5669 CRB-7-11-7 (2012). FRANKLIN T. MILLER, III CLAIMANT-APPELLANT v. THYSSEN KRUPP ELEVATOR CORPORATION.

• Court: Connecticut

Connecticut Workers Compensation 2012. 5669 CRB-7-11-7 (2012). FRANKLIN T. MILLER, III CLAIMANT-APPELLANT v. THYSSEN KRUPP ELEVATOR CORPORATION CASE NO. 5669 CRB-7-11-7COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONAUGUST 29, 2012FRANKLIN T. MILLER, III CLAIMANT-APPELLANT v. THYSSEN KRUPP ELEVATOR CORPORATION EMPLOYER and CONNECTICUT GENERAL FIRE and CASUALTY COMPANY/GALLAGHER BASSETT SERVICES INSURER RESPONDENTS-APPELLEES APPEARANCES: The claimant was represented by Ryan M. Henry, Esq., Guendelsberger Law Office, LLP, 28 Park Lane Road, New Milford, CT 06776. The respondents were represented by Michael M. Buonopane, Esq., McGann, Bartlett and Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108. This Petition for Review(fn1) from the July 7, 2011 Finding and Dismissal of the Commissioner acting for the Seventh District was heard February 17, 2012 before a Compensation Review Board panel consisting of Commissioners Daniel E. Dilzer, Ernie R. Walker and Clifton E. Thompson.(fn2) OPINIONDANIEL E. DILZER, COMMISSIONER. The claimant in this matter appeals from the July 7, 2011 Finding and Dismissal of the commissioner acting on behalf of the Seventh District. The appellant presents a number of issues for our review. The ultimate issue presented for our review is whether the trial commissioner erred in failing to award benefits to the claimant relating to an injury sustained on September 19, 2007. The pertinent facts in this matter are as follows. The claimant alleges that on September 19, 2007, he injured his back when a step ladder upon which he was standing collapsed. There is no argument that the event occurred while the claimant was in the employ of the respondent. The issue is whether the respondent is legally liable for workers' compensation benefits. On its face, the issue at hand, whether the respondent is liable for benefits resulting from the September 19, 2007 work incident, is a rather routine determination requested of a commissioner. The instant matter, however, is complicated by the claimant's prior medical history relating to his back. The claimant alleges that on or about May 20, 2004, while at work he suffered a lifting injury to his back. The respondent filed a Form 43, wherein they put the claimant on notice that they were contesting the claimant's claim. No timely written notice of claim was filed by the claimant nor were any of the constructive notice provisions of the workers' compensation act satisfied. Therefore, the claim for benefits relating to the May 20, 2004 injury was untimely and barred by the Act's statute of non claim. See § 31-294c(a). On or about June 12, 2006, while in the course of his employment, the claimant suffered a second injury to his back. Although this claim was timely filed it was not pursued. In proceedings before the trial commissioner the respondent argued that the issue turned on whether the September 19, 2007 incident resulted in an injury that was materially and substantially an aggravation of a preexisting condition or whether it was a continuation of the 2004 injury which was barred by the workers' compensation statute of non claim. There was testimony before the trial commissioner reflecting that the claimant's May 2004 injury occurred when the claimant was lifting tools. Thereafter, the claimant endured persistent back and leg pain. Following the 2004 lifting injury the claimant sought treatment with his primary care physician, Dr. Joseph Franceschina and a pain specialist, Dr. David Kloth. The claimant also treated with Dr. Dennis Ogiela, an orthopedic surgeon. The claimant was diagnosed as suffering from "lumbar degenerative disc disease and left sciatica." Findings, ¶ 10. As a result of the 2004 lifting injury the claimant lost some time from work, however, the claimant testified that the 2004 incident did not interfere with his ability to perform his job. Following the May 2004 incident Dr. Ogiela determined that the claimant had a modified work capacity and recommended that he avoid repetitive bending or lifting. Dr. Ogiela also prescribed medications and physical therapy. On May 26, 2004, the claimant again saw Dr. Ogiela and complained of "continued unrelenting pain radiating to his left leg." Findings, ¶ 11. The claimant stated that the pain interfered with his ability to function at home and work. Dr. Ogiela discussed surgery with the claimant. The claimant indicated he did not want to pursue surgery and elected to undergo a course of pain management. Dr. Ogiela advised the claimant to continue his medication, physical therapy and to have an MRI. On June 18, 2004, the claimant began pain management treatment with Dr. Kloth. Dr. Kloth administered an epidural steroid injection. In Findings, ¶ 12, the trial commissioner referenced Dr. Kloth's diagnosis and quoted "Pre-op: Lumbar radiculopathy HNP (herniated nucleus pulposus), and degenerative disc disease. Post-op: Same." Thereafter, the claimant underwent a series of epidural steroid injections from Dr. Kloth as well as a variety of other treatment modalities.(fn3) In Findings, ¶ 26, the trial commissioner found:

On August 1, 2007, the claimant returns to Dr. Kloth for evaluation. His diagnosis sets forth "lumbar facet syndrome; lumbar spondylosis, radiculopathy, HNP (herniated nucleus pulposus) and degenerative disc disease. Kloth states that the claimant underwent a lumber facet diagnostic mapping procedure on July 18, 2007. He further recommends a lumbar radiofrequency facet denervation for the facetogenic component of the claimant's symptoms.

The above referenced opinion dated August 1, 2007, from Dr. Kloth preceded the September 19, 2007 stepladder incident by less than two months. On October 17, 2007, the claimant underwent an MRI. Dr. Joel Canter interpreted the MRI as revealing a "moderate-sized central and left-sided disc herniation at L4-L5. No other significant abnormality noted." Findings, ¶ 29. On October 24, 2007, the claimant was again seen by Dr. Kloth. The claimant again complained of pain in his lower back radiating to his buttocks and down his left leg. Dr. Kloth noted the claimant's complaints of ever increasing pain but also noted that the claimant was better than his exacerbation in September. Dr. Kloth also disagreed with Dr. Canter's report as to what the October 17, 2007 MRI revealed. Dr. Kloth was of the opinion that the MRI showed a "significant progression of his disease" and Dr. Canter's report inadequately described the...