment conducted by a certified rehabilitation counselor at CRC Services in Longmeadow, Massachusetts in which the counselor concluded the claimant had a work capacity. Respondents' Exhibit 2, p. 15. However, the claimant introduced into the record a vocational assessment prepared on the basis of a records review by a certified vocational rehabilitation specialist at the Center for Career Development in Tolland, Connecticut on July 27, 2008 in which the rehabilitation specialist concluded that the claimant was unemployable in light of his "physical injuries, together with his limited education and limited abilities with the English language." Findings, ¶ 71. See also Claimant's Exhibit W, p. 3. Following four sessions of formal hearings, the trial commissioner concluded that the claimant was not totally disabled on or after April 26, 2005 and had had a light-duty work capacity since that date. The trial commissioner determined that the claimant had been paid all permanent partial disability and § 31-308a C.G.S. benefits owed to him and dismissed the claim for temporary total disability benefits. The trial commissioner also found there was "competent and persuasive medical evidence to indicate that the Claimant is limiting his recovery by not opting for right shoulder replacement surgery," Findings, ¶ F, and "competent and persuasive medical evidence to indicate that the Claimant's right shoulder condition may worsen as a result of his refusal to have right shoulder replacement surgery." Findings, ¶ G. As such, the trial commissioner determined that the claimant has "demonstrated an unwillingness to submit to right shoulder replacement surgery," Findings, ¶ C, despite the respondents having authorized same. Finally, the trial commissioner concluded "[t]here is no competent and persuasive medical evidence indicating that the Claimant's need for psychiatric treatment is causally related to his...