Wilson v. Maefair Health Care Ctrs.

155 Conn.App. 345

109 A.3d 947

Dolores WILSON

v.MAEFAIR HEALTH CARE CENTERS et al.

No. 35976.

Appellate Court of Connecticut.

Argued Nov. 13, 2014.

Decided Feb. 10, 2015.

Timothy D. Ward, East Hartford, for the appellant (defendant Gallagher Bassett Services).

Vincent Di Palma, for the appellee (defendant Liberty Mutual Insurance Company).

ALVORD, MULLINS and BEAR, Js.

Opinion

ALVORD, J.

This workers' compensation appeal arises out of a dispute between two defendant insurers, Liberty Mutual Insurance Company (Liberty Mutual) and Gallagher Bassett Services (Gallagher Bassett), as to which of them is responsible for surgical expenses and disability benefits arising from an injury sustained by the plaintiff, Dolores Wilson, on March 22, 2011, while she was employed as a certified nursing assistant with the defendant Maefair Health Care Centers (Maefair).¹ Gallagher Bassett appeals from the decision of the Workers' Compensation Review Board (board) affirming the findings and award of the Workers' Compensation Commissioner for the Fourth District (commissioner), who determined that Gallagher Bassett was solely responsible for Wilson's expenses and benefits. On appeal, Gallagher Bassett claims that the board improperly affirmed the decision of the commissioner because the commissioner (1) made findings of fact that were not supported by the medical evidence, (2) erroneously determined that Wilson's March 22, 2011 injury “was causative of [Wilson's] need for surgery,” and (3) made factual findings that were inconsistent with the evidence in the record.² We affirm the decision of the board.

The record reveals the following facts, either undisputed or as found by the commissioner, and procedural history. Wilson commenced employment with Maefair as a certified nursing assistant in October, 2000. In 2006, Wilson sustained a work related injury to her neck. After a brief period of medical treatment, she resumed her duties without any restrictions. On April 4, 2010, she sustained a second work related injury to her neck. Wilson sought medical treatment, and the doctor who treated her noted that her pain radiated into her left hand and finger. Wilson initially was unable to work after the April 4, 2010 incident, but subsequently returned to her position several days later without any restrictions. She continued to receive chiropractic treatment from April 9, 2010 through August 4, 2010, at which time she reported that her condition had significantly improved and that she no longer had pain in her neck or arm. She did note that she continued to experience numbness from her left elbow to her first three fingers, but she reported that she was not taking any medication.

Wilson, at her doctor's request, underwent an MRI on August 7, 2010, which revealed multiple levels of degenerative cervical disc disease. She was referred to Mark E. Wilchinsky, a board certified physician in orthopedic surgery. Dr. Wilchinsky noted that Wilson was experiencing pain that radiated from her neck down to the radial three digits of her left hand, and that Wilson reported that she was beginning to experience similar symptoms with respect to her right hand. Dr. Wilchinsky noted that Wilson's reflexes were symmetrically decreased; he did not note hyperflexia³ or clonus⁴ at that time. He believed Wilson was a surgical candidate and referred her to Abraham Mintz, a neurosurgeon, for a second opinion, but he indicated that she could continue with her present job duties. Liberty Mutual, then Maefair's workers' compensation insurance carrier, did not authorize Wilson's appointment with Dr. Mintz, and, therefore, she did not meet with him in 2010.⁵ After August, 2010, she received no further medical treatment for her neck injury until she reinjured her neck in March, 2011.

Despite ongoing symptoms that extended from her neck into her left arm and fingers, Wilson continued to perform her duties at Maefair, although with some difficulty, without work restrictions. On March 22, 2011, while assisting a patient, Wilson sustained another work related injury to her neck. At this point, Gallagher Bassett was Maefair's workers' compensation insurance carrier. Wilson immediately sought medical treatment, was diagnosed with a cervical sprain, and was restricted to light duty work. On April 5, 2011, Wilson returned to Dr. Wilchinsky, who found that her reflexes were symmetrically increased. He stated that she needed cervical disc surgery⁶ and again referred her to Dr. Mintz for a neurological evaluation. Although Dr. Wilchinsky continued Wilson's light duty work restrictions, Maefair was unable to accommodate Wilson's needs after a short period of time, and, thus, she ceased employment with it. She has made diligent efforts to secure employment elsewhere, but has been unsuccessful in finding work within her physical limitations.

