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Sanchez v. Edson Manufacturing

Court of Appeals of Connecticut

August 1, 2017

LOUIS SANCHEZ
v.
EDSON MANUFACTURING ET AL.

          Argued February 6, 2017

          Frank V. Costello, with whom, on the brief, was Austin Berescik-Johns, for the appellant (plaintiff).

          Marian Yun, for the appellees (defendants).

          Alvord, Sheldon and Mullins, Js.

         Syllabus

         The plaintiff appealed to this court from the decision of the Workers' Compensation Review Board affirming the decision of the Workers' Compensation Commissioner that the plaintiff was not entitled to certain temporary partial or total disability benefits. The plaintiff, who had undergone two prior surgeries on his left shoulder, claimed that he injured that shoulder during his employment with the defendant manufacturer, E Co., when he moved a barrel and felt a pop in the shoulder. Thereafter, an independent surgeon, S, who had been selected by E Co., examined the plaintiff and concurred with the determination by the plaintiff's treating physician, O, that the plaintiff was suffering from a fracture and lesions in his left shoulder. S, who did not have the plaintiff's entire prior medical history when he examined the plaintiff, determined that the fracture and lesions were not caused in the incident in which the plaintiff moved the barrel, which he determined caused nothing more than a temporary strain of the plaintiff's left shoulder. After obtaining additional prior medical records of the plaintiff, S affirmed that finding in a subsequent addendum to his medical report. After O examined the plaintiff and recommended that a third surgery be performed on the plaintiff's shoulder, the commissioner ordered the plaintiff to undergo an examination by B, a surgeon chosen by the commissioner. B determined that the fracture and lesions in the plaintiff's left shoulder were attributed to the barrel incident. The commissioner found that S's opinion was more persuasive than those of O and B, and concluded, inter alia, that the plaintiff had injured his left shoulder in the course of his employment for which he was entitled to receive certain temporary total disability benefits, but that the fracture and lesions were not caused by the barrel incident. The commissioner, thus, denied the plaintiff's claim for certain temporary partial disability benefits.

         Held:

         1. The board properly determined that the commissioner's findings concerning the cause and extent of the plaintiff's disability were supported by sufficient underlying facts and that the inferences drawn from those facts were reasonable and legally permissible:

a. The board did not err in finding that S provided a reasonable basis for his opinion, which was supported by sufficient subordinate facts as to constitute competent medical evidence on which the commissioner properly could rely in making his findings; S physically examined the plaintiff, performed a neurological assessment of him, reviewed medical records from O and twice reviewed additional medical records that he did not have at the time he examined the plaintiff, and S's written opinion was not so contradicted by his deposition testimony as to render it speculative or conjectural.
b. The plaintiff's claim that, because the medical examiners did not testify before the commissioner, this court should depart from the degree of deference usually afforded to the commissioner's credibility determinations and determine the appropriate weight to afford the opinions of the medical experts was unavailing; there was no reason for this court to give less deference to the commissioner's credibility determinations where, as here, the commissioner was not presented with only written reports of nontestifying witnesses, and his credibility determinations and findings were clearly influenced by the plaintiff's live testimony that he never engaged in weightlifting or other forms of physical exercise, which was directly contradicted by O's medical notes and statements from the plaintiff's former coworkers.

         2. The board did not abuse its discretion in not remanding the matter to the commissioner for an articulation as to why the commissioner, in rendering his decision, disregarded the opinion of B, the medical examiner chosen by the commissioner to examine the plaintiff; the board, guided by the state regulation (§ 31-301-3) that governs the requisite content of a commissioner's decision, determined that the commissioner's decision complied with the standard for decisions that do not rely on the opinion of a medical examiner chosen by the commissioner, and this court deferred to the board's interpretation and construction of its own regulation.

         Procedural History

         Appeal from the decision by the Workers' Compensation Commissioner for the Sixth District dismissing in part the plaintiff's claim for certain disability benefits, brought to the Workers' Compensation Review Board, which affirmed the commissioner's decision, and the plaintiff appealed to this court. Affirmed.

          OPINION

          SHELDON, J.

