Atherton v. Frances Rutledge d/b/a Cake Emporium

The respondent employer was represented by John Jowdy, Esq., Jowdy & Jowdy, 67 West Street, Danbury, CT 06810.

The Second Injury Fund was represented by Robin Wilson, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who appeared at oral argument although no brief was filed.

This Petition for Review from the November 8, 1991 Finding and Award of the Commissioner for the Seventh District was heard October 30, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. Compensability of claimant’s July 7, 1991 injury to her right master thumb is not here contested. Rather, the respondent challenges the decision of the Commissioner for the Seventh District to retroactively authorize the claimant’s prior unilateral change of medical providers. We affirm the November 8, 1991 Finding and Award directing payment for medical services provided to the claimant by Dr. Christopher J. Cassels and for physical therapy services provided by Thomas J. Chapdelaine and Norwalk Rehabilitation Services.

The following facts are relevant to this appeal. On July 7, 1991, the claimant suffered a laceration to her right master thumb, an injury which arose out of and in the course of her employment with the respondent. Immediately following the injury, the claimant was treated at the Danbury Hospital emergency room and was referred to Dr. Roger LaGratta, an orthopedic surgeon. Dr. LaGratta treated the claimant on July 9, 1991, and scheduled surgery to be performed on the claimant’s hand for July 17, 1991, some eight days later. Because Dr. LaGratta was unable to promptly perform the surgery which the claimant had been advised by Danbury Hospital emergency room staff was required, the claimant on her own, without a referral from Dr. LaGratta and without prior authorization from the Commissioner, went to Dr. Christopher J. Cassels, an orthopedic surgeon, who performed surgery on the claimant’s right master thumb on July 10, 1991, at the Danbury Surgical Center.

Dr. Cassels prescribed a post-surgery course of physical therapy. Dr. Cassels, however, did not designate a particular physical therapist. The claimant initially went to Thomas J. Chapdelaine, a physical therapist, for these services. After one or two visits to Chapdelaine, the claimant became dissatisfied with his services. On her own, without a referral and without prior authorization from the Commissioner, the claimant went to the Stamford Therapy Center of Norwalk Rehabilitation Services, Inc. to complete her physical therapy.

After a formal hearing, the Commissioner authorized, retroactively, the claimant’s treatment by Dr. Cassels, Chapdelaine and Norwalk Rehabilitation Services, Inc. and ordered the respondent to pay the unpaid balances for the retroactively authorized treatment. This appeal followed.1

General Statutes Sec. 31-294d(c) provides that “[t]he commissioner may, without hearing, at the request of the employer or injured employee, when good reason exists, or on his own motion, authorize or direct a change of physician or surgeon or hospital or nursing service provided pursuant to subsection (a) of this section.” Where a claimant seeks treatment from an unauthorized medical provider, the claimant must pay for that treatment. Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD-6-86 (1988), no error, 20 Conn. App. 805 (1989).

The respondent concedes that Sec. 31-294d(c) permits a commissioner to authorize a change of medical providers. The respondent contends, however, that the statute sets forth the circumstances under which a commissioner may authorize such a change and therefore cannot be read to authorize a commissioner to retroactively approve a change of medical providers. We disagree.

The Workers’ Compensation Act is remedial in nature and should be broadly construed to accomplish its humanitarian purpose. Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 256 (1992). Significantly, our law “recognize[s] the legislative idea that the employer as well as society benefit by the early restoration to health of the injured employee”. Carney v. Plimpton Mfg. Co., 111 Conn. 401, 405 (1930).

The respondent correctly points out that the language of Sec. 31-294d(c) does not expressly empower the commissioner to retroactively authorize a change of medical providers. Yet, the language of Sec. 31-294d(c) does not expressly prohibit such action by the commissioner either. Additionally, language identical to that now contained in Sec. 31-294d(c) has long been part of our Workers’ Compensation Act. That provision is an integral part of our statutory scheme which gives employees “a greater freedom of choice” regarding medical providers and authorizes the commissioner to “inquir[e] into the circumstances surrounding the choice of physician”. Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 21, 890 CRD-4-89-6 (1991).

