Opinion
CASE NO. 1125 CRD-7-90-10
FEBRUARY 21, 1992
The claimant was represented by Stephen F. Donahue Esq.; Owens, Schine, Nicola Donahue.
The respondents were represented by Jean D. Molloy Esq. and Jeremy Booty, Esq., Montstream May.
This Petition for Review from the October 11, 1990 Finding and Award of the Commissioner for the Fourth District acting for the Seventh District was heard September 27, 1992 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners George Waldron and Angelo dos Santos.
OPINION
Respondents appeal the Fourth District October 11, 1990 finding that proposed back surgery on the claimant was reasonable and necessary. The parties stipulated the facts. Claimant suffered a compensable back injury January 11, 1988 and thereafter a later aggravation of the injury. This resulted in a fifteen (15%) per cent permanent partial disability of the lumbosacral spine. The commissioner agreed with the opinion of the two doctors who recommended surgery.
The commissioner's conclusion was based on a November 29, 1989 report of Dr. Patrick Carolan, an orthopedic surgeon and the October 10, 1989 report of Dr. Laurance Guido, a neurosurgeon, Exhibits A and B respectively. There were also medical opinions indicating surgery was not reasonable or necessary. See April 6, 1990 Report of Dr. Alan Goodman, M.D., (Respondent's Exhibit 1) and June 11, 1990 Report of Franklin Robinson, M.D. (Respondent's Exhibit 2).
On July 11, 1991 the respondents filed a motion to modify the October 11, 1990 decision. The commissioner denied that motion July 16, 1991. The respondents then filed a Motion for Submission of Additional Evidence to this body. The evidence proffered is a December 20, 1990 report of Dr. Laurance Guido. That report states, "At this juncture, I'm not overly committed to recommending any operative intervention for this patient."
The record does not show whether the commissioner considered Dr. Guido's December 20, 1990 report in denying the motion to modify on July 16, 1991. However as that was evidence which was not available until well after he had ruled in October, 1990, he certainly should have considered it.
Grey v. Greenwood Health Care Center, 1062 CRD-1-90-6 (Dec. 5, 1991) held that Administrative Regulation Sec. 31-301-9 permits this body to consider evidence not considered below where such evidence is "(1)material and (2)`there were good reasons for failure to present it in the proceedings before the commissioner'". We also noted that where the evidence proffered is "cumulative of other evidence already before a commissioner should not be admitted, `unless its character or force be such that it would be likely to produce a different result.' Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 274 (1948) citing Gonirenki v. American Steel Wire Co., 106 Conn. 1, 11 (1927)." Grey, supra.
That reasoning in Grey leads us to the conclusion that the evidence proffered here is of such force and character that it may result in a different conclusion. This is not to say that the trier will not reach the same conclusion he did before considering the new December 20, 1990 report. But the respondents should be assured that at least the new evidence was considered. Where the ultimate issue is whether surgery should be performed, and the physician whose previous recommendation for surgery had been one of the bases on which the commissioner rested his conclusion changes his opinion a year later, then it would be prudent at least to consider that opinion. Cf. Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154 (1989).
Sec. 31-294 requires that an employee suffering a compensable injury shall be furnished with "such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary." Here a treating physician who previously thought otherwise is now not certain that a surgical procedure is reasonable or necessary.
Having concluded as we have, it is not necessary to decide any other issues raised in respondents' appeal from the October 11, 1990 Finding and Award. The matter is remanded for further proceedings consistent with this opinion.
Commissioners George Waldron and Angelo dos Santos concur.