State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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D’Amico v. State of Connecticut/Department of Corrections

CASE NO. 4029 CRB-05-99-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 18, 2000

DANIEL D’AMICO

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTIONS

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Harvey Levine, Esq., 754 West Main Street, New Britain, CT 06053.

The respondent was represented by Lisa Weiss, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 12, 1999 Finding and Award of the Commissioner acting for the Fifth District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commissioners Angelo L. dos Santos, Robin L. Wilson and Leonard S. Paoletta.

OPINION

ROBIN L. WILSON, COMMISSIONER. The respondent has petitioned for review from the April 12, 1999 Finding and Award of the Commissioner acting for the Fifth District. It contends on appeal that there was insufficient evidence to support the trier’s authorization of treatment for the claimant at a Massachusetts rehabilitation facility. We affirm the trial commissioner’s decision.

The claimant suffered injuries to his neck, back, shoulders and arms during a September 24, 1992 altercation with an inmate that occurred in the course of the claimant’s employment as a corrections officer. At the formal hearing, he sought benefits for further related ailments, including a psychiatric condition, fibromyalgia, hypertension, and reflex sympathetic dystrophy of the right arm. He also requested approval for medical treatment at an out-of-state inpatient program. The respondent has accepted the compensability of the claimant’s orthopedic injuries, along with post-traumatic stress disorder (PTSD) that he subsequently developed. It denied the claim for psychological depression and its associated treatment, however.

The trier found that the claimant completed a work hardening program on January 27, 1993, despite continuing subjective complaints of pain. At that time, he began receiving treatment from a multi-disciplinary outpatient rehabilitation team led by Dr. Beck, his treating physician. The respondents requested that he be evaluated by Dr. Pravda, an orthopedic surgeon, who suspected that the claimant had post-traumatic fibromyalgia after seeing him on April 6, 1993. Over the course of the next few months, the claimant was referred to a rheumatologist, a psychiatrist, and another independent medical examiner, whose reports mentioned fibromyalgia, adjustment disorder, depression, fibromyositis and reflex sympathetic dystrophy of the right arm.

The claimant attempted occupational therapy with Dr. Goldberger (the aforementioned independent medical examiner) at Pain Therapy Consultants in the late summer and early fall, but was discharged with no significant improvement on November 15, 1993. Early in 1994, Dr. Dixon, another rheumatologist, diagnosed the claimant with “rather severe diffuse fibromyalgia and the possibility of a mild element of underlying depression.” Findings, ¶ 21. Dr. Beck performed a work capacity evaluation on the claimant on September 22, 1994, and opined that he could return to work part-time and gradually progress back to full-time employment. He thought that the claimant had, from a physical standpoint, reached maximum medical improvement by January 5, 1995, and issued permanent partial disability ratings.

However, the claimant continued to be treated for his depression, which was partly related to the ongoing effect of his pain and disability, in one psychologist’s opinion. Findings, ¶ 38. He was also evaluated by Gaylord Hospital Industrial Rehabilitation on March 28, 1995. Its staff did not recommend a work hardening program in light of prior treatment, but suggested psychological therapy in conjunction with vocational training. They thought the claimant employable despite his fibromyalgia. The respondent, which had filed a Form 36 two months earlier requesting to discontinue temporary total disability benefits, gained approval of that request effective March 28, 1995. A subsequent visit by the claimant to Dr. Leicach, a psychiatrist, produced an inconsistent opinion: that the claimant was unemployable, and lacked the mental capacity to sustain a steady progression of intellectual operations, despite the master’s degree he had recently earned through correspondence courses. The trial commissioner rejected this opinion in favor of those of Drs. Beck and Grayson, and held that the Form 36 was properly approved as of March 28, 1995. He also dismissed the claimant’s hypertension claim.

As we alluded to above, the claimant was diagnosed with PTSD in 1996. After the respondent accepted liability for this condition, Dr. Swords was appointed as a treating physician. He believed that the claimant was totally disabled as of October 22, 1998, and recommended that he be referred to an inpatient facility such as the Spaulding Rehabilitation Center for a full medical and psychiatric evaluation. Spaulding is a multi-disciplinary, nonprofit rehabilitation center located in Medford, Massachusetts, and is associated with Massachusetts General Hospital, Harvard Medical School and Tufts University School of Medicine. Previously, Dr. Abeles, Dr. Grayson and Dr. Beck had all suggested that the claimant consider an inpatient pain management program. Such a program is not available in Connecticut, with the closest being the 28-day therapy-based program offered at the facility in Medford. Dr. Beck testified that he was not sure that this program would make a sustainable difference in the claimant’s condition, but he was frustrated due to numerous unsuccessful attempts at providing relief, and was looking for anything else that potentially could make a difference. Findings, ¶ 57.

