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Byrd v. Bechtel/Fusco

CASE NO. 4765 CRB-2-03-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 17, 2004

LEONARD BYRD

CLAIMANT-APPELLANT

v.

BECHTEL/FUSCO

EMPLOYER

and

BROADSPIRE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by David Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the December 10, 2003 Finding and Dismissal of the Commissioner acting for the Second District was heard August 27, 2004 before a Compensation Review Board panel consisting of Commissioners Charles F. Senich, Leonard S. Paoletta, and Howard H. Belkin.

OPINION

CHARLES F. SENICH, COMMISSIONER. The claimant has petitioned for review from the December 10, 2003 Finding and Dismissal of the Commissioner acting for the Second District. He argues on appeal that the trial commissioner erred by ruling on his entitlement to medical treatment for alleged sequelae of a compensable ankle injury, and by finding that said treatment was not compensable. We find no error of law, and affirm the trial commissioner’s decision.

The trial commissioner found the following facts. The claimant sustained a right ankle injury on February 7, 2000 that arose out of and in the course of his employment with the respondent Bechtel/Fusco. He initially treated at Windham Hospital, where his ankle was surgically repaired by Dr. Sewell. Afterward, the claimant was on crutches for a time, and was required to attend physical therapy sessions. When he noted some hip pain, Dr. Sewell suggested removing the surgical hardware to relieve the restrictions and nerve pain. The claimant’s medical history includes a right hip replacement in 1994. The surgical hardware was removed on July 6, 2000, whereupon the claimant was then placed in an air splint, and was kept on crutches through August 15, 2000.

The claimant continued physical therapy, and noted the onset of low back pain. His physical therapist commented on a possible discrepancy between the length of the claimant’s left and right legs. The trier found that the respondent questioned the low back symptoms and their alleged relationship to the right ankle injury, but continued to allow physical therapy without prejudice, including some for the claimant’s back. By the end of September 2000, the claimant was having problems with his knees, hips and low back. He continued with physical therapy for his right ankle. In November 2000, an MRI showed a cyst in the talar dome of his right ankle. Dr. Sewell suggested that the claimant transfer his treatment to Dr. Sella, a foot specialist affiliated with Yale University.

In January 2001, the respondent objected to the claimant’s physical therapy, and notified medical providers that it would not pay for therapy to the claimant’s low back. This stance was supported by a respondent’s medical evaluation that had been performed by Dr. Quinn on January 9, 2001. His January 31, 2001 report stated that the claimant’s back pain and ankle pain were unrelated. See Respondent’s Exhibit 1. Dr. Sella also saw the claimant in January 2001, and proposed additional surgery on the right ankle, which was performed the following month. Further physical therapy, including the back, was recommended post-surgery to treat the claimant’s various body ailments and to help him regain right ankle flexibility.

The claimant requested that the commissioner authorize a second opinion by Dr. Pesce, a treater who was not a member of the respondent’s medical care plan. This examination was performed in May 2001. On May 24, 2001, Dr. Sewell also opined on the claimant’s condition at his request. Both opinions identified a causal connection between the claimant’s ankle injury and his back and/or hip pain. Claimant’s Exhibits C, H. The claimant then submitted to a commissioner’s examination by Dr. Paonessa in September 2001, an examination by Dr. Tiberia in October 2001, and an examination by Dr. Pelker, a hip specialist to whom the claimant was referred by Dr. Sella. Dr. Pelker prescribed an MRI on the claimant’s left hip, and saw him on numerous occasions between December 2001 and September 2002. Claimant’s Exhibit O. His ultimate diagnosis was a tear of the superior labrum. The claimant was also referred to Dr. Yue, a Yale spine specialist, who performed a number of objective tests while examining the claimant’s low back.

In setting forth his conclusions, the trial commissioner relied mainly on the opinions of Drs. Pelker and Yue. He noted that Dr. Pelker performed an extensive medical workup of the claimant and that he was aware of the claimant’s work injury and surgical history. Dr. Pelker opined that the claimant’s bilateral hip problems were not related to his right ankle injury. Dr. Yue also performed a thorough workup of the claimant’s back symptoms, and likewise opined that they were unrelated to the right ankle injury. Dr. Paonessa, meanwhile, was noted to have been somewhat equivocal in his opinion, and did not opine definitively on causation. The trial commissioner concluded that the claimant “has not established by a preponderance of reasonable medical evidence that his bilateral knee symptomatology and complaints have any relationship to or causation due to his right ankle injury of February 7, 2000.” Finding and Dismissal, ¶ D. The trier thus dismissed the claimant’s request to declare compensable his back, bilateral hip and bilateral knee symptoms. The claimant has petitioned for review from that ruling.