Dr. Mintz met with Wilson on August 12, 2011. At that time, he recommended a multilevel anterior cervical disc excision and fusion. Dr. Mintz opined that Wilson had “additional findings” that were not noted to have existed in 2010. He specifically found that she had weakness in her left upper extremity, that her reflexes were diffusely hyperactive, and that she had Hoffman signs⁷ bilaterally. He additionally opined that, based on the MRI scan of August, 2010, Wilson had been a surgical candidate prior to the March 22, 2011 incident.

At the request of Liberty Mutual, Wilson underwent an examination with John G. Strugar, a board certified neurosurgeon, on January 11, 2012. Dr. Strugar opined, as did Dr. Wilchinsky and Dr. Mintz, that Wilson had been a surgical candidate prior to the March 22, 2011 incident.

Although Wilson had underlying cervical disc disease, Dr. Strugar believed that the injuries she sustained in the April 4, 2010 and March 22, 2011 incidents both were substantial factors in causing her need for surgery much sooner than would otherwise have been necessary. Dr. Strugar opined that the April 4, 2010 incident was 30 percent responsible for Wilson's need for surgery, the March 22, 2011 incident was 10 percent responsible for her need for surgery, and Wilson's underlying cervical disc disease was 60 percent responsible for her need for surgery.

The hearing before the commissioner was held on February 15, 2012. In addition to medical evaluations by Dr. Wilchinsky, Dr. Mintz, and Dr. Strugar,⁸ the commissioner heard testimony from Wilson. Wilson testified that the 2006 injury to her neck did not debilitate her in any way. She further testified that the April 4, 2010 injury caused her to miss a few days of work, but that she returned to her position without any restrictions until the March 22, 2011 incident. After the April 4, 2010 incident, Wilson stated that she had had some symptoms in her right arm that became worse after the March 22, 2011 incident. After the March 22, 2011 incident, Wilson testified that her new symptoms included constant numbness in her right arm and cramping of her hand. Additionally, Wilson stated that she was given light duty work restrictions after the March 22, 2011 incident, and that she had had no work restrictions prior to the March 22, 2011 incident.

The commissioner issued her findings and award on August 7, 2012. In addition to making the factual findings as previously discussed, the commissioner stated that she found Wilson to be “credible and persuasive.” The commissioner further found: (1) Wilson's work related injuries sustained in the April 4, 2010 and March 22, 2011 incidents were responsible for her need for cervical surgery; (2) the surgery proposed by Dr. Mintz was reasonable and necessary; (3) Wilson had “additional findings” in August, 2011, that were not noted to have existed in 2010; (4) the March 22, 2011 incident probably aggravated Wilson's preexisting condition; (5) the March 22, 2011 incident “was an identifiable second injury that worsened [Wilson's] condition and adversely affected her ability to work”; (6) “despite the fact that [Wilson] may have been a surgical candidate prior to the March 22, 2011 incident, the totality of the circumstances indicate that that incident caused [Wilson's] condition to worsen in a material and substantial way”; and (7) “Gallagher Bassett is responsible for [Wilson's] injuries after March 22, 2011.” The commissioner ordered Gallagher Bassett “to accept liability for [Wilson's] injury of March 22, 2011 and ... to authorize surgery and pay [Wilson] temporary partial disability benefits commencing June 27, 2011, and continuing pursuant to job searches.”

Gallagher Bassett filed a motion to correct the commissioner's findings, which was denied on August 30, 2012. Gallagher Bassett then filed a petition for review with the board. A hearing was held on January 18, 2013. The gravamen of its claim was that the March 22, 2011 incident was not a substantial contributing factor with respect to Wilson's need for surgery. Counsel for Gallagher Bassett argued that all three physicians testified that the March 22, 2011 incident was less than a substantial contributing factor, and that, therefore, the commissioner could not find contrary to their expert opinions. The board's chairman inquired whether the substantial factor standard was a medical or a legal determination, and counsel for Gallagher Bassett responded that it was both.

The board issued its decision on August 8, 2013, in which it concluded: “The precedent in Hatt [v. Burlington Coat Factory, 263 Conn. 279, 819 A.2d 260 (2003) ] places the burden of the claimant's medical condition on the more recent compensable injury when it renders the claimant's disability materially and substantially greater than prior to the injury. We believe a reasonable fact finder could reach this conclusion from the evidence on the record. As an appellate panel, we cannot revisit this decision.” Accordingly, the board affirmed the commissioner's decision. This appeal followed.

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