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Lemelin and Williams v. MRC Bearings, Inc.

CASE NO. 4320 CRB-5-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 27, 2001

JOHN LEMELIN

CLAIMANT-APPELLEE

and

DR. MATTHEW C. WILLIAMS

MEDICAL CARE PROVIDER

APPELLANT

v.

MRC BEARINGS, INC.

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher Santarsiero, Esq., formerly of Nicholas & Johnson, 373 Prospect Street, Torrington, CT 06790, who did not appear at oral argument.

The medical care provider, Dr. Matthew C. Williams, appeared on his own behalf.

The respondents were represented by Matthias DeAngelo, Esq., Law Office of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145.

This Petition for Review from the October 31, 2000 Finding and Dismissal of the Commissioner acting for the Fifth District was heard July 20, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and James J. Metro.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The medical care provider, Dr. Matthew C. Williams, has petitioned for review from the October 31, 2000 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision, the trial commissioner determined that the provider did not meet his burden of proving that his chiropractic services to the claimant were curative rather than palliative, and thus denied the provider’s request for payment of medical services. In support of his appeal, the provider contends that his treatment was curative as it allowed the claimant to function on a daily basis, improved his condition, and prolonged his life. We affirm the trial commissioner’s decision.

We note that at oral argument the respondents withdrew their Motion to Dismiss the provider’s appeal. In that Motion to Dismiss, the respondents argued that the provider’s appeal was late, as it was not filed within ten days of the October 31, 2000 Finding and Dismissal as required by § 31-301(a). However, the provider contended that he did not receive the decision within the ten day appeal period. This is corroborated by the record which indicates that a copy of the decision was not sent to the provider until he telephoned the district office on November 28, 2000, at which time the decision was mailed to him via certified mail. Accordingly, his appeal filed on December 4, 2000 is timely, as the provider, through no fault of his own, failed to receive notice of the commissioner’s decision within ten days of the date it was sent, and subsequently filed his appeal within ten days after the decision was sent to him on November 28, 2000. Kulig v. Crown Supermarket, 250 Conn. 603, 610 (1999); Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999).

We will now address the merits of the provider’s appeal. In the instant case, the trial commissioner found that the provider treated the claimant with chiropractic care for his back complaints from 1993 through the date of the formal hearing. At the formal hearing, the provider sought payment of his chiropractic bill in the amount of $26,528.70 and testified regarding his contention that his treatment was curative rather than palliative. The trial commissioner noted that the number of chiropractic treatments far exceeded the Medical Protocols issued by this commission.1 Furthermore, the trial commissioner found that Dr. Richard Coppersmith, D.C., who conducted an independent medical examination, opined that Dr. William’s treatment was palliative. Additionally, the trial commissioner found that Dr. Robert Ferraro conducted a trial commissioner’s examination of the claimant on January 7, 1999 and opined that the claimant had reached maximum medical improvement and that Dr. William’s treatment was palliative.

In his appeal, the provider argues that the trial commissioner ignored two previous informal hearings where he contends the respondents’ attorney agreed to pay his bills through December of 1998. We find no error. In Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000), the board explained that the general rule is that the trier should not review notes from prior informal hearings. Pursuant to § 31-297a, recommendations made at an informal hearing are not binding unless they are reduced to writing and, if accepted by parties, made binding as an award. Here, the provider has not alleged that a written agreement was entered into between the parties, and thus we find no merit to the provider’s argument on appeal.

The standard of our review in this matter is quite settled, as 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)). We have explained as follows:

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, 232 CRD-1-83 (June 19, 1984).

Here, the trial commissioner’s decision is amply supported by the record, including the opinions of Dr. Ferraro and Dr. Coppersmith. It was within the discretion of the trial commissioner, as the trier of fact, to consider the evidence, and to accept the opinions of Dr. Ferraro and Dr. Coppersmith. Accordingly, we may not disturb the decision. Moreover, where, as here, the appellant has failed to file a Motion to Correct, we are limited to the facts as found by the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991).

The trial commissioner’s decision is affirmed.

Commissioners Ernie R. Walker and James J. Metro concur.

1 We note that the Medical Protocols were adopted by this Commission on January 1, 1996, and the December 26, 1995 memorandum from then-Commission Chairman Jesse M. Frankl that accompanied the release of those protocols stated, “Protocols cannot be absolute. There must be room for medical judgment.” Accordingly, we emphasize that these protocols are not absolute. BACK TO TEXT

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