CASE NO. 3980 CRB-08-99-02
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 9, 2000
LYNN A. STUDENT
COROMETRICS MEDICAL SYSTEMS, INC.
The claimant was represented by Roger D. Calistro, Esq., Gallagher, Gallagher & Calistro, 1377 Boulevard, P.O. Box 1925, New Haven, CT 06509.
The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the February 5, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Stephen B. Delaney and Amado J. Vargas.
JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the February 5, 1999 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that the claimant sustained post traumatic stress disorder (“PTSD”) as a result of a December 16, 1988 accident which was accepted as compensable by the respondents. In support of their appeal, the respondents contend (1) that the trial commissioner abused his discretion by relying upon the medical opinion of Dr. Lieb even though the trial commissioner found his treatment of the claimant was not reasonable; (2) that the trial commissioner improperly ordered payment for medical care which was found to be unreasonable; (3) that the trial commissioner ignored evidence that the claimant was in a physically abusive marriage; (4) that the trial commissioner’s awards of temporary total and partial disability benefits are not supported by the findings; and (5) that in making a scarring award the trial commissioner improperly relied upon evidence from an informal hearing. We will address each of these issues.
The trial commissioner made numerous findings of fact, including the following facts. On December 16, 1988, the claimant was struck by a train, and pursuant to an approved voluntary agreement the claimant’s injuries (listed as multiple fractures, back and leg) were accepted as compensable by the respondents. The claimant was treated for fractures on her face and other injuries, including a severe contusion to the head, and was hospitalized for one week. The claimant was treated for knee and hip pain, and was referred to Dr. McVeety, a neurologist, for evaluation and treatment for complaints of dizziness and forgetfulness. The claimant was also referred to Dr. Koenigsberg for depression and stress. On March 20, 1989, Dr. McVeety noted that the claimant’s complaints of dizziness were less frequent and that her problems with forgetfulness had all but subsided. The claimant returned to work with the respondent employer on a part-time basis from April 3, 1989 to May 29, 1989, and resumed full-time work with the respondent employer at that time.
The claimant testified that after returning to work, she felt unsure of herself, self-conscious, confused, forgetful, irritable, frustrated, depressed, and had problems falling asleep. Prior to the train incident, the claimant had no history of psychiatric illness and had never treated with a psychiatrist or neurologist for any problems involving mood disorder or personality disorder. The claimant treated with Dr. Koenigsberg, a psychiatrist, from August 21, 1989 to December 5, 1989, and he diagnosed her with dysthymia and PTSD. Dr. Koenigsberg did not discharge her from his care, and felt that she was moderately depressed at her last visit. He recommended that the claimant continue with anti-depressant medication through March of 1990.
On September 28, 1989, the claimant left her position with the respondent employer in order to take a position as a cardiology marketing manager with Sony Medical Electronic. She was recruited for this position, and decided to take the job because it represented a new start for her where nobody knew about her train accident. The claimant testified that she was unable to handle the stresses of the new job. In May of 1990 the claimant’s employment was terminated due to downsizing. In January of 1990, the claimant switched to Dr. Lieb as her treating psychiatrist. Dr. Lieb continued the anti-depressant drug therapy and “provided supportive psychotherapy for the claimant’s ongoing unresolved depression.” (Finding ¶ 18).
On June 11, 1990, the claimant took a job with Middlesex Memorial Hospital, and testified that she left that job because of difficulties with the physical and interpersonal aspects of the job. On December 2, 1991, the claimant took a position with the Cardiothoracic & Vascular Group, and testified that she was fired from that job on April 10, 1992 because of her inability to handle the job due to depression and insomnia. From June of 1990 through November of 1991, the claimant continued to treat with Dr. Lieb, and also treated with other physicians for TMJ and post-traumatic arthritis which were caused by the train incident. Subsequently, the claimant was admitted to various hospitals.
On April 24, 1992, the claimant was admitted to a hospital for depression and fleeting suicidal ideation, and on July 8, 1992, the claimant was readmitted following a rage attack. The claimant was initially diagnosed with bipolar disorder and suicide threat, with a question of a seizure disorder. The claimant was again hospitalized for depression on December 10, 1992, and was subsequently admitted to a psychiatric institution, where she was diagnosed with major depression. The claimant was readmitted to the hospital on February 3, 1993. The trial commissioner concluded that while in and out of hospitals during the period from April 11, 1992 to May 24, 1993, the claimant was unable to work due to depression.
