CRB OPINION
CASE NO. 6536 CRB-4-24-3
CLAIM NOS. 400098611 & 400117086
COMPENSATION REVIEW BOARD
WORKERS' COMPENSATION COMMISSION
JUNE 20, 2025
RONDELL MILEY
CLAIMANT-APPELLEE
v.
PARK CITY COMMUNITIES/
BRIDGEPORT HOUSING AUTHORITY
EMPLOYER
and
FUTURECOMP
THIRD-PARTY ADMINISTRATOR
RESPONDENTS-APPELLANTS
APPEARANCES:
The claimant was represented by John T. Bochanis, Esq., Daly, Weihing & Bochanis, L.L.C., 1776 North Avenue, Bridgeport, CT 06604.
The respondents were represented by Brenda C. Lewis, Esq., Williams Law Firm, L.L.C, 2 Enterprise Drive, Suite 412, Shelton, CT 06484.
This Petition for Review from the February 29, 2024 Finding and Award of Carolyn M. Colangelo, Administrative Law Judge acting for the Fourth District, was heard January 31, 2025 before a Compensation Review Board panel consisting of Chief Administrative Law Judge Stephen M. Morelli and Administrative Law Judges Peter C. Mlynarczyk and Daniel E. Dilzer.[1]
OPINION
STEPHEN M. MORELLI, CHIEF ADMINISTRATIVE LAW JUDGE. The respondents have appealed from a Finding and Award (finding) wherein Administrative Law Judge Carolyn M. Colangelo awarded the claimant temporary partial disability benefits for a compensable lumbar spine injury. The respondents argued that the record did not support the relief awarded to the claimant and argued that the claimant failed to establish that he was placed under work restrictions or that his current condition was the result of a compensable injury. The claimant argued that the medical evidence presented, particularly those from the commission’s medical examiner, supported the award. Having reviewed the record, we conclude that there was sufficient evidence that the administrative law judge could have deemed probative and reliable to sustain an award of benefits. Therefore, we affirm the February 29, 2024 Finding and Award.
The administrative law judge noted that the claimant filed claims for injuries allegedly sustained on March 27, 2015 and February 10, 2021. She also noted that the parties had reached a stipulation to date for the time period prior to February 9, 2021. The claimant was hired by the respondents in 2006 as a maintenance worker for their apartment buildings. His employment was terminated in 2012, but he was reinstated in 2013. See n.2 of the finding.[2] According to the claimant’s testimony at the formal hearing, “he was moving a hot water tank and felt a ‘pop’ in the right side of his lower back” on March 27, 2015. Findings, ¶ 4. The claimant further testified he felt worse as his workday progressed and needed help from co-workers to reach his car at the end of his shift. See Findings, ¶¶ 5-6. He was unable to get an immediate appointment with his primary care physician but was able to be examined later that day by his treating chiropractor, Robert Pesale. See Findings, ¶¶ 7-8. The claimant had a preexisting history over the years of having been treated by Pesale for low back pain. The last time the claimant was seen by Pesale for his back prior to the March 27, 2015 incident was on October 14, 2024. Pesale’s notes from that visit indicated the claimant was at 2/10 on the pain scale but later Pesale opined that this pain had resolved. See Findings, ¶ 9.[3] In his treatment notes from March 27, 2015, Pesale stated the claimant’s back pain was continuous at a 10/10 level and had begun when he was moving a water tank at work. Pesale diagnosed a disc displacement and ordered an MRI. See Findings, ¶¶ 11, 13.
The claimant underwent a number of treatment modalities including physical therapy and pain management. See Findings, ¶ 12. On April 7, 2015, the claimant underwent an MRI at Advanced Radiology which documented a “15 mm extruded right-sided disc herniation at L5/S1.” Findings, ¶ 14. The claimant denied any prior disc herniation. See Findings, ¶ 15. Despite ongoing treatment in April and May of 2015, the claimant experienced increased pain, and was, therefore, referred to Gary A. Zimmerman, a neurosurgeon. See Findings, ¶ 18. Zimmerman examined the claimant on May 7, 2015, and noted “severe lumbar radiculitis due to the changes noted on the MRI” including the herniated disc. Findings, ¶ 20. Zimmerman kept the claimant out of work and, on June 16, 2015, he recommended surgery to address the claimant’s back ailments. See Findings, ¶ 23. The claimant chose not to undergo surgery and continued to pursue conservative treatment. See Findings, ¶ 24.
