Marandino v. Prometheus Pharmacy, 18135.

• Court: Supreme Court of Connecticut
• Writing for the Court: Vertefeuille
• Citation: 294 Conn. 564,986 A.2d 1023
• Parties: Susan MARANDINO v. PROMETHEUS PHARMACY et al.
• Docket Number: No. 18135.,18135.
• Decision Date: 26 January 2010

986 A.2d 1023 294 Conn. 564 Susan MARANDINO
v.
PROMETHEUS PHARMACY et al. No. 18135. Supreme Court of Connecticut. Argued April 29, 2009. Decided January 26, 2010.

[986 A.2d 1027]

Jason M. Dodge, with whom, on the brief, was Douglas L. Drayton, Glastonbury, for the appellants-appellees (defendants).

Angelo Paul Sevarino, Windsor, for the appellee-appellant (plaintiff).

Joram Hirsch and Robert F. Carter filed a brief, Bridgeport, for the Connecticut Trial Lawyers Association as amicus curiae.

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and McLACHLAN, Js.^*

VERTEFEUILLE, J.

294 Conn. 566

In this consolidated appeal, the defendants, Prometheus Pharmacy and CNA RSKCo Services, appeal and the plaintiff, Susan Marandino, cross appeals from the judgment of the Appellate Court,

294 Conn. 567

which had affirmed a finding by a workers' compensation commissioner that the plaintiff had a compensable arm injury but reversed the finding that she also had a compensable knee injury.¹ Marandino v. Prometheus Pharmacy, 105 Conn.App. 669, 686, 939 A.2d 591(2008). On appeal, the defendants claim that the Appellate Court improperly concluded that the plaintiff was entitled to temporary total incapacity benefits under General Statutes § 31-307(a)² of the Workers' Compensation

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Act (act) after having received permanent partial

294 Conn. 568

disability benefits pursuant to a voluntary agreement. In her cross appeal, the plaintiff claims that the Appellate Court improperly concluded that the workers' compensation commissioner for the sixth district (commissioner) improperly relied on a report by Vincent Santoro, an orthopedic surgeon, in reaching the commissioner's decision that the plaintiff's arm and knee injuries were causally related. We affirm in part and reverse in part the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts and procedural history. "In February, 1999, while employed by Prometheus Pharmacy, the plaintiff fell at her place of work and sustained an injury to her master right elbow. Beginning in July, 1999, the plaintiff underwent surgeries and received treatment for her arm injury from Andrew Caputo, an orthopedic surgeon. Specifically, on July 12, 1999, the plaintiff underwent an open reduction internal fixation of her right radial head fracture with left iliac crest bone graft, which was secured by a titanium plate, as well as a right carpal tunnel release. In December, 1999, Caputo discovered that there was a crack in the titanium plate and that surgery was required to fix it. Therefore, on January 19, 2000, the plaintiff underwent a right radial head replacement and release of her right elbow contracture.

"On March 1, 2001, the plaintiff underwent her final arm surgery, a right anterior subcutaneous ulnar nerve transposition and excision of deep sutures on her right lateral elbow. Thereafter, the plaintiff underwent an independent medical evaluation with Andrew Nelson, a physician. He diagnosed the plaintiff with, among other things, right upper extremity chronic regional pain syndrome, which he opined was directly and causally related to the injury sustained when the plaintiff fell at her place of work and that the plaintiff's prognosis was poor to fair. He also opined that she was significantly impaired, requiring ongoing narcotic medication and that `[a]t best she would only be able to utilize her right upper extremity as a sedentary assistant unless additional evaluation and possible intervention provided her function by way of range of motion, strength, and decreased pain.' Nelson opined that the plaintiff would reach maximum medical improvement in March, 2002, approximately twelve months after her final surgery on March 1, 2001. In 2002, Nelson authored a second independent medical evaluation in which he indicated that there was no significant change in the plaintiff's complaints or physical evaluation since the November 9, 2001 independent medical examination and that the plaintiff suffered from a permanent partial impairment of 41 percent of the right upper extremity.

