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Davis v. New London Board of Education

CASE NO. 1346 CRD-2-91-11

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 10, 1993

BETTY DAVIS

CLAIMANT-APPELLEE

v.

NEW LONDON BOARD OF EDUCATION

EMPLOYER

and

FRANK B. HALL RISK MANAGEMENT

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by James P. Berryman, Esq., Suisman, Shapiro, Wool, Brennan and Gray, P.C., P.O. Box 1591, New London, CT 06320.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett and Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the November 4, 1991 Finding and Award of the Commissioner for the Second District was heard November 20, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Frank J. Verrilli.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents petitioned for review from the Second District Commissioner’s November 4, 1991 Finding and Award. On appeal, the respondents contend that the trial commissioner improperly (1) awarded benefits where the issue of the type and amount of benefits was not among the issues for decision stipulated to by the parties at the conclusion of the formal hearings, (2) denied the motion to correct, (3) failed to find either a specific date of injury located as to time and place or an injury caused by repetitive trauma occurring over a specified period and (4) found the treatment of certain medical providers to be authorized. We affirm the finding of compensability, but agree with respondents as to the limited issues presented below for decision and vacate the award of benefits as outside the issues submitted. In all other respects, however, the decision of the commissioner must stand.

The claimant sought workers’ compensation for a back injury alleged to have occurred on December 18, 1986, when the claimant was attempting to open a window at work. The respondents disputed the issue of compensability and claimed that certain medical treatment provided to the claimant was unauthorized.

The commissioner found that the claimant suffered an injury to her back when she attempted to lift a window while at work. He also found that the challenged medical treatment was reasonable and necessary medical care. Finally, the commissioner made findings as to the amount of medical benefits, the claimant’s weekly compensation rate, her dates of temporary disability and the extent of her permanent disability as well as the date of maximum medical improvement.

At the conclusion of the formal hearings before the commissioner, the parties stipulated that the following issues were properly before the commissioner as a result of the hearings: (1) compensability, (2) the date of injury and (3) whether Drs. Selden and Lange were authorized treaters. Compare Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988) (stipulation by parties to limit issues not part of record). Consequently, both parties agree that the commissioner’s award of medical benefits and total and partial disability benefits went beyond the scope of the parties’ stipulation. While a formal stipulation of the parties may be disregarded in an appropriate case; see, e.g., Pyne v. New Haven, 177 Conn. 456, 464-65 (1979); Hartford v. American Arbitration Assn., 174 Conn. 472, 476-77 (1978); the effect of the commissioner’s disregard of the stipulation here was to deprive the parties of an opportunity to present evidence on the issue of the appropriate amounts to be awarded for medical and disability benefits. Under such circumstances, the award cannot stand. See Bernston v. Annino, 177 Conn. 41, 44 (1979); Papa v. Youngstrom, 146 Conn. 37, 40-41 (1958); Moran v. New York, N.H. & H.R. Co., 107 Conn. 454, 457 (1928).

The respondents’ challenge to the trial commissioner’s denial of their Motion to Correct is bound up in their remaining claims on appeal. In our discussion of the respondents’ third and fourth claims, we will also address those portions of the Motion to Correct which are implicated by those other claims.

The respondents claim that the trial commissioner failed to make any finding regarding an injury located as to time and place. General Statutes (Rev. to 1987) Sec. 31-275(8) [now Sec. 31-275(16)] defines “personal injury” or “injury”, inter alia, as “accidental injury which may be definitely located as to the time when and the place where the accident occurred.” Our reading of the Finding and Award, in light of the evidence presented, convinces us that the commissioner found that the claimant sustained her work injury on December 18, 1986.

The claimant first testified that her injury occurred on a Thursday, that she worked the following day and that she sought medical attention on the next day. Although she initially identified the date of injury as December 12, 1986, she later indicated that the date was December 18, 1986 because that was a Thursday.

Throughout his findings, with one exception, the trial commissioner identified December 18, 1986, as the relevant date. The commissioner found that there was a contract of employment between the claimant and the respondent-employer on that date (Finding and Award, paragraph 1) and that it was the claimant’s contention that she suffered an injury to her back at work on December 18, 1986 (Finding and Award, paragragh 31). Additionally, the commissioner noted that an accident report filed by the claimant’s supervisor listed December 12, 1986, as the date of the accident. The commissioner, however, found that the accident was reported the day after the accident (Finding and Award, paragraph 7), which according to the report was December 19, 1986.

The only exception to this consistent recitation of December 18, 1986 as the relevant date was the commissioner’s finding that “[o]n October 18, 1986 [the claimant] arrived at work early and attempted to open a window to allow for ventilating fumes which were in the room, when she felt a pain in her back.” (Emphasis added.) Finding and Award, paragraph 5. The respondents sought correction of this finding to substitute a date of December 12, 1986. It is obvious to us that the month “October” was inadvertently substituted for “December” in paragraph 5 because, in paragraph 7, the commissioner found that the accident was reported the following day, namely, December 19, 1986. See Debarros v. Singleton, 6 Conn. Workers’ Comp. Rev. Op. 22, 498 CRD-5-86 (1988), no error, 21 Conn. App. 107 (1990). The dispute as to dates in this case was between December 12 and December 18, 1986; there was no issue of whether the accident happened in October or December. Reading the Finding and Award as a whole, it is apparent that, but for the scrivener’s error as to the month of injury in paragraph 5, the trial commissioner consistently noted December 18, 1986, as the relevant date and did in fact find that the compensable accident occurred on December 18, 1986. Since the evidence amply supported this finding, we will not disturb it on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988).