The claimant underwent another MRI on June 27, 2015, which had similar results to the prior scan. On October 5, 2015, Zimmerman opined that the claimant had a light‑duty capacity until further notice. See Findings, ¶ 25. The claimant testified that he needed assistance from other workers to lift heavy objects at his job. See Findings, ¶¶ 28-29. After he was terminated by the respondent in April 2016, he returned to his primary care physician, Lee Forest, on August 16, 2016. During that appointment, the claimant reported that he needed a release to return to work, claiming he felt well enough to work as long as he didn’t perform heavy lifting. See Findings, ¶¶ 30-31. An October 20, 2016 note from Forest stated that “patient can be released to full‑duty with no restrictions but should be very mindful with lifting.” Findings, ¶ 32. The claimant was reinstated to his job in early 2017 pursuant to a reinstatement agreement with his employer. See Findings, ¶ 33. In 2017, the claimant began pain management treatment at CORE Physical Therapy with David Tung, M.D. Tung issued a letter on August 10, 2017, casually connecting the claimant’s condition to the March 27, 2015 work incident and limiting the claimant to lifting less than 50 pounds. The claimant underwent follow-up MRIs on August 29, 2017 and December 8, 2017, which showed continued disc protrusion at L5/S1. See Findings, ¶¶ 37-38. In October 2018, the claimant transferred his pain management treatment to Robert Boolbol, M.D. See Findings, ¶ 39. The claimant continued to treat with Boolbol through 2021. Treatment notes from Boobol cited by the administrative law judge stated that the claimant was not obtaining satisfactory results from the modality of treatment being employed but was also not considered a candidate for surgical intervention. See Findings, ¶ 40.
The claimant reported that he injured his back again on February 10, 2021, as a result of repetitious lifting while shoveling snow at work. He filed a timely claim which the respondents initially denied but later accepted as an aggravation of the prior work injury. On February 16, 2021, Pardeep Sood, M.D., another pain management specialist, examined the claimant and noted that he was “doing very poorly especially from shoveling the snow.” Findings, ¶ 42. Sood ordered another MRI and issued a work note keeping the claimant out of work until March 16, 2021. See Findings, ¶ 44. An MRI conducted on March 15, 2021 showed disc desiccation and protrusion at L5/S1. See Findings, ¶ 45. On April 13, 2021, Sood issued a note which returned the claimant to work with a 50-pound lifting restriction. See Findings, ¶ 46. The claimant’s employment was subsequently terminated, after which he performed weekly job searches. See Findings, ¶¶ 49-53.
The administrative law judge also considered evidence from the respondent’s medical examiner and a commission medical examiner. The respondent’s examiner, Howard Lantner, a neurosurgeon, initially examined the claimant on December 1, 2021, and found the claimant suffered from chronic low back symptoms with disc degeneration. He did not, however, relate the claimant’s need for pain management to the February 10, 2021 incident. See Findings, ¶ 58. He further opined that the claimant would not benefit from any further therapy. See Findings, ¶ 59. Lantner found the claimant had a work capacity with a 25-pound lifting restriction based on the claimant’s subjective complaints, not the February 10, 2021 incident, see Findings, ¶ 60, and further opined the claimant was at maximum medical improvement. See Findings, ¶ 61. Lantner reexamined the claimant on July 25, 2023, for the purpose of rendering an opinion as to the impact of the March 27, 2015 and February 10, 2021 incidents on the claimant’s condition. See Findings, ¶ 62. He originally testified at his deposition that he did not previously have information available to enable him to opine as to whether the 2015 incident was a factor in the claimant’s condition. However, he later testified that, by March 2016, the claimant should have reached maximum medical improvement from the March 27, 2015 injury. See Findings, ¶¶ 63, 66. When asked about the impact of that incident, Lantner testified, “I don’t have a strong opinion on whether [the claimant’s] reported incident on March 27, 2015 … [was] a minor exacerbation, inconsequential, insignificant … or whether the incident is also a contributing factor as is his preexisting history.” Findings, ¶ 67.
Jarob Mushaweh, a neurosurgeon, performed a commission medical examination on June 21, 2022. He opined that the claimant had ongoing pain since March 27, 2015, and the February 20, 2021 incident would have caused a temporary aggravation which would have returned to baseline within four weeks. See Findings, ¶ 68. He further opined the claimant might need ongoing treatment for his lumbar condition, but this was due to preexisting conditions, not the 2021 incident. See Findings, ¶ 69. Mushaweh testified that he did not know what caused the claimant’s pre-existing condition, as “[h]e’s been so symptomatic for so long, even prior to the 2015 incident.” Respondent’s Exhibit 2, p. 19. The claimant’s disc protrusion first manifested itself in 2015 “[s]o it must have been the injury in 2015 was the cause of that.” Id. He further testified that, while the claimant may have previously been a surgical candidate, he was in an “entirely different condition” due to degenerative disc disease. Findings, ¶ 73. He believed the progress of that disease may have been aggravated by the claimant’s 2015 work injury. See id. Mushaweh further opined that the claimant’s nerve root had been compressed by the herniated disc, the claimant needed to lose weight, and he needed to be weaned off narcotics. See Findings, ¶¶ 74-76. He further described the claimant’s back pain as being “multifactorial.” Findings, ¶ 78.
