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Barnett v. Harborview Manor

CASE NO. 3189 CRB-3-95-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 27, 1997

PATRICIA BARNETT

CLAIMANT-APPELLEE

v.

HARBORVIEW MANOR

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

AETNA LIFE & CASUALTY CO.

INSURER

RESPONDENT-APPELLANTS

APPEARANCES:

The claimant was represented by W. Paul Flynn, Esq., One Trumbull St., New Haven, CT 06511.

The respondent employer and Aetna Life & Casualty were represented by Lucas Strunk, Esq., and Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

The respondent employer and Hartford Insurance Group were represented by Shaun Slocum, Esq., Shay & Slocum, 234 Church Street, P. O. Box 1921, New Haven, CT 06509.

This Petition for Review from the September 30, 1995 Finding and Award of the Commissioner acting for the Third District was heard August 30, 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 respondents Harborview Manor and Aetna Life & Casualty Co. have petitioned for review from the September 30, 1995 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the commissioner erroneously found the claimant to be temporarily totally disabled, and that he improperly failed to suspend her entitlement to benefits based on her refusal of medical treatment.1 We affirm the trial commissioner’s decision.

The claimant was injured while working as an aide at the Harborview Manor nursing home. The respondent Hartford Insurance Group accepted her November 8, 1980 cervical/bilateral carpal tunnel injury by voluntary agreement, while the respondent Aetna Life & Casualty Co. accepted her April 10, 1982 low back injury. The claimant has not worked since the latter injury occurred. She had low back surgery in 1984, for which Aetna paid the medical costs and associated disability through 1988. The claimant did not treat for her carpal tunnel syndrome between 1981 and 1986, although she claims that her hands continued to bother her during the five-year interval. The claimant explained that she had been advised that only one workers’ compensation injury could be processed at a time, and had forestalled further treatment of her hands for that reason.

The claimant sought temporary total disability benefits and payment of medical bills for carpal tunnel treatment at the initial 1987 formal hearing, alleging a relationship between that injury and the temporary total disability claim arising from her back surgery. The commissioner found that she also developed depression and a pain syndrome, claiming they were due to both her back surgery and her carpal tunnel syndrome, and that they were responsible for her total disability from February 18, 1988 onward. The respondent insurers disagreed with each other as to the connection between the initial carpal tunnel injury and the claimant’s ongoing total disability.

After reviewing the testimony and reports of several doctors, the commissioner found that the claimant was indeed totally disabled as a result of her 1982 back injury and subsequent back surgery in 1984, leading to her depression and pain syndrome. He also found that the bilateral carpal tunnel injury led to successful surgery on the claimant’s left hand in 1988, causing three months of total disability during that summer. The commissioner ordered that the Hartford Insurance Group take responsibility for that period of disability and all carpal tunnel treatment on the claimant’s left hand, as well as any future treatment on her right hand. He assigned liability to Aetna for ongoing disability from September 1, 1988 forward, along with the medical bills of several treaters and medical experts. Aetna has appealed that decision to this board.

First, we address the appellants’ argument in their brief2 that the commissioner should have suspended the claimant’s entitlement to benefits as of January 27, 1987 because she refused medical treatment. Section 31-294e states 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 commissioner found that when the claimant began treating with Dr. Merikangas for psychological and emotional treatment and pain management, he initially suggested that she try a pain clinic in Madison along with injections for pain, which she declined. Dr. Merikangas then placed the claimant on medication to help her pain syndrome, continuing to treat her through the time of the formal hearings.