The respondents’ final claim is that the trial commissioner improperly found that the medical treatment provided to the claimant by Drs. Steven Selden and Stephan Lange was authorized care for purposes of the Workers’ Compensation Act. We disagree.

The claimant was under the care of Dr. Donald Cooper with respect to her work-related back injury. Dr. Cooper last saw the claimant on July 7, 1987 when “[he] told her that [he] did not feel [he] had any further help to offer her and. . . made several suggestions including that she seek yet another neurosurgical opinion. [He] told her. . . that [he] would be happy to refer her to another neurosurgeon. The [claimant] wished to consider this further. She did so and, at a later time, did follow that suggestion, making her own arrangements for further neurosurgical care.” Claimant’s Exhibit A11. The claimant ultimately came under the care of Dr. Selden (who referred her to Dr. Lange) upon referral by her gynecologist, Dr. Benson Horowitz, with whom she discussed her back problems2. The respondents argue that the evidence does not support the commissioner’s conclusion that Dr. Selden and Lange were authorized treating physicians.

General Statutes (Rev. to 1987) Sec. 31-294 [now Sec. 31-294(c)] provides that “[t]he commissioner may, without hearing, at the request of the employer or injured employee, when good cause exists, or on his own motion, authorize or direct a change of physician or surgeon . . . .” 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).

We have read the “change of physician” provision in Sec. 31-294 broadly to permit a trial commissioner to exercise his statutory authority to retroactively authorize a change of medical providers. Atherton v. Rutledge, 1339 CRD-7-91-11 (decided September 2, 1993); McConnell v. Hewitt Associates, 8 Conn. Workers’ Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990). In Atherton, we noted that this conclusion furthers both the humanitarian purposes of the Workers’ Compensation Act; see Carney v. Plimpton Mfg. Co., 111 Conn. 401, 405 (1930); Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 256 (1992); as well as the 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 and Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 21, 890 CRD-4-89-6 (1991). Additionally, we noted in Atherton, that it was 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. 31-294 [now Sec. 31-294d(c)] permitting a commissioner to retroactively approve a change of medical providers.

The issue in the present appeal, properly framed, is whether the commissioner’s retroactive authorization of the change of medical providers in this case was within the wide discretion afforded the trial commissioner. Atherton v. Rutledge, supra. Here, the claimant’s treating physician, Dr. Cooper, told the claimant that there was nothing further he could do for her regarding her back pain. He suggested that she seek the advice of another physician. Although Dr. Cooper offered to assist the claimant by making the referral himself, the claimant did not take him up on that offer. Nonetheless, Dr. Cooper wrote that the claimant “did follow that suggestion (to seek another neurosurgical opinion), making her own arrangements for further neurosurgical care.” (Emphasis added.) Claimant’s Exhibit A1. Thus, it appears that the claimant changed physicians after her then treating physician informed her that he could offer her no further assistance and suggested that she seek further medical advice without providing a referral to any specific physician.

We have upheld trial commissioner approval of a claimant’s unilateral change of medical provider under strikingly similar circumstances in the past. In Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 1160 CRD-7-91-1 (1992), we concluded that the suggestion by the claimant’s treating physician that the claimant see an orthopedic surgeon was sufficient to support the commissioner’s conclusion that the orthopedic specialists who later treated the claimant were authorized treaters. Likewise, in Atherton v. Rutledge, supra, where the claimant’s surgeon directed the claimant to engage in physical therapy following surgery but did not refer her to a specific provider for those rehabilitation services, the claimant’s unilateral choice of a physical therapist was properly approved by the trial commissioner.

Accordingly, the respondents’ challenge to the trial commissioner’s approval of Drs. Selden and Lange as authorized treaters must fail as our review of the record reveals no abuse of discretion on the part of the trial commissioner in this regard.

The trial commissioner’s findings as to the compensability of the injury, the date of injury and the approval of Drs. Selden and Lange as authorized treaters, are affirmed. The trial commissioner’s award of benefits, however, is vacated and the case is remanded for further proceedings to determine the appropriate amount of medical benefits and of temporary total and permanent partial disability benefits to be awarded.

Commissioners John A. Arcudi and Frank J. Verrilli concur.

1 In their Motion To Correct and again on appeal, the respondents contend that the trial commissioner did not accurately summarize Dr. Cooper’s report which we quote from Claimant’s Exhibit A1 in the text above. While the commissioner’s finding regarding Dr. Cooper’s role lacks some of the details found in his report, the finding does not differ from the evidence in any material respect. The factual findings of a trial commissioner will not be altered, even if the correction sought was not in dispute, if the requested correction would not alter the legal conclusion. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). Therefore, no correction was required, and the commissioner properly denied the respondents’ motion. BACK TO TEXT

2 In their Motion To Correct and again on appeal, the respondents contend that the trial commissioner did not accurately summarize how the claimant came to obtain treatment from Dr. Seldon. While the commissioner’s finding in this regard lacks some of the details found in the claimant’s testimony, the finding does not differ from the evidence in any material respect. Therefore, no correction was required, and the commissioner properly denied the respondents’ motion. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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