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Nacaroglu v. D. B. Kelly Associates4/30/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division pursuant to an order issued to the parties to show cause why the appeal should not be summarily decided on the grounds that the issue on appeal involves the exercise of the trial judge's discretion in relying upon the opinion of one (1) medical expert over the opinion of another. See Parenteau v. Zimmerman Eng., Inc., 111 R.I. 68, 299 A.2d 168 (R.I. 1973). After reviewing the record and considering the arguments of the parties, we find that cause has not been shown and the matter is in order for decision.
The employee was injured on October 8, 2000 when he was kicked in the chest while attempting to restrain a patient at Rhode Island Hospital. Pursuant to a pretrial order entered on March 27, 2001 in W.C.C. No. 03-05956, it was found that the employee sustained a left chest wall contusion and a cervical strain resulting in partial incapacity from October 9, 2000 and continuing. Subsequently, Mr. Nacaroglu's weekly benefits were discontinued as of February 8, 2002 in accordance with a decree entered on August 8, 2002 in W.C.C. No. 02-00507.
The present case arises from an Employee's Petition to Review in which the employee alleges that his disability returned as of May 29, 2003 and that the description of his work injury should be amended to include "chest wall pain." The trial judge, in a decree entered on June 28, 2004, found that the employee failed to prove that the description of the injury should be amended. However, he did find that the employee sustained a return of incapacity due to the effects of the work injury on October 8, 2000 and he awarded weekly benefits for partial incapacity from May 29, 2003 to December 15, 2003. The employer has appealed that decision.
The employee, a sixty-six (66) year old male, testified that he had persistent chest pain after his benefits were discontinued in February 2002. He sees his treating physician every six (6) weeks and takes about four (4) or five (5) Vicodin each day for pain relief. On April 7, 2003, he began working at a 7-Eleven store, cleaning the store and keeping an eye on the cash register. He only worked for about seven (7) weeks and stopped on May 29, 2003, because his chest and neck bothered him so much. He explained that he also had neck pain from the injury and this caused headaches.
Mr. Nacaroglu recounted that he sustained a collapsed left lung in March 2000 while working for the employer and was out of work for three (3) months thereafter. He then returned to work for D. B. Kelly at a different location. He asserted that he had no chest pain from this incident when he returned to work.
The medical evidence consists of the depositions and records of Dr. John J. Machata and Dr. Gilbert L. Shapiro. Dr. Machata, the employee's primary care physician, has treated the employee for the effects of his work injury since October 10, 2000, as well as his other medical problems. He also has some additional education in the area of chronic pain management. The doctor noted that when Mr. Nacaroglu's chest wall pain did not resolve after a lengthy period of time, he referred him to a pain clinic where the employee underwent a series of injections. The injections significantly decreased the pain he was experiencing to the point that Dr. Machata discharged him from his care regarding that condition on May 16, 2002. Although the employee experienced some increase in pain about a month later, he was still functioning relatively well.
After the employee began working at 7-Eleven in April 2003, he informed Dr. Machata that he experienced increased pain in the chest wall area and his neck after mopping
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