State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Donaldson v. Julia Duhaime

CASE NO. 4213 CRB-6-00-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 30, 2001

RITA J. DONALDSON

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

JULIA DUHAIME

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by Bruce E. Newman, Esq., 99 North Street, Route 6, P.O. Box 575, Bristol, CT 06011-0575.

The respondents were represented by Nancy Rosenbaum, Esq., 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the March 17, 2000 Finding and Award of the Commissioner acting for the Sixth District was heard January 12, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and Jesse M. Frankl.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant and the respondents have each petitioned for review from the March 17, 2000 Finding and Award of the Commissioner acting for the Sixth District. The claimant challenges the temporary nature of the trial commissioner’s total disability award, while the respondents allege that the trier erred by finding any total disability in the first place, by allowing a particular physician to testify as a rebuttal witness, and by authorizing the treatment of two other physicians. A thorough examination of the record reveals sufficient evidence upon which to affirm the trial commissioner’s decision.

The claimant, a former home health care worker, suffered a compensable injury to her left non-master shoulder on July 21, 1994, which led to a 5% permanent partial disability rating as per a voluntary agreement that was approved on July 21, 1995.1 She has been treating for left shoulder and upper body pain since the day following her injury. On June 2, 1995, Dr. Murray, a Hartford orthopedist, noted that the claimant still suffered intermittent symptoms of left shoulder pain despite injections and chiropractic treatment. The same doctor noted two months later that the claimant’s shoulder pain continued, and he recommended surgical intervention in the form of an arthroscopic subacromial decompression. This operation was performed in late October 1995. See Respondents’ Exhibit 4. The claimant continued to treat with Dr. Murray through 1998. She also consulted and treated with numerous other doctors as a result of her left shoulder symptoms.

Pursuant to § 31-294(f), a commissioner referred the claimant to Dr. Pepperman, a New Britain physiatrist, for an examination. The claimant’s continued complaints of left shoulder pain and its attendant emotional consequences led Dr. Pepperman to refer the claimant to Dr. Sternstein, a psychiatrist who practiced in the same clinic (Grove Hill), for pain management. Her initial visit with Dr. Sternstein was on June 17, 1998, where she described various symptoms including depression, pain and increased panic attacks. She informed the doctor that she had been taking Percocet and Xanax since 1992 (which he deemed insignificant due to the low dosage that she took), and denied having any history of psychiatric problems. Dr. Sternstein diagnosed major depression, panic disorder, and pain disorder associated with psychological and medical conditions. During his testimony at formal hearings, he also stated that the claimant suffered from sleeplessness, a loss of ability to enjoy herself, hopelessness, and mood swings, all of which made her unable to function in life. He explained how a neurophysical impingement injury such as hers can cause enough pain to produce a pervasive disability that includes mood disorders, and prevent a person from returning to work. Findings, ¶ 21, 24. In his opinion, the claimant will be totally disabled for the rest of her life due to the chronic pain stemming from her compensable injury, even taking into account her other medical infirmities and previous injury claims (including a 10% permanent partial disability rating of the brain that came from head trauma sustained in an auto accident, chronic dizziness, hypertension, and soft tissue injuries to the back and neck).

The respondents, meanwhile, enlisted Dr. Selig, a forensic psychiatrist, to conduct an independent evaluation of the claimant. (“Forensic psychiatry” is psychiatry that is geared toward use in legal proceedings.) Dr. Selig thought this case to be very complex, and labeled the claimant as a poor historian who often distorted her own history to help support her case. He testified in detail about the claimant’s past business successes and failures, as well as her difficult marriages, and gave the opinion that the claimant’s shoulder injury was not a significant factor in her claimed disability. Instead, he thought the claimant suffered from a personality disorder, anxiety, and malingering.

Over the respondents’ objections, the claimant called Dr. Felber, a Hartford forensic psychiatrist, as a rebuttal witness to Dr. Selig’s testimony. Dr. Felber had seen the claimant five times at his office for the purpose of evaluating the merits of her workers’ compensation claim. He disagreed with Dr. Selig’s opinion, stating that the claimant had transferred her physical ailment to her psyche, and that this mental illness is the ailment that now prevents her from working. He thought that the lack of objective testing made the claimant’s previous 10% permanency rating of the brain unreliable. In support of the claimant’s argument, the trier also noted that the claimant had worked full-time up to the day of her July 1994 shoulder injury.

