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D’Anna v. Kimberly-Clark Corporation

CASE NO. 1580 CRB-7-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 4, 1994

JUNE D’ANNA

CLAIMANT-APPELLANT

v.

KIMBERLY-CLARK CORPORATION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Scott R. McCarthy, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondent-employer was represented by Philip F. Spillane, Esq., Baker, Moots & Pellegrini, P.O. Box 1319, New Milford, CT 06776.

This Petition for Review from the December 2, 1992 Finding of the Commissioner for the Seventh District was heard August 13, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The commissioner suspended the claimant’s rights of compensation pursuant to the provisions of General Statutes Sec. 31-294e(b), which provides that “[i]f it appears to the commissioner that an injured employee has refused to accept and failed to obtain reasonable medical and surgical aid or hospital and nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.” The claimant challenges the trial commissioner’s conclusion that she “unreasonably failed to have the left shoulder surgery recommended and once scheduled by her treating orthopedic surgeon for the last week in July, 1992” and the commissioner’s order suspending benefits commencing with the date of the cancelled surgery and continuing for so long as she refuses and fails to have the surgery. We affirm the trial commissioner.1

The claimant contends that Sec. 31-294e(b) requires a finding that a claimant has both “refused to accept and failed to obtain reasonable medical or surgical aid” (emphasis added) before compensation benefits may be suspended under its terms. She further argues that she never refused to undergo the scheduled surgery. Instead, she claims that the surgery was cancelled in order to await the outcome of the formal hearing to see if her challenged compensation claim would be accepted and that the cancellation of the surgery was requested by the respondent.

The claimant’s arguments to the contrary notwithstanding, we do not interpret Sec. 31-294e(b) to require a claimant to have both “refused” and “failed” to have surgery in any technical sense of those words. To invoke the sanction of Sec. 31-294e(b), it is sufficient that the claimant has made a decision not to undergo reasonable medical procedures. The requisite “refus[al] to accept and the fail[ure] to obtain” reasonable medical services arises when a claimant has chosen not to avail herself of reasonable medical assistance.

The claimant also appears to contend that she did not cancel the scheduled surgery under circumstances which warrant suspension of benefits. In Pagliarulo v. Bridgeport Machines Inc., 20 Conn. App. 154, 158 (1989), the Appellate Court concluded that the statute is not concerned with the reasonableness of the claimant’s refusal to accept treatment but with the reasonableness of the medical treatment which has been refused. Here, it was never disputed that the contemplated shoulder surgery was medically necessary; the claimant acknowledged this at the formal hearing.

Notwithstanding Pagliarulo’s requirement that the reasonableness inquiry focus on the medical procedure which has been refused, Pagliarulo itself makes clear that the question of whether such a procedure is reasonable “is not necessarily a medical matter only ...but may also be affected by a consideration of the surrounding circumstances as the trier of the fact finds them.” Id., 159. Moreover, such surrounding circumstances “must be considered from the standpoint not only of the employer but of the employee.” Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 689 (1953). Thus, an otherwise reasonable medical procedure can become unreasonable because of the inconvenience it causes the claimant. See Hurley v. Carolina Freight, 1406 CRB-6-92-4 (decided January 26, 1994) (claimant justified in leaving independent medical exam which became unreasonable after claimant waited two hours in the doctor’s office without being seen); Garfitt v. Pfizer, Inc., 7 Conn. Workers’ Comp. Rev. Op. 62, 742 CRD-3-88-6 (1989) (independent medical exam far away from claimant’s home not a “reasonable” medical exam). Similarly, an otherwise reasonable medical procedure, including necessary surgery, can be deemed unreasonable, for example, where a respondent disputes compensability and the claimant delays the surgery until some resolution of the disputed issues is reached in the Workers’ Compensation forum due to legitimate concerns about incurring costs beyond the claimant’s means. Such does not seem to be the case here.

Under these circumstances, the commissioner’s suspension of benefits under Sec. 31-294e(b) must stand as it did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from the facts found. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Pagliarulo v. Bridgeport Machines, Inc., supra, 157.

We, therefore affirm the trial commissioner and deny the appeal.

Commissioners John A. Arcudi and Donald H. Doyle, Jr. concur.

1 Oral argument was calendared for the purpose of considering the claimant’s Motion to Add Additional Evidence. At oral argument, the parties agreed to go forward and argue the appeal on the merits, as well. On August 31, 1993, we denied the claimant’s Motion to Add Additional Evidence. BACK TO TEXT

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