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Diaz v. Department of Social Services

Court of Appeals of Connecticut

September 4, 2018


          Argued March 12, 2018

         Procedural History

         Appeal from the decision by the Workers' Compensation Commissioner for the Third District denying and dismissing the plaintiff's claim for certain medical and indemnity benefits, brought to the Compensation Review Board, which denied the plaintiff's motion to submit certain evidence; thereafter, the Compensation Review Board affirmed the commissioner's decision, and the plaintiff appealed to this court. Affirmed.

          Richard L. Jacobs, for the appellant (plaintiff).

          Lisa Guttenberg Weiss, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellees (named defendant et al.).

          Lavine, Alvord and Keller, Js.


          ALVORD, J.

         The plaintiff, Angela Diaz, appeals from the decision of the Workers' Compensation Review Board (board) affirming the finding and dismissal of her claim for medical and indemnity benefits against the defendant, the Department of Social Services, [1] by the Workers' Compensation Commissioner for the Third District (commissioner). On appeal, the plaintiff claims that the board improperly: (1) affirmed the commissioner's finding and dismissal; (2) affirmed the commissioner's denial of the plaintiff's motion to correct the finding; and (3) denied the plaintiff's motion to submit additional evidence. We affirm the decision of the board.

         The following facts, found by the commissioner or otherwise undisputed in the record, and procedural history are relevant to the plaintiff's appeal. The plaintiff worked as an eligibility service specialist for the defendant from October, 1986 through December 9, 2010. The plaintiff worked in the defendant's New Haven office. During her period of employment, she worked eight hours a day, five days a week. Her responsibilities included determining a client's eligibility for cash assistance, food stamps, and medical benefits. Her position required a ‘‘great deal of walking back and forth on the [intake] line where she met applicants.'' Although work on the intake line consumed half of her workday, it did not constitute a significant portion of her job duties.

         In 1990, the plaintiff was involved in a motor vehicle accident that was not related to her work. As a result of this accident, she sustained disc herniations to her cervical spine and lumbar spine. In 2006, the plaintiff began treatment with Dr. Craig D. O'Connell, a chiropractor. In October, 2008, the plaintiff was involved in a second motor vehicle accident that was not related to her work, which exacerbated her preexisting cervical and lumbar spinal pain and caused her to miss work until March, 2009. In December, 2008, the plaintiff began treatment with Dr. Michael E. Opalak, a neurosurgeon, on referral from her primary care physician, Dr. Sudipta Dey, regarding her injuries stemming from both motor vehicle accidents. Dr. Opalak noted that the recent accident seemed to have worsened some of her lumbar symptoms and increased her neck discomfort.

         On January 5, 2009, Dr. Opalak reviewed the plaintiff's imaging and noted that she had some element of disc disease at the lower three levels of the lumbar spine, but most of her symptoms were related to her cervical complaints. Dr. Opalak recommended conservative measures and epidural injections before considering surgery. The next day, Dr. O'Connell drafted a letter from the plaintiff on his letterhead, stating: ‘‘I have a history of cervical disc degeneration and herniations dating back to 1990. I felt at that time and still feel that cervical disc surgery is [too] risky. I have advised neurosurgeon, Michael Opalak that I am not going to have cervical surgery and I would like to continue with conservative chiropractic care which has always helped me in the past.

         ‘‘Dr. O'Connell has informed me of the possible complications of my cervical spinal herniations and canal stenosis. Among these are possible drop foot, paralysis, and bowel/bladder dysfunction. He also advised if I experienced any of these complications or any other questionable symptoms to contact Dr. [Opalak] (neurosurgeon) or go to the emergency room. (Immediately).'' The plaintiff signed the letter.

         On September 4, 2009, the plaintiff filed a request with the defendant pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., to be taken off the intake line permanently and for an ergonomic workstation. She requested, inter alia, a new desk and headset. On December 31, Ray Primini of the Department of Administrative Services conducted an evaluation of the plaintiff's workstation. Primini recommended that the defendant provide the plaintiff with an adjustable high-back chair with arms and lumbar support to accommodate someone of her height.[2] Primini also recommended that the defendant provide the plaintiff with a document holder to reduce the need for her to look down. He did not recommend that the defendant provide a new headset, as the defendant had already provided the plaintiff with one.

         Primini determined that rather than providing the plaintiff a new desk, the plaintiff's workstation could be rearranged by placing her computer tower and monitor on already existing surfaces, and her keyboard on the existing desk surface. Primini rearranged a table and desk and placed the computer equipment in a way that fit the plaintiff in an ergonomic fashion. On March 10, 2010, a new high-back desk chair was delivered to and signed for by the plaintiff. The defendant also provided the plaintiff with a document holder, which could be adjusted from the back to accommodate vertical and horizontal documents.

         On December 9, 2010, [3] the plaintiff filed a first report of injury, [4] complaining of extreme discomfort in the cervical and lumbar spinal regions beginning approximately six months earlier. She attributed her injury to lack of proper ergonomics at her workstation. On January 11, 2011, the plaintiff returned to Dr. Opalak after not having seen him for two years. Dr. Opalak was concerned by how the plaintiff's condition had progressed, as she presented with much more neck and back pain, had difficulty rising from a sitting position, and had difficultly feeling her feet. The plaintiff expressed fear of surgery. Dr. Opalak recommended that, for safety's sake, the plaintiff have a discectomy. On April 1, 2011, Dr. O'Connell disabled the plaintiff from work due to the absence of a proper ergonomic work environment for her chronic spinal condition.

