Jodlowski v. Stanley Works

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JAN JODLOWSKI v. STANLEY WORKS
(AC 38261)
Lavine, Keller and Flynn, Js.
Argued September 14—officially released October 18, 2016
(Appeal from Workers’ Compensation Review Board.)
Jan Jodlowski, self-represented, the appellant
(plaintiff).
Erik S. Bartlett, for the appellee (defendant).
Opinion
LAVINE, J. The self-represented plaintiff, Jan Jodlow-
ski, appeals from the decision of the Workers’ Compen-
sation Review Board (board) affirming the decision of
the Workers’ Compensation Commissioner (commis-
sioner), who denied the plaintiff’s request for additional
treatment. On appeal the plaintiff claims that it was
improper for the commissioner (1) to deny his request
for lumbar fusion surgery, (2) to fail to consider the
conflicting opinions of medical experts, and (3) to
decline to order a commissioner’s medical examination,
pursuant to General Statutes § 31-294f (a). We affirm
the decision of the board.
Pursuant to a formal hearing held on July 23, 2014,
the commissioner found the following facts in his find-
ing and dismissal dated December 15, 2014. The plaintiff
sustained compensable injuries to his neck, back, shoul-
der, leg and hand during the course of his employment
with the defendant, Stanley Black and Decker.1 In his
finding and award dated January 7, 2011, the commis-
sioner found that the plaintiff had sustained injuries to
his right knee and left shoulder, but denied the plaintiff’s
claim for a psychiatric injury and total disability bene-
fits. In addition, the commissioner found that the plain-
tiff’s pain management treatment with Jonathan Kost,
medical director of the pain treatment center at Hart-
ford Hospital, was reasonable and necessary and
ordered the defendant to authorize treatment with Kost.
The plaintiff treated with Kost from October, 2006, until
the formal hearing. Kost’s medical records indicate that
the plaintiff continued to complain of pain in multiple
parts of his body.
On December 14, 2012, to address the plaintiff’s con-
tinued complaints of pain, Kost discussed with the
plaintiff possible treatment options, including a spinal
cord stimulator2 and a surgical consult. Kost referred
the plaintiff to Andrew Wakefield, a neurosurgeon, for
a neurosurgical consult, which was conducted on Sep-
tember 19, 2013. Wakefield and his physician assistant,
Sean T. Brennan, noted in a report that the plaintiff
was not a surgical candidate and that he was unable
to find any objective evidence to explain the level of
the plaintiff’s complaints.
Kost recommended that the plaintiff undergo an elec-
tromyography nerve conduction test to determine
whether he was a candidate for a spinal cord stimulator.
The test was conducted on February 20, 2014; the
results of the test were normal.
At the request of the defendant, the plaintiff was
examined by Jerrold Kaplan, a physiatrist. Kaplan
opined that the plaintiff’s pain management was not
curative, and he did not recommend a spinal cord stimu-
lator for the plaintiff. He instead recommended that the
plaintiff undergo the comprehensive pain management
program at the Rosomoff Center in Florida. On April
18, 2014, Kost agreed with Kaplan that the plaintiff was
not a candidate for a spinal cord stimulator and that
the plaintiff should undergo treatment at the Roso-
moff Center.
The plaintiff referred himself to Joseph Aferzon, a
neurosurgeon, who examined him on April 30, 2014.
Aferzon opined that the plaintiff should undergo a disco-
gram3 and spinal fusion4 at the L5-S1, and possibly L4-
5, level. On June 16, 2014, Kost recommended that the
plaintiff delay treatment at Rosomoff Center pending
a discogram and spinal fusion.5
At the formal hearing, the plaintiff contended that,
on the basis of the opinions and recommendations of
Kost and Aferzon, he had sustained his burden of proof
regarding his need for medical treatment, including
ongoing pain management, a discogram, and lumbar
fusion. The defendant argued, on the basis of the opin-
ions of Wakefield and Kaplan, that the plaintiff had
failed to sustain his burden of proof that he is entitled
to ongoing medical treatment, including pain manage-
ment, a discogram, and lumbar fusion.
The commissioner found on the basis of the evidence
produced that Wakefield’s and Kaplan’s opinions were
more persuasive than those of Kost and Aferzon regard-
ing the plaintiff’s need for a spinal stimulator and lum-
bar spine surgery. He also found Kaplan’s
recommendation that the plaintiff undergo treatment
at the Rosomoff Center to be more persuasive than
Kost’s proposed treatment plan. Moreover, the commis-
sioner found that although Kost’s pain management
treatment might or might not be curative, it enabled the
plaintiff to function and was reasonable and necessary.
