CASE NO. 4056 CRB-06-99-06
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 11, 2000
DONALD A. TELESCA
UTC/PRATT & WHITNEY
INSURANCE COMPANY OF NORTH AMERICA
The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondent was represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the June 3, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 3, 1999 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that treatment for the claimant’s binaural hearing loss constituted reasonable and necessary medical treatment pursuant to § 31-294d. In support of their appeal, the respondents argue that because only the hearing loss in the claimant’s right ear was work-related, that therefore the respondents should not be liable for the treatment of the left ear.
In the instant case, the trial commissioner took administrative notice of a prior Finding and Award issued by another commissioner on May 14, 1997, which found that the claimant sustained a twenty-one percent permanent partial impairment to his right ear, which was found to be compensable, and further found that “the hearing loss to his left ear is not found to be compensable and the claim for the loss to the left ear is dismissed.” (Finding ¶ 2-3). Additionally, the trial commissioner in the instant case found the following relevant facts. In order to treat the compensable hearing loss in the right ear, the claimant asserted that he requires treatment for both ears, and therefore total treatment should be paid by the respondents. The claimant’s treating physician, Dr. Spinella, opined as follows:
“ the patient does have a binaural hearing deficit. On this basis all testing and remediation in the form of hearing aids should address the binaural nature of his problem and not be confined to one side or the other.” (Finding ¶ 5, citing Claimant’s Exh. A).
During the formal hearing, and again in their appeal to this board, the respondents argue that they may not be held liable for the medical costs related to the left ear, as there is no causal connection between the left ear impairment and the claimant’s employment. It is not disputed that the claimant’s hearing impairment in his left ear is not causally related to his employment. Section 31-294d requires an employer to furnish “any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.” Thus, the issue at hand is whether “reasonable or necessary” treatment for the claimant’s compensable right ear injury may include treatment of the left ear.
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)); see also Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984). 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).
Moreover, “(i)n 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 report of Dr. Spinella indicates that the “testing and remediation in the form of hearing aids” of claimant’s compensable right sided hearing loss should not be limited to the right ear, but should address the binaural nature of his hearing condition. We conclude that this medical opinion, although somewhat limited, sufficiently supports the trial commissioner’s conclusion that said binaural treatment constitutes “reasonable or necessary” medical treatment pursuant to § 31-294d. Significantly, we note that the respondents did not introduce any medical evidence to contradict the medical opinion of Dr. Spinella, nor did the respondents depose the doctor.1 Left with only one medical opinion on this issue, we do not find that the trial commissioner unreasonably drew the inference that said binaural treatment was reasonable. See Ferrara, supra.
Furthermore, we note that the respondents’ argument that they should not be liable for treatment of the left ear because it is not work-related overlooks the general doctrine in workers’ compensation cases that ‘the employer as in the law of torts takes the victim as it finds him .’” Lowe v. General Dynamics Corp./Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 118, 1746 CRB-2-93-5 (June 5, 1995), citing Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30, 1992); see also Glenn v. Stop & Shop, Inc., 168 Conn. 413, 419 (1975) (the employer takes the employee in that state of health which is his when the employment begins).
We conclude that there was sufficient evidence presented to support the commissioner’s determination that the treatment of the claimant’s binaural hearing loss constituted reasonable and necessary medical treatment pursuant to § 31-294d.
The trial commissioner’s decision is affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 Thus it was not asked of Dr. Spinella whether in the absence of the claimant’s compensable right sided hearing loss injury, treatment would have been necessary for the left sided hearing loss. BACK TO TEXT