Arrico v. Bd. of Educ. of Stamford

212 Conn.App. 1

274 A.3d 148

James ARRICO

v.BOARD OF EDUCATION OF the CITY OF STAMFORD et al.

AC 44409, (AC 44488)

Appellate Court of Connecticut.

Argued November 18, 2021

Officially released April 26, 2022

Daniel A. Benjamin, Stamford, for the appellant in Docket No. AC 44488 and for the appellee in Docket No. AC 44409 (plaintiff).

Scott Wilson Williams, Fairfield, for the appellants in Docket No. AC 44409 and for the appellees in Docket No. AC 44488 (defendants).

Elgo, Moll and Pellegrino, Js.

MOLL, J.

In this workers’ compensation dispute, the plaintiff, James Arrico, and the defendants, the Board of Education of the City of Stamford (city) and PMA Management Corporation of New England,¹ each appeal from separate decisions of the Compensation Review Board (board).² In Docket No. AC 44409, the defendants appeal from the decision of the board reversing in part the decision of the Workers’ Compensation Commissioner for the Seventh District (commissioner) of the Workers’ Compensation Commission approving a form 36³ that the defendants filed.⁴ The board vacated the majority of the commissioner's conclusions in her decision approving the form 36 and remanded the matter to the commissioner for further proceedings on several issues. On appeal, the defendants claim that the board (1) misconstrued the commissioner's decision as including a finding that the plaintiff was totally disabled as a result of preexisting, noncompensable injuries, (2) failed to affirm the commissioner's decision on the basis of her purported finding, as supported by sufficient evidence, that the plaintiff had a work capacity, and (3) misconstrued the commissioner's conclusion that further medical care of the plaintiff's compensable injuries was palliative. In Docket No. AC 44488, the plaintiff appeals from the decision of the board denying his motion for articulation or reconsideration vis--vis its ruling on the commissioner's decision approving the form 36. On appeal, the plaintiff claims that the board improperly denied his request for an order that the matter be remanded to a different commissioner for a de novo trial. We affirm the decisions of the board.

The following facts, which are not in dispute, and procedural history are relevant to our resolution of these appeals. At all relevant times, the plaintiff was employed by the city as a custodian. On July 21, 2008, during the course of his employment, the plaintiff sustained a compensable back injury (2008 injury). Two voluntary agreements⁵ were approved in 2016, which established a 16 percent permanent partial disability rating as to the plaintiff's back with a September 30, 2016 maximum medical improvement date.⁶ On February 10, 2017, during the course of his employment, the plaintiff sustained another compensable back injury when he fractured his sacrum while lifting a table (2017 injury). Two voluntary agreements were approved in August, 2017, in relation to the 2017 injury.

On February 28, 2018, the defendants filed a form 36 seeking to discontinue or to reduce the plaintiff's workers’ compensation benefits. Relying on a report dated February 20, 2018, by Stuart Belkin, an orthopedic surgeon who had examined the plaintiff, the defendants asserted that the plaintiff had a work capacity and had reached maximum medical improvement with an additional 5 percent permanent partial disability rating as to his back. On March 5, 2018, the plaintiff filed an objection to the form 36. On September 7, 2018, following an informal hearing, the form 36 was approved.

Formal hearings on the form 36 were held on December 12, 2018, and January 29, 2019.⁷ The commissioner (1) heard testimony from the plaintiff and his wife and (2) admitted exhibits, including medical records, into evidence. During the January 29, 2019 formal hearing, in response to a request by the plaintiff's counsel, the commissioner stated that the notice issued in relation to the formal hearings listed two disputed issues: (1) the form 36 filed by the defendants pursuant to General Statutes § 31-296 ; and (2) the plaintiff's entitlement to total disability benefits pursuant to General Statutes § 31-307.⁸

On August 20, 2019, the commissioner issued a de novo ruling approving the form 36. As summarized by the board, the commissioner set forth the following relevant facts and overview of the evidence. "[The commissioner] noted that the [plaintiff] had sustained two different back injuries; the first occurred on July 21, 2008, at the L4 level and the second injury on February 10, 2017, when [he] fractured his sacrum lifting a table. ... The commissioner also noted the numerous ailments unrelated to his work injury the [plaintiff] suffered from during the period between [the 2008 injury and the 2017 injury], which included colitis, essential hypertension, seizures and epilepsy, and spinal stenosis. [The commissioner] noted that one of the [plaintiff's] treaters, Vincent R. Carlesi ... had diagnosed him in 2008 with a history of chronic low back pain which radiates into his buttocks and down his left lower extremity. An MRI in 2008 noted [among other ailments] ‘degenerative disc narrowing at the L4-L5 level ....’ The commissioner noted the [plaintiff] chose not to undergo surgery at that time and opted for pain management. ...

