CASE NO. 1842 CRB-2-93-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 1995

BRIAN JOLICOEUR

CLAIMANT-APPELLEE

v.

L. H. DUNCKLEE REFRIGERATION, INC.

EMPLOYER

and

CNA INSURANCE

INSURER

RESPONDENTS-APPELLEES

and

EBI/ORION GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The pro se claimant did not appear at oral argument. At trial, he was represented by David M. Fabricant, Esq., P. O. Box 1349, New London, CT 06320.

The appellees were represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main St., West Hartford, CT 06107-2445.

The appellants were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the August 31, 1993 Finding and Award Re: Section 31-299b of the Commissioner acting for the Second District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent EBI/Orion Group (Orion) has petitioned for review from the August 31, 1993 Finding and Award Re: Section 31-299b, C.G.S. of the Commissioner for the Second District. Orion argues on appeal that the commissioner improperly apportioned benefits pursuant to § 31-299b and failed to apply § 31-349 C.G.S. to the instant case. We affirm the trial commissioner’s decision.

The claimant suffered two compensable back injuries in the course of his employment with the respondent L. H. Duncklee Refrigeration, Inc. The first injury occurred on June 28, 1989, while Orion was the insurance carrier on the risk. The second injury occurred on March 29, 1990, while the respondent CNA Insurance (CNA) was on the risk. The claimant was rated with a fifteen percent permanent partial disability of the back, with five percent attributable to the first injury and ten percent due to the second injury. The respondent insurers agreed that Orion would reimburse CNA for payments made on account of the five percent disability that had been allocated to the first injury.

Back surgery was performed on the claimant in May of 1990 for removal of a herniated L4-5 disc. CNA subsequently requested that fifty percent of the medical costs for surgery and indemnity payments be deemed attributable to the first injury and paid by Orion under § 31-299b. After considering the medical evidence, the commissioner found that the claimant’s work injuries were equally contributing causes of his need for surgery, and that all indemnity and medical benefits flowing therefrom should be equally apportioned between Orion and CNA. Orion has appealed from that decision.

Orion argues that the commissioner erroneously applied § 31-299b to this case, as that statute is only applicable in occupational disease or repetitive trauma cases. Instead, Orion contends that the applicable apportionment statute is § 31-349. CNA asserts in response that the commissioner correctly applied the case of Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952), to this situation, and that it is the commissioner’s province to determine the relationship between successive injuries.

Section 31-299b provides, in relevant part:

If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. . . .

We note that the statute refers to a single “injury or disease,” as opposed to a disability. The language of § 31-299b does not directly address the circumstance of a prior injury.

We have stated that apportionment under § 31-299b “is the workers’ compensation embodiment of common law joint tortfeasor liability ‘where a single indivisible harm is sustained as a result of the independent, separate, but concurring tortious acts of two or more persons.’” Thomen v. Turri Electric, 11 Conn. Workers’ Comp. Rev. Op. 299, 301-02, 1324 CRD-5-91-10 (Dec. 23, 1993) (citation omitted). “Section 31-299b apportionment is appropriate in occupational disease and repetitive trauma cases where there is a single injury occurring over a time continuum involving several employers or carriers.” Id., 302; see also Plecity v. McLachlan Hat Co., 116 Conn. 216 (1933) (liability imposed upon all three insurers on risk during period of employment materially contributing to occupational disease). In Thomen, supra, we ruled that § 31-299b was not applicable where two separate compensable traumatic incidents had occurred to the claimant’s right wrist, even though both injuries contributed to the claimant’s overall permanent disability.

Section 31-349,1 on the other hand, was found to be applicable in Thomen. That section codifies the workers’ compensation version of an ancient common-law tort doctrine making the last causation event in a chain of causation liable for the resultant damages. Id., 301, citing Lovett v. Atlas Truck Leasing, 171 Conn. 577, 581-82 (1976). Under § 31-349, the employer’s liability is modified by arbitrarily apportioning responsibility for all benefits due after the 104th week of injury to the Second Injury Fund, assuming the requirements of § 31-349(b) are observed. Factually, the instant case is somewhat similar to Thomen in that the claimant suffered two separate compensable back injuries rather than one continuing injury. We therefore hold that § 31-299b is not applicable to the facts of the instant case, and note that § 31-349 potentially could apply.