         The plaintiff, Louis Sanchez, appeals from the decision of the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner for the Sixth District (commissioner), who dismissed, in part, his claim for workers' compensation benefits pursuant to General Statutes §§ 31-307 and 31-308 (a). On appeal, the plaintiff claims that the board erred (1) in affirming the commissioner's decision that the plaintiff was not entitled to temporary partial or temporary total disability benefits from August, 2013 to July, 2014, because the commissioner's finding as to the nature and extent of the plaintiff's workplace injury was not supported by sufficient subordinate facts; and (2) in not remanding this case to the commissioner with instructions that he articulate why, in reaching his decision, he disregarded the opinion of his own medical examiner as to the nature and extent of the plaintiff's injury. We affirm the decision of the board.

         The following facts and procedural history are relevant to this appeal. In 1992, the plaintiff was hired by Celus Fasteners, a Massachusetts manufacturer, where he worked for approximately sixteen years making rivets. When Celus Fasteners went bankrupt, the plaintiff took a job with Metz Personnel (Metz), also in Massachusetts, where he worked as a laminator. On July 23, 2008, while working for Metz, the plaintiff tripped and fell, landing on his left shoulder. Following his fall, the plaintiff began to experience sharp pains in his shoulder. Although the plaintiff was given a cortisone injection for his shoulder injury and underwent a course of physical therapy, his shoulder pain persisted for several months. Thus, in March, 2009, the plaintiff consulted with an orthopedic surgeon, Dr. Ergin, [1] about the advisability of undergoing surgery on his left shoulder joint. After examining the plaintiff, however, Ergin concluded that surgery on the plaintiff's left shoulder joint was unnecessary. Instead, Ergin gave the plaintiff two additional cortisone injections and instructed him to seek a second opinion if he wanted to pursue surgery.

         In accordance with Ergin's instructions, the plaintiff consulted with and was examined by James D. O'Holleran, an orthopedic surgeon. After reviewing a magnetic resonance imaging (MRI) scan of the plaintiff's shoulder, O'Holleran opined that the plaintiff was suffering from a torn rotator cuff, AC joint arthrosis, and a superior labral tear in his left shoulder, for which he recommended that the plaintiff undergo surgery. O'Holleran performed the recommended surgery on June 5, 2009. Almost six months later, after the plaintiff completed another course of physical therapy, O'Holleran gave him a medical release to return to full work duties on November 18, 2009.

         Thereafter, the plaintiff took a new job with Charm Sciences, another Massachusetts manufacturer, for which he mixed commercial grade chemicals. While working at Charm Sciences on December 30, 2009, the plaintiff reinjured his left shoulder when lifting a forty pound box. As a result of this reinjury, the plaintiff experienced ‘‘difficulty reaching behind his shoulder as well as . . . overhead.'' The following week, the plaintiff was reexamined by O'Holleran, who gave him another cortisone injection, placed him on a light duty work restriction, and recommended that he undergo an additional six weeks of physical therapy. On March 22, 2010, when the plaintiff was reexamined by O'Holleran after he had completed the recommended course of physical therapy, he reported that his shoulder had experienced ‘‘a dramatic improvement . . . .'' Accordingly, the plaintiff requested that O'Holleran give him a release to return to full work duty and a clearance ‘‘to do some weight training and lifting.'' O'Holleran gave the plaintiff a release to return to full work duty and instructed him to return ‘‘on an as-needed basis.''

         On June 2, 2011, the plaintiff returned to O'Holleran, complaining of persistent pain in his left shoulder. O'Holleran gave the plaintiff another cortisone injection and instructed him to undergo additional physical therapy. These conservative treatments proved to be unsuccessful, however, and the plaintiff remained unable to return to work throughout July, 2011. Thereafter, the plaintiff underwent another MRI scan on August 31, 2011. On September 15, 2011, when O'Holleran reviewed the new MRI scan with the plaintiff, he opined that, although the plaintiff had not suffered a new tear in his left shoulder, there was ‘‘a high degree of [inflammation] within the tissue inside the AC joint.'' After discussing several treatment options with O'Holleran, the plaintiff elected to undergo a second surgery for shoulder arthroscopy, lysis of adhesions, and debridement, [2] which O'Holleran performed on February 28, 2012. Although the second surgery was performed without complication, the plaintiff remained unable to work for several months thereafter.

