Dichello v. Holgrath Corp.

Decision Date07 July 1998
Docket NumberNo. 16386,16386
Citation715 A.2d 765,49 Conn.App. 339
PartiesEsterina DICHELLO v. HOLGRATH CORPORATION et al.
CourtConnecticut Court of Appeals

Robert A. Izzo, Southington, for appellant (plaintiff).

Timothy E. Welsh, Vernon, for appellees (defendants).

Before EDWARD Y. O'CONNELL, C.J., and DUPONT and HEALEY, JJ.

HEALEY, Judge.

The plaintiff appeals from the decision of the compensation review board (board) affirming the commissioner's award of reimbursement for disability payments made to the plaintiff. We affirm the decision of the board.

A brief overview of the background is appropriate at this point. On May 7, 1984, the plaintiff, Esterina Dichello, and the defendant, Holgrath Corporation, entered into a voluntary agreement, approved by the workers' compensation commissioner, which provided that the plaintiff had a 30 percent loss of use of her right hand as the result of a compensable event that occurred at Holgrath on September 6, 1983. 1 Payments under the agreement would have run through September 4, 1985, unless interrupted. On February 28, 1985, the defendant filed a form 36 2 seeking an order to terminate payment to the plaintiff of temporary total disability benefits as well as for reimbursement of certain payments made to her. After a tortuous history, the commissioner rendered his finding and award on December 19, 1994. That decision included the commissioner's finding that the plaintiff's temporary total disability had ended on January 9, 1985, that the defendant was entitled to "the reimbursement of all payments in excess of those representing permanent partial disability for bilateral carpal tunnel syndrome" and that the charges of certain health providers, which the plaintiff maintained should be the obligation of the defendant, were the responsibility of the plaintiff. 3

In addition to those facts, we add the following from the commissioner's finding and award. James Sabshin, a neurosurgeon, was noted on the voluntary agreement of May 7, 1984, as the treating physician. Gene D'Angelo, the plaintiff's family physician, referred her to Ira Spar, an orthopedist, who first saw the plaintiff on November 3, 1983. Spar, after examining the plaintiff and considering her history, felt that she suffered from carpal tunnel syndrome in the right hand and tendinitis. The plaintiff had no complaints involving her left hand and Spar's examination did not reveal any abnormalities. There were no complaints or findings involving the shoulders or elbows. Spar prescribed medication and applied a plaster splint.

Upon the plaintiff's return to Spar on November 17, 1983, he advised the plaintiff to undergo a nerve conduction study. On December 17, 1983, a right hand nerve conduction study revealed a slowing of the median nerve at the carpal tunnel. The plaintiff never returned to Spar. On the recommendation of a family member, the plaintiff undertook treatment with Anthony Scialla, a general surgeon, on November 21, 1983. Scialla referred the plaintiff to Sabshin, who first saw the plaintiff on December 8, 1983. Scialla, however, continued to see the plaintiff through February, 1992. His March 27, 1987 note indicates that the plaintiff was on six medications, but "neither he or she knew what they were and he would not prescribe anything else." The plaintiff complained to Sabshin of pain and numbness in the right hand but his examination revealed "no significant problems in other areas" and she had no other complaints.

Before making a diagnosis, Sabshin sent the plaintiff to Norman Werdiger for a nerve conduction study. After that study, Sabshin saw the plaintiff on January 5, 1984, and recommended a right carpal tunnel release, which was done on January 27, 1984. Sabshin followed the plaintiff during her recovery and on February 23, 1984, she complained of left wrist pain. In May, 1984, Sabshin recommended nerve conduction studies of both hands and both wrists. Werdiger conducted these studies, which showed problems with the left wrist as well as showing that the nerve conduction in the right hand had not improved after the surgery.

On June 6, 1984, Sabshin recommended left carpal tunnel surgery, which was performed on July 30, 1984 on the left wrist. The plaintiff underwent a course of physical therapy, and on January 7, 1985, Sabshin approved the plaintiff's return to restricted work. On April 18, 1985, the plaintiff complained to Sabshin of cervical, bilateral shoulder, elbow, wrist and hand pain "resulting from any motion of either hand." An examination, however, revealed no basis for the plaintiff's complaints. She requested a letter from Sabshin indicating total disability but he refused to issue such a letter. Because of the multiplicity of the plaintiff's complaints, Sabshin again referred her to Werdiger, who could not relate all of her symptoms to a single diagnosis, although he did note possible diagnoses of reflex sympathetic dystrophy and dysesthetic type pain. When the plaintiff saw Werdiger on May 9, 1985, he recommended repeat surgery for the right carpal tunnel syndrome.

