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Farkash v. Gerelco, Inc.

CASE NO. 1566 CRB-8-92-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 12, 1994

JOSEPH J. FARKASH

CLAIMANT-APPELLEE

v.

GERELCO, INC.

EMPLOYER

and

TRANSAMERICA INS. GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Albert R. Annunziata, Esq., Annunziata & Grillo, 109 Church Street, P.O. Box 1716, New Haven, CT 06507.

The respondents were represented by Richard Bartlett, Esq. and Ralph Russo, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the November 12, 1992 Finding and Award of the Commissioner for the Eighth District was heard November 19, 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 November 12, 1992 Finding and Award. On appeal, the respondents contend that the trial commissioner improperly (1) found the treatment rendered by certain medical providers to be authorized and (2) found that the claimant was totally disabled from August 14 to September 12, 1990. We reverse in part and affirm in part.

The trial commissioner found the following facts. On July 30, 1990, the claimant sustained an accidental injury arising out of and during the course of his employment with the respondent-employer when a heavy section of steel pipe hit him in the head. Following the injury, the claimant drove himself to a walk-in clinic, where his neck but not his head was examined. On August 5, 1990, the claimant went to the WWII Veteran’s Memorial Hospital emergency room, where he was diagnosed as suffering from a post-concussion syndrome. An August 6, 1990 CT scan was normal. On August 13 and 20, 1990, he was seen at Veteran’s Memorial Hospital as an outpatient, and then referred to Dr. Harold Trinkoff, a neurologist.

Dr. Trinkoff saw the claimant on August 21, 1990. At that time, the claimant reported that he continued to have headaches and neck pain, imbalance, a spacy feeling in his head, loss of memory, disorientation, trouble concentrating and some photosensitivity. Dr. Trinkoff felt that the claimant had suffered a post head injury syndrome with a complicating cervical whiplash injury. Dr. Trinkoff prescribed medication and decided to keep the claimant out of work for two weeks during which time an electroencephalogram (EEG) and an MRI scan of the head could be done. If those tests were normal, Dr. Trinkoff planned to return the claimant to work and continue the claimant on medication while he was working. The tests proved to be normal.

On September 4, 1990, the claimant left a message for Dr. Trinkoff explaining that he continued to have problems with pain in his head and inquiring about his test results. Dr. Trinkoff returned the telephone call and left a message for the claimant regarding the test results and asking that the claimant call him back the following day to discuss further treatment and a change in medication.

On September 5, 1990, the claimant and Dr. Trinkoff had a telephone conversation which was upsetting to both of them. The claimant wanted Dr. Trinkoff to keep him out of work for a longer period of time. Dr. Trinkoff, on the other hand, felt that the claimant was able to work and did not feel comfortable about complying with the claimant’s request for a referral to another physician.

The claimant continued to have symptoms and required medical attention. On September 12, 1990, the claimant unilaterally and without a referral, went to see Dr. Stanley Harris, a chiropractic physician. The claimant was treated by Dr. Harris until February 22, 1991. Dr. Harris referred the claimant to Dr. Arthur Seigel, a neurologist, who the claimant saw on October 12, 1990 and again on August 9, 1991. Both Dr. Harris and Dr. Seigel were of the opinion that the claimant was totally disabled from work until October 12, 1990.

The trial commissioner concluded that following the disagreement between the claimant and Dr. Trinkoff on September 5, 1990, Dr. Trinkoff decided that he no longer wished to treat the claimant. The commissioner further concluded that the claimant was justified in seeking medical care from Dr. Harris in view of Dr. Trinkoff’s wish to no longer treat the claimant. Accordingly, the commissioner authorized that treatment and ordered the respondents to pay the bills of Dr. Harris and Dr. Seigel for their treatment of the claimant. The commissioner also ordered the respondents to pay temporary total disability benefits to the claimant from July 31 to October 11, 1990. This appeal challenges both orders.

The respondents first challenge the commissioner’s retroactive approval of Drs. Harris and Seigel as authorized treating physicians. The respondents claim that the factual findings critical to the commissioner’s approval of Dr. Harris as an authorized treater after the fact are not supported by the evidence.1 We agree.

General Statutes (Rev. to 1989) Sec. 31-294 [now Sec. 31-294d(c)] provides that “[t]he commissioner may, without hearing, at the request of the employer or the injured employee, when good reason 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).

Recently, in Davis v. New London Board of Education, 1346 CRD-2-91-11 (decided November 10, 1993), we summarized the law regarding a trial commissioner’s approval of a change of physician after the fact: “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.”

We will not disturb a trial commissioner’s retroactive authorization of a claimant’s unilateral change of medical providers absent an abuse of discretion, such as where the findings and conclusion regarding the change of physician are without evidence or so unreasonable as to justify judicial interference. Davis v. New London Board of Education, supra; McConnell v. Hewitt Associates, supra. We now briefly review our prior decisions upholding such retroactive approval to discern the types of cases where retroactive approval is appropriate and the key factual finding necessary to sustain such action. In McConnell v. Hewitt Associates, supra, we upheld the trial commissioner’s finding that a Dr. Fromm was an authorized treating physician notwithstanding the fact that the claimant’s then treating physician did not formally refer the claimant to Dr. Fromm until a month after the claimant began treatment. In Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 1160 CRD-7-91-1 (1992) we concluded that a treating physician’s suggestion to the claimant that he see an orthopedic surgeon was sufficient to support the commissioner’s conclusion that the orthopedic specialists who later treated the claimant were authorized treaters. Similarly, in Atherton, 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. Likewise, in Davis v. New London Board of Education, supra, the claimant changed physicians after her then treating physician informed her that he could offer her no further assistance regarding her back pain and suggested that she seek the advice of another physician without providing a referral to any specific physician.

