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Zalutko v. Danbury Hospital

CASE NO. 4229 CRB-7-00-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 23, 2001

DARLENE ZALUTKO

CLAIMANT-APPELLEE

v.

DANBURY HOSPITAL

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

NORTHBROOK PROPERTY & CASUALTY INSURANCE CO.

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Scott McCarthy, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondent employer and Liberty Mutual were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

The respondent insurer Northbrook Property & Casualty Insurance Co. was not represented at oral argument. Notice sent to Furniss & Quinn, Esq., 248 Hudson St., Hartford, CT 06106.

This Petition for Review from the April 20, 2000 Finding and Order of the Commissioner acting for the Seventh District was heard January 26, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents Danbury Hospital and Liberty Mutual Insurance Co. have petitioned for review from the April 20, 2000 Finding and Order of the Commissioner acting for the Seventh District. They contend on appeal that the trier erred by awarding the claimant’s acupuncturist payment for 32 treatment sessions under § 31-294d. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to her neck and other body parts on May 1, 1988.1 Three of the doctors who were treating her referred her to the Meriden Therapy Center, which is operated by Steven McLaughlin, a “diplomat” of the Acupuncture Association. McLaughlin first treated her on October 18, 1994, and continued to do so through May 22, 1995. The claimant testified that she had been unable to work when he began treating her, but his administration of massages and acupuncture enabled her to regain function and to resume employment. McLaughlin also offered testimony regarding his treatment and services. The trial commissioner ruled that the respondent employer should pay for 32 of the claimant’s 44 visits to the Meriden Therapy Center, which holding has been appealed to this board.

Danbury Hospital and Liberty Mutual, the appellants, contend that the trier should not have ordered payment for said medical care because it cannot be considered either curative or remedial, as required by cases interpreting § 31-294d.2 Whether or not medical care satisfies the “reasonable and necessary” standard of § 31-294d is a factual issue to be decided by the trial commissioner. Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995). We have explicated this standard in the past:

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. Similarly, any therapy designed to eliminate pain so that the employee can work is curative. Finally, any therapy which is life-prolonging is curative.

Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984). Physicians are not required to expressly recommend a treatment as “reasonable” or “necessary” in order for it to be compensable. Fyler v. Barrieau Moving & Storage, 3985 CRB-1-99-3 (April 18, 2000). Instead, the trier of fact must look at the substance of the referral opinions, as well as the opinion of the treating practitioner himself, in deciding whether the obtained care was reasonable. Id. Said trier is the individual charged with determining the credibility of the evidence; therefore, we may not disturb his findings if there is substantial evidence in the record to support them. Id.; Outlaw v. Pray Automotive of Greenwich, 3981 CRB-7-99-2 (March 23, 2000).

The record demonstrates that, after six years of unsuccessful treatment for her 1988 neck injury, the claimant underwent an anterior cervical discectomy at C5-6 and C6-7 in July 1994. Claimant’s Exhibit B (Dec. 6, 1994 report of Dr. Shapiro); February 19, 1997 Transcript, p. 13. Though some of her former pain was alleviated by the surgery, she continued to complain of neck and shoulder discomfort, and was unable to return to work. Dr. Shahid reported that her C5-6 graft had healed, but the C6-7 graft had slowly disintegrated. He stated on October 18, 1994 that he wanted to start the claimant on a muscle program with a massage therapist and a stretching program. Claimant’s Exhibit A. This was the same day that the claimant first treated with McLaughlin. Dr. Batson, a colleague of Dr. Shahid, then recommended acupuncture therapy on November 7, 1994 to see if it would help alleviate her symptoms of pain. Id.

Dr. Shapiro, to whom Dr. Batson referred the claimant, stated on December 6, 1994 that the claimant’s massage therapy and acupuncture had begun to “help her dramatically.” Claimant’s Exhibit B. She recommended that these treatments continue, with an eye toward returning the claimant to work in a modified duty position. Id. On January 13, 1995 she again stated that neuromuscular reeducation and acupuncture should be maintained, as “this does seem to alleviate some of the intensity of her symptoms, this being during the strengthening process.” Id. She echoed similar sentiments on February 14, 1995, noting that the claimant had improved, and was hopefully only two weeks away from assuming to a light duty position. The claimant was eventually cleared to return to work as of March 22, 1995, with instructions to continue her strengthening program. Both the claimant (Transcript, pp. 30-31) and McLaughlin (Id., pp. 39-41) testified that the massage and acupuncture therapies had appeared to bring her relief, and the claimant was of the opinion that these treatments had assisted her in staying at work. Id., p. 16. Dr. Shahid’s May 16, 1995 and July 11, 1995 reports also reflects the claimant’s belief that the acupuncture was giving her tremendous relief, thereby making such treatment worthwhile from the doctor’s perspective. Exhibit B.