The trier found that the testimony of the claimant, Dr. Sternstein and Dr. Felber was credible regarding the claimant’s current work capacity, and declared that her chronic pain syndrome had been caused by her 1994 compensable injury. He stated that the commencement date of her total disability was September 17, 1998, and that the term of her benefits should run through the last trial date of September 1, 1999. Drs. Pepperman and Sternstein were retroactively approved as authorized treating physicians, with their bills to be paid by the respondents. Dr. Sternstein was also awarded $900 as a fee for his live testimony. The respondents and the claimant have both filed appeals from the trier’s Finding and Award.

We begin our review by addressing the respondents’ objections to the trier’s designation of Drs. Pepperman and Sternstein as authorized treating physicians. The claimant had been treating with Dr. Murray for several years when she was sent to Dr. Pepperman for a § 31-294f examination in September 1997 regarding work capacity and restrictions relative to her left shoulder. See Respondent’s Exhibit 16. According to the claimant’s counsel, Dr. Murray also referred the claimant to Dr. Pepperman. September 1, 1999 Transcript, p. 167. Thus, the claimant expressed her intent to contest an August 4, 1998 Form 432 that challenged her allegedly unauthorized treatment with Dr. Pepperman, which form also presumably—but not expressly—opposed the treatment of any physician to whom he referred the claimant without approval, such as Dr. Sternstein. See Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996) (second physician was first link in chain of authorized treaters as per voluntary agreement), aff’d, 49 Conn. App. 339 (1998); compare McGowan v. Waterbury Farrell, 14 Conn. Workers’ Comp. Rev. Op. 319, 1964 CRB-1-94-2 (Sept. 15, 1995) (unauthorized treater’s referral to another doctor also unauthorized), aff’d, 43 Conn. App. 917 (1996) (per curiam). Notably, Dr. Sternstein began treating the claimant on June 17, 1998 pursuant to Dr. Pepperman’s referral, over a month before the respondents’ Form 43 was filed. December 16, 1998 Transcript, pp. 11, 13.

An employer is required to provide a competent physician to attend an injured employee pursuant to § 31-294d(a). Leiner v. Newmark & Lewis, 15 Conn. Workers’ Comp. Rev. Op. 147, 149, 2202 CRB-8-94-10 (Jan. 18, 1996). Once the claimant has selected a treating physician, the commissioner may authorize or direct a change of physician at the request of the employer or employee, or when good reason exists. Section 31-294d(c); Leiner, supra. The employer is not responsible for paying for the cost of care by an unauthorized treater, though the testimony of that doctor would still be admissible into evidence as per § 52-174 C.G.S. Zizic v. Sikorsky Aircraft Division, 3732 CRB-4-97-11 (July 7, 1999); Melendez v. Home Depot, 3835 CRB-4-98-6 (July 13, 1999), aff’d, 61 Conn. App. 653 (2001). A claimant should obtain permission to change physicians before commencing a new course of treatment. This may include a valid referral from an authorized physician. McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 2050 CRB-3-94-5 (Sept. 20, 1995), aff’d, 43 Conn. App. 912 (1996)(per curiam). However, retroactive authorization of a medical provider is permissible as long as the claimant has a good reason for unilaterally changing providers. Id.; Outlaw v. Pray Automotive of Greenwich, 3981 CRB-7-99-2 (March 23, 2000). Ultimately, the trier has a great deal of discretion in deciding whether treatment should be authorized, and this board may not overturn such a ruling as long as it is reasonable. Id. As usual, the claimant has the burden of proof in such an instance. McGowan, supra.