We have previously held that a commissioner’s exercise of authority pursuant to General Statutes (Rev. to 1991) Sec. 31-294, the predecessor to Sec. 31-294d(c), includes the retroactive authorization of a change of medical providers. In McConnell v. Hewitt Associates, 8 Conn. Workers’ Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990), the respondents claimed that they were not liable for medical services rendered by Dr. Stanley Fromm prior to the date of the letter from the claimant’s then treating physician referring the claimant to Dr. Fromm. The trial commissioner, however, utilized his statutory authority to authorize those services provided by Dr. Fromm. Notwithstanding the retroactive exercise of that authority by the trial commissioner, we upheld that action after concluding that our review of the record revealed no abuse of discretion in this regard. Id. It is significant that although the legislature has amended the Workers’ Compensation Act since our decision in McConnell, it has not disturbed our construction of the language of Sec. 31-294d(c) permitting a commissioner to retroactively approve a change of medical providers. See Cummings v. Twin Mfg. Co., supra, 256. We must therefore address the question of whether the retroactive authorization of the change of medical providers in this case was within the wide discretion afforded the trial commissioner.

Immediately upon injuring her hand, the claimant was treated by an emergency room physician. That physician referred her to Dr. LaGratta and told her that she “should get surgery done as soon as possible”. (Transcript of October 29, 1991, p.6) At the formal hearing, the claimant described her situation upon learning that Dr. LaGratta was unable to perform the necessary surgery for eight days, as follows: “I was in a splint and the cut was opened, ... it was very uncomfortable and painful and I wanted to get it done as soon as possible so that I would be able to write in the fall for school.” (Transcript of October 29, 1991, p.6)2 Under these circumstances, it was entirely reasonable and consistent with the purposes of the Workers’ Compensation Act for the claimant to seek immediate surgical services from Dr. Cassels. Our review of the record, then, reveals no abuse of discretion on the part of the trial commissioner in giving retroactive authorization to the medical services provided by Dr. Cassels.

Dr. Cassels directed the claimant to engage in physical therapy following surgery. He did not refer her to a specific provider for those rehabilitation services because his office was located some distance from the claimant’s home. Instead, the choice of a physical therapist was left to the claimant’s choice by her now treating physician. The claimant’s visits to Thomas Chapdelaine for physical therapy services as part of her prescribed post-surgical treatment were therefore properly compensable. Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 1160 CRD-7-91-1, 1240 CRD-7-91-5 (1992).

The claimant, however, once again made a unilateral change of medical providers when she left the care of Chapdelaine and completed her physical therapy at The Stamford Therapy Center. The claimant made this change of providers when she concluded, after an initial visit or two to Chapdelaine, that she did not feel sufficiently comfortable with him to go forward with the course of treatment which required visits twice weekly. Under these circumstances, it was entirely reasonable and consistent with the purposes of the Workers’ Compensation Act for the claimant to change medical providers. Our review of the record, then, reveals no abuse of discretion on the part of the trial commissioner in giving retroactive authorization to the physical therapy services provided by Norwalk Rehabilitation Services, Inc.

We, therefore, affirm the Seventh District Commissioner’s November 8, 1991 Finding and Award and September 11, 1992 Supplemental Order directing payment for medical services provided to the claimant.

Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.

1 On September 10, 1992, while this appeal was pending, the Commissioner for the Seventh District held a formal hearing to update the bills for authorized hospital, medical and physical therapy services which were not included in the November 8, 1991 Finding and Award. On September 11, 1992, the trial commissioner issued a Supplemental Order amending the November 8, 1991 Finding and Award to reflect the correct dollar amount for compensable medical and physical therapy services rendered to the claimant.

Although the respondent did not formally seek our review of that order or otherwise amend the reasons for appeal to include a challenge to that decision, we will review that Supplemental Order as it is based on the prior Finding and Award challenged in this appeal. BACK TO TEXT

2 At the date of injury, the claimant was a full-time student at Western Connecticut State University and worked part-time for the respondent. BACK TO TEXT