The reasonableness of a particular treatment is a question of fact for the commissioner to resolve, and was not addressed below. Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154, 158 (1989). However, in cases where § 31-294e(b) has been found applicable, the issue has always centered on the refusal of potentially pivotal surgery. For example, in Pagliarulo, supra, the claimant had declined to undergo a lumbar fusion that her treating physician testified “was the medically reasonable course of treatment for the plaintiff’s condition, and . . . the only medical treatment that could return the plaintiff to some form of gainful employment.” Id., 156. In Camp v. White Oak Corp., 12 Conn. Workers’ Comp. Rev. Op. 121, 1443 CRB-6-92-6 (Feb. 28, 1994), a neurosurgeon stated that the refused surgery could reduce the claimant’s permanent partial disability from 25 to 15 percent of the cervical spine. And in D’Anna v. Kimberly-Clark Corp., 12 Conn. Workers’ Comp. Rev. Op. 194, 1580 CRB-7-92-12 (May 4, 1994), the claimant canceled shoulder surgery that had been recommended by her orthopedic surgeon.

Here, on the other hand, the surrounding facts are somewhat different, which the commissioner was entitled to consider. Id., 195, citing Pagliarulo, supra, 159. There was no indication that treatment at the Madison clinic and pain injections were the best option for the claimant or that they alone would improve her condition. The findings do not indicate that Dr. Merikangas felt strongly about such treatment, or that he insisted upon it in any way. Instead, they state that he “suggested” that course of action, and when the claimant declined, he continued to treat the claimant by trying something else. There is also a finding suggesting that inoperable scar tissue was the cause of the claimant’s lower back pain, which would not be remediable by pain injections. These circumstances do not support the suspension of the claimant’s entitlement to benefits under § 31-294e(b), and the commissioner did not err by failing to address that possibility.

Next, the appellants argue that the commissioner erred by concluding that the claimant was totally disabled as a result of the April 10, 1982 back injury. They argue that Dr. Merikangas described a light duty capability that the claimant could have performed, but dismissed because he did not believe such a job existed. Because Dr. Merikangas is not a vocational expert, the appellants argue that his testimony was insufficient to support a finding of total disability.

Determining whether a claimant continues to be totally disabled is a question of fact. Haugh v. Leake & Nelson, 12 Conn. Workers’ Comp. Rev. Op. 201, 202-203, 1421 CRB-2-92-5 (March 15, 1994). The power and duty of determining the facts rests with the trial commissioner, who is entitled to determine the weight of the medical evidence and the credibility of testimony. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). His factual findings must remain intact unless they are unsupported by the evidence or omit undisputed material facts. Webb, supra, 71. The conclusions he draws from those facts must stand unless the law has been incorrectly applied to the facts, or an unreasonable inference has been drawn from them. Id.

The testimony of Dr. Merikangas that the respondents cite in their brief indicates that gainful employment for the claimant would have to be light duty, involving no lifting or pulling, no complex hand manipulations, such as typing or filing, and no sitting or standing for long periods of time. This hardly constitutes overwhelming support for a light duty capability. The commissioner found that both Dr. Merikangas and Dr. Goodrich opined that the claimant’s low back symptomatology led to her pain syndrome and depression, and her current total disability. Dr. Merikangas testified that there was no meaningful trade that the claimant could pursue, and that there was nothing that could be done at the present time to improve her back condition, as her scar tissue could not be removed. (Transcript of July 20, 1988, p. 23-24.) The respondents have presented no medical evidence to contradict the existence of ongoing disability. Whether or not the claimant had a residual light work capability was a factual question that the trier answered in the negative. Monaco v. Metal Masters, Inc., 2245 CRB-3-94-12 (decided August 29, 1996). There is sufficient evidence in the record to support his conclusion.

The trial commissioner’s decision is affirmed.

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

1 The appellants also argued that the commissioner had failed to issue his decision within 120 days of the last hearing. They withdrew their appeal on that issue, however, subsequent to oral argument. BACK TO TEXT

2 There were several additional claims of error made in the appellants’ Reasons for Appeal, including the denial of their Motion to Correct. Those issues were not discussed in the appellants’ brief, however, nor were they mentioned at oral argument. They are therefore deemed abandoned on appeal. Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 198 n.1, 1734 CRB-5-93-5 (March 22, 1995). BACK TO TEXT

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