This case essentially features an amalgam of a valid referral and a change of physicians due to a non-improving condition. Though the trier made no findings regarding the assertion of claimant and her counsel that Dr. Murray referred the claimant to the Grove Hill Clinic and Dr. Pepperman; see March 24, 1999 Transcript, p. 10; it is undisputed that a commissioner sent the claimant to Dr. Pepperman for an examination. The reports of Dr. Murray, the approved treater, indicate that as of 1998, the claimant was continuing to experience pain despite her 1995 surgery. Respondents’ Exhibit 4, reports of March 30, 1998; May 21, 1998; September 2, 1998. Given her continuing discomfort, it would have been natural for the claimant to pursue Dr. Pepperman’s suggestions regarding treatment at the time she was instructed to appear before him for a § 31-294f examination. A claimant who is told to visit a particular doctor by this commission and her employer could foreseeably infer that it would be acceptable to heed that doctor’s recommendations without seeking further permission.

Further, the respondents did not file an objection to the claimant’s continuing treatment with Dr. Pepperman until August 4, 1998, almost one year after the § 31-294f examination, and over a month after the claimant had been referred to Dr. Sternstein. At that time, the parties had just been notified that a formal hearing on the claimant’s entitlement to total disability benefits was scheduled for September 22, 1998. Over the course of the next year, various formal hearings were held, through the closing of the record on November 19, 1999. The issue of the claimant’s authorization to treat with Drs. Pepperman and Sternstein was not addressed in great depth at those hearings, though the matter was briefly discussed at the September 1, 1999 hearing (Transcript, p. 167) and was alluded to at the March 24, 1999 hearing (Transcript, p. 103). It is worth noting that, at the time Dr. Sternstein testified, neither party broached the subject of authorization of his treatment. See December 16, 1998 and February 4, 1999 Transcripts. Instead, the issue was raised later, in a relatively indirect manner. Perhaps some of the subsequent controversy over authorization could have been averted had the issues in dispute been expressly delineated at the outset of those hearings. That not having been done, we think it acceptable that the trier included a ruling regarding physician authorization in his Finding and Award, and that he found the claimant’s treatment with Drs. Pepperman and Sternstein compensable under the circumstances of this case.

The respondents also contend that the trier erred by allowing Dr. Felber to testify during the rebuttal stage of the claimant’s case. They protest that the claimant failed to disclose him as a witness until the last formal hearing on September 1, 1999, and imply that his testimony should not have been relied upon to rebut that of Dr. Selig. See Brief, p. 7. We disagree. Although Practice Book § 13-4 prescribes specific rules regarding the disclosure of witnesses in Superior Court proceedings, the workers’ compensation arena has no standard of formal pleading, and the rules of evidence do not technically apply under § 31-298. Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 779 (1998). In addressing objections to the admission of testimony, we have cited the observation of our Supreme Court that “[w]hile it may be error to exclude the opinion of an expert, it is difficult to claim error in its admission because of the wide discretion allowed the trial court in ruling on this question.” Rogoff v. Southern New England Contractors Supply Co., Inc., 129 Conn. 687, 691 (1943), quoted in Dixon v. United Illuminating Co., 3543 CRB-4-97-3 (April 9, 1998). The fact that our cases fall within the more liberal penumbra of Chapter 568 only serves to further widen the scope of the commissioner’s authority to admit testimony. Id.

Here, the commissioner noted at the May 12, 1999 hearing that he would not foreclose the claimant from calling another witness at the next formal hearing, which was held on September 1, 1999. May 12, 1999 Transcript, p. 56. At the September hearing, the claimant attempted to call Dr. Felber to the stand in rebuttal to Dr. Selig’s expert testimony. As noted above, both are forensic psychiatrists. Counsel for the claimant represented that he had introduced Dr. Felber to the respondents, and had told them that, if necessary, he would be used as a rebuttal witness to respond to Dr. Selig’s testimony. September 1, 1999 Transcript, p. 80. The trial commissioner considered the arguments of both counsel, recalled that Dr. Felber had been present for the testimony at prior proceedings, and exercised his discretion to allow Dr. Felber’s testimony insofar as it was truly a rebuttal of the testimony offered by Dr. Selig. He did not cast his ruling as dependent on any assumption that the claimant’s counsel had earlier stated on the record his intent to call a rebuttal witness. Id., p. 89.