         On May 24, 2011, the plaintiff consulted Dr. Khalid Abbed for a second opinion about the need for surgery. He recommended a cervical decompression surgery prior to addressing the issues with the plaintiff's lumbar spine. On August 3, Dr. Abbed again recommended the surgery, but at the plaintiff's request, agreed to wait six months and reassess. On December 20, Dr. Abbed again recommended surgery, but agreed to wait for approval because a workers' compensation hearing was scheduled.

         On September 26, 2011, the commissioner approved a jurisdictional voluntary agreement.[5] The injury was identified as a December 9, 2010 lumbar neuropathy and cervical myelopathy injury due to sitting, which caused an aggravation of prior injuries. Drs. O'Connell and Opalak were listed as treating physicians. Also on September 26, the commissioner approved a voluntary agreement in which Dr. Opalak awarded the plaintiff a 30 percent permanent partial disability rating[6] (PPD) for the December 9 cervical myelopathy.

         The plaintiff then requested a change in physician because she believed that Dr. Opalak was rude to her after she indicated that she did not want surgery on her cervical spine because she feared paralysis. On January 26, 2012, Commissioner Scott A. Barton appointed Dr. Abbed as the authorized treating physician. On March 26, a voluntary agreement was approved, in which Dr. Opalak awarded the plaintiff a 5 percent PPD rating for the December 9, 2010 lumbar neuropathy. At a July 23, 2012 informal hearing, Commissioner Barton noted that the plaintiff could put the surgery through her group health insurance and that the defendant would issue a form 43 to disclaim responsibility for it.

         On October 19, 2012, Dr. Jacob Mushaweh, a neurosurgeon, performed a medical examination of the plaintiff for the defendant. In his opinion, surgery at the C5-C6 level was reasonable, while surgery at the C6-C7 level amounted to a judgment call. He concluded that there was no evidence to suggest that the lack of ergonomics at work played any role in the plaintiff's need for surgery.

         On March 23, 2013, Dr. Abbed performed an anterior cervical discectomy and fusion surgery on the plaintiff. Subsequently, Dr. John Reilly, a plastic surgeon, performed a bilateral trigger thumb release on both of the plaintiff's hands.[7]

         Formal hearings were held before the commissioner on September 22, 2014, October 23, 2014, November 18, 2014, January 12, 2015, April 7, 2015, and June 29, 2015. At the beginning of the September 22 hearing, the parties agreed that the issues involved compensability of the plaintiff's cervical spine fusion surgery, total disability benefits, [8] form 36, [9] form 43, [10] the plaintiff's motion to preclude, [11] and, if the commissioner found compensability, lien reimbursement.[12] The record was closed on November 9, 2015.

         On January 5, 2016, the commissioner issued a finding and dismissal. He found that the plaintiff ‘‘suffered spinal injuries in separate non-work-related motor vehicle accidents in 1990 and 2008.'' He found that Dr. Opalak and Dr. Abbed recommended surgery ‘‘long before'' the plaintiff filed her workers' compensation claim and the formal hearing on that claim, and that her ‘‘fear of undergoing surgery was well documented'' by her treating physicians and her own testimony. He further found that the plaintiff was not credible, and concluded that she failed to establish that ‘‘the aggravation of her cervical and lumbar spine injuries was a substantial contributing factor to the need for surgery that had been recommended for several years.'' He concluded that the defendant ‘‘did not unreasonably contest the [plaintiff's] request for cervical fusion surgery, '' and that the plaintiff failed ‘‘in her burden of persuasion to establish [that] the cervical spine fusion surgery is compensable.'' He also concluded that the plaintiff failed to establish causation as to her bilateral thumb surgery. The commissioner denied and dismissed the plaintiff's claim for medical and indemnity benefits.[13]

         The plaintiff appealed to the board, arguing that the commissioner ‘‘failed to credit what she considers to be uncontested expert testimony supporting her claim, and this constitutes reversible error.'' The board rejected this argument and affirmed the commissioner's finding and dismissal. The board concluded: ‘‘We are not persuaded by this argument and find that the trial commissioner's decision is supported by probative evidence that he found persuasive and credible, and a determination by the commissioner that the [plaintiff's] expert witnesses were not persuasive.'' The board further concluded: ‘‘It was the [plaintiff's] burden to persuade the trial commissioner that her workplace conditions were a substantial contributing factor in her need for surgery and resultant medical conditions. We believe that on the record herein a reasonable fact finder could be left unpersuaded.'' This appeal followed. Additional facts will be set forth as necessary.


         The plaintiff first claims that the board improperly affirmed the commissioner's finding and dismissal. Specifically, she argues that the commissioner failed to accept ‘‘undisputed testimony'' of the plaintiff's primary care physician, Dr. Dey, [14] which conclusively established that: (1) the plaintiff has been disabled from work since December 10, 2010; (2) the PPD of 30 percent of her cervical spine, as stated in the January 6, 2012 voluntary agreement, was a substantial factor in causing the plaintiff to be disabled from work; (3) the PPD of 5 percent of her lumbar spine, as stated in the March 26, 2012 voluntary agreement, was a substantial factor in causing the plaintiff to be disabled from work; (4) the combination of the 30 percent disability of the cervical spine and 5 percent disability of the lumbar spine was a ...

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