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Barton v. Waterbury Company

CASE NO. 3786 CRB-05-98-03

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 3, 1999

VIRGINIA BARTON

CLAIMANT-APPELLANT

v.

WATERBURY COMPANY

EMPLOYER

and

GAB BUSINESS SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by Dominick Statile, 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 March 3, 1998 Finding and Award of the Commissioner acting for the Fifth District was heard October 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 3, 1998 Finding and Award of the Commissioner acting for the Fifth District. She argues on appeal that the trier erred by dismissing her claim for permanent partial disability, and by refusing to authorize payment of medical bills from Gaylord Hospital and seven of the doctors who treated the claimant. We affirm the trial commissioner’s decision.

The trier found the following facts. The claimant struck her head on a fire extinguisher during the course of her employment on October 20, 1994. At the time, she complained of dizziness, blurred vision, and photophobia. Later, she testified that she experienced memory loss as well. She was diagnosed with a head contusion and told to follow up with her private doctor. The claimant continued to complain of head pain, dizziness and blurred vision throughout the next week, and was released to work on October 31, 1994. She testified that she attempted to return to her job, but could only withstand a half day without pain.

The claimant’s family optometrist, Dr. Pulaski, began treating the claimant in 1985. She had complained of blurred vision in her left eye since the age of nine, and in 1990 said she had trouble performing her work. In 1993, Dr. Lesser, an ophthalmologist, diagnosed her with amblyopia in her left eye, with no explanation for transient visual loss. After the October 20, 1994 incident, Dr. Pulaski diagnosed the claimant with post-traumatic syndrome and hysterical visual field loss from the stress of the accident, photophobia, and accommodative insufficiency. He changed her eye prescription, and recommended that she be evaluated by an internist and obtain psychological counseling.

Dr. Thorsen saw the claimant on November 2, 1994. He ordered a CT scan of the claimant’s head, which indicated no significant abnormalities. Dr. Thorsen diagnosed the claimant with a cerebral concussion complicated by post-concussion syndrome, and indicated that the symptoms should resolve over six to eight weeks. The claimant returned to Dr. Pulaski on December 2, 1994, who thought she was still disabled due to tunnel vision and extreme difficulty in focusing, and referred her back to Dr. Lesser. An associate of Dr. Lesser’s disabled the claimant through January 13, 1995. When Dr. Lesser evaluated the claimant on January 9, 1995, he could not find any dysfunction of the claimant’s optic nerves or visual fields, nor could he find evidence of permanent damage. He opined that the claimant could immediately return to work.

The claimant returned to Dr. Pulaski, who found that she was still disabled due to functional visual loss. When he again referred her to Dr. Lesser on April 27, 1995, the latter again found no objective disease, and opined that the claimant could work. The claimant testified that Dr. Pulaski referred her to an internist, Dr. Rosenthal, who in turn referred her to an ophthalmologist, Dr. Diana, but the trier found no documentation of that referral in the record. Dr. Diana thought that the claimant suffered from temporary diplopia that prevented her from doing her job until it resolved. He referred the claimant to Dr. Coppeto, who found a convergence insufficiency related to the October 20, 1994 injury, but opined that the claimant’s other symptoms were out of proportion to her actual physical injury. Dr. Diana opined that the claimant had a 25% permanent partial disability of the right eye as a result of that injury and the consequent diplopia.

The claimant presented evidence of visits with Drs. Eisen, Littman, and Padula, along with treatment at Gaylord Hospital. The possibility of a traumatic brain injury was not ruled out by any of those doctors, but none could define the degree that the claimant’s October 20, 1994 injury contributed to her current etiology, and most indicated that the claimant’s psychological problems were causing the claimant to experience physical symptoms of disproportionately high severity. Dr. Rubinstein, a psychiatrist, evaluated the claimant on April 7, 1995. He opined that she was responding to inner derived stresses in her life that were unrelated to the accident, and was using it as a focal point for a variety of extraneous inner difficulties and dysphoria. He testified that the claimant was troubled prior to the injury, and would probably have developed additional ocular symptoms irrespective of the October 20, 1994 injury.

Dr. Hale, who performed an examination at the commissioner’s request pursuant to § 31-294f, stated that the claimant was not malingering, and that there may be a relationship between the claimant’s injury and her psychological problems. However, his opinion also noted that he may have been missing information that Dr. Rubinstein had. The claimant testified that she has never had emotional or psychological difficulties.

