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Carroll v. Flattery’s Landscaping, Inc.

CASE NO. 4499 CRB-8-02-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 25, 2003

JAMES R. CARROLL

CLAIMANT-APPELLANT

v.

FLATTERY’S LANDSCAPING, INC.

EMPLOYER

and

CRUM & FORSTER

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant represented himself on appeal.

The respondents were represented by Frank A. May, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 11, 2002 Finding, Award and Dismissal of the Commissioner acting for the First District was heard October 18, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Howard M. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 21, 2002 Finding, Award and Dismissal of the Commissioner acting for the First District. Appearing pro se on this appeal, he contends that the trier erred by finding that certain medical treatments he received were palliative rather than curative, and thus noncompensable under § 31-294d. We find no legal error in our review, and affirm the trial commissioner’s decision.1

The claimant sustained a serious compensable injury on November 28, 1995, while working for the respondent employer as a mechanic. A pickup truck slipped off a jack stand and landed on top of him, causing injuries to his chest, head, left clavicle, ribs, and both shoulders. He was initially treated for all of those injuries, as well as headaches and blurry vision. Due to their failure to file a Form 43 in response to the claimant’s December 12, 1995 Form 30C, the respondents are now presumed to have accepted the compensability of all these injuries. The claimant has been paid for a 25% permanent partial disability to his left upper extremity on account of his clavicle fracture, and a 7.5% permanency to his cervical spine.

Following a hearing on September 24, 1998, Dr. Tortland, an osteopath, became approved as an authorized treating physician. He later diagnosed a 5% permanent partial disability of the head, while Dr. Druckemiller, a neurosurgeon, diagnosed a 2% maximum deficit after an independent medical examination, and Dr. Rubenstein, a psychiatrist, stated that the claimant had excellent cognitive powers and suffered from no permanent brain impairment. The respondents then filed a Form 43 on August 10, 1999, claiming that further treatment by Dr. Tortland and his organization, Valley Physical Therapy, was palliative, and ceased to authorize treatments after that date. The trial commissioner found that the claimant had sustained a 2% permanent partial disability of the brain, and ordered the respondents to issue a voluntary agreement accepting such a rating. He also ruled that the claimant’s treatment after July 1, 1999 was indeed palliative and not curative. The claimant has filed an appeal from that decision to this board.

It is the claimant’s position on appeal that the treatment he has been receiving from Dr. Tortland falls within the legal definition of “curative treatment,” as established by caselaw. He also contends that this treatment was accepted and authorized, and that such treatment could not be discontinued without the filing of a Form 36, rather than a Form 43 (as was filed by the respondents on August 10, 1999). As we have said many times in the past, our role on review is not to retry the facts of a workers’ compensation case. We do not compare the evidence and testimony offered by the claimant to that offered by the respondent, and decide which is more credible; the only person who has the authority to do that is the trial commissioner. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). If a commissioner listens to the opinions of two doctors, and decides that one is more persuasive than the other, we cannot step in on review and change that finding, unless the medical opinion in question does not actually say what the trier thinks it said. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Likewise, if a witness testifies regarding certain facts, and the trier doubts the accuracy of that testimony, we cannot interfere with that decision on appeal, even if there is no direct evidence to the contrary. Duddy, supra; Pallotto, supra. What we do have is the power to correct misinterpretations of the law, and misapplications of the law to the subordinate facts found by the trier. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

The claimant testified at the October 15, 2001 formal hearing that his sternoclavicular joint had been destroyed as a result of his injury, which causes his shoulder and clavicle to routinely shift. Transcript, p. 53. His body then perceives those body parts as being misplaced, whereupon his muscles engage in an instinctive spasmodic reaction. Transcript, p. 53. He explained that Dr. Tortland implements techniques that release his muscle tension and return his wayward bones to their proper position. Id. The claimant firmly asserted that this treatment has allowed him to return to machine-operating work. Id., 53-59. Dr. Tortland corroboratively reported on April 5, 1999 that the claimant’s functional ability and pain reduction had dramatically improved due to his osteopathic manipulative treatment, therapeutic injections, physical therapy and prescription medication use. Claimant’s Exhibit A, § A. “Future treatments will be directed at addressing any exacerbations in his condition, as well as helping to foster and maintain his current level of functioning.” Id.

