Opinion
CASE NO. 5120 CRB-7-06-8CLAIM NO. 700126036
JULY 20, 2007
This Petition for Review from the August 3, 2006 Finding of the Commissioner acting for the Seventh District was heard January 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.
The claimant was represented by Joseph Lucian Gerardi, Esq., 1074 Hope Street, Stamford, CT 06907.
The respondents were represented by Dominick C. Statile, Esq., Montstream May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.
OPINION
This appeal concerns an issue as to whether the trial commissioner properly issued an award for benefits under § 31-308(b) C.G.S. The trial commissioner reached a determination that the claimant had attained maximum medical improvement as of a certain date, but chose to award a permanency rating to the claimant based on a prior medical opinion of that physician which attributed a different date of maximum medical improvement to the claimant. The claimant has appealed, asserting that the trial commissioner erred in reaching this result. We agree that this result is not properly supported by the evidence, and remand the matter for a new determination as to the claimant's actual level of permanent disability.
The following facts are pertinent to this appeal. There was no dispute that the claimant had suffered a compensable back injury. The trial commissioner held a formal hearing on February 1, 2006 to consider three issues: a) when the claimant reached maximum medical improvement; b) what the claimant's disability rating was; and c) what was the effective date of the September 26, 2005 Form 36 moving the claimant from temporary total disability to permanent partial disability? The claimant argued that the maximum medical improvement date should be June 21, 2005 as stated by the treating physician, Dr. Vincent R. Carlesi, in a September 15, 2005 letter. He argued his permanent partial disability rating should be 27%, which was the rating the respondent's examiner, Dr. Christopher J. Cassels, opined to in his July 7, 2005 report. The claimant argued the effective date of the Form 36 should be September 26, 2005. Findings, ¶¶ 3-5. The respondents challenged one issue. They argued that Dr. Carlesi had previously placed the claimant at a 16% permanent partial disability rating with a maximum medical improvement date of January 30, 2005. Findings, ¶ 6. Much of the discussion at the hearing dealt with the September 15, 2005 letter Dr. Carlesi sent the claimant's attorney opining to a new rating and date of maximum medical improvement. Findings, ¶¶ 9-11. The letter was admitted as an exhibit at the hearing. In that letter Dr. Carlesi opined that the claimant had a "whole person" disability rating of 31%.
This physician is identified as "Dr. Cassel" in the Finding. We consider this a harmless scrivener's error. See Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).
In the Finding, the trial commissioner determined that claimant reached maximum medical improvement on June 21, 2005, which was consistent with Dr. Carlesi's September 15, 2005 letter. She also awarded the claimant a 16% permanent partial disability rating for the lumbar spine, which was consistent with the rating Dr. Carlesi had associated with the January 30, 2005 date of maximum medical improvement.
The claimant sought a Motion to Correct. In the Motion he pointed out that Dr. Carlesi's 16% permanency rating had been offered prior to the date of maximum medical improvement; that his September 25, 2005 "whole person" rating was not in compliance with the requirements of § 31-308(b) C.G.S. and argued that Dr. Cassels' 27% permanent partial disability rating for the lumbar spine was the only medical opinion proffered that was after the date of maximum medical improvement and in compliance with § 31-308(b) C.G.S. The trial commissioner denied this Motion to Correct and this appeal ensued.
The parties take diametrically different postures in regards to this scenario. The claimant argues that the trial commissioner could not have used a disability rating that predated the date of maximum medical improvement. He also argues that since Dr. Carlesi had changed his testimony with regards to the level of disability, that the Commissioner's reliance on the prior testimony "lacks substantial roots in the evidence" and must be set aside pursuant to our holding in Holmes v. G.A. Masonry Corp., 12 Conn. Workers' Comp. Rev. Op. 369, 1588 CRB-5-92-12 (August 11, 1994). The respondents argue that the trial commissioner may adopt part of an expert's testimony while discounting other parts of the same expert's testimony. See for example, Nasinka v. Ansonia Copper Brass, 13 Conn. Workers' Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). They believe the trial commissioner could have adopted Dr. Carlesi's opinion as to the new date of maximum medical improvement while relying on the prior opinion as to the level of disability. We do not support the respondents' reasoning given the facts herein.
We have reiterated the maxim that a trial commissioner need not credit every opinion an expert witness offers when she relies on that expert for an opinion she does credit. See O'Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) and Lopez v. Lowe's Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). In those cases, the trial commissioner did not reach a finding that rested totally on the opinion of an expert witness who changed his opinion regarding that same issue at a later date. The trial commissioner in O'Connor, supra, credited an expert witness on causation of an ailment (an embolism) when that expert later expressed skepticism the embolism had occurred. In that case, however, the treating physicians had opined as to the presence of the embolism. In Lopez, supra, the trial commissioner had other physicians to rely on when discounting part of an expert's opinions. In this case, the trial commissioner appears to have discounted part of Dr. Carlesi's more recent evidence and adopted, not the opinion of another physician on this issue, but a prior and recanted opinion on the same issue by the same physician.
The respondents argue that the Form 42 signed by Dr. Carlesi on June 29, 2005 incorporates the 16% disability rating to the lumbar spine. The September 15 letter from Dr. Carlesi makes clear the results of a contemporaneous nerve conduction test had not been factored into the prior rating and "[h]aving this information will change his DRE lumbar spine rating as well." Claimant's Exhibit C. In the absence of any other supportive evidence, we believe it is erroneous to rely solely on evidence the witness himself no longer endorses.
We want to reiterate that there is no certainty that the most recent opinion of a physician must automatically be the most credible. We have upheld trial commissioners who found later expert opinions unreliable due to a lapse of time Carlozzi v. State/DMR, 5072 CRB-5-06-3 (March 20, 2007) or an unreliable patient history Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). In those cases, the trial commissioner provided an explanation for not crediting the more recent expert opinion, which is not present herein.
Since the September 15, 2005 letter from Dr. Carlesi undermines the evidentiary foundation of the Commissioner's finding on disability, we believe a remand is in order herein. We believe the situation is akin toBazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006). In Bazelais, we reviewed the Finding and Order which awarded benefits for total disability based on the testimony of two doctors and determined "[t]he problem we face is the two doctors do not offer consistent testimony on the issue of total disability." In the present case we have one physician, not two, offering inconsistent testimony but the result is the same. We believed a remand was necessary in Bazelais to clarify what evidence the trial commissioner relied on in determining the issue of total disability. We believe a remand is necessary in this case so that the trial commissioner can clarify: a) that the determination of permanent partial disability is based on an opinion rendered on or after the date of maximum medical improvement, and: b) the opinion being relied on was offered in compliance with the requirements of § 31-308(b) C.G.S.
In his appeal, the claimant has petitioned that we award him the 27% permanent partial disability rating opined to by the respondents' examiner, Dr. Cassels. We decline to grant this relief. We believe such a result would undermine the trial commissioner's essential role in resolving contested facts in an adversarial hearing. See Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). We do note the anomaly present in this case where the claimant argues the respondents' expert witness should be relied on; while the respondents argue their expert should be disregarded in favor of the treating physician.
Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.