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Leiner v. Newmark & Lewis

CASE NO. 2202 CRB-8-94-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 18, 1996

RICHARD LEINER

CLAIMANT-APPELLEE

v.

NEWMARK & LEWIS

EMPLOYER

and

CIGNA PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The parties waived oral argument on this appeal. Notice sent to claimant’s representative William Kroll, Esq., 212D New London Tpke., Unit B-4, Glastonbury, CT 06033.

Notice sent to respondents’ representative Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the August 9, 1994 Finding and Award of the Commissioner acting for the Eighth District was considered June 9, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 9, 1994 Finding and Award of the Commissioner acting for the Eighth District. They argue on appeal that the trial commissioner improperly authorized payment of a physician’s bill despite the absence of a valid referral. We reverse the trial commissioner’s decision.

The parties established by voluntary agreement that the claimant suffered a compensable back injury on January 3, 1991, after a fall from a ladder. The claimant initially treated with Dr. Mormile, a chiropractor, who referred him to Dr. Siegel, a neurologist, and Dr. Chiappetta, an orthopedist. Another orthopedist, Dr. Sella, later became the treating physician. Both orthopedists and the chiropractor agreed that an exercise program would be appropriate treatment for the claimant.

The claimant testified that, during the time that the claimant was treating with Dr. Sella, he continued to experience back pain. In November of 1991, he visited Dr. Lefkowitz, his family practitioner. She noted that the claimant had back spasms and a pronounced limp “since being discharged from treatment by Dr. Sella in September,” and recommended that he undergo a structured physical therapy program with Mr. Woods, a physical therapist. The claimant treated 47 times with Mr. Woods from March 30, 1992 through September 18, 1992. Dr. Sella was of the opinion that these treatments were unnecessary. Another physical therapist reviewed the medical records and physical therapy notes, and opined that Mr. Woods’ treatments and fees were excessive.

The trial commissioner found that Dr. Lefkowitz’ treatment was reasonable and necessary and that the referral for physical therapy was appropriate. He noted that further hearings would be necessary to determine the reasonableness of Mr. Woods’ bill. After the commissioner denied the respondents’ Motion to Correct, the respondents appealed from his order that they pay Dr. Lefkowitz’ bill.

The respondents argue in their brief that Dr. Sella was established as the treating physician by the voluntary agreement, and that he did not refer the claimant to Dr. Lefkowitz even though the claimant understood he needed authorization to change physicians. Furthermore, the Commissioner acting for the Eighth District refused the claimant’s request to change treaters. The respondents also stress the contradiction in the findings between the commissioner’s reference to the claimant being discharged from treatment with Dr. Sella in September 1991 and the finding that the claimant last treated with Dr. Sella on March 25, 1992. They contend that the claimant was under the care of Dr. Sella at the time of his visit to Dr. Lefkowitz (which was for a regularly scheduled physical), and that retroactive authorization of her treatment was inappropriate.

The claimant, meanwhile, argues that Dr. Sella had in fact discharged the claimant, and that no treatment was provided during the two 1992 visits. He contends that Dr. Sella sent him a letter stating that he did not need a referral to see Dr. Lefkowitz, and that Mr. Woods’ treatment helped him significantly, whereas Dr. Sella had done virtually nothing for him. He adds that Dr. Sella had essentially abandoned him as a patient, and that it was appropriate in these circumstances for the trial commissioner to conclude that the contested treatment was reasonable and necessary.

Section 31-294d(a) C.G.S. requires an employer to provide a competent physician to attend an injured employee and to furnish any medical aid that the physician deems necessary. Once a doctor is selected, the commissioner may authorize or direct a change of physician at the request of the employer or employee, or when good reason exists. Section 31-294d(c); Davis v. New London Board of Education, 11 Conn. Workers’ Comp. Rev. Op. 245, 249, 1346 CRD-2-91-11 (Nov. 10, 1993), appeal dismissed for lack of final judgment, A.C. 13053 (Feb. 16, 1994). Care by an unauthorized physician must be paid for by the claimant. Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD-6-86 (1988), no error, 20 Conn. App. 805 (1989).

The trial commissioner’s ruling that Dr. Lefkowitz was an authorized treating physician was a factual one committed to the commissioner’s discretion, and this board may not disturb that conclusion unless it is so unreasonable as to justify our interference. Farkash v. Gerelco, Inc., 12 Conn. Workers’ Comp. Rev. Op. 9, 12, 1566 CRB-8-92-11 (Jan. 12, 1994); Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 114, 1160 CRD-7-91-1 (May 8, 1992). Although retroactive authorization of a medical provider is permissible under § 31-294d, see Atherton v. Cake Emporium, 11 Conn. Workers’ Comp. Rev. Op. 172, 174, 1339 CRD-7-91-11 (Sept. 2, 1993), a good reason must still be demonstrated by the claimant for making a unilateral change of providers. Id., 175-76; see also Davis, supra.

In the Finding and Award, the commissioner noted Dr. Lefkowitz’ testimony alluding to the fact that the claimant was discharged from treatment by Dr. Sella in September 1991. He then found that the claimant treated with Dr. Sella until March 25, 1992. These findings would be inconsistent if one were to infer that the commissioner accepted as true the presumed fact underlying Dr. Lefkowitz’ allusion, i.e. that Dr. Sella discharged the claimant. The more specific finding, however, is that Dr. Sella treated the claimant until March, 1992. There is no finding that directly supports the existence of a gap in the claimant’s medical treatment as discussed in Farkash, supra, which normally is a prerequisite for retroactive authorization of medical treatment.

Moreover, the claimant testified that he directed his attorney to ask the trial commissioner to remove Dr. Sella as his treating physician (May 21, 1993 Transcript, p. 18), and himself made the same request at a formal hearing (Id., p. 29). This request was denied by the acting commissioner. The fact that Dr. Sella was not prescribing medicine or extensive physical therapy as treatment did not change the fact that he was the claimant’s treating physician. Indeed, Dr. Sella testified that he felt the claimant’s physical therapy was excessive and unnecessary given his symptoms and the length of time that had passed since the injury. (June 2, 1993 Deposition, pp. 17-21). The claimant’s decision to treat with his family physician and Mr. Woods represented a unilateral decision to change the course of his treatment without the consent of the commissioner. Whether or not the claimant believes it was helpful is immaterial; § 31-294d simply does not provide for authorization of treatment under these circumstances.

The trial commissioner’s decision is reversed.

Commissioners Roberta S. Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

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