During the next several years, the claimant continued to treat with Dr. Lieb, and worked for short periods with several employers. (See Findings ¶ 29-33 and 37). In March of 1995, the claimant left a position due to depression and insomnia, and on March 3, 1995 she was admitted to a psychiatric institute for depression and suicidal ideation, and was diagnosed by Dr. Mejia with major depression and Post Traumatic Stress Disorder. (Finding ¶ 38). She was readmitted on March 20, 1995. The claimant was admitted to another hospital on August 8, 1995 where she was again diagnosed with depression.
On July 26, 1996, the respondent filed a Form 43 disclaiming the claimant’s psychiatric injury and proposed brain surgery. An independent medical examination was conducted by Dr. Selig, a psychiatrist, who opined that as a result of the train incident the claimant suffered from mild depression which resolved by December of 1989. Additionally, Dr. Selig diagnosed borderline personality disorder, which diagnosis was confirmed by Dr. Sheehy and Dr. Levin. The respondents contended that the claimant had a history of borderline personality disorder prior to the 1988 train incident, including persistent instability such as family instability, sexual abuse, and drug and alcohol abuse. The trial commissioner concluded that the claimant sustained PTSD following the 1988 train accident. He further found that although the claimant had a borderline personality disorder prior to the train accident, her psychiatric problems did not manifest themselves until after the traumatic event.
We will now address the respondents’ appeal. First, the respondents contend that the trial commissioner abused his discretion when he relied on testimony of Dr. Lieb to find that the claimant suffered post traumatic stress disorder. Specifically, the respondents argue that because the trial commissioner found that Dr. Lieb’s treatment of the claimant was not reasonable,1 it was therefore not proper for him to rely on his medical opinion. As it is the sole province of the trial commissioner to determine the weight of the evidence, we have repeatedly held that he may choose to believe “some, all or none” of the testimony of a witness. Maglieri v. Incorporated Construction, Ltd., 14 Conn. Workers’ Comp. Rev. Op. 149, 1947 CRB-1-94-1 (June 20, 1995). Similarly, a trial commissioner may rely on some, but not all, of a medical expert’s opinion. Desantis v. Middlebury, 3182 CRB-5-95-10 (February 27, 1997) (citing Busak v. City of Stamford, 12 Conn. Workers’ Comp. Rev. Op. 291, 1562 CRB-7-92-11 (June 8, 1994), aff’d., 39 Conn. App. 919 (1995) (per curiam)). We thus find no error in the trial commissioner’s decision to rely upon the testimony of Dr. Lieb regarding causation, even though he found that Dr. Lieb’s treatment of the claimant was unreasonable. Moreover, the diagnosis of PTSD was not only made by Dr. Lieb, but was also made by Dr. Mejia, a treating psychiatrist, and Dr. Koenigsberg. (Finding ¶ 38 and A).
Additionally, the respondents argue that because the trial commissioner described Dr. Lieb’s treatment as unreasonable, it was therefore error to order the respondents to pay for his medical care. “Section 31-294d makes the employer responsible for necessary and reasonable medical care that the claimant might require. This generally means paying all unpaid medical bills.” Vargas v. King-Conn Enterprises d/b/a Burger King Corporation, 3333 CRB-4-96-4 (Oct. 24, 1997). In the instant case, the trial commissioner labeled Dr. Lieb’s treatment “unreasonable” but he did not hold that the treatment was not “reasonable or necessary” medical treatment under § 31-294d.2 Specifically, in Finding ¶ N where the trial commissioner described Dr. Lieb’s treatment of the claimant, he also orders payment “for these reasonable and necessary bills .” In contrast, the trial commissioner found that a proposed surgical procedure (a cingulotomy) was not appropriate treatment and thus found that the related bills were not compensable. (Finding ¶ Q).
Moreover, we note the following:
It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant’s condition, or death, resulting from antibiotics, antitoxins, sedatives, painkillers, anesthesia, electrical treat & hardments, or corrective or exploratory surgery.
