5431 CRB-7-09-2 (2010). DiDonato v. Town of Greenwich Board of Education.

• Court: Connecticut

Connecticut Workers Compensation 2010. 5431 CRB-7-09-2 (2010). DiDonato v. Town of Greenwich Board of Education CASE NO. 5431 CRB-7-09-2COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONMAY 18, 2010ANTHONY DiDONATO CLAIMANT-APPELLEE v. TOWN OF GREENWICH BOARD OF EDUCATION EMPLOYER and CIRMA INSURER RESPONDENTS-APPELLANTS APPEARANCES: The claimant was represented by Christina Smith Hanna, Esq., The Berkowitz Law Firm, LLC, 1010 Washington Boulevard, Ninth Floor, Stamford, CT 06901. The respondents were represented by Heather K. Porto, Esq., Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. This Petition for Review(fn1) from the February 9, 2009 Finding of the Commissioner acting for the Seventh District was heard November 20, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter appeal from a Finding dated February 9, 2009 awarding the claimant temporary total disability benefits and approving detoxification on the basis of the claimant having sustained psychiatric injuries. The respondents argue that the claimant did not seek temporary total disability benefits on that basis, and the issue of psychiatric injuries was never properly noticed as an issue before this Commission. The claimant argues that since the basis for this award was medical evidence submitted by the respondents' witnesses, the award should stand. While we do understand the respondents' concerns herein, we conclude that based on the record in this case they were provided a sufficient forum to discuss the issue of detoxification; and therefore, were not denied due process. On the other hand, we are not satisfied that we understand the basis for the trial commissioner's conclusion that the claimant is temporarily totally disabled due to psychiatric injuries. We remand this issue to the trial commissioner for further proceedings. The trial commissioner noted three issues were presented for consideration: a) whether the claimant should have additional surgery authorized; b) whether the claimant had reached maximum medical improvement and whether a Form 36 should be approved, and c) whether, if the Form 36 was denied, the claimant should be deemed totally or temporarily partially disabled? She reached the following findings of facts. The claimant was injured September 24, 2003 while lifting a garbage can. He presented immediately thereafter at Greenwich Hospital and underwent a left L3-4 laminectomy and facetectomy. The claimant developed delayed progressive mechanical low back pain three months after the surgery. On April 22, 2004 the claimant felt a pop in his back when picking up a piece of mail and complained of severe pain to the back and right leg. On July 2, 2004 he underwent an L2-3 and L3-4 posterolateral arthodesis and instrumentation with pedal screws and rods. The claimant's treating physician, Katrina S. Firlick, M.D., referred the claimant to Dr. David Y. Xiong for pain management issues. On January 10, 2005 Dr. Xiong administered a right L5-S1 interlaminar epidural steroid injection to the claimant. The respondent had the claimant examined by Dr. Gerard A. Sava on March 28, 2005. Dr. Sava found the claimant displayed symptom amplification and that stretch reflexes were symmetrical and the muscle groups showed no objective evidence of weakness or atrophy; nor were there signs or symptoms suggestive of residual nerve root involvement. Dr. Sava opined there was no clinical or radiologic basis for the claimant's proclaimed disability and no evidence of need for further investigative studies, surgery or pain management. He opined further pain management would risk a return to drug abuse for the claimant. Dr. Xiong continued pain management during 2005 and 2006. This regimen included the installation of a spinal cord stimulator, which Dr. Xiong removed on August 8, 2006 due to fear of infection. On September 14, 2006 Dr. Jarob Mushaweh performed an examination of the claimant at the direction of the commissioner. The claimant was asked to bring all imaging studies to the examination, but Dr. Mushaweh stated this did not occur. Dr. Mushaweh opined that the prior surgeries had healed and that no further surgeries were indicated. He diagnosed the claimant with "failed back syndrome" and noted the failure of pain management. Dr. Mushaweh, also expressed concern with the claimant's narcotic use and suggested a morphine or Dilaudid pump was not advisable. Dr. Mushaweh recommended the claimant undergo a functional capacity examination. On December 21, 2006 Rob D. Wright of Wright2Work conducted a functional capacity examination of the claimant...