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Castano v. Astrophonic Corp. of America d/b/a Lion Cords

CASE NO. 3714 CRB-07-97-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 29, 1998

FABIAN CASTANO

CLAIMANT-APPELLE

v.

ASTROPHONIC CORP. OF AMERICA d/b/a LION CORDS

EMPLOYER

and

ATLANTIC MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Gerald Davino II, Esq., Sheri Paige & Associates, 37 Wall St., P. O. Box 2068, Norwalk, CT 06852.

The respondents were represented by Michael Buonopane, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the October 27, 1997 Finding and Award of the Commissioner acting for the Seventh District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the October 27, 1997 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the trial commissioner erred by ordering payment of most of the medical expenses arising pursuant to this claim, as they contend that several of the treaters should not have been authorized. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant suffered a compensable injury on January 18, 1995, when several coils of wire fell from a forklift and struck him. He contends that he suffered injuries to his neck, back, right shoulder and stomach. The claimant treated at the Immediate Medical Care Center in Norwalk that same day, where Dr. Stern prescribed a Soma compound and kept the claimant out of work through January 26, 1995. The claimant, a non-English-speaking alien, testified through an interpreter that he had no money and no insurance at the time of his injury. Thus, he did not treat with another doctor until March 31, 1995, even though he continued to experience pain.

On that date, the claimant visited Dr. Gabriel, a Stamford chiropractor, who diagnosed him with trauma to the cervical, lumbar, and dorsal spine, as well as a right shoulder sprain. He treated the claimant 41 times over the course of six months, incurring a fee of $3,120.00. The claimant continued to complain of stomach pain, so Dr. Gabriel also referred him to Dr. Gomez, who diagnosed a right inguinal hernia. He, in turn, referred the claimant to a surgeon, Dr. Sarnelle, who repaired the hernia on May 5, 1995. Dr. Sarnelle opined that the work-related injury caused the hernia. The trial commissioner found in accordance with this testimony, and stated that the treatments of Drs. Gabriel, Gomez and Sarnelle were all reasonable and necessary. He thus ordered the respondents to pay their medical bills, from which ruling the respondents have appealed.

An employer is required by § 31-294d(a) to provide a competent physician to attend an injured employee and to furnish any medical aid that the physician deems necessary. The employee is entitled to select a doctor without prior ratification from a commissioner from an approved list of physicians and surgeons prepared by the chairman of this Commission, even if initial treatment was provided by a staff physician of the employer, or a physician that the employer has available on call. Section 31-294d(b). Once a physician has been selected, the commissioner may authorize or direct a change of physician at the request of the employer or employee, or whenever good reason exists. Section 31-294d(c). The decision to authorize the treatment of a physician is a factual matter committed to the discretion of the trier, and this board may not disturb such a conclusion unless it is so unreasonable as to justify our interference. Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 114, 1160 CRD-7-91-1 (May 8, 1992).

The respondents correctly note that our cases allow retroactive authorization of a medical provider only when a good reason is demonstrated by the claimant for making a unilateral change of providers. Leiner v. Newmark & Lewis, 15 Conn. Workers’ Comp. Rev. Op. 147, 149, 2202 CRB-8-94-10 (Jan. 18, 1996); Atherton v. Cake Emporium, 11 Conn. Workers’ Comp. Rev. Op. 172, 174, 1339 CRD-7-91-1 (Sept. 2, 1993). However, our law also allows the employee, and not the employer, to initially choose his physician. Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 19, 890 CRD-4-89-6 (Jan. 10, 1991). The claimant testified at the formal hearing that he was taken to a walk-in medical clinic immediately after his injury, where he was examined and “told that [he] had nothing.” May 15, 1997 Transcript, p. 11. He returned to work eight days later, still feeling pain in his back and stomach. Id., 12. When he spoke to his boss about getting health insurance so he could afford additional treatment, he was allegedly told that it would cost him the majority of his monthly salary. He eventually went to an attorney, who realized that he was entitled to medical treatment and sent him to Dr. Gabriel. Id.

Presumably, the trier found this version of the facts credible. We may not reassess such a determination on review. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). It would not appear from the circumstances related by the claimant that Dr. Stern could fairly be considered his treating physician where the claimant was dissatisfied with his treatment and was not given the opportunity to choose his own doctor. See Zering v. UTC/Pratt & Whitney, 3321 CRB-6-96-4 (Aug. 8, 1997). Instead, we believe that the trier appropriately found Dr. Gabriel to be the initial authorized treating physician pursuant to § 31-294d. Thus, no authorization was necessary for Dr. Gabriel’s treatment, or his referrals to Drs. Gomez and Sarnelle. Moreover, even if Dr. Stern was considered the treating physician, these facts would justify retroactive authorization of Dr. Gabriel as the treater.

The trial commissioner’s decision is thus affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Workers’ Compensation Commission

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