Based on this record, the administrative law judge concluded that the claimant was credible and there was no indication in the record that the claimant’s level of pain prior to March 27, 2015, was at the same level of severity as it was after the incident. She did not find there had ever been a full-duty release of the claimant without restriction after that incident as she deemed Forest’s October 20, 2016 note to include a lifting restriction, as it said the claimant was to be “mindful of lifting.” Conclusions, ¶¶ A-D. She found Zimmerman’s opinions that the claimant “is a healthy male with no significant past medical history” and “[h]e has never undergone surgery/hospitalization” persuasive. Claimant’s Exhibit H. She found Tung’s opinion as to causation of the claimant’s injury and subsequent restrictions persuasive. She found that Tung, Boobol, Zimmerman, and Sood had all placed restrictions on the claimant and those opinions were credible. See Conclusions, ¶¶ E-G. She found Lantner’s opinion as to a lifting restriction credible, but did not find his opinions as to maximum medical improvement or the impact of the March 27, 2015 injury persuasive. See Conclusion, ¶ H. She found Mushaweh persuasive that the March 27, 2015 incident caused the claimant’s disc herniation and that the February 20, 2021 incident was a temporary aggravation. Based on Mushaweh’s opinions, the administrative law judge found continued treatment for the claimant was reasonable, necessary and related to the 2015 injury. See Conclusions, ¶¶ I‑K. Furthermore, the administrative law judge did not find the claimant had reached maximum medical improvement. See Conclusion, ¶ M. Finally, she found the claimant ready, willing, and able to work within his restrictions. See Conclusion, ¶ O. Therefore, she awarded the claimant General Statutes § 31-308 (a) benefits and determined he should continue to treat for the compensable 2015 injury. See Order, ¶ 4.
The respondents argued that the claimant failed to establish, with credible evidence, that he was entitled to temporary partial disability benefits; his current condition was related to a compensable injury; he continued to have work restrictions; and he had not reached maximum medical improvement. While the respondents cited Madden v. Danbury Hospital, 5745 CRB-7-12-4 (April 22, 2013), for this proposition, we note that in Madden, we affirmed a finder of fact who awarded benefits based on the opinions of the claimant’s treating physicians and we cited Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003), for the proposition that, “[i]f on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.”
The evidence cited by the administrative law judge in her finding clearly established that the claimant sustained a significant injury at work on March 27, 2015. The notes from Pesale prior to that incident reflected that the claimant reported a pain level of his lower back of only “2 out of 10, on a scale from 0 to 10, with 10 being the worst.” Respondent’s Exhibit 5, October 17, 2014 office note, p. 1, while the treatment notes immediately following the work injury cited the claimant experiencing a 10 out of 10 pain level. See Claimant’s Exhibit A, March 27, 2015 office note, p. 1. The commission medical examiner, Mushaweh, attributed the claimant’s disc herniation to the March 27, 2015 incident. “Yes, the first MRI scan I reviewed in April of 2015 did show extruded disc, acute herniation of the disc. So it must have been the injury in 2015 was the cause of that.” Respondent’s Exhibit 2, p. 19.
Mushaweh’s testimony was consistent with the causation opinions of the claimant’s treating physicians. See Zimmerman’s May 7, 2015 report (Claimant’s Exhibit H) and Tung’s July 11, 2017 report (Claimant’s Exhibit P). Therefore, a sufficient basis of evidence herein existed pursuant to Strong, supra, to determine a work injury was a substantial factor in the claimant’s disc herniation and subsequent work restrictions.[4]
On the issue of work restrictions, the respondents claimed it was error for the administrative law judge not to credit the opinion of Forest that the claimant could return to work without restrictions. We disagree. Forest’s report contained caveats as to the claimant being “mindful of lifting” which suggested that his opinion was equivocal. The administrative law judge noted that every treater had placed lifting restrictions on the claimant, a position which was shared by the respondent’s expert witness, Lantner.[5] See Respondent’s Exhibit 3, pp. 13-14. The finding that the claimant’s compensable back injury restricted his work capacity, therefore, was well founded by probative evidence, including that proffered by the respondents.
The respondents also challenged the finding that the claimant was entitled to temporary partial disability benefits. The administrative law judge concluded, though, that the claimant sustained a compensable injury, had restrictions which caused him to be unable to perform his previous job, and he continued to seek employment within his restrictions. See Findings, ¶ 53. We believe that, based on these conclusions, the administrative law judge could find the claimant had satisfied the statutory requirements to obtain such as award.