"Carlesi examined the [plaintiff] on March 7, 2017, and diagnosed him with lumbar radiculopathy and lumbar spinal stenosis. Carlesi noted the [plaintiff's] medical history included colitis, ulcerative colitis, disc disease, degenerative joint disease, and that he is currently an ‘every day smoker.’ ... Carlesi also noted that the [plaintiff's] prior treatment had included the use of a number of steroids. ...

"The [defendants] had their expert, [Belkin], examine the [plaintiff] on February 20, 2018. Belkin found the [plaintiff] had reached maximum medical improvement ... with a 5 percent permanent partial disability of the lumbar spine, independent of any previous impairment. ...

"On March 12, 2018, Carlesi sent a letter to [the plaintiff's] counsel stating that the [plaintiff's] 2017 injury had ‘exacerbated his underlying pain and that he has been incapable of returning to work due to the severity of his pain. He is unable to ambulate without a cane and he has severe pain [from his] back radiating [into] both lower extremities. [His] pain worsens with activity, [and there is a] significant decrease in [his] ability to lift, bend, and carry anything at this point in time. [He] is unable to perform most of his activities of daily living and pretty much rests in a recliner or in a [bed]. He lacks physical endurance and frequently awakens from sleep due to pain.’ ...

"Carlesi deemed the [plaintiff] totally disabled from all work activities as a result of the progressive degenerative disc disease, lumbar spinal stenosis, and sacral insufficiency fractures. He did agree the [plaintiff] was at [maximum medical improvement] and assigned an 11 percent permanent partial disability rating of the lumbar spine. On March 20, 2018, Carlesi further assessed the [plaintiff] as to his pain level and medication use, and noted the [plaintiff] was using a cane and was unable to return to work. Carlesi's notes also indicate the [plaintiff] suffered from a number of digestive system ailments.

"A commissioner's examination was performed by Michael F. Karnasiewicz ... on June 28, 2018.⁹ Karnasiewicz opined that the [plaintiff] had reached [maximum medical improvement] from the 2017 injury and had sustained a 5 percent additional permanent disability to his sacral spine from the incident, and that the [plaintiff] had a sedentary work capacity. The commissioner noted these other opinions from [Karnasiewicz]:

"a. The [plaintiff's] underlying spinal stenosis was probably aggravated by the injury of February 10, 2017, and is causing the radiculopathy the [plaintiff] is experiencing. ...

"b. The [plaintiff's] need for treatment is multifactorial in that both the [2008 injury] and the [2017 injury] were ‘substantial factors’ in the production of the [plaintiff's] need for treatment. ...

"c. Other factors complicating the [plaintiff's] current inability to work are ulcerative colitis, acid reflux and seizure disorder. He also has poor concentration skills and a slowed thought process. He is an ‘easy’ bruiser and bleeder and has unspecified difficulty with his immune system. He uses a cane for ambulation, his ankle reflexes are absent bilaterally with diminished sensation bilaterally in both of his feet. ...

"d. Between the [plaintiff's] first injury in 2008 and his second injury in 2017, his diagnostics reveal a steady worsening of his stenotic condition. In addition, an EMG study with [another physician] shows multiple level radiculopathy consistent with spinal stenosis.

"e. [Karnasiewicz] gives the [plaintiff] a sedentary work capacity and recommends that the [plaintiff] be reevaluated by [Scott Simon, a neurosurgeon] for decompressive surgery in the treatment of his bilateral pain. ...

"The [plaintiff] continued to treat for his ailments with Carlesi who [i]n July ... 2018, examined him and noted he ‘continues to experience chronic lower back pain, sacral pain and radicular pain in both lower extremities associated numbness, tingling and pins and needles in his feet.’ ... Carlesi said the [plaintiff] was a surgical candidate for either a lumbar laminectomy and decompression surgery to treat the spinal stenosis or a spinal cord stimulator trial for pain relief. He also opined that the [plaintiff] was still disabled. ...

"Belkin was deposed on December 5, 2018, and discussed his prior February, 2018 examination and his review of the [the plaintiff's] medical records. He noted the [plaintiff] had a bilateral sacral fracture on February 10, 2017, and needed no additional treatment as of February, 2018. He deemed the [plaintiff] at [maximum medical improvement] with a 5 percent permanent partial disability rating in addition to any previous rating. He...