The trier found that the claimant had suffered a compensable head injury on October 20, 1994. He found no valid referrals beyond the referral of the claimant to Dr. Lesser by Dr. Pulaski, and thus declined to authorize any of the subsequent doctors she visited as treating physicians. This includes treatment with Dr. Pulaski after January 9, 1995. The trier ruled that the claimant was totally disabled through January 9, 1995, whereupon Dr. Lesser found no evidence of permanent damage and stated that the claimant could return to work. He found the opinions of Drs. Lesser, Rubinstein and Gilbert most persuasive, because the claimant exhibited symptoms of visual loss prior to the October 20, 1994 injury, and those doctors opined that her convergence insufficiency, diplopia, etc., were associated with psychiatric and stress issues unrelated to her accident. He discounted Dr. Hale’s opinion due to a less complete medical history. He concluded that the claimant did not suffer a traumatic brain injury or permanent partial disability to her right eye, which decision the claimant has appealed.

When this board reviews a decision by a trial commissioner, we are not retrying the case. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Instead, we are examining that decision to ensure that the trier of fact has not committed legal error of any kind. As the fact-finder, he is entitled to weigh the credibility of the evidence, including medical reports and the testimony of all witnesses. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). When we review his findings, we can change them only if they contain facts found without any supporting evidence, or if they fail to include material and undisputed facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Conclusions of law must also stand unless they result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Fair, supra; Webb, supra, 71.

First, we observe that the trial commissioner was not required to find in accordance with Dr. Hale’s report instead of Dr. Rubinstein’s, simply because Dr. Hale performed an examination under § 31-294f.1 Although a commissioner’s examination can reasonably be expected to provide the trier of fact with strong guidance; Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), affirmed, 40 Conn. App. 918 (1996)(per curiam); he is not bound to rely on it. As long as the trier gives some indication as to why he does not find the § 31-294f examiner’s report persuasive, he is entitled to rely on the opinion of a different doctor. Gillis v. White Oak Corp., 49 Conn. App. 630, 637 (1998); Nieves v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997).

The trial commissioner explained in ¶ H of his conclusions that he did not adopt Dr. Hale 2’s report because Dr. Rubinstein had the benefit of a more complete history of the claimant’s symptoms. Dr. Hale explicitly acknowledged this gap, and his opinion draws only a tenuous connection between the claimant’s injury and her current symptoms. Claimant’s Exhibit R. We can hardly fault the trier for choosing to adhere to the diagnosis of Dr. Rubinstein rather than the less vehement opinion of Dr. Hale. It was thus reasonable for him to conclude that the claimant’s compensable injury caused neither a traumatic brain injury nor permanent partial disability to her right eye. Nieves, supra.

The claimant also objects to the trial commissioner’s refusal to authorize certain doctors as treating physicians under § 31-294d. Although § 31-294d(b) allows a claimant to choose her own treating physician, this language refers only to the initial selection of a physician following an injury. See Zering v. UTC/Pratt & Whitney, 3321 CRB-6-96-4 (Aug. 8, 1997). Subsequent changes of physician must be authorized by the trier pursuant to § 31-294d(c), who has considerable discretion to grant or deny such changes. Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 445, 2249 CRB-5-94-12 (Sept. 5, 1996), affirmed, 49 Conn. App. 339 (1998).

Here, the trier declined to authorize the treatment of Dr. Pulaski after January 9, 1995. That is the date Dr. Lesser, to whom Dr. Pulaski had referred the claimant, stated that she could return to work. Dr. Lesser did not refer the claimant back to Dr. Pulaski; instead, she took it upon herself to visit him again. Once an authorized treater refers a patient to another doctor, he is not automatically entitled to continue his own treatment. See Besitko v. McDonald’s Restaurant, 12 Conn. Workers’ Comp. Rev. Op. 111, 113, 1415 CRB-8-92-5 (Feb. 28, 1994). The trial commissioner must decide whether such treatment should be authorized. Id; see also Dichello, supra.

The trier’s findings adopt the position embodied in the reports of Drs. Lesser and Rubinstein, i.e., that the claimant’s problems are more psychological than physical, and are unrelated to her compensable injury. See ¶ G, Findings. It is consistent with that viewpoint that he would deem medically unnecessary the treatment sought by the claimant after Dr. Lesser issued his report releasing her to return to work. See Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 19, 890 CRD-4-89-6 (Jan. 10, 1991) (finding that claimant went to doctor on his own did not, by itself, justify failure to authorize treatment). Further, as Dr. Pulaski’s care beyond January 9, 1995 was deemed unauthorized, his referrals to other doctors after that date did not constitute valid referrals under § 31-294d. McGowan v. Waterbury Farrell, 14 Conn. Workers’ Comp. Rev. Op. 319, 321, 1964 CRB-1-94-2 (Sept. 15, 1995), affirmed, 43 Conn. App. 917 (1996). As there is evidence to support the trier’s decision on this issue, we must uphold his findings.

The trial commissioner’s decision is thus affirmed.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

1 See Barton v. Waterbury Company, 16 Conn. Workers’ Comp. Rev. Op. 216, 3428 CRB-5-96-9 (June 6, 1997), in which this board affirmed the trial commissioner’s order that Dr. Hale perform a commissioner’s examination, and Dr. Rubinstein’s report be treated as an independent medical examination. BACK TO TEXT

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