         In April, 2013, the plaintiff was employed by the defendant Edson Manufacturing, [3] a Connecticut manufacturer, as a mechanic and machine operator. As part of his duties, the plaintiff used a dolly[4] to bring barrels of nails to the company's rivet-making machines and to transport finished rivets to other locations in the factory after they were made. While working on April 15, 2013, the plaintiff prepared to move a barrel of stainless steel nails weighing approximately 100 pounds. To do so, he first positioned himself behind the dolly and barrel, then, with his right hand on the back of the dolly, reached out with his left arm and placed his left hand on the rim of the barrel. Then, with his left hand gripping the rim of the barrel, the plaintiff pulled the barrel of nails toward his chest until he felt a sudden ‘‘pop'' in his left shoulder. The plaintiff did not inform anyone of his injury at the time he sustained it, nor did he request time off from work after he finished his shift that day. Rather, he continued to work for the defendant, without complaint, for the next eleven days, until he was laid off on April 26, 2013.

         Because the layoff was supposed to be temporary, the plaintiff intended to return to his job with the defendant when it was over. On May 20, 2013, the defendant notified the plaintiff, by text message, that he could return to work. The plaintiff responded by text message that he would return to work the following Monday. The defendant's offer later was retracted, however, due to an unexpected delay in receiving certain materials and supplies.

         Two days later, on May 22, 2013, thirty-seven days after the plaintiff suffered his workplace injury, he went to the emergency room of Lawrence General Hospital in Lawrence, Massachusetts, complaining of pain in his left shoulder. Thereafter, the plaintiff was referred back to O'Holleran, who examined him on May 24, 2013. During that examination, the plaintiff stated that he had been experiencing ‘‘significant worsening pain'' in his left shoulder since the date of his injury, which had caused him to be unable to sleep or to perform overhead activities without pain. Accordingly, O'Holleran ordered another MRI scan of the plaintiff's left shoulder and gave him documentation stating that he would be unable to return to work until he was reevaluated.

         On July 9, 2013, the plaintiff filed a form 30C notice of his workers' compensation claim.[5] On July 7, 2013, more than seventy days after the date of his workplace injury, the plaintiff informed the defendant, for the first time, that he had suffered a shoulder injury while working on April 15, 2013. After receiving the plaintiff's form 30C, the defendant requested, pursuant to General Statutes § 31-294f (a), [6] that an independent medical examination of the plaintiff be conducted in order to assist it in determining whether to accept or contest the plaintiff's workers' compensation claim.

         Prior to that examination, on June 8, 2013, the plaintiff underwent another MRI scan at the request of O'Holleran. On August 8, 2013, the plaintiff met with O'Holleran to discuss his findings. After reviewing the MRI scan, O'Holleran opined that the plaintiff had not aggravated a previous injury to his left shoulder on April 15, 2013, but, instead, had sustained a new injury- an anterior glenoid fracture with a bony Bankart lesion[7]and a Hill-Sachs lesion.[8] O'Holleran then noted, ‘‘I feel that his fracture fragment is in very good position and does not need surgery at this time. Given that his original injury was in April, I feel that [the] fragment has essentially healed. He still certainly has the labral tear and he certainly has pain. . . . I have recommended a course of physical therapy . . . . Regarding work, he will be cleared for light duty with no lifting greater than [ten] pounds.'' On September 11, 2013, however, O'Holleran changed that work restriction by ordering that the plaintiff not return to work until he was reevaluated. He later reaffirmed that total work restriction on October 23, 2013.

         On September 25, 2013, the plaintiff was examined by Steven E. Selden, an orthopedic surgeon selected by the defendant as its independent medical examiner. During that examination, the plaintiff informed Selden that, on April 15, 2013, ‘‘he was moving a barrel [when he] felt a pop in his left shoulder . . . [but] he did not feel any actual pain.'' After reviewing O'Holleran's May 24, 2013 notes and the June 8, 2013 MRI scan that O'Holleran had ordered, Selden noted that the plaintiff had sustained a prior shoulder injury in 2009, in connection with which he had undergone a ‘‘posterior capsular shift and distal clavicle excision.'' (Emphasis added.) Selden concurred with O'Holleran that the plaintiff was then suffering from a Hill-Sachs lesion and a bony Bank-art lesion in his left shoulder. He did not agree, however, that this injury had occurred on April 15, 2013. Rather, he opined that ‘‘[the plaintiff] may have sustained a strain of his left shoulder as a result of moving a barrel . . . but he has a significant preexisting condition to his left shoulder for which he had two surgical procedures. It would be very helpful to have Dr. O'Holleran's notes regarding prior treatment for the left shoulder. Certainly, the [plaintiff's] Bankart lesion and Hill-Sachs lesion clearly preexisted April of 2013 based on the history reviewed. A course of physical therapy at this time would be appropriate.'' Selden further opined that the plaintiff was not totally disabled but, instead, was capable of light duty work ‘‘with avoidance of lifting more than [twenty-five] pounds and . . . overhead reaching and lifting.''

