Secula v. SBC/SNET, 031020 CTWC, 6314 CRB-5-19-3

• Case Date: March 10, 2020
• Court: Connecticut

GREGG M. SECULA, CLAIMANT-APPELLEE v. SBC/SNET, SELF-INSURED EMPLOYER And SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD-PARTY ADMINISTRATOR RESPONDENTS-APPELLANTS No. 6314 CRB-5-19-3 Connecticut Workers Compensation Compensation Review Board Workers Compensation Commission March 10, 2020          This Petition for Review from the February 27, 2019 Finding and Decision of Carolyn M. Colangelo, Commissioner acting for the Fifth District, was heard on August 30, 2019 before a Compensation Review Board panel consisting of Commissioners Peter C. Mlynarczyk, David W. Schoolcraft, and Daniel E. Dilzer.^[1]           The claimant was represented by Justin A. Raymond, Esq., and James H. McColl, Jr., Esq., The Dodd Law Firm, L.L.C.           The respondents were represented by Katherine E. Dudack, Esq., Strunk, Dodge, Aiken, Zovas, L.L.C.           OPINION           PETER C. MLYNARCZYK, COMMISSIONER.          The respondents have petitioned for review from the February 27, 2019 Finding and Decision (finding) of Carolyn M. Colangelo, 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 for analysis: (1) whether the claimant’s right knee condition and need for surgery were the result of the compensable injury sustained on February 12, 2011; and (2) whether the claimant was entitled to obtain a second opinion.          The commissioner made the following factual findings which are pertinent to our review of this matter. The claimant, who had worked for the respondent employer for approximately thirty years as of the September 18, 2018 formal hearing, sustained a compensable injury to his right knee on February 12, 2011. The claimant sustained a prior injury to his right knee in 2007; however, no reports were submitted into the record for this injury.          Concentra reports were submitted into the record for a knee injury sustained in February 2009; those records reflect that “internal derangement” was suspected at that time. Respondents’ Exhibit 6. An MRI report dated February 11, 2009, did not demonstrate a tear. See Respondents’ Exhibit 8. In a report dated February 19, 2009, T. Michelle Mariani, M.D., reviewed the February 11, 2009 MRI, noting that the study did not demonstrate any meniscal tears. Mariani diagnosed the claimant with, inter alia, right medial compartment arthritis. See Respondents’ Exhibit 7.          The claimant offered credible testimony that at the time of the February 12, 2011 injury, his right knee was not bothering him. Concentra records reflect that following the 2011 injury, the claimant was diagnosed with internal derangement of the knee. An MRI taken on March 3, 2011, demonstrated substantial medial compartment arthritis with a meniscal tear and a mild lateral compartment meniscal tear. The claimant began treating with Patrick R. Duffy, M.D., on March 16, 2011. Duffy initially treated the claimant with anti-inflammatory medication and intra-articular injections.          The claimant underwent a respondents’ medical examination (RME) with Lawrence C. Schweitzer, M. D., on April 28, 2011. Relative to the injury sustained by the claimant in 2007, Schweitzer stated that “[a]n MRI study at the time showed a meniscal tear; however, his knee symptoms settled down to the extent that he had no medical contact for the knee for the next five years.” Respondents’ Exhibit 2, p. 2. Regarding the injury sustained in 2011, Schweitzer opined as follows:

Mr. Secula has a material aggravation of his preexisting knee condition. Whereas prior to this February event, the knee was functional and asymptomatic, the arthritic process was advancing. The work injury of 2007 was a significant remote cause of this situation. The work injury of February 2011 materially aggravated the situation.

Respondents’ Exhibit 2, p. 3.          Schweitzer stated that “[l]ong term, this knee will likely require surgical intervention in the form of a partial or total knee replacement.” Id. In a May 3, 2011 addendum to this report, Schweitzer indicated that the claimant, prior to the February 12, 2011 accident, “was symptom free though he had extensive arthritis of the knee,” Respondents’ Exhibit 2; however, the doctor indicated that the knee “would have soon become problematic and require surgery, even without this newest injury.” Id.          During 2011 and 2012, Duffy’s treatment of the claimant consisted of injections, including Synvisc injections. In an office note dated July 19, 2012, Duffy indicated that the claimant’s knee condition was progressive and would require additional treatment in the future. See Claimant’s Exhibit B.          On April 21, 2016, Matthew D. Skolnick, M.D., performed a respondents’ medical examination. In his report, Skolnick opined that:

The progressive degenerative arthritis in the knee is related to the [February 12, 2011] injury ..., superimposed on his pre-existing asymptomatic degenerative condition. The progression of this condition is a “natural” phenomenon, in most cases, but is also aggravated by the injury in question. I would apportion this progression 50% to the underlying degenerative condition and 50% to the incident of February 12, 2011.

Claimant’s Exhibit A, pp. 3-4.          The commissioner noted that when Skolnick conducted his April 21, 2016 examination, he had the benefit of Schweitzer’s report of April 28, 2011, and the addendum of May 3, 2011. The commissioner further noted that Schweitzer’s April 28, 2011 report referenced the claimant’s right knee injury of 2007.^[2]          In 2016 and 2017, Duffy again treated the claimant with injections. In 2017, Duffy recommended that the claimant undergo a total knee replacement. In an office note dated January 2, 2018, Duffy stated:

The need for a total knee arthroplasty is causally related to the 02/12/2011 workrelated incident. The 02/12/2011 incident rendered a previous asymptomatic condition symptomatic. It has continued to be symptomatic. He has been treated conservatively with viscosupplementation and anti-inflammatory medication as well as therapy dating to 2011.

Claimant’s Exhibit B.          On October 4, 2017, the claimant underwent a third RME with Peter Jokl, M.D. Jokl indicated that he had reviewed x-rays taken on February 18, 2016, February 13, 2017, and May 30, 2017, but no imaging studies from 2011 or from the 2007 injury. Jokl indicated that based on the “limited” medical reports provided, the claimant “had a preexisting condition of obesity and degenerative changes. The incident which occurred on 02/12/2011 aggravated but was not a substantial factor to his present osteoarthritic condition of his right knee.” Respondents’ Exhibit 1, p. 5. Jokl further noted that Schweitzer’s 2011 RME documented the claimant’s 2007 right knee injury, and “[t]here is also [a] history of chronic obesity. All of these contribute to the degenerative changes in his right knee. From reviewing the medical records, the incident which occurred on 02/12/2011 aggravated but was not a substantial contributing factor to his present knee condition, which was preexisting.” Id.          Following Jokl’s October 4, 2017 RME, the claimant underwent a commissioner’s examination with Michael J. Kaplan...