Therefore, the commissioner denied the plaintiff’s
request for a spinal cord stimulator and for lumbar
fusion surgery, and dismissed those claims. The com-
missioner authorized the plaintiff’s claim that he
undergo treatment at the Rosomoff Center. The com-
missioner ordered the defendant to be responsible for
all reasonable and necessary costs associated with the
plaintiff’s need for ongoing pain management with Kost.
Thereafter, the plaintiff filed a petition for review by
the board. In his appeal, the plaintiff stated that he
saw other physicians to whom he was referred by his
primary care physician due to what he claimed were
inconsistent ‘‘results’’ among the opinions of Wakefield,
Kaplan, and Kost.6
The board issued its opinion on August 12, 2015. It
was not persuaded by the plaintiff’s arguments that
the commissioner’s decision was legally erroneous. The
board concluded, essentially, that the plaintiff’s claims
constituted a dispute between physicians as to the opti-
mal manner in which to treat the plaintiff’s complaints
of pain, i.e., the plaintiff and the defendant each pre-
sented differing treatment alternatives to the commis-
sioner. The commissioner found the opinions of the
defendant’s experts to be more persuasive. As an appel-
late panel, the board stated that it was not permitted to
second-guess the commissioner. In addition, the board
disagreed with the plaintiff that the commissioner was
obligated to order a commissioner’s examination of the
plaintiff under § 31-294f. The board, therefore, affirmed
the commissioner’s finding and dismissal.
The plaintiff appealed to this court, claiming that the
decision of the board should be reversed because the
commissioner did not grant his request for a spinal cord
stimulator and lumbar fusion surgery. He also claims
that it was error for the commissioner not to order
a commissioner’s examination to resolve the dispute
between the conflicting medical opinions as to the need
for lumbar fusion surgery.
Before addressing the plaintiff’s claims, we set forth
the applicable standard of review. ‘‘A party aggrieved
by a commissioner’s decision to grant or deny an award
may appeal to the board pursuant to General Statutes
§ 31-301. . . . The appropriate standard applicable to
the board when reviewing a decision of a commissioner
is well established. [T]he review [board’s] hearing of
an appeal from the commissioner is not a de novo
hearing of the facts. . . . [I]t is oblig[ated] to hear the
appeal on the record and not retry the facts. . . .
‘‘Similarly, on appeal to this court, [o]ur role is to
determine whether the review [board’s] decision results
from an incorrect application of the law to the subordi-
nate facts or from an inference illegally or unreasonably
drawn from them . . . . [Therefore, we ask] whether
the commissioner’s conclusion can be sustained by the
underlying facts.’’ (Citations omitted; internal quotation
marks omitted.) Estate of Haburey v. Winchester, 150
Conn. App. 699, 713, 92 A.3d 265, cert. denied, 312 Conn.
922, 94 A.3d 1201 (2014).
‘‘The [commissioner] alone is charged with the duty
of initially selecting the inference [that] seems most
reasonably and his choice, if otherwise sustainable, may
not be disturbed by a reviewing court.’’ (Internal quota-
tion marks omitted.) Id., 714.
It is well within the authority of the commissioner
‘‘to choose which evidence he found persuasive and
which evidence he found unpersuasive, and adjudicate
the claim accordingly. As the fact finder, the commis-
sioner may reject or accept evidence . . . . It is not
the province of this court to second-guess the commis-
sioner’s factual determinations. [T]he trier of fact—the
commissioner—was free to determine the weight to be
afforded to [the] evidence. . . . This court, like the
board, is precluded from substituting its judgment of
that of the commissioner with respect to factual deter-
minations.’’ (Citations omitted; internal quotation
marks omitted.) Id., 717.
We thoroughly have reviewed the record and the
decisions of the commissioner and the board. We agree
with the board that it was bound to accept the commis-
sioner’s decision as to the medical evidence he found
more persuasive. The medical opinions provided by
Wakefield and Kaplan are probative evidence that lum-
bar fusion surgery was not recommended for the plain-
tiff. We therefore conclude that the board properly
affirmed the commissioner’s finding and dismissal with
respect to treatment of the plaintiff’s lumbar spine.
We also agree with the board that § 31-294f7 does not
mandate that the commissioner order a commissioner’s
examination when conflicting medical evidence is pre-
sented to the commissioner. The plaintiff’s claim
requires us to construe the statute. Statutory construc-
tion raises questions of law over which we exercise
plenary review. Cruz v. Montanez, 294 Conn. 357, 367,
984 A.2d 705 (2009). ‘‘When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) Kasica v. Colum-
bia, 309 Conn. 85, 93, 70 A.3d 1 (2013).