In each of these cases, the claimant was appropriately permitted to “fill a gap” in the then treating physician’s referral to another medical provider. It is significant that in each case the treating physician intended that the claimant seek other medical services and the claimant’s choice of a medical provider was pursuant to that advice. The claimant’s actions therefore did not involve any change in the course of treatment planned or suggested by the then treating physician.2

This case, however, is decidedly different from our prior cases approving a claimant’s unilateral change of physician. The trial commissioner found that Dr. Trinkoff no longer wished to treat the claimant. If supported by the evidence, this might very well constitute a sufficient basis to approve a change of physician. cf. Caldwell v. United States Aluminum Co., 131 Conn. 96, 99 (1944); Henderson v. Mazzotta, 113 Conn. 747, 753-54 (1931); Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 890 CRD-4-89-6 (1991). The evidence is clear, however, that at the time of the September 5, 1990 telephone conversation, Dr. Trinkoff intended to continue his treatment of the claimant, albeit through a course of treatment which the claimant was reluctant to follow. Dr. Trinkoff sought to return the claimant to work and to treat the claimant’s continuing symptoms with a different prescription medication. In his testimony, and in a memorandum authored by Dr. Trinkoff on September 5, 1990, Dr. Trinkoff made clear that he “was willing to keep trying things”, that he “was willing to stick with him (the claimant) and try him on a different medication to try to alleviate his symptoms,” and that “in only two weeks I had tried him on one medicine, had obtained neurodiagnostic testing, and I was now willing to try him on a second medication.” Respondent’s exhibit 5 (11/12/91 Deposition), pp. 34, 39, and attached exhibit 1.

Thus, rather than being cut off from appropriate medical care, the claimant made a unilateral decision to change not only his medical provider but to change the course of his treatment and seek out a chiropractor who would allow him to stay out of work. Where a claimant is not satisfied with the medical service being provided and desires a change in the course of treatment which the authorized treater is unwilling to approve, the claimant is not without recourse. General Statutes Sec. 31-294 [now Sec. 31-294d(c)] allows the claimant to request that the commissioner authorize the change of physician. In the present case, however, the claimant did not avail himself of Sec. 31-294 to obtain prospective approval of his change of medical providers and medical treatment. Because the commissioner’s findings of fact in support of his retroactive authorization of Dr. Harris’ services are not supported by the evidence and because the evidence shows that the claimant’s unilateral change of treating physician was made under circumstances which do not permit a retroactive approval, the decision of the commissioner ordering payment for the services provided by Dr. Harris and Dr. Seigel must be reversed.3

The respondents also challenge the commissioner’s award of temporary total disability benefits from July 31 to October 11, 1990. The respondents appear to contend that there is no evidence to support the conclusion of total disability between mid-August and mid-September, when the claimant came under the care of Dr. Harris. This claim, however, is based upon a misunderstanding of Dr. Trinkoff’s testimony. Dr. Trinkoff kept the claimant out of work from August 21 to September 4, 1990 while tests were being done. A week later the claimant saw Dr. Harris, who opined that the claimant was totally disabled. Thus, only a one-week gap exists in the evidence where the claimant was not under the care of a medical provider who could state he was totally disabled. Where the claimant’s symptoms continued during that time, we cannot say that the inference that the claimant continued to be disabled was improper or unreasonable. Additionally, Dr. Trinkoff, who determined that the claimant could return to work on September 5, later testified that his opinion regarding a prompt return to work was “perhaps in retrospect in error.” Under these circumstances, we will not disturb the commissioner’s conclusion. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

We, therefore, sustain the respondent’s appeal in part and deny the appeal in part. The trial commissioner’s order regarding temporary total benefits (paragraph 21) is sustained; his order regarding payment of the bills of Dr. Harris and Dr. Seigel (paragraph 22) is reversed.

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 It is undisputed that the claimant saw Dr. Seigel upon the referral of Dr. Harris. Dr. Seigel’s status as an authorized treater is therefore contingent upon the retroactive approval of Dr. Harris as an authorized treater. BACK TO TEXT

2 Other situations in which we have upheld a retroactive approval of a unilateral change of medical provider were present in the Atherton case. One such situation involves emergency circumstances. Thus, in Atherton, the claimant underwent immediate surgery with an orthopedic surgeon not the surgeon to whom she was referred when the surgeon to whom she was referred could not perform the surgery immediately and the claimant had been told by an emergency room physician to get surgery as soon as possible. The other situation involved a change of physical therapists because the claimant did not feel comfortable with her first physical therapist after an initial visit. Like the cases discussed in the text, neither of these other situations involved any change in the course of treatment planned or suggested by the treating physician, only a change in the person who provided that treatment. BACK TO TEXT

3 In his brief, the claimant argues that the treatment provided by Drs. Harris and Seigel were approved by the respondent-insurer. While this would be a valid basis for requiring payment by the respondents, the evidence on this claim was disputed. The commissioner apparently resolved this claim adversely to the claimant when he found that the claimant sought treatment from Dr. Harris “unilaterally.” Finding and Award, paragraph 12. BACK TO TEXT

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