The only physician who considered Spaulding a non-option was Dr. Goldberger, who was also the only physician of record who was personally familiar with the Spaulding Rehabilitation Center. Findings, ¶ 60. He testified with a reasonable degree of medical certainty that the referral was not worthwhile, as the outpatient treatment that the claimant underwent at Pain Therapy Consultants was a multi-disciplinary model similar to that which Spaulding would provide. In his opinion, the claimant had already received the maximum benefit of such an approach when he was discharged from Pain Therapy Consultants in 1993, especially considering the amount of time that has passed since his injury. The trier did not rely upon this opinion. He instead held that treatment at a comprehensive inpatient facility was reasonable and necessary, and as there was no such service available in Connecticut, he authorized the claimant to be evaluated at Spaulding and admitted for up to 28 days. The respondent has appealed that ruling to this board.

The appellant essentially makes two arguments. It contends that the trier’s decision was erroneous because the same treatment that Spaulding offers had already been provided to the claimant as an outpatient. It also contends that the trier should have placed more reliance on Dr. Goldberger’s refusal to endorse the claimant’s participation in the Spaulding program, for he had solicited the doctor’s opinion as per § 31-294f, and because Goldberger’s doubts were based on personal familiarity with Spaulding rather than promotional information provided directly or indirectly by the rehabilitation facility. The respondent relies on Cummings v. Twin Mfg., Inc., 29 Conn. App. 249 (1992), as the primary legal authority for its appeal. In Cummings, our Appellate Court held that “a compensation commissioner is not prohibited from ordering out of state care when equally beneficial treatment is unavailable in Connecticut.” Id., 254. We are now asked to read the phrase “equally beneficial” as requiring the demonstration of a qualitative difference between the form of treatment offered out-of-state and that available in Connecticut, with the claimant having to conclusively establish that the extraterritorial care is likely to succeed in improving his condition.

The Cummings decision, in our view, did not display as grudging an attitude toward out-of-state care as the respondent suggests. After noting the remedial nature of our workers’ compensation statute, the court quoted a Rhode Island Supreme Court decision that cited the increased mobility and regionalization of the modern economy. McAree v. Gerber Products Co., 342 A.2d 608 (R.I. 1975). “While the state is still recognized as a sovereign entity, capable of regulating within its borders, we must not ignore that the modern technological world, in particular the medical world, recognizes no such boundaries. Certain areas, such as Boston and New York, have become centers for medical research and advanced treatment techniques.” Id., 613. Our Appellate Court agreed with that philosophy, stating that “any blanket prohibition against treatment out of state for Connecticut compensation claimants would constitute an unwise ‘parochial view that adequate treatment is always available in this state.’” Cummings, 258, quoting Alcan Electrical & Engineering Co. v. Bringmann, 829 P.2d 1187, 1189 (Alaska 1992). The court went on to specify that it was the duty of the trier of fact “to determine, after an evidentiary hearing, the reasonableness and necessity of treatment out of state for compensation claimants.” Cummings, supra, 260. In some cases, expert testimony might be necessary to make such a finding. “Whether to accept or reject such testimony is a matter for the commissioner to determine, which will be afforded great deference by reviewing courts.” Id., 260-61.

We do not believe that the Appellate Court’s use of the phrase “equally beneficial treatment” implies that we should adopt precise units of measurement by which in-state and out-of-state medical procedures can be compared as a matter of law. If anything, the court reinforced the discretionary role of the factfinder in weighing the credibility of expert opinions regarding the advisability of out-of-state care. Id.; see also, Melendez v. Home Depot, 3835 CRB-4-98-6 (July 13, 1999) (CRB must affirm trier’s decision to authorize treatment as long as it is reasonable under all of the circumstances). As the trier of fact, the commissioner is not bound to assign greater weight to the opinion of any particular medical examiner, including a § 31-294f examiner. Gillis v. White Oak Corp., 49 Conn. App. 630, 637 (1998); Nieves v. SCM Co., 3317 CRB-6-96-4 (July 9, 1997). He is entitled to rely upon whichever doctor’s opinion (if any) he finds the most persuasive. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

The trier in this case opted to rely upon the multitude of doctors who recommended that the claimant seek therapy at Spaulding rather than the one physician who discouraged that avenue of treatment. A corollary of that choice was his decision that the inpatient rehabilitation program offered in Massachusetts would give the claimant a better chance to recover than did the outpatient programs available in Connecticut. The commissioner could reasonably infer that a focused inpatient program affiliated with several prestigious medical institutions can achieve results that are not achievable in a less focused outpatient program, even assuming arguendo that the specific types of therapy used within each program are identical. Differences in the intensity, integration and supervision of treatments can certainly make one regimen more beneficial than another. Given the claimant’s lengthy period of disability to date, it was consistent with the humanitarian spirit of the workers’ compensation statute for the trier to approve out-of-state treatment in the hope that it would provide him with results and relief.

Though the respondent tries to highlight the skepticism of the doctors regarding the likelihood that the Spaulding program would succeed in helping the claimant manage his pain, the fact is that numerous treaters recommended that the claimant enter such a program, and gave plausible explanations for their opinions. See, e.g., Respondent’s Exhibit 4, Deposition of Dr. Beck, 54-55 (explaining difference between previous treatments and global program at Spaulding). As such, the trier did not err in relying on those opinions. We therefore affirm the trial commissioner’s decision.

Commissioners Angelo L. dos Santos and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

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