KEVIN SCHRECKENGOST CLAIMANT-APPELLANT
v.
ZWALLY HAULING EMPLOYER
And
MARKEL CORP INSURER RESPONDENTS-APPELLEES
No. 6323 CRB-4-19-5
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
July 15, 2020
This
Petition for Review from the April 22, 2019 Finding by Jodi
Murray Gregg, the Commissioner acting for the Seventh
District, was heard February 28, 2020 before a Compensation
Review Board panel consisting of Commission Chairman Stephen
M. Morelli and Commissioners William J. Watson III and Toni
M. Fatone.
[1]
The
claimant was represented by Enrico Vaccaro, Esq., Law Offices
of Enrico Vaccaro
The
respondents were represented by Gerald Davino, II, Esq.,
Testan Law
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has appealed from a Finding reached by Commissioner
Jodi Murray Gregg (commissioner) on April 22, 2019, which
determined that he was no longer totally disabled, and no
longer entitled to benefits pursuant to General Statutes
§ 31-307 (a).
[2] The claimant argues that the
commissioner’s decision was arbitrary and unsupported
by the evidence. After reviewing the record, we are satisfied
that the commissioner reached a reasonable determination in
her finding. Accordingly, we affirm the Finding.
The
commissioner found the following facts at the conclusion of
the formal hearing in this case. She noted the claimant
sustained a compensable back injury on July 18, 2005, which
necessitated decompression and fusion surgery at L4-5. The
claimant returned after that surgery to his occupation as a
dump truck driver. “On November 10, 2010, the claimant
had another surgery performed by his treater, Dr.
Mastroianni. This surgery was a decompressive laminectomy and
discectomy at L3-4.” Findings, ¶ 4. He returned to
his job until Mastroianni found him medically disabled on
June 13, 2012. Mastroianni referred him to Pardeep K. Sood,
M.D., for pain management. See Findings, ¶¶ 5-6.
“The
Claimant testified that he cannot sit or stand for more than
short periods of time; needs to change his position
frequently; cannot climb, bend or twist; has difficulty going
from a sitting to a standing position; and that his back pain
increases with activity.” Findings, ¶ 7. He also
“testified that for the last forty years he has
maintained manual labor jobs and does not have skills that
are transferable for sedentary work.” Findings, ¶
8. The claimant also testified that the respondents had
failed to authorize his prescriptions in a timely fashion.
The claimant presented on February 26, 2015, for a
Respondents’ Medical Examination (RME) with Dr. Gary
Zimmerman. Zimmerman reported that the claimant had reached
maximum medical improvement. Zimmerman opined at that time
the claimant did not have a work capacity; however, in a
report he issued on March 17, 2015, he changed his opinion
after he reviewed surveillance videos which had been done
depicting the claimant’s activities.
Zimmerman
reported that:
the videos proved that the Claimant has some ability to work,
likely more than sedentary. The doctor noted that
surveillance depicted the Claimant engaging in various
activities. ‘At one point, he was on top of truck,
clearing off snow. I have seen him driving a plow. I have
seen him fixing a tail light on his truck, which included him
lying on the ground on a mat and working. In these videos, he
rarely used a cane. In addition, on the day of his
independent Medical Examination with me, on 2/26/15, he did
not use a cane in the morning, but did use a cane on the way
to my office to be seen and did not use the cane afterwards.
However, there are many instances of him walking with a limp
suggesting some ongoing pain and limitation.’
Findings,
¶ 12. This report was affixed to a June 23, 2015 form
36, which sought to terminate the claimant’s temporary
total disability benefits and convert the benefits to
permanent partial disability benefits. This form 36 was
denied.
On
September 30, 2015, the claimant presented for a
Commissioner’s Examination with Dr. Jarob N. Mushaweh,
a neurosurgeon. The doctor opined that “the Claimant
suffers from a classic case of failed back syndrome and that
he does not believe that ‘the interventional pain
management has any yield at this stage and should be
abandoned. The amount of narcotics he is taking should be of
significant concern.’” Findings, ¶ 14.
Mushaweh opined that the claimant had a sedentary work
capacity and that the claimant had a “40% permanent
partial disability to the lumbar spine, 75% attributable to
the Claimant’s prior spinal condition and the remaining...