Dr. Druckemiller, an independent medical examiner who evaluated the claimant at the respondents’ behest, identified a chronic thoracic cervical strain and significant somatization complaints, though he expressed difficulty in gauging any impairment related to cerebral complaints. Claimant’s Exhibit A, § C. He described Dr. Tortland’s ongoing physical and osteopathic manipulation as palliative in nature. “The patient states that he does get relief with the treatments, and then his symptoms come back. I would doubt they will be curative. I do not feel any further medical treatment is likely to benefit the patient.” Id. The trier’s assessed this opinion as being more persuasive than the medical opinion provided by Dr. Tortland. See Findings, ¶ A. On review, it would not be our place to overturn that credibility determination, as we cannot substitute our own findings of fact for those of the trial commissioner. Fair, supra. We must accept that the trier relied on this opinion, and limit our inquiry as to whether it legally supports a denial of compensation for the therapy provided by Dr. Tortland.

We have in past cases addressed the subject of the “curative/palliative” distinction upon which the compensability of this medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the “reasonable and necessary” standard of § 31-294d C.G.S. Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001). “Reasonable medical care is that which is curative and 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 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.” DeFelippi v. Wal-Mart Stores, Inc., 4349 CRB-5-01-1 (Jan. 15, 2002), quoting Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984). Though the claimant did not prevail below, this board has in the past affirmed awards that entitled claimants to chiropractic care intended to alleviate the intensity of pain, thereby allowing continued employability. DeFelippi, supra (chronic condition required continuing treatment to keep muscle tightness from escalating); Zalutko, supra (massage and acupuncture pain therapies assisted claimant in staying at work by relaxing muscles, decreasing stress, and allowing claimant to continue with rigorous strengthening program).

Dr. Druckemiller’s opinion distinctly notes that the claimant complains of constant pain symptoms, but describes those complaints as being “very difficult to assess.” Claimant’s Exhibit A, § C. He also observes that the claimant had “significant psychological difficulties related to the injury.” Id. Dr. Druckemiller seems to doubt that the claimant is accurately describing the nature of his malady. “His description of his disabilities is much greater than one would expect by any objective findings. . . . There remains the significant difference in his opinion that he has significant limitations versus the objective findings of no neurological deficit and a man who is capable of holding a light manual job.” Id. He openly suspects that the claimant is somatizing his symptoms, i.e., converting anxiety into a physical manifestation of pain, rather than physiologically acquiring said symptoms from an organic injury to the brain.

The trier could readily have inferred from this opinion that the claimant’s cervical thoracic sprain was not the direct cause of whatever pain symptoms he was having, and that a somatization disorder was responsible for at least some of his current problems. The commissioner certainly appears to have concluded that the claimant did not prove that continued therapy with Dr. Tortland was in fact curative, in the sense that it allowed him to continue working. We note that the claimant did not attempt to depose Dr. Druckemiller so that he could clarify whether he thought that the claimant was receiving actual pain relief from the physical therapy treatments (his opinion as written seems to suggest that he did not so think). Also, the claimant did not file a Motion to Correct the trial commissioner’s findings pursuant to Admin. Reg. § 31-301-4, in which he could have called the trier’s attention to specific language in Dr. Druckemiller’s report and asked him to reconsider its factual implications. The absence of such a motion restricts our ability to review the factual underpinnings of the trier’s decision on appeal, as we are unable to tell exactly what inferences the trier drew from Dr. Druckemiller’s medical opinion. See, e.g., Marcoux v. Allied Signal, 4366 CRB-4-01-3 (Jan. 16, 2002). Thus, we must hold that the trier’s conclusion regarding the palliative nature of Dr. Tortland’s treatment was adequately supported by Dr. Druckemiller’s opinion, on which the trier expressly relied.

