NO. 5164-CRB-8-06-11) MASTROPIETRO, VARGAS AND BARTON . JAN. 29, 2008 . 21

The Compensation Review Board clarified the standard of scientific evidence needed to approve an unconventional surgical procedure. Alice Vannoy-Joseph injured her low back in July 1985 while employed by the Connecticut Department of Mental Health and Addiction Services. In 2003, Dr. Yue diagnosed her with degenerative disc disease at three levels and recommended disc replacement surgery once the Food and Drug Administration approved the ProDisc device. Dr. Zack, the claimant's family practitioner agreed. Dr. Lange, the respondent's examiner, opined that the claimant was not a good candidate for surgery and questioned the lack of FDA approval. The 46 year old claimant testified to intractable pain, difficulty walking and numbness in her legs. She has not worked since low back symptoms forced her to leave her part-time job as a bus dispatcher in 1997. She relies on pain medication including OxyContin, morphine and transdermally delivered fentanyl. She developed depression and obesity as a result of chronic pain. The trier found that the opinions, objective testing and surgical recommendation of Dr. Yue were reasonable and credible and authorized him to perform the disc replacement procedure. The respondent appealed. The Compensation Review Board denied the respondent's motion to submit additional evidence and proceeded on the factual premise that the trial commissioner approved the request for three level disc replacement surgery after finding that the ProDisc device was approved by the FDA for use at only one level. Authorization did not need to depend on FDA approval of the three level use. Such 'off-label' uses often emerge. However, here there was insufficient evidence to support the trier's conclusion authorizing surgery. The matter was remanded to address the scientific validity of three level disc replacement surgery for individuals comparable to the claimant. The board articulated the standard as: in the case of a contested surgical procedure that is not well-established in the medical community, the evidence must include enough information for the trier to grasp the concepts and methods that support the procedure and to anticipate that it will be effective for individuals comparable to the claimant. The commissioner must carefully examine the methodology underlying the proponent health care provider's opinion, assess the credibility of the evidence supporting the various treatment options and decide which is the most reasonable under all of the circumstances. Here, the record left many doubts as there was little evidence to show the clinical success of multi-level artificial disc replacement in treating discogenic back pain. To enable the trier to evaluate this surgery with confidence and protect the claimant's interests, the record must be strengthened with scientifically sound evidence supporting the procedure.

Vannoy Full Case Decision Connectiuct Workers Compensation Review Board January 2008  CRB-2008-5164

Unrealistic expectations:

The Workers’ Compensation Act is a statutory compromise of legal rights that governs injuries arising out of and in the course of employment. Klapproth v. Turner, 156 Conn. 276, 279 (1968). It requires the employee to surrender the common-law right to sue the employer for damages in favor of “a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000), quoting Middletown v. Local 1073, 1 Conn. App. 58, 65 (1983), cert. dismissed, 192 Conn. 803 (1984); Casey v. Northeast Utilities, 249 Conn. 365, 378-79 (1999).

I expected a prompt, efficient, simple and inexpensive procedure. I didn't get that.

All those who did, raise your hands!

January 2008 Vannoy v. State (for Mr. P)

It took me over 900 days to go from treatment being cut off to a Commissioner's decision on the issue. That must be the prompt and efficient part. (I'm sure one of the experts can explain how this was my fault)
I believe we have certainly reached a tipping point. For many the system simply doesn't work in a manner that honors the statutory compromise or serves the mission of the Worker's Compensation Administration.
Many of us just wanted to get well and found that there was simply no way to do so within the Compensation system.
We are angry because despite all the hearings, decisions, legal precedents, guidelines, protocols, board certified attorneys and the rest of the window dressing, msny of us have experienced gross violations of our civil and constitutional rights. We feel it deep in our beings, deep in our hearts. Only justice can ease this feeling.
I think we need to hone our complaints to a fine point.

It is so easy to portray us disgruntled whiners who have unrealistic expectations.

If you had 60 seconds to present your case to an authority that could make things right, what would you say.

In my case the process was neither prompt or efficient. In the end I had an unfair trial
in which I was improperly represented by a board certified attorney. I certainly did not receive due process of law, but merely an illusion of due process. I didn't feel I should be required to "play ball" and was then punished for "bucking the system." The facts. will prove the charges I am making.

I'm concerned that this continues to happen. Unhappy 1 is currently dis-satisfied with the trial decision (because as usual the decision is based on scant and biased evidence) and the attorney involved is not inclined to appeal and may allow the statutory time frame within which to appeal to lapse. Once again the treating physician can not treat.
If I recall correctly, an IME said the surgery in question "might not help." How ridiculous is that? Can the claimant obtain legal representation to advance their position, or do we have another pro se appeal in which the high powered insurance lawyer makes mince meat out of a claimant with a legitimate appeal?

I'm off subject. The Connecticut Worker's Comp system is so slanted that it is impossible to obtain due process. Multiple claimants making the same charge might have a realistic chance in federal court Again, the political climate is changing rapidly.
The president elect was a civil rights lawyer and professor of constitutional law.

I'm not suggesting that the new president will fix everything, only that there may be no better time than now to move foward.

The heroes that Mr. Picket wrote of previously tried to bring their complaints to Federal court individually without success.
Maybe it's because they were individual.
Criscio v. State of Connecticut/Southern Connecticut State Univ.

“[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996). Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. Conway v. Wilton, 238 Conn. 653, 658-59, 680 A.2d 242 (1996). It is the most important application of a theory of decisionmaking consistency in our legal culture and it is an obvious manifestation of the notion that decisionmaking consistency itself has normative value. . . . Id., 658.” (Internal quotation marks omitted.) Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 296, 695 A.2d 1051 (1997).
George, supra, 318.
Diaz v. Jaime Pineda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company CASE NO. 5244 CRB-7-07-7

The claimant was represented by Kevin Blake, Esq., and Rebekah Sprano, Esq., Shepro & Blake, 2091 Main Street, Stratford, CT 06615.

The respondent Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

The respondent-employer did not appear.

This Petition for Review from the July 5, 2007 Finding of the Commissioner acting for the Seventh District was heard January 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

(Unless of course we decide to change the rules:(