JAMES ARRICO CLAIMANT-APPELLANT
v.
CITY OF STAMFORD/BOARD OF EDUCATION EMPLOYER SELF-INSURED
and
PMA MANAGEMENT CORPORATION OF NEW ENGLAND THIRD-PARTY ADMINISTRATOR RESPONDENTS-APPELLEES
No. 6345 CRB-7-19-9
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
November 17, 2020
This
Petition for Review from the August 20, 2019 "De
Novo Ruling on the Form 36 of February 28, 2018" by
Michelle D. Truglia, the Commissioner acting for the Seventh
District, was heard May 22, 2020 before a Compensation Review
Board panel consisting of Commission Chairman Stephen M.
Morelli and Commissioners Randy L. Cohen and William J.
Watson III.[1]
The
claimant was represented by Daniel A. Benjamin, Esq.,
Benjamin, Gold & Troyb, P.C.
The
respondents were represented by Scott Wilson Williams, Esq.,
Williams Law Firm, L.L.C.
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has appealed from a de novo ruling (ruling)
reached by Commissioner Michelle D. Truglia (commissioner)
after granting the respondents’ form 36 which found the
claimant had reached maximum medical improvement. The
claimant takes issue with elements of the ruling which
determined that his continued disability was due to non work
related factors, as well as a conclusion that any further
treatment for him would be palliative and not curative. The
claimant argues that the commissioner failed to apply the
proper test as to whether a work injury was a substantial
contributing factor in his disability. He also argues that
the issue of further treatment was neither noticed nor
litigated at the formal hearing and it was improper to reach
any findings on that issue in the ruling. The respondents
argued that we should not address the issue of medical
treatment at this time and should treat this conclusion as
dicta. They argue on the other hand that substantial evidence
supports the commissioner’s conclusion regarding
approving the form 36, as well as the source of the
claimant’s current disability.
We
concur with the respondents that there was substantial
evidence in support of granting the form 36. We are persuaded
by the claimant; however, that the manner in which the
commissioner addressed this evidence was sufficiently
unorthodox as to impair his right to a fair hearing based on
established standards in this forum. Accordingly, we remand
the issues of disability and medical treatment for further
proceedings.
The
commissioner reached the following factual findings which are
pertinent to our consideration of this appeal. She noted that
the claimant had sustained two different back injuries; the
first occurred on July 21, 2008 at the L4 level and the
second injury on February 10, 2017, when the claimant
fractured his sacrum lifting a table.[2] The commissioner noted that
voluntary agreements were approved in 2016, establishing a 16
percent permanent partial disability rating for the first
injury and a date of maximum medical improvement. She also
noted that two jurisdictional voluntary agreements were
approved in 2017, accepting the claimant’s more recent
injury. The commissioner also noted the numerous ailments
unrelated to his work injury the claimant suffered from
during the period between his initial and subsequent back
injuries, which included colitis, essential hypertension,
seizures and epilepsy, and spinal stenosis. She noted that
one of the claimant’s treaters, Vincent R. Carlesi,
M.D., had diagnosed him in 2008 with a history of chronic low
back pain which radiates into his buttocks and down his left
lower extremity. An MRI in 2008 noted “degenerative
disc narrowing at the L4-L5 level . . . a large left
foraminal and extra foraminal extruded disc herniation
causing severe compression of the left L4 nerve root . . .
bilateral facet disease at the L5-S1 level . . . .”
Ruling, ¶ 4, citing Claimant’s Exhibit C.
The commissioner noted the claimant chose not to undergo
surgery at that time and opted for pain management. She also
noted a gap in the medical records presented for the period
from September 2008 to January 2017.
Reports
from two physicians were entered into evidence as to the
claimant’s condition in early 2017. On January 17,
2017, Michael J. Brennan, M.D., noted the claimant had
returned to work and was functioning at a satisfactory level
while being prescribed narcotic pain medication such as
Oxycontin and Percocet. He opined the claimant should
continue this regimen of pain medication. Carlesi examined
the claimant on March 7, 2017, and diagnosed him with lumbar
radiculopathy and lumbar spinal stenosis. Carlesi noted the
claimant’s medical history included colitis, ulcerative
colitis, disc disease, degenerative joint disease, and that
he is currently an “every day smoker.” Ruling,
¶ 7, citing Claimant’s Exhibit C. Carlesi
also noted that the claimant’s prior treatment had
included the use of a number of steroids. Subsequent to his
2017 injury, the claimant treated with a neurosurgeon, Scott
Simon, M.D.
Simon
noted on March 23, 2017 that a February 25, 2017 MRI showed
the claimant with an acute sacral insufficiency fracture.
Noting the claimant’s use of prednisone, Simon referred
the claimant for an evaluation of bone health and prescribed
rest. Simon examined the claimant again on May 10, 2017 and
July 12, 2017. As of September 13, 2017, the claimant was
weaned off prednisone. An MRI reviewed at this visit revealed
“L3-five lateral recess stenosis . . . with STIR signal
abnormalities associated with his sacral fractures.”
Ruling, ¶ 8.d, citing Claimant’s Exhibit
A. Simon examined the claimant again on November 2, 2017, and
determined his condition was essentially unchanged from the
last visit. He continued to keep the claimant out of work
while recommending that he undergo medial branch blocks, SI
joint injections and possible lumbar and SI joint RFAs.
The
respondents had their expert, Stuart Belkin, M.D., an
orthopedic surgeon, examine the claimant on February 20,
2018. Belkin found the claimant had reached maximum medical
improvement (MMI) with a 5 percent permanent partial
disability of the lumbar spine, independent of any...