The facts of this case are also similar to Mund, supra, where our Supreme Court deferred to a trial commissioner’s finding that two separate ruptures of the same L4-5 disc were equal and concurrent causes of the claimant’s disability, thus allowing apportionment of liability for benefits between two insurers. The commissioner specifically found that the second injury was superimposed upon and an aggravation of the condition remaining from the first injury. Id., 341. The court used that fact to distinguish Mages v. Alfred Brown, Inc., 123 Conn. 188 (1937), in which two separate injuries to different body parts had contributed to a claimant’s total disability. There, our Supreme Court determined that the second employer was responsible to pay full compensation for the disability, as the second injury constituted an intervening cause with respect to the first employer. The Mund court decided that its case was closer to Plecity, supra, than it was to Mages, and declined to relieve either insurer of liability. We note that the claimant’s injury in Mund occurred before § 31-299b and § 31-349 were in force.

At first glance, there appears to be some confusion in the law on this subject. However, after careful consideration of the cases cited above, as well as Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994), and Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (June 6, 1990), the legal framework surrounding apportionment becomes clear. The general rule in workers’ compensation law is that an employer is liable to provide compensation for the full extent of an employee’s disability, regardless of whether the disability is due in part to a preexisting condition or impairment. Levanti v. Dow Chemical Co., 218 Conn. 9, 18 (1991). Because of the hardships posed by this rule, apportionment statutes such as § 31-299b and § 31-349 have been enacted. Levanti, supra; see also § 31-275(1); § 31-307(d).

The existence of these statutes does not prevent a commissioner from making a finding that two separate accidents contributed to cause a particular injury, however, where both injuries are individually compensable. Mund, supra; see also Prioleau, supra, 143; Perrotti, supra, 107. In this case, the commissioner found that the claimant’s two back injuries were equal causes of his need for surgery. The correctness of this finding was not challenged by either party via Motion to Correct, and must stand on appeal. McCarthy v. 10 Star Corp., 10 Conn. Workers’ Comp. Rev. Op. 64, 1134 CRD-2-90-11 (March 16, 1992). In contrast to the five percent permanent partial disability payments made by Orion consistent with the parties’ agreement (and § 31-349(a)), no payments were made by Orion toward back surgery or its consequences.

We do not think the legislature intended § 31-349 to prevent an employer or insurer from being held partly responsible the for direct consequences of a compensable injury where prior law, as demonstrated by Mund, would have allowed the apportionment of liability based on causation. The purposes of § 31-349 enumerated in Levanti, supra, and Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 355-56 (1974), which include preventing discrimination against handicapped workers and relieving employers from the hardship of liability for the consequences of injury not attributable to their employment, are hardly disserved by allowing apportionment of liability among two employers where such a result is supported by the evidence.

We therefore conclude the commissioner’s finding that both work injuries were equally contributing causes of the claimant’s need for surgery was permissible under our law and was based on the evidence before the commissioner. Although we find error in the commissioner’s ruling that § 31-299b was applicable to this case, we hold that apportionment of liability between Orion and CNA was appropriate under Mund and the common-law tort theory of causation espoused by that court.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

CASE NO. 5150 CRB-2-06-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 8, 2007

BRIAN JOLICOEUR

CLAIMANT-APPELLANT

v.

DUNCKLEE, INC., et al

EMPLOYER

and

CNA INSURANCE CO., et al

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Michael R. Kerin, Esq., Kerin & Canty, P.C., 120 Broad Street, Milford, CT 06460.

The respondents Duncklee, Inc. and CNA were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents Harrington Engineering and Peerless Insurance Co. were represented by Joseph Passaretti, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents State Technical Services Inc. and Peerless Insurance Company were represented by Jessica Argieros, Esq., Law Offices of Rosenbaum & Vollono, 655 Winding Brook Drive, Glastonbury, CT 06033. They did not appear at oral argument and joined in the briefs submitted by the other respondents.

The respondents State Technical Services, Inc. and CNA were represented by Howard Levine, Esq., Law Offices of Cynthia A. Jaworksi, 55 Capital Boulevard, Suite 210, Rocky Hill, CT 06067. They did not appear at oral argument and joined the briefs of the other respondents.