We also note that the medical evidence presented herein demonstrates that the claimant continues to suffer from the effect of the March 27, 2015 injury. At his deposition, Mushaweh agreed with claimant’s counsel that the claimant’s current pain management treatment stemmed from his injured lumbar disc. See Respondent’s Exhibit 2, p. 28. While the respondents argued that the claimant failed to provide a basis to justify further treatment, that was contradicted by Mushaweh’s testimony that he agreed with claimant’s counsel that the claimant required ongoing treatment for his lumbar spine. Id., p. 24.
We turn now to the issue of maximum medical improvement. As our Supreme Court stated over a century ago in Wrenn v. Connecticut Brass Co., 96 Conn. 35 (1921).
The complete and permanent loss of the use of the arm occurs when no reasonable prognosis for complete or partial cure and no improvement in the physical condition or appearance of the arm can be reasonably made. Until such time the specific compensation for the loss of the arm, or for the complete and permanent loss of its use, cannot be made.
Id., 38.
The question of whether a claimant has achieved maximum medical improvement is a fact-based exercise. In order for this tribunal to reverse the decision of the trier of fact, we would need to determine that the evidence would only support a contrary decision to what the administrative law judge decided.
Our review of the evidence in this case indicates there was no definitive opinion regarding maximum medical improvement. None of the claimant’s treaters opined that the claimant had reached maximum medical improvement. The claimant had treated for back pain continuously since the March 27, 2015 incident. Lantner opined that, with conservative treatment, the claimant would have reached maximum medical improvement for the March 27, 2015 injury by March 2016. See Respondent’s Exhibit 3, p. 39. Mushaweh, however, did not make such a definitive statement, describing the issue of whether the claimant had reached maximum medical improvement as a “very difficult question to answer” and suggesting that he “probably” reached this level by December 2017, but continuing on that this opinion was “just pure conjecture on my part.” Respondent’s Exhibit 2, pp. 20, 21.
On appeal, we generally extend deference to the decisions made by the administrative law judge. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004), quoting Burton v. Mottolese, 267 Conn. 1, 54 (2003). The Compensation Review Board cannot retry the facts of the case and may only overturn the findings of the administrative law judge if they are without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. See Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 384 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006), this board observed that “[t]here are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence.” We do not believe that it was unreasonable for the administrative law judge to review this evidence and be left unpersuaded that the claimant had yet to reach maximum medical improvement.
The respondents filed a timely motion to correct that sought wholesale changes to the decision, including a finding that the claimant had no current work restrictions; there were no recommendations for further treatment; the claimant had not established that his disc herniation was the result of a compensable injury; and that he had reached maximum medical improvement. The administrative law judge denied this motion in its entirety and the respondents pursued this appeal. The gravamen of their argument was that the administrative law judge’s conclusions had inadequate support in the record. The claimant argued that the respondents were merely seeking to relitigate the facts of this case on appeal. After reviewing the record, we agree with the claimant. Upon review, we conclude it was essentially an attempt to replace the conclusions reached by the administrative law judge with the respondent’s view of the evidence. The administrative law judge was under no obligation to adopt the respondent’s position. See Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (per curiam).
There is no error, the February 29, 2024 Finding and Award of Carolyn M. Colangelo, Administrative Law Judge acting for the Fourth District, is herein affirmed.
Administrative Law Judges Peter C. Mlynarczyk and Daniel E. Dilzer concur in this Opinion.
[1] We note that five motions for extension of time and a motion for continuance were granted during the pendency of this appeal.
[2] During the course of this claim, the respondent terminated the claimant’s employment in April 2016, but he was reinstated in 2017. See Findings, ¶ 30. The claimant’s employment with the respondent was terminated again when the respondent sent the claimant a letter dated July 12, 2021, advising him that he was on “undocumented, unpaid leave” and effective June 2022 his employment would end. Findings, ¶ 49‑51.
[3] The administrative law judge also noted that the claimant’s primary care physician, Lee Forest, D.O., had documented the claimant reported low back pain to him at various occasions prior to 2015, noting in particular, an October 7, 2009 and an October 13, 2014 note. The administrative law judge further noted that neither report indicated the severity of the pain. See Findings, ¶ 10.
[4] We believe the administrative law judge could reasonably have found Lantner’s opinion as to the weight of the March 27, 2015 incident on the claimant’s condition too equivocal and vague to have merited reliance. See Respondent’s Exhibit 3, pp. 29-32.
[5] See Conclusion, ¶ G; see also Zimmerman’s May 7, 2015 office note (Claimant’s Exhibit H); Tung’s August 10, 2017 office note (Claimant’s Exhibit P); Boolbol’s October 5, 2015 office note (Claimant’s Exhibit F); and Sood’s March 18, 2021 office note (Claimant’s Exhibit F).