State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Doherty-Clements v. Yale-New Haven Hospital

CASE NO. 4548 CRB-3-02-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 27, 2003

PATRICIA DOHERTY-CLEMENTS

CLAIMANT-APPELLEE

v.

YALE-NEW HAVEN HOSPITAL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Steven Levy, Esq., Friedman, Newman, Levy, Sheehan & Carolan, P.C., One Eliot Place, Fairfield, CT 06430-5100.

The respondent was represented by Kristen Sotnik Falls, Esq., Letizia, Ambrose, & Falls, P.C., One Church Street, New Haven, CT 06510.

This Petition for Review from the June 24, 2002 Finding and Award of the Commissioner acting for the Third District was heard March 28, 20031 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the June 24, 2002 Finding and Award of the Commissioner acting for the Third District. It contends in this appeal that the trier erred by retroactively authorizing the claimant’s out-of-state, out-of-network surgery despite the claimant’s failure to adhere to the utilization review protocols of Admin. Reg. § 31-279-10. We find no error on review, and affirm the decision of the trial commissioner.

The claimant was employed by the respondent, Yale-New Haven Hospital, on April 29, 1997, when she sustained a compensable injury. While attempting to restrain a patient, she felt a pop in her lower back and immediate pain that radiated across both buttocks and down her left leg. She quickly notified her supervisor of the incident, and reported to the Yale emergency room, where a doctor examined her in the waiting area. The emergency room report noted acute back pain radiating into the left buttock. After missing two weeks of work, the claimant returned to light duty. She continued to treat at the Yale clinic through December 1997, receiving a total of six physical therapy treatments. A June 2, 1997 note from the clinic detailed a one-month history of back pain with radiating pain into the left knee. A possible lumbar derangement was identified at L3-L5. Notes dated July 11, 1997 and September 5, 1997 relate complaints of numbness and tingling along the left lateral thigh. Dr. Patel, an orthopedist, expressed uncertainty as to the cause after examining the claimant.

In May 1998, the claimant moved to Texas to get married, and became employed as a nurse at a hospital in Dallas. She sought treatment with Dr. Sanders, an internist, for the same problems: numbness in her thigh and intermittent back pain. An MRI revealed a large disc herniation at L5-S1 and a protrusion at L4-L5, which the doctor attributed to the compensable injury. She was referred to a neurosurgeon, Dr. Hudgins, who noted that inadequate care had been provided by the respondent, which despite being an academic medical center “gave her the run-around” and refused to acknowledge that her numbness and reflex responses were abnormal. Claimant’s Exhibit A; Findings, ¶ 17. The doctor recommended surgery, and related the ruptured lumbar disc to the compensable incident of April 29, 1997. The claimant followed that advice, and Dr. Hudgins performed a L5-S1 midline discectomy and an L4-L5 laminotomy and foraminotomy on July 1, 1999. His report described the claimant as a 27-year-old nurse who had injured her back lifting a patient, and who had failed to respond to conservative therapy over a three-year span.

The claimant spoke to a workers’ compensation representative for the respondent about a month after her surgery. She was told that Yale was denying that the condition which precipitated surgery was causally related to her workplace injury. Dr. Patel wrote a letter to Yale’s attorney on October 19, 1999 identifying her work-related injury as a “minor to moderate contributing factor” in her need for surgery, while Dr. Druckemiller concluded that causation was difficult to ascertain in a September 20, 2000 report prepared pursuant to a § 31-294f examination. “There are two different stories, that is, the pain went down the leg to the foot within four days of the time of her injury, and if that is true, then the disc probably did herniate at that point in time. . . . On the other hand, Dr. Patel states categorically that she did not have that distal radiation of symptoms and that they happen[ed] sometime after that, and if that is found to be true, then I would agree . . . that the injury is not a significant contributing factor to her subsequent surgery.” Findings, ¶ 22, quoting Claimant’s Exhibit A. Dr. Druckemiller later opined that a May 2, 1997 clinic note did not evidence significant leg radiation consistent with an acute radiculopathy. The trial commissioner considered the evidence, and found that the claimant suffered a disc herniation on April 29, 1997. He ruled that the claimant’s back surgery was reasonable and necessary, and retroactively authorized that procedure. The respondent has filed an appeal from that ruling to this board.

According to the respondent, Admin. Reg. § 31-279-10(f) divested the trial commissioner of jurisdiction to decide whether the surgery performed by Dr. Hudgins on July 1, 1999 was reasonable and necessary, and to issue an order authorizing that surgery. Under § 31-279(c)(1) C.G.S., an employer or insurer may establish a medical care plan for the treatment of injuries under Chapter 568, subject to the approval of the chairman of this Commission. Subdivision (2) of that subsection states that “the election of an employee covered by a plan established under this subsection to obtain medical care and treatment from a provider of medical services who is not listed in the plan shall suspend the employee’s right to compensation, subject to the order of the commissioner.” Among the requirements of a managed care plan is that it include provisions for service utilization review under § 31-279(d)(4). Admin. Reg. § 31-279-10(a)(5) contemplates that the medical care plan provide adequate services within the service area identified by the plan. Beyond that, § 31-279-10(a)(9)(D) requires the managed care provider to give employees a copy of information describing the procedures by which care may be obtained from a provider of medical services who is not listed in the plan, and the employee’s financial obligations in the event such right is exercised.