The respondents State Technical Services, Inc. and National Grange Mutual Insurance Company were represented by Keith E. Marquis, Esq., Law Offices of Keith E. Marquis, 205 Church Street, Suite 626-637, New Haven, CT 06510.

The respondents State Technical Services, Inc. and The Hartford Insurance Group were represented by Laurence P. McLoughlin, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105. They did not appear at oral argument and joined the briefs of the other respondents.

This Petition for Review from the October 11, 2006 Finding and Dismissal of the Commissioner acting for the Second District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 11, 2006 Finding and Dismissal of the Commissioner acting for the Second District, challenging the trier’s denial of authorization for four-level disc replacement surgery in his lower back. We affirm the trial commissioner’s decision.1

The claimant sustained a compensable lumbar spine injury on May 12, 1992. When conservative treatment proved ineffective, he was sent to discuss a four-level fusion with Dr. Paonessa, who referred him to Dr. Yue. After a series of diagnostic tests in May 2004, Dr. Yue determined that the claimant was a candidate for a four-level disc replacement procedure using “ProDisc” technology.2 In November 2001, the United States Food and Drug Administration (FDA) had begun a clinical study of the ProDisc for use at one and two levels. Dr. Yue testified that, as part of that study, he has completed 165 single- or dual-disc replacements in approximately 97 patients. Dr. Yue has also traveled to Germany to participate in 65 disc replacements at three levels, seven at four levels, and one at five levels, with the first of those procedures having occurred in July 2003. He was unsure if any four-level procedure had been performed in the United States. The trier found that Dr. Yue stated that 92.4% of patients who underwent one-or two-level replacements were satisfied with the results.3

On August 14, 2006, the FDA approved the ProDisc for use at one level. The two-level study remained ongoing. Dr. Yue testified that the approval of ProDisc at one level allows physicians to use the device for multiple levels, as long as the physician deems the procedure to be medically necessary, and the patient understands the use would be “off label.” Dr. Yue did not anticipate the FDA would conduct a study of ProDisc for approval of use at three or more levels due to cost factors, and the eventual loosening of FDA use restrictions that would occur as the ProDisc becomes established. Claimant’s Exhibit A, Deposition, pp. 49-50. He testified that exclusionary criteria had been developed for the ongoing clinical trial to ensure that extraneous factors would not affect the study of ProDisc’s effectiveness in patients with degenerative disc disease.

In the first of two bone density tests, the claimant had shown signs of osteopenia, an exclusionary factor that might have prevented the FDA from permitting surgery under a “compassionate use” exception. The second test showed improved bone density, which was no longer a contraindication for surgery. As for the alternative of a four-level fusion, Dr. Yue did not think it would give the claimant significant relief. Dr. Yue stated that he would be willing to perform the four-level disc replacement, which would give the claimant a 70-80% chance of returning to work. On a scale of A to F, he rated the proposed disc replacement surgery as having a likely “B” to “B+” result, while the fusion would have a “D” result. If the claimant agreed to the disc replacement, he would be required to sign a waiver so that Yale would allow Dr. Yue to perform the procedure at its hospital facility. There was no evidence presented regarding the terms of this waiver.

The trial commissioner concluded that Dr. Yue’s testimony was credible, and found that he has achieved great success with single and double-level disc replacements. The trier then cited the fact that the manufacturer of ProDisc had requested physicians to use the product close to the FDA label usage for four to six months subsequent to its approval. He also found that there was insufficient evidence to fully assess the waiver that the claimant would have to execute. He concluded, “The proposed four-level disc replacement involves real danger and suffering without fair assurance of effectuating an improvement or restoration of the claimant’s health at this time, and therefore, does not constitute reasonable and necessary medical treatment.” Findings, ¶ K. The trier then made the same finding with regard to the proposed four-level fusion. Findings, ¶ L. The claimant has appealed the denial of the disc replacement surgery to this board.

We first address the claimant’s objection that the trier ignored the opinions of other treating physicians, which buttress Dr. Yue’s recommendation for surgery. As the claimant notes in his brief, the trial commissioner is free to believe all, some or none of an expert’s testimony. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Walter v. Bridgeport, 5092 CRB-4-06-5 (May 16, 2007). In a workers’ compensation case, the trial commissioner has sole authority to determine the weight and credibility of evidence. Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002). Even if the medical reports of Drs. Paonessa, Criscuolo and Murphy were not expressly contradicted by other evidence, the trial commissioner did not have to give them weight, or discuss them in his findings. The opinions of other orthopedic surgeons offering cumulative support for multi-level disc replacement surgery do not constitute undisputed evidence, nor are they material to the trier’s decision. See Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). Thus, the trier committed no error by failing to mention those opinions.