The respondents’ assertions that McLaughlin’s treatments were palliative rest largely on Dr. Shapiro’s description of the treatments in her June 20, 1995 letter as not being curative, even though she perceived these therapies as being effective in alleviating certain stress-related symptoms, which was beneficial given the patient’s impending transition to a more aggressive strengthening program. Id. She expressed her belief that “acupuncture in and of itself is [not] curative for this type of condition, but rather clearly a palliative measure, as it does seem to have an effect on relaxing muscles and decreasing some of the nerve hyper-irritability and irritation on a local level.” Id. In a subsequent letter, she clarified that most pain therapies, though technically palliative rather than curative, may still be necessary. She stated that McLaughlin’s services were clearly needed to alleviate the claimant’s pain during the reconditioning process, making them “an important component to her being able to even get through the rigorous therapeutic protocols that we had in place for her.” Id., September 18, 1995 report.

These medical reports and testimonials add up to substantial evidence which establishes that the acupuncture and massage therapy provided by Steven McLaughlin aided the claimant in healing and returning to work by lessening her sensations of pain. Though Dr. Shapiro explained that pain alleviation therapies are all “palliative” in the strict sense of the word, for the purposes of the Workers’ Compensation Act, therapy that is designed to eliminate pain so that the employee may return to work is considered curative, and is reasonable and necessary under § 31-294d. See Outlaw, supra. We also observe that, despite the claimant’s referral to McLaughlin by three different doctors, the respondents did not raise an objection to acupuncture or massage therapy by speech, letter, or via a Form 43. “Our workers’ compensation system demands cooperation by both parties in order to function properly. . . . Where [all] physicians have suggested that [alternative treatment] might be beneficial, and might be able to relieve the claimant’s pain enough for [her] to feel comfortable returning to light duty employment, the insurer or managed care provider should consider itself on notice that an alternative treatment plan has been recommended, and begin participating in a dialogue regarding the plan.” Fyler, supra (discussing doctors’ recommendation of TENS unit for claimant).

The trial commissioner was thus within his authority to rule that the majority of the claimant’s acupuncture sessions and massage therapy sessions (32 of each) were reasonable and necessary during the seven-month period that McLaughlin provided her with his services. This board may not second-guess his decision on appeal. Id.; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-03-97-07 (July 17, 1998). We note also that the trier was not required to approve payment for all 44 treatments, as it would be within his authority to deem some, but not all, of them necessary. See, e.g., Outlaw, supra (64 of 225 chiropractic visits approved). Neither party sought correction of the findings on that ground, nor was articulation sought regarding the number of visits approved. Therefore, that portion of the finding stands as well.

The trial commissioner’s decision is hereby affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 The trier’s Finding and Order actually recites this date of injury as May 1, 1998. Though neither party moved to correct this finding, it is apparent from the record that this date contains an inaccuracy due to a typographical error. Hearing notices, claim forms, etc., all recite an injury date of May 1, 1988, and formal proceedings on this case began in 1997. The appropriate action, therefore, is to correct that scrivener’s error without further ceremony. See Palma v. Manuel A. Pinho Landscaping, Inc., 4047 CRB-7-99-5 (July 18, 2000); Grimme v. Railroad Stores, Inc., 3722 CRB-5-97-11 n.1 (Nov. 17, 1998). BACK TO TEXT

2 At the time of the claimant’s injury, § 31-294d was still part of § 31-294. The relevant portion of the statute stated, “The employer, as soon as he has knowledge of any [work-related] injury, shall provide a competent physician or surgeon to attend the injured employee, and, in addition, shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary.” This language remains virtually identical today, albeit as part of § 31-294d(a). BACK TO TEXT

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