Besitko v. McDonald’s Restaurant

The claimant was represented by James M.S. Ullman, Esq., P.O. Box 891, Meriden, CT 06450 who did not appear at oral argument or file a brief.

The respondents were represented by Polly L. Orenstein, Esq., Meehan & Brodinsky, 127 Washington Avenue, P.O. Box 35, North Haven, CT 06473.

This Petition for Review from the April 27, 1992 Finding and Award of the Commissioner for the Eighth District was heard March 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review of the Eighth District Commissioner’s April 27, 1992 Finding and Award. In that Finding and Award, the trial commissioner found that Dr. Henry Hofbauer is an authorized treating physician and ordered the respondents to pay for certain medications prescribed by Dr. Hofbauer and for any unpaid amounts due to Dr. Hofbauer and the World War II Veterans’ Memorial Hospital. On appeal, the respondents contend that the trial commissioner improperly (1) found that Dr. Hofbauer was an authorized treating physician and (2) concluded that the respondents are liable for outstanding pharmacy, doctor and hospital bills. We affirm in part and vacate in part.

The hearing transcript reflects some initial confusion regarding the issues properly before the commissioner. The parties agreed that the following issues were properly before the commissioner: (1) whether Dr. Hofbauer was an authorized treating physician and (2) whether the respondents are liable for certain prescriptions ordered by him and filled by Warner’s Pharmacy. The additional issue of the respondents’ liability for doctor and hospital bills owed to Dr. Hofbauer and to World War II Veterans’ Memorial Hospital was mentioned at the outset of the hearing. However, when it appeared that those bills had not been presented to the respondents, counsel for the claimant agreed to limit the issues for decision to those which the parties agreed were properly the subject of the formal hearing, namely, whether Dr. Hofbauer was a treating physician and whether respondents were liable for prescription medicines ordered by him. See Transcript of June 24, 1991, pp. 7-8; see, also id., p. 25. Furthermore, the claimant introduced no evidence regarding any doctor or hospital bills.

Where the parties have agreed to limit the issues for decision by the trial commissioner, it is improper for the commissioner to decide issues which are not before him. See, Davis v. New London Board of Education, 1346 CRD-2-91-11 (decided November 10, 1993); Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 472 CRD-3-86 (1987). Moreover, in as much as the claimant did not introduce evidence regarding any outstanding doctor or hospital bills, the commissioner’s order regarding payment of those bills cannot stand. On remand, the parties will have the opportunity to present evidence and be heard on the issue of the respondents’ liability for any outstanding doctor or hospital bills.

We turn now to the commissioner’s finding that Dr. Hofbauer was an authorized treating physician, which finding the respondents challenge on appeal. The claimant was injured on April 27, 1987. He sought medical attention from Dr. Hofbauer, a general practitioner, within one week of the accident. After initial treatment, Dr. Hofbauer referred the claimant to Dr. Greco, who thereafter treated the claimant, although Dr. Hofbauer did continue to prescribe pain medication for the claimant.

The respondents argue that after Dr. Hofbauer referred the claimant to Dr. Greco, Dr. Hofbauer was no longer authorized to treat the claimant. We know of no rule which precludes a referring physician, even a generalist who refers an injured worker to a specialist for treatment, from continuing his treatment of the injured claimant. The trial commissioner’s conclusion that Dr. Hofbauer continued to be an authorized treater is therefore not so unreasonable as to justify our interference. See Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 1160 CRD-7-91-1, 1240 CRD-7-91-5 (1992).

The respondents next contend that there was insufficient evidence to show that the medications prescribed by Dr. Hofbauer for which the claimant sought to establish the respondents’ liability were causally connected to his compensable injury, that is, that they were intended to alleviate pain associated with his April 27, 1987 workplace injury as opposed to pain due to some other, non-compensable cause. We do not agree.

The trial commissioner found all prescriptions ordered by Dr. Hofbauer which are enumerated in Claimant’s Exhibit A to be authorized charges and ordered payment of the same by the respondents. Exhibit A includes Warner Pharmacy charges for prescription medications from May, 1987 through August, 1989 and from January, 1991 through June, 1991.

The respondents are responsible only for those medications prescribed to treat the claimant’s compensable injury; treatment not related to a compensable injury is not properly the subject of a commissioner’s order. See Marzano v. Luis, 10 Conn. Workers’ Comp. Rev. Op. 129, 1181 CRD-5-91-2 (1992), aff’d., 30 Conn. App. 916 (1993). The respondents correctly point out that the fact that the disputed prescriptions emanated from Dr. Hofbauer is not sufficient, in and of itself, to obligate them to pay those charges.

The evidence, however, did more than merely connect the prescriptions to Dr. Hofbauer. Claimant’s Exhibit B contained the following statement of Dr. Hofbauer: “Upon review of Warner’s Pharmacy Bill from July 5, 1988 through October 2, 1990; these prescriptions were ordered by me for treatment of back pain.” If this statement were the only evidence in support of the commissioner’s order of payment, the respondents’ assertion of insufficient evidence would have merit because the statement does not link the back pain for which the medicine was prescribed to the claimant’s compensable injury. The claimant, however, testified as to all other treatment which he received from Dr. Hofbauer. The only other treatment to which the claimant testified which required similar prescription medications from Dr. Hofbauer was a prior hip injury.1 Thus, the trial commissioner could reasonably infer that the only back pain which the claimant experienced was in fact causally related to his 1987 compensable injury. The commissioner was therefore justified in concluding that the prescription medicines reflected in the Warner Pharmacy bill (Claimant’s Exhibit A) between July 5, 1988 and October 2, 1990, were intended to treat the claimant’s compensable injury. Fair v. Peop1e’s Savings Bank, 207 Conn. 535 (1988). Accordingly, the commissioner’s order must be sustained to the extent of the time period covered by Dr. Hofbauer’s statement, that is, from July 5, 1988 to October 2, 1990.

The commissioner’s order, however, went beyond the time period supported by the evidence. Although identical pain medication was prescribed throughout the time period reflected in Claimant’s Exhibit A, no evidence was introduced as to the basis for prescriptions filled at Warner’s Pharmacy outside of the time period set forth in Dr. Hofbauer’s statement. We must therefore modify the commissioner’s order accordingly.

The trial commissioner’s approval of Dr. Hofbauer as an authorized treater is affirmed. The commissioner’s order that the respondents are to “pay any unpaid balance of the Warner’s Pharmacy charges and/or reimburse the claimant upon corroboration of any payments he may have made” is modified to cover only those medications prescribed by Dr. Hofbauer from July 5, 1988 to October 2, 1990. Finally, the commissioner’s orders regarding any outstanding unpaid amounts due to Dr. Hofbauer and/or World War II Veterans’ Memorial Hospital is vacated and the case is remanded for further proceedings with respect to that issue.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The claimant testified as to his involvement in an automobile accident on April 28, 1991 and resulting neck injury. He was not treated by Dr. Hofbauer for that injury and it occurred outside of the time frame contained in Dr. Hofbauer’s statement (Claimant’s Exhibit B). The commissioner found that the motor vehicle accident was unrelated to this case. BACK TO TEXT