         On December 23, 2013, O'Holleran reexamined the plaintiff a final time. During that examination, the plaintiff maintained that he was still experiencing persistent pain in his left shoulder, and thus he requested that a third surgery be performed. In light of the plaintiff's repeated history of cortisone injections, use of anti-inflammatories, and physical therapy, none of which had yet proved to be successful, O'Holleran recommended that a third surgery be performed on the plaintiff's left shoulder.

         Thereafter, the commissioner directed the plaintiff, pursuant to § 31-294f (a), to submit to another medical examination by an independent medical examiner of the commissioner's own choosing, Dr. Peter R. Barnett. After performing that examination on April 14, 2014, Barnett noted: ‘‘Currently, the [plaintiff] feels that his left shoulder complaints have worsened. . . . The [plaintiff] . . . complains of numbness and tingling circumferentially throughout the entire left upper extremity, intermittently present both during the day and at night since the injury.'' After reviewing the plaintiff's medical records, Barnett opined: ‘‘It is my impression based on information currently available that [the plaintiff's] bony Bankart lesion and Hill-Sachs lesion [are] attributable to the alleged work-related incident . . . on April 15, 2013.'' Barnett further opined that, although the plaintiff had not yet reached maximum medical improvement, he was capable of limited work duty with restrictions against lifting or reaching overhead, repetitive use of the left arm, and lifting more than fifteen pounds.

         On July 14, 2014, the commissioner held a formal hearing on the plaintiff's claims (1) for total incapacity benefits from June 24 to August 8, 2013; (2) for temporary partial benefits from August 9 to October 23, 2013; and (3) for total incapacity benefits from October 24, 2013 to July 14, 2014. At that hearing, the plaintiff testified and produced documentary evidence, including MRI scans, the medical records of O'Holleran, Selden and Barnett, and transcripts of O'Holleran's and Selden's depositions. In response, the defendant produced, inter alia, a July 14, 2014 addendum to Selden's medical report, wherein Selden stated that, although he had reviewed additional medical records pertaining to the plaintiff, he still believed that the plaintiff's April 15, 2013 injury did not cause his glenoid fracture and lesions. The defendant also submitted copies of certain text messages between the plaintiff and his manager, several documents regarding the plaintiff's two prior workers' compensation claims for injuries to his left shoulder, and several statements from the plaintiff's former coworkers describing past conversations with the plaintiff, in which he had told them that he routinely did pushups in the morning before going to work.

         On January 5, 2015, the commissioner issued a written decision, in which he found, inter alia, that (1) the plaintiff had not informed either his employer or his coworkers of his workplace injury, or reported that he had any difficulty performing his job duties after the injury; (2) there was ‘‘[c]onflicting testimony . . . as to the [plaintiff's] weightlifting activities'' around the date of his injury; (3) Selden disagreed with the mechanism of injury, opining that the April 15, 2013 incident had ‘‘caused nothing more than a temporary, self-limited strain of [the plaintiff's] left shoulder''; and (4) as to the extent of the plaintiff's disability caused by his April 15, 2013 injury and resulting need for further medical treatment, Selden's opinions were more persuasive than those of O'Holleran and Barnett. On the basis of those findings, the commissioner concluded that the plaintiff had sustained a left shoulder injury in the course of his employment, for which he was entitled to receive ‘‘temporary total benefits for the period of June 24, 2013 through August 8, 2013.'' The commissioner disagreed, however, that the April 15, 2013 incident had caused either the plaintiff's anterior glenoid fracture or his accompanying lesions. Instead, the commissioner adopted Selden's opinion that on April 15, 2013, the plaintiff had suffered a shoulder sprain, and ...


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