"Beginning in June, 2000, and through the time of the hearings before the commissioner, the plaintiff was treated by a pain specialist, Steven Beck, for her arm injury. Beck's notes indicate an increase in pain, sensitivity and immobility over time, as well as an increase in narcotic medication over time to control the plaintiff's arm pain. Beck testified at his deposition that the plaintiff suffers from complete regional pain syndrome and reflex sympathetic dystrophy.

"On April 24, 2002, the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, in accordance with General Statutes § 31-308,

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on the basis of a 41 percent permanent partial impairment of her right upper extremity. The plaintiff received benefits in accordance with that agreement for 85.28 weeks.

"In the meantime, in January, 2000, between the plaintiff's first and second arm surgeries, she suffered an injury to her right knee. The plaintiff was in her home and hurriedly was ascending her basement stairs to answer a telephone that was ringing on the first floor when she felt herself fall backward. To secure her balance,

294 Conn. 570

and fearful about the crack in the plate in her right arm, the plaintiff reached out for the railing, located on her right side, with her left arm. In doing so, she jerked her body and twisted her right knee. The plaintiff was treated by [Santoro] ... for her knee injury and underwent two surgeries for an osteochondral lesion.

"At some point, after the voluntary agreement was entered into, a hearing was scheduled before the commissioner in which the plaintiff sought to receive benefits for total incapacity. Hearings were held before the commissioner on the matter, and he made several findings, specifically, that the plaintiff had a compensable 41 percent permanent partial disability of her master right arm, that her knee injury was compensable and that she was totally incapacitated and entitled to benefits in accordance with § 31-307.³ The defendants appealed to the [compensation review board (board)], challenging the commissioner's findings that the plaintiff's knee injury was compensable and that the plaintiff was totally incapacitated and entitled to benefits in accordance with § 31-307. The defendants [did] not challenge the commissioner's finding that the plaintiff has a compensable 41 percent permanent partial disability of her master right arm.⁴ The board affirmed the findings of the commissioner and dismissed the defendants' appeal." Id., at 671-74, 939 A.2d 591.

Thereafter, the defendants appealed from the decision of the board to the Appellate Court. On appeal to the Appellate Court, the defendants claimed that: (1)

294 Conn. 571

"the plaintiff is not entitled to total incapacity benefits under § 31-307 ... because the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, she is unable to request total incapacity benefits without demonstrating a change in [her] medical condition since entering into the agreement ... [and] that even if the plaintiff can demonstrate a medical change sufficient to seek modification of her award, she is not entitled to total incapacity benefits as she has not exercised reasonable diligence in securing employment and, as such, has not demonstrated a diminished earning capacity in accordance with § 31-307"; id., at 681-82, 939 A.2d 591; and (2) that the board improperly sustained "the commissioner's finding that the plaintiff's knee injury was compensable ... [because] the reports on which the commissioner relied, in part, to make this finding should not have been admitted into evidence ... [and] that

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there was insufficient evidence in the record on which the commissioner could rely to find that the plaintiff's knee injury was causally related to the prior compensable arm injury." Id., at 674, 939 A.2d 591.

The Appellate Court concluded that the board properly affirmed the commissioner's award of total incapacity benefits to the plaintiff. Id., at 685-86, 939 A.2d 591. Specifically, the Appellate Court concluded that the plaintiff had presented sufficient evidence to establish that the condition of her right arm had worsened from the time that she had entered into the voluntary agreement and that she had met her burden of establishing that she was unemployable by presenting evidence of a vocational rehabilitation expert. Id., at 684-86, 939 A.2d 591. A majority of the Appellate Court panel further concluded that the board had improperly affirmed the decision of the commissioner that the plaintiff's knee injury was compensable because the medical reports on which the commissioner relied did not constitute competent evidence. Id., at

294 Conn. 572

680-81, 939 A.2d 591. Judge Mihalakos dissented from that portion of the decision. Id., at 686, 939 A.2d 591. Accordingly, the Appellate Court reversed the decision of the board with respect to its finding that the plaintiff's knee injury was compensable, but affirmed it in all other respects. Id. This certified, consolidated appeal followed. Additional facts and procedural history will be set forth as necessary.

"As a threshold matter, we set forth the standard of review applicable to workers' compensation appeals. The principles that govern our standard of review in workers' compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... It is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the...