After another examination of the plaintiff by Sabshin on June 18, 1985, he referred her to David Goodkind, a hand surgery specialist. The latter recommended repeat surgery on the right wrist, but the plaintiff declined. On July 16 and September 24, 1985, Sabshin met with the plaintiff and her daughter and again repeated his recommendation of right carpal tunnel surgery. Werdiger again saw the plaintiff in May, 1984, and he noted that his examination was difficult due to her complaints of pain. He, however, found no problem with her left arm proximate to the wrist or shoulder. He did diagnose bilateral carpal tunnel syndrome, worse on the right wrist.

After a later examination on April 22, 1985, following the plaintiff's complaints of pain in her hands, arms, shoulders, neck, legs and thighs, Werdiger indicated that his examination was difficult because of her complaints of extreme pain even on the slightest movement of her fingers. Werdiger opined that her complaints did not fit any established neurological pattern, that he could find no cause for her symptoms, that he was skeptical of the degree of pain she was expressing, that he did not attribute any of her multiple complaints to her carpal tunnel syndrome and that she consider referral to a pain clinic. On August 6, 1983, Werdiger again saw her on referral by Sabshin. At that time, she complained of pain in both hands, neck, lower back and right leg, as well as severe pain at the slightest touch, even when she was asked to look from side to side, stick her tongue out or smile. Yet Werdiger was able to move all of the plaintiff's joints through a full range of motion and found that her reflexes were normal. A formal sensory examination, however, was not possible because of her failure to cooperate. Werdiger thought that she had chronic pain syndrome and "he could not document a cause for it."

At the defendant's request the plaintiff was examined and evaluated by Marvin Arons, 4 a specialist in hand surgery, on October 13 and December 6, 1987, and February 25, 1988. As part of his examination and evaluation process, Arons reviewed and summarized thirty-one reports of prior examinations and tests. On her first visit to Arons, the plaintiff complained of pain in both upper extremities, neck, and upper back, as well as numbness in the fingers of both hands. She sat motionless with her hands in her lap. When she cried, her husband wiped her tears and when she needed to blow her nose, her husband held the tissue. The examination was limited because of her complaints of pain with the slightest touch or movement. After this examination, Arons referred her to Gordon Hutchinson, a rheumatologist, and Moshe Hasbani, a neurologist. On her second visit Arons described her as suffering, depressed, dejected, anguished, groaning and breathing deeply, with difficulty walking without assistance from her husband. The plaintiff's husband and daughter told Arons that she did nothing at home and that she needed help to eat. Arons diagnosed compensable carpal tunnel syndrome bilaterally and thought that the plaintiff had developed a cycle of physiologic and emotional disability that led to bilateral chronic pain disability. He felt that she was a psychiatric case. He felt that the carpal tunnel syndrome "had been incipient but dormant, until aggravated by the compensable injury." He described her prognosis as "grim." On her third and last visit to Arons, the plaintiff appeared so disabled that she almost had to be carried into his office and he likened her to a paraplegic or a person with multiple sclerosis. He stated that he had never seen anything like it.

Later, during his deposition, Arons was shown a videotape and photographs taken during surveillance of the plaintiff. 5 The plaintiff did not deny that she was the person who appeared in the videotape and photographs. The photographs were taken on October 12, 1989, and showed the plaintiff walking with a shoulder strap over her left shoulder and opening a car door with her left hand and entering the driver's side. On the same day she drove from her home to a parking area at the rear of a dental office, which she entered. When she left the dental office, she drove to a chiropractic office. She appeared to walk and drive without difficulty. On October 28, 1989, she was again observed driving and walking to do errands. On November 10, 1989, a videotape was taken that showed "the [plaintiff] walking normally, swinging her arms, a shoulder bag strap over her shoulder, opening and closing the driver's side of a car; backing the car and driving away all without apparent difficulty. She made stops at a post office, a bank, a drug store and a bakery." The defendant had paid workers' compensation benefits during the period covered by the surveillance.

When Arons saw the videotape of the plaintiff...

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