The main issue before us is whether the findings and evidence support the trial commissioner’s conclusion that the proposed four-level disc replacement surgery was not reasonable and necessary medical treatment within the meaning of § 31-294d C.G.S. The trier’s conclusion in ¶ K—that the four-level disc replacement procedure “involves real danger and suffering without fair assurance of effecting an improvement or restoration of health”—refers to a test adopted in Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154 (1989), which drew language from Justice Baldwin’s concurrence in Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 690 (1953). The Acquarulo Court affirmed a trier’s decision to suspend benefits where a claimant refused exploratory back surgery that was recommended by all of the doctors. In his concurrence, Justice Baldwin reasoned that the claimant’s benefits would not have been suspended if he could have demonstrated that “the measure of recovery to be expected from the medical and surgical procedure recommended did not warrant the danger and suffering involved.” Id.

In Pagliarulo, which also involved a refusal of surgical treatment, the Appellate Court confirmed, “Whether a proposed surgical procedure is reasonable . . . is a question of fact for the commissioner to resolve.” Id., 158. Though medical evidence takes center stage in making that decision; see Irizarry, supra; the trier may also consider surrounding circumstances, such as the claimant’s age, medical history, the effectiveness of prior treatment, and as stated in Acquarulo, whether the procedure involves real danger and suffering without fair assurance of improved or restored health. Pagliarulo, supra, 159. If a treatment strategy has only a modest chance of succeeding, it falls within the trier’s discretion to decide whether to approve it under the circumstances. Irizarry, supra; Cirrito v. Resource Group Ltd. Of Connecticut, 4248 CRB-1-00-6 (June 19, 2001).

Here, the trial commissioner was not present at the deposition of Dr. Yue, and was left to gauge the credibility of that witness from his deposition and his medical reports. As we review Dr. Yue’s deposition, we identify several areas that may have emerged as concerns regarding the reliability and safety of attempting four-level disc replacement surgery. Dr. Yue acknowledged that the claimant had shown a low bone density in January 2005, which prevented him from being an immediate surgical candidate. Deposition, p. 37. In November 2005, a second test showed a dramatic improvement that Dr. Yue attributed to the claimant’s use of a bone-building regimen involving medication, calcium and/or Vitamin D. Deposition, pp. 73, 95. Dr. Yue did not explain if or how the change in bone density would be maintained long-term. The claimant had also been gaining weight at the time of Dr. Yue’s deposition, which was a concern, as a body mass index in the 30-31 range was a prerequisite for surgery. Id., pp. 73-74. Further, Dr. Yue had not realized that the claimant had been out of work since November 2003, which created a concern that negative psychological or motivational factors might exist that could inhibit recovery and a return to work. Id., pp. 111-12.

Despite Dr. Yue’s optimism regarding four-level disc replacement surgery, the fact remains that the claimant was seeking permission to use the ProDisc differently than the FDA had approved, and beyond what the manufacturer recommended this early in the approval stage of the product. Id., p. 66. This is not insignificant, as the procedure carries with it an additional set of risks. For example, Dr. Yue explained that “the more levels of degeneration, the more difficult it can be with predicting total success,” due to the variations found at each disc level, and because the interspaces would shrink as discs are added. Id., 74. He acknowledged that the claimant might need a fusion at the fourth level if the insertion of discs at two or three levels compressed the spine too much to allow a fourth implant. Id. There was also a risk that he would be unable to insert the prostheses into the disc spaces, requiring fusion at the first two levels. Id., pp. 99-100. Dr. Yue had earlier stated that a fusion would make the claimant’s situation dramatically worse. Id., p. 92. Other, general risks included subsidence of the implant, fracturing of the vertebrae, minor nerve damage, blood clots, stroke, and death. Id., pp. 88-89.