The other ground of error raised by the claimant concerns the fact that the respondents filed a Form 43 rather than a Form 36 as a means of denying the compensability of his continued physical therapy. The claimant bases his argument on a memorandum issued by this commission on March 25, 1999, that states the following:

Pursuant to § 31-294c, an employer has twenty-eight (28) days after receiving notice of a claim to file a Form 43 contest of said claim. Under § 31-294c, the employer may commence payment within the 28-day period, said payment being without prejudice. If the employer commences payment within the 28-day period and wishes to later contest the case before the one year has elapsed, then the employer shall file a Form 43 and not a Form 36. A Form 36 shall only be used in an accepted case. No hearing is necessary before the Commission when the Form 43 is filed.

The claimant vehemently insists that this memorandum and the relevant statutes require a respondent to file a Form 36 before it may discontinue paying for medical treatment with a previously authorized physician. We disagree.

The purpose of this memorandum is to clarify § 31-294c, which allows an employer 28 days to contest liability for the compensability of an injury after notice has been filed by a claimant, except that the employer may take up to one year to contest such liability provided that it has begun paying compensation within 28 days after receiving the notice of claim. The official form designed to communicate such intent to contest liability to pay compensation is the Form 43. The Form 36, meanwhile, is used by employers when they seek to discontinue or reduce weekly benefit payments for accepted cases, as per § 31-296 C.G.S. It is not designed to be used to contest initial liability for injuries. The issuance of the March 25, 1999 memorandum was deemed necessary in order to avoid confusion over situations in which an employer had chosen to begin paying compensation “without prejudice” within the 28-day contest period, thereby preserving its right to contest liability for one year. Because the misimpression could be given that compensability had already been accepted for such an injury if a Form 36 were used to notify a claimant of the employer’s intent to contest, parties were thereby instructed not to use Forms 36 in non-accepted cases.

However, this memorandum does not purport to say that Forms 36 must be used in all circumstances once a case has been accepted. The language of § 31-296 only directs the use of Form 36 procedure in situations where an employer seeks to discontinue weekly “payments” for total or partial incapacity. See Kelly v. Bridgeport, 61 Conn. App. 9, 16-17 (2000) (the term “payments” as used in § 31-284b contemplates only weekly indemnity benefit payments, and excludes payments for medical care); Jones v. Maaco of Greater Bridgeport, 3634 CRB-4-97-4 (Aug. 5, 1998). If one is challenging the compensability of a subsequently-occurring symptom that allegedly stems from a compensable injury, or the treatment sought for that injury, the Form 43 remains the recommended means of communicating one’s intent to contest liability for that aspect of the case. For example, an accepted back injury claim may later spawn a psychological stress claim, with attendant medical treatment. It would be appropriate practice to file a Form 43, rather than a Form 36, to contest that claim. Likewise, if an employer considers a type of treatment—ongoing or otherwise—to fall outside the definition of “reasonable and necessary” medical care under § 31-294d, the Form 43 would be used to allege that said treatment is not compensable. That was the situation here. The respondents believed that the claimant’s ongoing treatment was palliative in nature, and filed a Form 43 to contest liability for said treatment. Respondents’ Exhibit 2. They did not follow incorrect procedure in doing so.

Accordingly, we find no error in the trial commissioner’s decision, and dismiss the claimant’s appeal.

Commissioners Donald H. Doyle, Jr., and Howard M. Belkin concur.

1 The respondents filed a Motion to Dismiss this appeal on April 5, 2002, based on the claimant’s alleged failure to file Reasons of Appeal pursuant to Admin. Reg. § 31-301-2. That motion was withdrawn at oral argument, and we will not consider it further. BACK TO TEXT

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