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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 Jodlowski, appeals from the decision of the Workers’ Compensation Review Board (board) affirming the decision of

the Workers’ Compensation Commissioner (commissioner), 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 finding and dismissal dated December 15, 2014. The plaintiff

sustained compensable injuries to his neck, back, shoulder, 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 commissioner 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 benefits. In addition, the commissioner found that the plaintiff’s pain management treatment with Jonathan Kost,

medical director of the pain treatment center at Hartford 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 continued 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 September 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 electromyography 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 notrecommend a spinal cord stimulator 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 Rosomoff Center.

The plaintiff referred himself to Joseph Aferzon, a

neurosurgeon, who examined him on April 30, 2014.

Aferzon opined thatthe plaintiff should undergo a discogram3 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 opinions 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 management, 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 regarding the plaintiff’s need for a spinal stimulator and lumbar 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 commissioner 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 commissioner authorized the plaintiff’s claim that he

undergo treatment at the Rosomoff Center. The commissioner 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 optimal 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 commissioner. The commissioner found the opinions of the

defendant’s experts to be more persuasive. As an appellate 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 whetherthe review [board’s] decision results

from an incorrect application of the law to the subordinate 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 quotation 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 commissioner may reject or accept evidence . . . . It is not

the province of this court to second-guess the commissioner’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 determinations.’’ (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 commissioner’s decision as to the medical evidence he found

more persuasive. The medical opinions provided by

Wakefield and Kaplan are probative evidence that lumbar fusion surgery was not recommended for the plaintiff. 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 presented to the commissioner. The plaintiff’s claim

requires us to construe the statute. Statutory construction 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. Columbia, 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 accomplish 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 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 statute, therefore, directs an individual seeking

workers’ compensation benefits to submit to an examination 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 statutory 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.ucsfhealth.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.mayoclinic.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-procedures/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 medical notes supporting lumbar surgery that were authored by Aferzon and

Jeffrey Bash, an orthopedic surgeon. The defendant objected to the admission 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 submit 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 examination 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 examination under this section shall suspend his right to compensation during

such refusal.’’