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McVety v. Sidetex Corporation

CASE NO. 2050 CRB-3-94-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 20, 1995

WALTER MCVETY

CLAIMANT-APPELLANT

v.

SIDETEX CORPORATION

EMPLOYER

and

NATIONWIDE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Thomas E. Katon, Esq., Susman, Duffy & Segaloff, P.C., 55 Whitney Avenue, P. O. Box 1684, New Haven, CT 06507.

The respondents were represented by David Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Pkwy., Meriden, CT 06450.

This Petition for Review from the May 5, 1994 Finding and Dismissal of Medical Bill of the Commissioner acting for the Third District was heard March 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 5, 1994 Finding and Dismissal of Medical Bill of the Commissioner for the Third District. On appeal, the claimant argues that the commissioner’s refusal to order payment of Dr. Wang’s medical bill was improper both on due process and evidentiary grounds. We affirm the trial commissioner’s decision.

The claimant suffered a work-related right leg injury on February 2, 1984, for which he was referred to Dr. Wang by his original treating physician, Dr. Merikangas. Dr. Wang treated the claimant for that condition, until December 1991, which required amputation below the knee, and his medical bills for treatment of that injury were paid by the respondent. In August 1991, the claimant developed a vascular disorder in the fingers of his right hand because of repetitive trauma caused by the use of crutches. Dr. Merikangas referred the claimant to Dr. Sweeney, a vascular surgeon, for treatment of that condition. Dr. Sweeney first examined the claimant on August 18, 1991, and continued to treat him until June 1992.

Meanwhile, Dr. Wang began treating the claimant on August 14, 1991 for his right hand condition. Both his treatment and his diagnosis differed from that of Dr. Sweeney, and he was unaware that the claimant was being treated by Dr. Sweeney during the same period of time. The commissioner found that Dr. Wang’s treatment for the right hand was not obtained pursuant to a referral and was therefore unauthorized pursuant to § 31-294. He concluded that Dr. Sweeney was in fact the only authorized treater for the right hand condition. Therefore, the respondents were not responsible for Dr. Wang’s medical bills for treatment of the hand. The claimant has appealed from that decision.1

The claimant argues that the commissioner’s ruling was based on a ground not raised in either the respondents’ Form 43 or the hearing notice preceding the formal hearing from which this decision arises, i.e., the lack of a valid referral. The claimant contends that there was an initial valid referral to Dr. Wang for the right leg injury, and that emergency treatment for the right hand was necessary because necrosis of the tissue was setting in on August 14, 1991. He contends that, with proper notice, he could have emphasized these points at the formal hearing.

“[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Boddie v. Connecticut, 401 U. S. 371, 377 (1970). Any deprivation of life, liberty or property by adjudication must be preceded by notice and the opportunity for a hearing appropriate to the case at hand. Id., 378; see also Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371 (1975). No specific form or procedure is mandated by the due process clauses of our state and federal constitutions; instead, substantive rights are protected. Fermont Division v. Smith, 178 Conn. 393 (1979).

The claimant contends that the respondent’s Form 43 contested his claim for payment of medical bills on the grounds that the treatment was palliative and non-therapeutic, “and/or not causally related to the February 2, 1984 compensable accident.” This, according to the claimant, did not provide him with sufficient notice to address the referral issue at the formal hearing. Our Supreme Court has stated, however, that “notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971) (citations omitted). We apply that standard of review here.

Although not specifically mentioned in the respondents’ Form 43, the existence of a valid referral to Dr. Wang would certainly be needed to qualify him as an authorized treating physician under § 31-294d. See Besitko v. McDonald’s Restaurant, 12 Conn. Workers’ Comp. Rev. Op. 111, 1415 CRB-8-92-5 (Feb. 28, 1994); Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 890 CRD-4-89-6 (Jan. 10, 1991). The claimant, who was represented by counsel, had to have been aware that the elements of his claim for payment of medical bills would have to be met before the commissioner would authorize Dr. Wang’s treatment for the subsequent hand injury. The claimant was clearly made aware from the Form 43 that the compensability of Dr. Wang’s treatment was being challenged by the respondents.

The respondents’ counsel stipulated that the right hand injury was related to the claimant’s use of crutches caused by his initial injury, but did not agree to exclude the issue of a valid referral from the commissioner’s decision. In fact, he specifically stated at the formal hearing that the “question is whether or not Doctor Wang’s treatment is payable under the Act and reasonable and necessary treatment without a referral from the attending cardiovascular surgeon.” (Transcript of March 1, 1994, p. 6.) Thus, we cannot say that the parties removed the referral issue from dispute. Besitko, supra, 112. We also note that the claimant’s counsel did not object to the discussion of the referral at the formal hearing, and instead attempted to address that issue. (Transcript. p. 8-10, 22.) We therefore hold that sufficient notice was provided to the claimant for the commissioner to make his decision based on the lack of a valid referral.

We now turn to the merits of the commissioner’s decision itself. Because the claimant did not file a Motion to Correct the factual findings, we are limited on review to the findings of the trial commissioner. Bell v. U. S. Home Care Certified of Connecticut, 1792 CRB-1-93-8 (April 21, 1995). Consequently, we must assume valid the finding that Dr. Wang’s treatment of the claimant’s hand was not undergone pursuant to a referral. Legally, that finding is sufficient to support the conclusion of the trial commissioner that Dr. Wang’s treatment should not be authorized pursuant to § 31-294d. See Besitko, supra, 112-13; Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 114-15, 1160 CRD-7-91-1, 1240 CRD-7-91-5 (May 8, 1992). Thus, we cannot disturb that finding on review. Id.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

1 We decline to address the respondents’ Motion to Dismiss the claimant’s petition for review in light of our decision on the merits of the appeal. BACK TO TEXT

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