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Outlaw v. Pray Automotive of Greenwich

CASE NO. 3981 CRB-07-99-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 23, 2000

HILDA OUTLAW

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

PRAY AUTOMOTIVE OF GREENWICH

EMPLOYER

and

AMERICAN POLICYHOLDERS INSURANCE

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Andrew F. Fink, Esq., Carron & Fink, 1698 Post Road East, Peppermill Office Building, Westport, CT 06880-9991.

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

These Petitions for Review from the February 11, 1999 Finding and Order of the Commissioner acting for the Seventh District was heard October 15, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant and the respondents have each petitioned for review from the February 11, 1999 Finding and Order of the Commissioner acting for the Seventh District. At oral argument, this board approved the claimant’s request to withdraw her appeal. The respondents thus remain as the sole appellant. They contend on appeal that the trier erred by retroactively authorizing certain treatments that the claimant received, and by finding that she had suffered compensable injuries beyond her initial accepted right upper extremity injury. We affirm the trial commissioner’s decision.

The trier found that the claimant injured her right arm, shoulder, and cervical spine on April 17 or 18, 1988, while carrying boxes at her workplace. Medical bills were paid by the respondents, and the claimant received benefits for lost time. Dr. Lagios, the claimant’s primary treating physician, kept her out of work until August 25, 1988, at which point she returned to her job. By 1990, the claimant had reached maximum medical improvement and had been paid permanency benefits for a 5% rating to her right upper extremity. She neither received nor sought further workers’ compensation benefits for the next several years. The claimant then brought the instant action.

She alleged below that she has continued to be totally disabled since the date of her accepted shoulder injury, which is now responsible for pain in her head, back, arms, and legs, sinus problems, and lost hearing and vision. In his decision, the trial commissioner outlined the various medical opinions given by Drs. Lagios, Brovender, Batson and Coren, including the following description from a May 6, 1988 report of Dr. Lagios: “This is a 56-year-old . . . female, who presented to the Primary Care approximately two weeks ago with severe right neck and right arm pain that started the Wednesday prior. . . . The pain is described as occurring in the neck, radiating into the scapula area down into the right arm into the epicondyle area, and down into the forearm.” Findings, ¶ 29. The trier also found that the claimant had been involved in an automobile accident in the fall of 1988. Both Drs. Brovender and Batson felt that the claimant’s automobile accident was the sole cause of her disc herniations and complaints of low back pain, which were not present beforehand. Findings, ¶¶ 35-38.

Dr. Coren, a chiropractic physician, attributed many more of the claimant’s symptoms to her 1988 compensable injury. She reported that the claimant had provided a history of injuring her sides, lower back, right hand and right leg in that incident, as well as the right upper extremity symptoms mentioned in Dr. Lagios’ 1988 report. The claimant submitted over $20,000 in bills for 225 separate sessions with Dr. Coren, whom she stated that she sought out because she was unable to walk, and none of her other treating physicians could offer her any help. Findings, ¶ 19. Dr. Coren testified that she thought Dr. Batson had referred the claimant to her. She could not state that the extensive treatment she rendered to the claimant was curative, but declined to characterize her therapy as merely palliative, either. Findings, ¶ 42.

The trier ruled that the claimant had not proven that she suffered low back trauma or herniated cervical discs as a result of her April 1988 compensable injury. He also declined to approve the treatment of Dr. Brovender, whom the claimant had chosen to see on her own. However, the commissioner deemed Dr. Coren an authorized treater, as it was reasonable for the claimant to seek chiropractic treatment in view of her inability to obtain relief from the pain caused by her compensable injuries. Though said treatment was excessive under this commission’s medical protocols, the trier approved 64 of the claimant’s visits. He ordered the respondents to accept liability for the claimant’s right upper extremity and neck injuries, excluding cervical disc herniations. He concluded that the claimant had not proven total disability beyond 1989, but mentioned in parting that the claimant might make a claim for “either temporary partial or 31-308a benefits, the eligibility of which will be determined at future hearings.”1

The respondents argue on appeal that the claimant failed to prove by definitive medical evidence that any of her additional injuries or complaints of pain were caused by her April 1988 compensable injury. They also claim error in the trier’s failure to grant their Motion to Correct, which sought to add “undisputed” facts related to the claimant’s medical treatment by Drs. Batson, Coren and Hedley (the claimant’s family physician, to whom the trier did not refer in his findings). Whether or not a claimant’s medical condition is due to an accepted compensable injury is a question of fact for the trial commissioner. Moawad v. American Eagle, 3701 CRB-6-97-10 (Aug. 25, 1999). His duty is to consider the exhibits and testimony, assess their credibility, and draw inferences and legal conclusions that are based on his impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This standard applies even where evidence is apparently uncontradicted. Pallotto, supra.

When the trier receives a Motion to Correct, he must evaluate the proposed changes in that same way. He need not grant corrections that will not affect the outcome of the case, and on review this board may not retry the matter or independently appraise the evidence underlying the proposed corrections. Id. On appeal from a commissioner’s decision, the factual findings may be disturbed only if they have no basis in the evidence, or if they omit accepted material facts. Webb, supra, 71. The legal conclusions drawn by the trier also must 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 v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.