Utilization review is discussed in § 31-279-10(e), which requires plan providers to offer a method for evaluating the necessity and appropriateness of recommended health care, and a means of resolving disputes. minimum procedural requirements are detailed in the regulation, which mandates both an initial review process and an appeal process. Admin. Reg. § 31-279-10(f) then states, “The necessity and appropriateness of medical and health care services recommended by providers of a medical care plan shall not be subject to review by a Workers’ Compensation Commissioner until the plan’s utilization review and dispute resolution review and appeal procedures, as described in subsection (e) have been exhausted.” The respondent contends that the claimant circumvented its medical care plan and utilization review procedures by undergoing out-of-network surgery without prior authorization. This allegedly deprived the Commissioner of jurisdiction to rule on the reasonableness or appropriateness of that treatment, and allegedly requires that benefits be suspended pursuant to § 31-279(c)(2).

During trial, the respondent submitted into evidence a copy of the Yale-New Haven Hospital Medical Care Plan Employee Instruction Brochure, and an accompanying Workers’ Compensation Medical Directory. Respondent’s Exhibit 3. The preferred provider agreement was not submitted as an exhibit by the respondent. However, the trier agreed to the respondent’s request to take administrative notice of the plan on file at the administrative office of this Commission, over the objection of the claimant’s counsel. September 10, 2001 Transcript, p. 11.

Looking at the most recent version of that plan in our records, which by the plan’s own terms applies to injuries occurring on or after October 1, 1995 for employees of Yale-New Haven Hospital, we observe a provision that allows certain employees the option of treating outside the plan, including eligible employees who reside fifteen miles outside Connecticut. August 30, 2001 revision of Medical Care Plan for Yale New Haven Health Services, Inc., Article II, § 2.02.2 The claimant clearly satisfies the definition of “eligible employee” as set forth in § 2.01, as she suffered an injury or illness arising out of and in the course of her employment. Section 2.02 of the plan does not purport to restrict the out-of-state residency provision to eligible employees who were nonresidents at the time of their injuries; any eligible employee with a covered injury would qualify to treat outside the plan network upon such time as he or she became a nonresident. As Dallas, Texas is over 1500 miles from any location in Connecticut, the claimant manifestly fell within the scope of the non-residency provision at the time of her surgery, and had the option of going to an out-of-network doctor.

However, the plan does not specify whether or not a claimant is expected to provide any sort of notice to the employer once the choice has been made to treat outside the plan. In construing this document, we believe that the burden of any omissions and/or ambiguities in the plan’s language should be borne by the respondents as the drafters of that plan. The claimant exercised her expressly-provided right to proceed outside the plan and use an out-of-network doctor. The plan is then silent with regard to the procedures an employee is expected to follow when treating outside the plan. As noted above, no notification requirement is mentioned. Though the claimant might have expedited the process of receiving approval for surgery by informing the administrator of the plan before pursuing treatment with a doctor in Texas, she cannot be faulted for failing to do so, as the plan does not communicate the existence of such a responsibility.

As the claimant was within her rights to treat outside the plan, she then fell into the same category as any other injured worker seeking medical treatment for a compensable injury. The trial commissioner determined that the claimant’s surgery with Dr. Hudgins was indeed reasonable, and ordered that it be paid for by the respondent. Such an action is manifestly contemplated by § 31-294d of the Workers’ Compensation Act. Once the claimant opted to seek care outside the plan, the utilization review procedures set forth in Admin. Reg. § 31-279-10 were no longer applicable, as they only apply to services recommended by providers of a medical care plan. At that point, the reasonableness and compensability of the claimant’s treatment was within the realm of the trial commissioner’s general statutory jurisdiction as defined by the Workers’ Compensation Act.

Apropos of that subject, we have noted in past cases that a commissioner is not prohibited from retroactively authorizing out-of-state medical care where a claimant has moved to another region of the country, and “equally beneficial” treatment would no longer be available in Connecticut due to the expense and inconvenience of having to return here for treatment. Melendez v. Home Depot, 3835 CRB-4-98-6 (July 13, 1999), aff’d, 61 Conn. App. 653 (2001); Phelps v. State of Connecticut/Mansfield Training School, 2 Conn. Workers’ Comp. Rev. Op. 92, 133 CRD-2-82 (July 30, 1984). Instead, the trier should determine whether, under all of the circumstances, such treatment is reasonable and necessary. Kraemer v. Northeast Utilities/Yankee Gas, 4562 CRB-7-02-8 (July 29, 2003); Melendez, supra, citing Cummings v. Twin Mfg., Inc., 29 Conn. App. 249 (1992).

There is no dispute that the claimant’s treatment in this case was necessary given her injuries, and the respondents do not argue on appeal that the trier erred as a matter of law by crediting the diagnosis of Dr. Hudgins as to causation over the more doubtful reports of Drs. Patel and Druckemiller. See Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001)(trier has great deal of discretion in deciding whether treatment should be authorized); see also, Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002). By not obtaining permission from her employer prior to undergoing surgery, the claimant took the risk that a fact finder might subsequently determine that her treatment was not reasonable. However, the treatment was ultimately found to be reasonable, so no adverse consequences may befall the claimant in that regard.

As the plan did not apply to the claimant by its own terms, and a trial commissioner has determined that her surgery with Dr. Hudgins was reasonable under § 31-294d, no penalty may attach to her failure to provide notification to the respondent prior to treatment. Therefore, we affirm the trial commissioner’s decision to authorize the claimant’s surgery.

Commissioners James J. Metro and Howard M. Belkin concur.

1 With regard to the due date of this decision under § 31-301(c), we note that both parties sought and received extensions of time for filing briefs, and the claimant received a postponement of oral argument until March 28, 2003. span class="back">BACK TO TEXT

2 Though a 2001 plan revision would normally be inapplicable to an injury that occurred in 1997, our records establish that the language concerning non-resident employees has been a part of the plan since its inception in 1995. Thus, we have no qualm against applying it to the instant case. span class="back">BACK TO TEXT

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