LUIS BORRERO CLAIMANT-APPELLANT
v.
RYDER INTEGRATED SERVICES EMPLOYER
and
RYDER SERVICES CORPORATION INSURER RESPONDENTS-APPELLEES
No. 6354 CRB-5-19-10
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
October 16, 2020
This
Petition for Review from the September 27, 2019 Finding and
Decision by Charles F. Senich, the Commissioner acting for
the Fifth District, was heard April 24, 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 John J. D'Elia, Esq.,
D'Elia Gillooly DePalma, L.L.C.
The
respondents were represented by Ralph A. Russo, Esq., Law
Offices of Ralph A. Russo
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has petitioned for review from the September 27,
2019 Finding and Decision (finding) by Charles F. Senich, the
Commissioner acting for the Fifth District (commissioner). We
find no error and accordingly affirm the decision of the
commissioner.
The
commissioner identified the following issues to be addressed
at the formal hearing: (1) a trial de novo relative to a form
36 (Notice of Intention to Reduce or Discontinue Benefits)
filed on May 3, 2017, and granted on the basis of an April
26, 2017 Respondents' Medical Examination (RME) report
issued by Michael A. Miranda, M.D.; (2) the claimant's
eligibility for temporary partial disability benefits
pursuant to General Statutes § 31-308 (a); and (3) the
claimant's eligibility for temporary total disability
benefits pursuant to General Statutes § 31-307.
[2]
The
commissioner also noted the following:
At the outset of this formal hearing, the issues were
outlined and agreed to by counsel. At the formal hearing on
March 7, 2018, pursuant to the transcript, page 11, beginning
at line 10, I (Commissioner) stated: "Attorney
D'Elia, it's my understanding that you're
objecting to the Form 36 and your objection on behalf of the
Claimant is that one, the claimant is not at maximum medical
improvement and you're claiming that the claimant is
temporarily totally disabled as of the filing of the 36 or in
the alternative, temporary partial?"
Mr. D'Elia: "Correct."
September
27, 2019 Finding and Decision, Statement of the Case.
The
commissioner made the following factual findings which are
pertinent to our review of this matter. The claimant
sustained compensable injuries to his left and right knees
and has undergone multiple surgeries on both knees, including
a bilateral arthroplasty in 2010. On April 26, 2017, Miranda
performed an RME and subsequently reported that he had spent
more than two hours viewing surveillance videotapes which
"document Mr. Borrero's performing activities of
daily living which are beyond what he reported as his
capacity. Specifically, climbing ladders, carrying groceries
and walking without a limp." Commissioner's Exhibit
1, p. 3. Miranda also noted that the claimant had not been
wearing any braces and, despite the claimant having told
Miranda he was unable to stand for more than ten to fifteen
minutes at a time, the surveillance videos showed the
claimant "standing on a ladder painting his second floor
porch from 4:32 in the afternoon consistently to 5:57 in the
afternoon." Id.
In the
"Impression" portion of his report, Miranda opined
that the claimant had reached maximum medical improvement
following bilateral knee replacements and stated that
although the claimant "does have some functional
limitations as a result of some of his laxities, it is
certainly not to the degree that he reports."
Id. Miranda further opined that the claimant had a
work capacity and could lift five to ten pounds throughout
the day while "spending four hours on his feet and four
hours sedentary duties with minimal squatting and
climbing." Id. Miranda also reviewed the prior
permanency ratings of 20 percent to both knees which had been
assigned in February 2014 by John M. Aversa, M.D., and
increased the ratings to 25 percent for the right knee and 28
percent for the left. See Respondents' Exhibit 10
[Respondents' Deposition Exhibit 5].
At a
deposition taken on November 29, 2017, Miranda reiterated
that the claimant had a work capacity and had reached maximum
medical improvement with a permanent partial disability to
both knees. In a follow-up report dated March 5, 2018,
Miranda, noting the "discrepancy between [the
claimant's] complaints and his function as demonstrated
on the [surveillance] videotapes," Respondents'
Exhibit 11 [Respondents' Deposition Exhibit 1, p. 2],
stated that he did "not consider [the claimant] to be an
accurate historian." Id. However, Miranda also
opined that the claimant, "on clinical exam …
does demonstrate instability of his arthroplasty, and it is
my impression that this is worse than last April. As a
result, he is likely heading for another revision….
Regarding his work status, he is certainly capable of doing
sedentary work as opposed to being totally
incapacitated."
[3] Id. At a second deposition
taken on February 13, 2019, Miranda repeated the opinion
reflected in his report of March 5, 2018, testifying that the
claimant was capable of light duty but would require
additional surgery in the future. See Respondents'
Exhibit 11, p. 7.
In a
report dated June 2, 2017, the claimant's treating
physician, John F. Irving, M.D., stated that he had reviewed
Miranda's April 26, 2017 RME report and "[agreed]
with [the] "work capacity qualifications that he
listed" with regard to lifting, standing, squatting and
climbing. Respondents' Exhibit 10 [Respondents'
Deposition Exhibit 7, p. 2]. Irving also indicated that he
agreed with the increased permanency ratings assigned by
Miranda and further opined that the claimant "may at
some point in the future require revision surgery."
Id.
In a
subsequent report dated August 16, 2017, Irving stated that
"[t]he best thing [the claimant] can do is again
vigorously keep his muscles in condition and strength,"
Claimant's Exhibit B, and opined that "[s]urgical
solutions are radical and very defining, in that the only
solution now is a revision to rotating hinge prostheses,
which would by definition eliminate all instability."
Id. Irving indicated that he had discussed this
surgery with the claimant but was "reluctant to offer
this to him" id., because "[t]hese
operations ‘burn bridges' and should be considered
operations as [a] last resort…." Id.
Irving recommended that the claimant settle his workers'
compensation claim and set aside funds for what he considered
to be "inevitable revisions to rotating hinge
prostheses." Id.
In a
report dated November 29, 2017, Irving indicated that he had
discussed several surgical options with the claimant and the
claimant would let him know if he wanted to proceed. At a
deposition taken on June 6, 2018, Irving testified that the
claimant could perform light duty or sedentary work. See
Respondents' Exhibit 3, p. 25. He further opined that in
light of the continuing instability of the claimant's
left knee, "the only option to stabilize that knee is to
do yet another revision or redo … and that's to
take out the current components in the left knee … and
then put in a knee that actually has a hinge in it much like
a door hinge so there would be no reliance on any natural
ligaments in the knee." Id., pp. 28-29. When
queried, Irving asserted that he was ready to proceed with
that surgery if the claimant decided he wanted to do so.
At a
second deposition taken on March 7, 2019, Irving confirmed
that he agreed with the permanent partial disability ratings
previously assigned by both Aversa and Miranda, given that
the ratings "were based on the patient at that point in
time…." Respondents' Exhibit 10, p. 19.
Irving also reiterated that because the claimant's
condition was likely to worsen over time, the permanency
ratings were "a moving target," id., and
indicated that the surgery was scheduled for May 2019.
The
claimant testified at trial, stating that he had...