The respondents ascribe to Dr. Lagios the opinion that there were many possible reasons for the claimant’s neck symptoms, including her 1988 car accident, a temporary aggravation of her pre-existing condition, degenerative changes, and old age, and suggest that he depreciated as conjecture any attempt to identify a specific cause. Brief, 12. This is somewhat inaccurate. Dr. Lagios actually said that he thought that the claimant’s pains were due to the April 1988 incident, and stated that it would be “conjecture on [his] part” to label this as a temporary aggravation of an underlying problem. December 22, 1997 Deposition, 17-18. As of August 1989, he believed that the claimant still needed ongoing medical treatment, as her symptoms had worsened, and he had referred her to Dr. Batson. Id., 24-25. Though he declined to state with “reasonable medical probability” that her worsening complaints of pain were due to the April 1988 injury, he could not identify another cause that was more likely. Id., 26-27. Importantly, Dr. Lagios confirmed that the claimant was suffering from neck pain and right upper extremity weakness only a few days prior to her automobile accident, and there was no subsequent change in her condition that was inconsistent with these findings. Id., 26-27.

The respondents also represent in their brief that Dr. Batson diagnosed the claimant with fibromyalgia and two disc herniations, neither of which was caused by her April 1988 workplace accident. They highlight the doctor’s acknowledgment that, in all medical probability, the compensable injury should have resolved long ago. April 2, 1998 Deposition, 32. However, Dr. Batson noted that the claimant’s complaints of neck and arm pain were relatively consistent from the time of her April 1988 injury, which the trier reported in his findings. As for a diagnosis, the doctor actually said that the claimant’s fibromyositis was caused by a combination of her injuries, including the compensable event. Id., 18-20. He declined to identify any one occurrence as the predominant factor in causing her condition.

The trier was not bound to view these reports in the light most favorable to the respondents, nor was he required to rely upon the reports of other physicians that might have been less propitious to the claimant’s interests. Here, the claimant’s compensable injury to her right upper extremity had previously been accepted, and she had been receiving treatment for pain in her neck and right shoulder/arm throughout 1988. The uncertainty of the claimant’s doctors as to the effect of her car accident and other subsequent mishaps did not require the commissioner to presume that the claimant’s compensable injury had resolved. Just as a doctor need not utter a set of “magic words” to establish the cause of an injury, the trier of fact need not expect a doctor’s testimony to meet the same evidentiary burden regardless of the circumstances. See O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816-17 (1999). In this case, the fact that the claimant’s complaints regarding her neck and shoulder remained relatively constant throughout the period of her treatment made it reasonable for the trier to assume that her continued medical treatment by Drs. Lagios and Batson should be approved. As such, there is no error in the trier’s denial of the Motion to Correct.

With respect to the authorized treatment by Dr. Coren, we have stated that a commissioner may retroactively authorize a new treating physician under § 31-294d, as long as the claimant has provided a good reason for not seeking permission first. Melendez v. Home Depot, 3835 CRB-4-98-6 (July 13, 1999). “Ultimately, the trier has a great deal of discretion as to whether or not to authorize a physician’s treatment, and this board must affirm a commissioner’s decision so long as it is reasonable. Landry v. North American Van Lines/Transtar, Inc., 15 Conn. Workers’ Comp. Rev. Op. 397, 399, 1971 CRB-2-94-2 (Aug. 16, 1996).” Id. We recently upheld a trier’s decision to retroactively authorize a change in care providers where the claimant sought treatment with a different doctor because his condition was not improving. Murray v. Black Tie Limousine, 3899 CRB-3-98-9 (Nov. 4, 1999). The trier applied the same reasoning here, and we find no error in this application of the commissioner’s discretion.

The respondents also object that Dr. Coren’s treatment was palliative, and that it was a violation of the medical protocols to authorize 64 chiropractic visits by the claimant, as said protocols only allow for 20 visits during the first six weeks of treatment. Respondents’ Exhibit 4. As noted by the respondents, the protocols were not in effect at the time of the claimant’s injury. Moreover, the December 26, 1995 directive of former Chairman Frankl clarifying the use of said protocols explicitly states that they are not absolute. The commissioner was thus not required to strictly adhere to their standards in the instant case, and did not commit error by authorizing 64 of the claimant’s 225 visits to Dr. Coren.

As for the curative value of her therapy, as long as it was designed to repair the damage done to the claimant by her compensable injury, it was reasonable and necessary under the Workers’ Compensation Act. Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (Apr. 12, 1995), appeal dismissed, A.C. 14747 (June 29, 1995). Dr. Coren testified that there were times during the claimant’s period of therapy that her condition improved, and that over the course of her period of treatment, the claimant became able to function for longer periods of time between visits. August 25, 1997 Transcript, 7. She stated that the claimant’s therapy was not palliative, for “[i]t wasn’t just to make her feel better. We were looking particularly to stop the radiating pain that she was complaining of and to reduce her symptoms.” Id., 8. The trial commissioner was entitled to give credence to those remarks in his role as the arbiter of credibility, and this board may not question his factual inferences on review. Pallotto, supra; Webb, supra. Thus, we find no error in his decision to authorize a portion of Dr. Coren’s treatment.

The trial commissioner’s decision is hereby affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The respondents raise the claimant’s failure to prove entitlement to light duty benefits as an issue in their brief. We need not address this argument on appeal, as the trier clearly made no ruling on that subject. BACK TO TEXT

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