1 Larson & L. Larson, Workers’ Compensation Law (1999) § 10.09.
Fault on the part of the physician, such as faulty diagnosis, improper administration of anesthesia, excessive surgery, or a slip of the surgeon’s knife does not break the chain of causation.
Id. at § 10.09.
In further support of their appeal, the respondents argue that the trial commissioner ignored evidence regarding physical abuse and other personal problems of the claimant which may have caused her psychiatric condition. To the contrary, the trial commissioner did note the respondents’ argument that the claimant had a history of borderline personality disorder prior to the 1988 train incident, including persistent instability such as family instability, sexual abuse, and drug and alcohol abuse (Finding ¶ 60); the trial commissioner noted “marital problems” (Finding ¶ 77); and the trial commissioner found that Dr. Selig noted a “history of sexual and physical abuse.” (Finding ¶ 87; see also ¶ 62 and ¶ 77). We thus find no merit to the respondents’ argument that the trial commissioner ignored the issue of whether personal factors rather than the compensable injury caused the claimant’s psychiatric condition. Rather, a fair reading of the trial commissioner’s decision reveals that he considered this issue and concluded that the claimant’s compensable injury was the cause of her condition.
In their appeal, the respondents are essentially seeking to retry the facts of this case, which this board may not do. When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it .” Id. at 349 (citations omitted).
In the instant case, the trial commissioner concluded that the claimant suffered from PTSD, a manifestation of depression, as a result of the compensable 1988 accident. This conclusion was based upon the trial commissioner’s assessment of the evidence and is fully supported by the record, including the testimony of Dr. Lieb. The trial commissioner chose not to rely upon the respondents’ contention that the claimant’s psychiatric condition pre-dated the 1988 accident. It was within the authority of the trial commissioner, as the finder of fact, to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)).
Next, we will address the employer’s contention that the trial commissioner did not make sufficient findings of fact to support an award of temporary partial disability benefits under § 31-308(a) and temporary total disability benefits under § 31-307. The respondents contend that the trial commissioner “fails to cite any medical support for restrictions but simply notes a change in income.” (Employer’s Brief at p. 22). We disagree. In the instant case, the trial commissioner makes numerous findings of fact regarding the claimant’s physical and mental condition which restricted her ability to maintain employment. The trial commissioner’s award of temporary partial disability benefits and his award of temporary total disability benefits are both amply supported by the findings and by the evidence in the record, and thus may not be disturbed. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
Finally, we will address the respondents’ contention that the trial commissioner improperly relied upon an informal hearing in assessing the claimant’s scarring. Specifically, the trial commissioner noted that during an informal hearing, another trial commissioner had assessed 55 weeks of benefits for the claimant’s scarring, and the trial commissioner “based upon his own observation” agreed with that assessment. (Finding ¶ 39 and ¶ F). We agree with the respondents that a trial commissioner should not review notes from a prior informal hearing. See Moccia v. Dr. Martin Ecker, 7 Conn. Workers’ Comp. Rev. Op. 10, 620 CRD-7-87 (1989); Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988). However, in the instant case we find the reference to the informal hearing constitutes harmless error, because the trial commissioner specifically stated that his scarring award was based upon his “own observation” and upon Dr. Goodkin’s evaluation3 of the scars. (Finding ¶ F).
Accordingly, the trial commissioner’s decision is affirmed.
Commissioners Stephen B. Delaney and Amado J. Vargas concur.
1 The trial commissioner found that Dr. Lieb over prescribed medications and that he recommended a surgical procedure which was not reasonable. (Finding ¶ A, Q, and 97). BACK TO TEXT
2 The “determination of whether medical care is reasonable and necessary, including whether the medical care is palliative care or a curative remedy, is a factual issue to be decided by the trial commissioner.” Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995) (citing Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994)). This board has explained:
Reasonable or necessary medical care is that which is curative or remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work. Any therapy designed to keep the employee at work or to return him to work is curative.
Cummings, supra, (citing Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984)). BACK TO TEXT
3 Claimant’s Exh. I; see also Finding ¶ 35. BACK TO TEXT