Further, though Dr. Yue did not discuss his role in the multiple disc replacement surgeries performed in Germany, his testimony indicates that other physicians had been involved in that work. Id., pp. 69, 80-81. To that end, in Claimant’s Exhibit C, an April 8, 2005 report by Dr. Yue stated, “This surgery can only be performed in Germany by Dr. Rudolf Bertagnoli and due to FDA restrictions cannot be performed in the USA.”4 The commissioner cited the fact that there was no direct evidence Dr. Yue had performed any of the three-to-five-level surgeries himself, and that only seven of the surgeries in Germany had been at four levels. Findings, ¶ F. Dr. Yue stated that he had participated “intraoperatively” in three of the four-level disc replacements. Id., p. 69. Dr. Yue then acknowledged that he had not performed disc replacement at more than two levels in the United States. He could not be certain that Yale Hospital would allow a four-level procedure, though he thought they would agree if they were reimbursed for the cost of the implant, and the claimant assumed certain risks by signing a waiver. Id., pp. 70, 80.

Given these details, we disagree with the claimant’s assertion on appeal that Dr. Yue’s testimony is devoid of any evidence that the proposed surgery involves danger and suffering without fair assurance of improvement. The trial commissioner may have come away from Dr. Yue’s testimony with numerous doubts, and he was not required to view Dr. Yue’s opinion as being sufficient to justify approval of the surgery under the circumstances. The trier was also not required to set forth each reason for his decision to withhold authorization of the procedure. See Admin. Reg. § 31-301-3. We therefore find no error in the trial commissioner’s denial of the requested disc replacement surgery.

The claimant also asserts that the medical treatment issue described at the outset of the formal hearing was “authorization for a four-level disc replacement,” with no mention of fusion surgery. March 30, 2006 Transcript, p. 3. He thus argues that fusion surgery should not have been addressed in the trier’s decision. The boundary between the two procedures is not so clear-cut, however.

Fusion surgery was discussed during the claimant’s direct examination of Dr. Yue, who explained how multilevel fusion surgery is performed by entering from both the front and back, and using bone grafts to fill the space between vertebrae, with screws or a plate being implanted to secure the graft. Deposition, pp. 10-11. The claimant requested that he compare fusion and disc replacement. Id., pp. 18-19. Dr. Yue explained that fusion surgery is riskier because it requires two surgical approaches, takes more time, places the neurologic structures at higher risk due to the implantation of screws, and demands a longer recovery period, with a risk of bone graft rejection that can worsen a patient’s pain. Id. Other risks include blindness due to blood flow into the eyes while the body is prone. Deposition, p. 107. Dr. Yue also said that fusion results in a complete loss of motion at that vertebrae segment (whereas the artificial disc preserves motion), and stated that fusions have not been very successful in alleviating discogenic low back pain. Deposition, p. 22. The loss of motion also promotes adjacent level degeneration due to the body’s transfer of residual motion to another disc level.

Dr. Yue would advise the claimant to forego surgery rather than having a fusion done. He opined that a four-level fusion would not give the claimant any significant relief; Id., p. 43; and could make the claimant’s condition “dramatically worse.” Deposition, p. 92. He also stated that only 20-25% of people return to any kind of work following a four-level lumbar fusion, because of the disability caused by the approach to the spine, the mental stress of long-term narcotic use, and the risk factors that a future employer would have to consider. Deposition, p. 34. He also explained that, though the discogram showed significant changes at only three levels, a fusion from L3-L4 to L5-S1 would also create problems, as L2-L3 would degenerate and require another operation in the near future. Id., p. 53. There was a further possibility that Dr. Yue would not be able to gain access to L2-L3 due to the placement of the claimant’s rib cage. Deposition, p. 100.

In light of this testimony, the trier reasonably addressed the option of four-level fusion surgery in his decision. Disc replacement surgery was being introduced as a surgical alternative to the more accepted option of fusion, as demonstrated by the FDA study, which required that the results of disc replacement surgery be “noninferior” to fusion surgery in order to approve use of the ProDisc. Deposition, pp. 50-51. The commissioner also found Dr. Yue’s testimony credible, and he expressed strong opposition to fusion surgery. We think it important to note, however, that the trier’s order only denied both disc replacement surgery and fusion surgery “at this time.” The claimant may seek surgical intervention again in the future, as factual circumstances evolve. See Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004)(claimant retains right to seek medical treatment if circumstances change following previous denial of treatment).

The trial commissioner’s decision is hereby affirmed.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.