We first address the respondents’ Motion to Dismiss, which cites the claimant’s failure to file timely Reasons of Appeal. Admin. Reg. § 31-301-2 states, “Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal.” The claimant’s petition for review was filed on December 19, 2003. On the same date, the claimant then filed a “Motion to Correct Findings” pursuant to Admin. Reg. § 31-301-4, which was denied in its entirety on December 23, 2003. On January 7, 2004, the respondents filed a Motion to Dismiss on the ground that the claimant had failed to file Reasons of Appeal. The claimant’s Reasons of Appeal (entitled “Appeal of Decision”) were also filed on January 7, 2004.

An appellant’s failure to file timely Reasons of Appeal renders the appeal voidable by this agency. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987). After the ten-day filing deadline passed, the respondents filed a prompt motion to dismiss the appeal pursuant to Practice Book § 66-8. Under Sager, supra, a dismissal of the claimant’s appeal would be authorized by virtue of the provision in § 31-301(e) making the procedure in appealing an award of the commissioner the same as that which is applicable in an appeal from superior court to the Supreme Court. Id., 696-97. Such a dismissal is not mandatory, as this board has the discretion to decide whether the circumstances of the case warrant dismissal. Yuille v. Bridgeport Hospital, 4525 CRB-4-02-5 (April 28, 2003). Here, the claimant was not represented by counsel, and his Reasons of Appeal were filed only nine days after the December 29, 2003 due date. No prejudice was either alleged or demonstrated as a result of this delay. As we normally strive to afford pro se claimants a certain amount of procedural leeway given their presumed unfamiliarity with the law; Warren v. Federal Express Corp., 4163 CRB-2-99-12 n.1 (February 27, 2001), we decline to dismiss the claimant’s appeal here.

The documents filed by the claimant in support of his appeal discuss a number of different issues. Some of them challenge the manner in which his claim was administered under the respondents’ medical care plan, and the identity of the entities who acted on behalf of the plan. Those aspects of the claimant’s case were addressed in separate proceedings, following the bifurcation of this case at a February 19, 2003 formal hearing before a different trial commissioner. See Byrd v. Bechtel/Fusco, 4656 CRB-2-03-4 (July 14, 2004). We need not restate that holding here, other than to reaffirm that the chairman of this commission has the authority to consider any complaint regarding the alleged improper operation of a medical care plan.

The claimant’s underlying position on appeal is that the medical care plan regulations of § 31-279-10 mandated that the utilization review process be followed in determining the appropriateness of his care. He views the trier’s holding below as having overturned the physician-prescribed care that was recommended by his treating doctors, in contravention of the review procedures listed in § 31-279-10(e) and (f). Claimant’s Brief, pp. 5-7. The claimant contends, “Causality under a managed care plan form of workers’ compensation coverage is already predetermined long before care is provided. . . . There is no legal right for the commissioner to overturn a causality determination by my MCP attending physician once he prescribes care.” Id., p. 7.

The claimant’s argument would be stronger if the topic at hand were limited to a particular injured body part that had been accepted as compensable by the employer or insurance carrier. For example, in the recent case of Figueroa v. Rockbestos Company, 4633 CRB-1-03-2 (July 20, 2004), we reviewed a situation in which the § 31-279-10(e) utilization review process had been followed with respect to a claimant’s request for fusion surgery on his back. The compensable injury that had been identified and accepted by the insurer was an October 9, 2000 back injury. There, the question posed to the various physicians involved in the plan was whether back surgery was a desirable option for the claimant, and the utilization review process was directly applicable.1

Here, the situation is different. The claimant’s proposed treatment was not limited to his accepted body part, the ankle. Instead, questions arose as to whether other parts of his body—his back, his knees, his hips—were also experiencing symptoms that were compensable sequelae of the ankle injury. The legal existence of a causal relationship between those symptoms and the ankle injury was not simply a dispute over necessary and appropriate treatment modalities. It was a threshold matter of jurisdiction that went beyond the power of the medical care plan to resolve conclusively.