We note that the respondents did not request that the September 1, 1999 proceedings be continued so that they might depose Dr. Felber or obtain any records that he might have. (No such records were introduced at trial.) They simply sought to have his testimony stricken altogether. We also note that our Supreme Court recently overruled Brown v. Blauvelt, 152 Conn. 272, 274 (1964), which prohibited the admission of a medical opinion that is based on statements made by a patient for the purpose of enabling an expert to act as a witness in litigation. George v. Ericson, 250 Conn. 312 (1999). There is no other specific evidentiary rule in our law that would categorically prohibit the introduction of such evidence. Therefore, we decline to reverse the trier’s evidentiary ruling, as Chapter 568 favors our deference to his discretion on this matter.

Finally, both parties raise challenges to the trier’s primary finding that the claimant was totally disabled from September 17, 1998 to September 1, 1999. The respondents insist that the claimant did not meet her burden of proving total incapacity in the first place, while the claimant believes that she should be granted total incapacity benefits into the future by virtue of her having established “incurable mental illness” as per § 31-307(c). Neither of these claims is persuasive.

The existence of total disability in a workers’ compensation case is a question of fact, with the burden of proof allocated to the claimant. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 41-42 (1996). Generally, this burden is met through the introduction of medical evidence, including expert testimony, whose credibility is assessed by the trial commissioner in accord with his factfinding prerogative. Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001); Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000). As long as a doctor’s opinion has been stated within a reasonable degree of medical probability, it may serve as the foundation for a commissioner’s findings. Kisson, supra; Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). No particular “magic words” are required to be present in the diagnosis. Struckman v. Burns, 205 Conn. 542, 555-56 (1987). On review, this board may disturb a commissioner’s factual findings only if they lack any support in the evidence, or if they omit undisputed material facts. Kisson, supra; Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). We may not retry a case on review and substitute our own findings for those of the trier. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 196 (1999).

Much of the respondents’ argument is based on Dr. Sternstein’s lack of awareness of the claimant’s full medical and claims history at the time he was treating her. As the trial commissioner observed in his findings, however, Dr. Sternstein stated that the claimant’s medical and psychiatric history did not change his opinion regarding her total disability and its cause even after he was confronted with this additional information. Findings, ¶ 30; February 4, 1999 Transcript, p. 39. When he offered his opinion, he stated it as follows: “The shoulder injury, the chronic pain and the major mood disorder, the mental illness that goes along with that represents my evaluation or statement that, within reasonable medical certainty, Miss Donaldson will continue to be totally disabled and permanently totally disabled unless [] something [new] appears on the horizon medically . . . .” Id., p. 41. No matter how strongly the respondents believe that the testimony of Dr. Selig was “better and more thorough” than that of the claimant’s witnesses; see Brief, p. 12; the diagnosis of Dr. Sternstein was offered with enough medical certainty to satisfy the requirements of our law, and our standard of review on appeal. The trial commissioner chose to credit that evidence, as was his prerogative. We cannot substitute our own judgment for that of the presiding factfinder.

Likewise, we find no error in the trier’s limitation of the total disability award to the period between September 17, 1998 and the last formal hearing. As part of his factfinding authority, the trial commissioner is entitled to credit a portion of a doctor’s testimony, while disregarding other portions. Tartaglino, supra, 195; Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 1592 CRB-5-92-12 (April 27, 1995). The trier here accepted that the claimant was currently totally disabled due to her condition, and had proven that such disability existed from roughly the time that Dr. Sternstein began treating her. The trier apparently disagreed, however, that she suffered from “incurable mental illness” that would prevent her from ever working again. Given the conflicting medical evidence in this case, the insertion of a permanent disability finding would have been fairly dramatic. Total disability, other than that statutorily mandated by § 31-307, is normally a matter of continuing proof. Brown, supra. The claimant is not prohibited from returning to this Commission and proving additional periods of disability should she remain unable to perform any type of work. The availability of this remedy is legally sufficient here.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Ernie R. Walker and Jesse M. Frankl concur.

1 The claimant was eventually rated at 7% by Dr. Schutzer, and the respondents paid the additional 2% in permanency benefits. The claimant also collected § 31-308a benefits equivalent to the weeks of permanency. Findings, ¶ 16. BACK TO TEXT

2 The Form 43 itself is undated. See Respondentís Exhibit 17 for Identification. However, the computer records of this commission indicate that said form was received by this agency on August 4, 1998. BACK TO TEXT

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