‘‘[A] court must construe a statute as written. . . .
Courts may not by construction supply omissions . . .
or add exceptions merely because it appears that good
reasons exist for adding them. . . . The intent of the
legislature, as this court has repeatedly observed, is to
be found not in what the legislature meant to say, but
in the meaning of what it did say. . . . It is axiomatic
that the court itself cannot rewrite a statute to accom-
plish a particular result. That is the function of the
legislature.’’ (Internal quotation marks omitted.) Viera
v. Cohen, 283 Conn. 412, 431–32, 927 A.2d 843 (2007).
The salient language of § 31-294f (a) is found in its
first sentence: ‘‘An injured employee shall submit him-
self to examination by a reputable practicing physician
or surgeon, at any time while claiming or receiving
compensation, upon the reasonable request of the
employer or at the direction of the commissioner. . . .’’
The statute, therefore, directs an individual seeking
workers’ compensation benefits to submit to an exami-
nation at the request of the employer or at the direction
of the commissioner. The statute further defines the
circumstances under which such an examination is to
take place and the consequences of a claimant’s failure
to comply. See footnote 7 of this opinion. The statute
does not require the commissioner sua sponte to order
a commissioner’s examination to resolve conflicting
evidence, although there is nothing in the statute to
prohibit the commissioner from doing so. Because the
commissioner in the present case was under no statu-
tory duty to order a commissioner’s examination, the
plaintiff’s claim to the contrary fails.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
The record does not disclose the relation between Stanley Works, as
the case is captioned, and Stanley Black and Decker. We presume the
discrepancy is the result of a scrivener’s error. The plaintiff was injured on
November 8, 2004, when an upright tool box tipped over and came in contact
with his torso and slid down his chest, abdomen, and legs. The plaintiff
strained himself when setting the tool box upright.
2
Spinal cord stimulation delivers mild electrical impulses to the spinal
cord that interrupt pain signals to the brain, replacing them with a tingling
sensation. See University of California San Francisco Medical Center, Spinal
Cord Treatments, Spinal Cord Stimulation, available at https://www.ucsf-
health.org/treatments/spinal cord stimulation/ (last visited October 4,
2016).
3
A discogram is a test used to evaluate back pain. The test may help a
physician determine if an abnormal disk in the spine is causing back pain.
Mayo Clinic, Tests and Procedures, Discogram, available at http://www.may-
oclinic.org/tests-procedures/discogram/basics/definition/prc-20013848 (last
visited October 4, 2016).
4
Spinal fusion is surgery that permanently connects two or more vertebrae
in the spine, eliminating motion between them. Mayo Clinic, Tests and
Procedures, Spinal Fusion, available at http://www.mayoclinic.org/tests-pro-
cedures/spinal-fusion/home/ovc-20155554 (last visited October 4, 2016).
5
Although it is not in the record before the board, the defendant indicates
in its brief that the plaintiff has undergone a lumbar spinal fusion during
the pendency of the present litigation. The plaintiff does not dispute the
defendant’s representation.
6
On appeal to the board, the plaintiff sought to submit as additional
evidence regarding the results of a magnetic resonance image and the medi-
cal notes supporting lumbar surgery that were authored by Aferzon and
Jeffrey Bash, an orthopedic surgeon. The defendant objected to the admis-
sion of the additional evidence pursuant to Diaz v. Pineda, 117 Conn. App.
619, 980 A.2d 347 (2009). The board sustained the defendant’s objection.
On appeal here, the plaintiff does not claim that the board improperly denied
his request to present additional evidence.
7
General Statutes § 31-294f (a) provides: ‘‘An injured employee shall sub-
mit himself to examination by a reputable practicing physician or surgeon,
at any time while claiming or receiving compensation, upon the reasonable
request of the employer or at the direction of the commissioner. The exami-
nation shall be performed to determine the nature of the injury and the
incapacity resulting from the injury. The physician or surgeon shall be
selected by the employer from an approved list of physicians and surgeons
prepared by the chairman of the Workers’ Compensation Commission and
shall be paid by the employer. At any examination requested by the employer
or directed by the commissioner under this section, the injured employee
shall be allowed to have in attendance any reputable practicing physician
or surgeon that the employee obtains and pays for himself. The employee
shall submit to all other physical examinations as required by this chapter.
The refusal of an injured employee to submit himself to a reasonable exami-
nation under this section shall suspend his right to compensation during
such refusal.’’