The respondents and the claimant were both entitled to have issues surrounding the compensability of back, knee and hip symptoms determined by a commissioner through the traditional workers’ compensation adjudicative process, in the event of a dispute. Managed care by definition only applies to “the provision of medical care that the employer provides for treatment of any injury or illness under this chapter.” Section 31-279(c)(1) C.G.S. Injuries that do not arise out of and in the course of employment would not be covered under a § 31-279(c) medical care plan, as they would not fall within the scope of the Workers’ Compensation Act. The utilization review process is not triggered until compensability is established, and an injury is brought within the plan. See Gonzalez v. Coca-Cola Bottling Co. of New York, 4284 CRB-8-00-8 (September 13, 2001)(employer who initially denies compensability cannot insist that claimant restrict choice of physicians to those within managed care plan). Therefore, the trial commissioner had the authority to decide the issue of compensability that was before him at the formal hearing below.

We next determine whether the evidence in the record was sufficient to support the trial commissioner’s decision. Questions regarding the causal relationship between a compensable injury and subsequent symptoms that affect another body part are issues of fact, dependent on the weight and credibility that the trial commissioner assigns to the medical, testimonial and documentary evidence. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Warren, supra. As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not, and he has the discretion to disregard a particular medical opinion or a witness’ testimony, even if no evidence appears to directly contradict it. Duddy, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). On review, this board does not have the power to retry a case by revisiting the competing credibility inferences that a trier has drawn from the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto, supra. Our role is to review the trier’s findings to determine whether there is any evidence in the record that supports them, and to determine whether undisputed material facts may have been omitted incorrectly from the findings. Duddy, supra; Warren, supra.

The trial commissioner here found that the opinions of Drs. Pelker and Yue were the most credible. He characterized each doctor as having done a thorough examination of the claimant, and specified that Dr. Pelker was aware of the claimant’s surgical history involving his hips. Findings, ¶¶ B-C. The trier also noted that the opinion of the Commissioner’s Examiner, Dr. Paonessa, was somewhat equivocal with regard to causation insofar as he focused on the claimant’s differing leg lengths and other preexisting conditions, even though the doctor concurred with Dr. Sella that some physical therapy to the back might aid the claimant in recovering from his right ankle fracture. The claimant objects to the trial commissioner’s decision to rely on the notes of Drs. Yue and Pelker over the opinions of two attending physicians, a Commissioner’s Examiner and two other doctors who were asked to make a decision on causality.

The trial commissioner is not required to rely on the reports of a treating physician over those of other doctors. Bratchell v. United Parcel Service, Inc., 3637 CRB-7-97-7 (August 10, 1998). Where the reports of physicians are in conflict, the trier of fact is entitled to consider all of the evidence and decide whether or not a claimant has established the compensability of a condition within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Duddy, supra. The complex nature of the claimant’s back and hip symptoms, including the fact that the claimant had a preexisting hip condition and a difference in leg lengths, meant that expert opinions would be necessary to establish a causal connection between the ankle injury and those symptoms. Murchison, supra.

Though some doctors, such as Dr. Sewell and Dr. Pesce, felt that the claimant’s altered ankle mechanics were causing his back pain, others did not make that connection. Dr. Yue did a whole-body bone scan on the claimant on September 23, 2002, and found numerous degenerative changes in the knees, ankles, feet, shoulders and hips. When the claimant attempted to correlate the hip and back degeneration to his ankle injury, Dr. Yue found it difficult to draw that link, stating that is was “conceivable, although not probable.” Respondents’ Exhibit 3.

Dr. Pelker saw the claimant on numerous occasions, and was very familiar with the history of the claimant’s hip condition and his leg length discrepancy, as well as his ankle injury. See Claimant’s Exhibit O. He prescribed both medications and physical therapy for the claimant. He also noted on August 6, 2002, that the claimant was seeking to tie his hip and back problems together with his compensable ankle injury. Dr. Pelker then noted that he told that claimant he “didn’t see a correlation between at least his hip injuries and hip problems currently and his right ankle injury.” Id.

These medical opinions were stated clearly, and the trial commissioner was acting within his statutory discretion in relying on those opinions. He was evidently not persuaded that the opinions of the physicians who wrote reports favorable to the claimant’s case were persuasive enough to support a finding of compensability. That was his prerogative as a factfinder. This board as a reviewing tribunal does not have the authority to overturn that decision on appeal. Duddy, supra; Warren, supra.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Leonard S. Paoletta and Howard H. Belkin concur.

1 In that decision, our ultimate holding was that (a) in the interest of preserving the integrity of the medical care plan system, a trial commissioner was entitled to consider the fact that a medical care plan’s CEO was also a representative of the employer in reviewing the reasonableness of the CEO’s decision to deny surgery under Admin. Reg. § 31-279-10(f), and (b) the reviewing trial commissioner was not entitled to consider evidence that was not before the CEO at the time he made his decision, as such evidence first had to be submitted to the utilization review process. BACK TO TEXT

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