State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Mahoney v. Bill Mann Tree Service

CASE NO. 3025 CRB-4-95-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 4, 1996

JOHN MAHONEY

CLAIMANT-APPELLANT

v.

BILL MANN TREE SERVICE

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Laurence Parnoff, Esq., 1566 Park Ave., Bridgeport, CT 06604.

The respondent employer was represented by Harry Hirsch, Esq., 6 Woody Lane, Fairfield, CT 06430.

The Second Injury Fund was not represented at oral argument. Notice sent to Carolyn Signorelli, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 23, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 23, 1995 Finding and Award of the Commissioner acting for the Fourth District. He argues on appeal that several of the commissioner’s findings and conclusions are unsupported by the evidence. We agree in part with his contentions, and reverse a portion of the commissioner’s decision.

The claimant sustained multiple injuries on April 19, 1993, arising out of and in the course of his employment with the uninsured respondent. He was admitted to the hospital twice for his injuries, for which medical bills the respondent was found liable. Dr. Carolan, a treating physician, cleared the claimant to return to work with no restrictions as of June 21, 1993. The claimant went to see Dr. Forte, a chiropractor, of his own volition on June 23, 1993, who treated the claimant through January 1994. Noting that the claimant complained of injuries to his thoracic spine, scapula, left arm and lung during his April 1993 hospital visits, the commissioner ruled that the claimant had not proven that Dr. Forte’s treatment was causally related to his compensable injury, or that such treatment was authorized. Based on the medical report of Dr. Homza, the respondents’ examiner, the commissioner found that the claimant had a five percent permanent partial disability of the cervical spine. He ordered that the claimant receive nine weeks of temporary total disability benefits and 8.75 weeks of benefits for his neck permanency. The claimant’s § 31-308a C.G.S. claim was denied. The claimant has appealed from that decision.

First, the claimant objects to the commissioner’s reliance on the May 16, 1994 report of Dr. Homza, as that document was not offered into evidence. Dr. Homza’s report is the sole basis of the commissioner’s finding that the claimant suffered a five percent permanent partial disability of the cervical spine. The exhibits and transcripts do not contain a copy of that report. Thus, the commissioner’s reliance on that document was improper. Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 343, 1542 CRB-1-92-10 (July 11, 1994), affirmed, 40 Conn. App. 36 (1996); Nasinka v. Ansonia Copper & Brass, 10 Conn. Workers’ Comp. Rev. Op. 85, 86-87 1153 CRD-5-90-12 (April 20, 1992). As there is no other support in the record for the finding of permanent partial disability, we must remand this case to the trial commissioner for further findings on that subject.

The claimant also argues that the commissioner erred in denying Dr. Forte status as an authorized treating physician, and in failing to credit Dr. Forte’s opinion that the claimant had a 7 percent permanent partial disability of the cervicothoracic spine, and a 10 percent permanent partial impairment of the lumbar spine. (See Claimant’s Exhibit L). It is beyond dispute that a trial commissioner has the fact-finding authority to decide whether or not to give credence to a given medical opinion. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The CRB cannot and will not second-guess such a decision on review, as it is the commissioner who has the best opportunity to evaluate the weight of the evidence. Therefore, his failure to believe this particular medical opinion was not reversible error.

With respect to the commissioner’s refusal to retroactively authorize Dr. Forte’s medical treatment, we observe that the claimant has the burden of proving that a doctor’s treatment was either provided pursuant to a valid referral or otherwise appropriate for retroactive authorization. See McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 342, 2050 CRB-3-94-5 (Sept. 20, 1995); Farkash v. Gerelco, Inc., 12 Conn. Workers’ Comp. Rev. Op. 9, 11, 1566 CRB-8-92-11 (Jan. 12, 1994). Under § 31-294d, it is the commissioner who has the power to authorize a change of physician at the request of one of the parties. There is no suggestion that the claimant was either sent to Dr. Forte by an authorized treater, or that any of the parties requested that he be allowed to treat the claimant. The commissioner clearly had discretion to rule that Dr. Forte’s treatment was unauthorized in this case, as such a conclusion is not so unreasonable that this board must interfere with it. Leiner v. Newmark & Lewis, 2202 CRB-8-94-10 (decided Jan. 18, 1996); Farkash, supra, 12. Thus, that portion of the commissioner’s decision is affirmed.

Finally, we decline to rule at this time on the commissioner’s denial of § 31-308a benefits to the claimant. Because we have remanded this case to the commissioner for further findings regarding permanent partial disability, he may find it necessary to make additional findings on that issue as well.

The trial commissioner’s decision is affirmed in part and reversed in part. The case is remanded for further findings in accordance with this opinion.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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