CASE NO. 5073 CRB-3-06-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 22, 2007
FAIRFIELD INSURANCE CO.
The claimant was represented by Lynne G. Rozen, Esq., Attorney at Law, 1261 Post Road, Fairfield, CT 06824.
The respondents were represented by Marie Gallo-Hall, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the March 7, 2006 Findings and Orders of the Commissioner acting for the Third District was heard September 22, 2006 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal concerns a single issue. Should the trial commissioner have ordered temporary total disability benefits when he determined the claimant needed to change physicians and undergo a different type of therapy for her pain management issues? We conclude the trial commissioner acted within his discretion in ordering these benefits; hence we dismiss the respondents’ appeal.
The trial commissioner found the following facts which are essentially undisputed. The claimant suffered a compensable right arm injury while working as a bus driver for the respondent, SARAH, Inc. She began treating in May 2000 with Dr. Jeffrey Arons, who diagnosed her with “nonspecific musculoskeletal pain.” Findings, ¶ 10. In August 2000 Dr. Arons concluded the claimant had chronic upper extremity pain and referred her to a pain management specialist. On August 22, 2000 the claimant began treating with Dr. Mark Thimineur. He diagnosed her with complex regional pain syndrome and ordered a variety of tests. Dr. Thimineur ordered brachial plexus blocks which proved ineffective in relieving the claimant’s pain, and prescribed Vicodin and Neurontin. During 2001 and 2002 Dr. Thimineur recommended Ketamine infusions for the claimant. In May 2002 Dr. Thimineur determined the claimant was totally disabled from working, and provided her with Ketamine capsules. At that point he concluded she had progressive reflex sympathetic dystrophy of the right arm. By July 2002, the prescriptions also included Zonegran and Maxalt. Dr. Thimineur added Percocet to the drugs prescribed to the claimant in September 2002; and in October 2002 he added Fioricet.
Dr. Thimineur added additional medications to the claimant’s prescriptions. In December 2002 Roxicodone was added. In January 2003 he added Oxycontin and increased her Ketamine medication. By April 2003 Dr. Thimineur determined the claimant was becoming depressed, thus he recommended psychotherapy and prescribed Effexor. In May 2003 Dr. Thimineur began Ketamine infusions and concluded the claimant was still totally disabled. When the Ketamine infusions were stopped in June 2003 her pain returned. By September 2003 Dr. Thimineur determined the claimant now had pain spreading to her left arm and he added MS Contin to the prescriptions.
By January 2004 Dr. Thimineur suggested a new approach, recommending the claimant receive a spinal cord stimulator. She had a trial period with a dorsal spine stimulator, but was hesitant to have a spinal cord stimulator permanently implanted. In early 2005 Dr. Thimineur suggested the claimant receive an occipital nerve stimulator device. By June 2005 the claimant was on at least eight different prescribed drugs, including wellbutrin and morphine. Findings, ¶ 52.
The claimant sought to have Dr. Thimineur’s treatment deemed reasonable treatment for her compensable injury and to receive temporary total disability benefits. The respondents contested the treatment and the status of disability. As a result, Commissioner Senich had Dr. Jerrold Kaplan of Gaylord Hospital perform a commissioner’s examination on August 24, 2004. Dr. Kaplan could not objectively diagnose complex regional pain syndrome, but believed the claimant’s level of medication was excessive and that due to the level of medications she was totally disabled from work. He believed that the claimant would need to be admitted to an inpatient therapy program to detoxify from the medications, as an immediate cessation would be life threatening. The respondents agreed to pay for detoxification on a without prejudice basis. Dr. Kaplan opined that the claimant’s need for pain management and detoxification was causally related to her work injury.
The Commissioner acting for the Third District held a formal hearing on the claimant’s request commencing May 19, 2005 and concluding November 7, 2005. On March 7, 2006 the commissioner issued his Findings and Orders. He determined that Dr. Thimineur was not authorized as a treating physician. Findings, ¶ BB. He determined the claimant needed to immediately enter a detoxification facility as recommended by the commissioner’s examiner. Findings, ¶ CC. Based on the evidence provided by the commissioner’s examiner he ordered the respondents to pay for the detoxification treatment and to pay temporary total disability to the claimant from August 24, 2004 to the completion of the detoxification program.
Both the claimant and the respondent filed Motions to Correct the Findings and Orders. The commissioner denied these motions. The claimant initially appealed from the Findings and Orders, but has withdrawn the appeal. The respondents filed their appeal based on a single issue: “[t]he trial commissioner misapplied the law when he ordered the respondents to pay temporary total disability benefits to the claimant in spite of his findings the alleged disability status was the result of unauthorized and unreasonable/unnecessary medical treatment.” Respondents’ Reasons for Appeal dated March 15, 2006.
The respondents’ brief does not advance a factual challenge to the commissioner’s finding the claimant was totally disabled. We believe such an effort would have been ineffectual. The trial commissioner was presented with competent medical evidence from the commissioner’s examiner that the claimant was totally disabled, as he specifically stated “I do not feel she has a work capacity.” Respondents’ Exhibit 1. In regards to the causation of the disability, the commissioner’s examiner testified at deposition and specifically linked it to her arm injury. “What I said was that if there is no history of any other pre-existing condition or trauma and she has been prescribed these medications for her pain condition, that is why I would consider it causally related to the injury itself.” Respondents’ Exhibit 2, January 5, 2005 Deposition, p. 50. We believe the trial commissioner was entitled to rely on such evidence in his factual findings. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 152 (1972).
Since the trial commissioner had a sound factual basis for his findings that the claimant was totally disabled and this disability was linked to her original arm injury, the respondents challenge the legal basis for the Findings and Orders. They argue that since the claimant’s current disability status is due to a treatment regimen the trial commissioner determined was inappropriate that they should not be legally liable for the claimant’s disability. We are not persuaded by this argument.
We first note there seems to be some confusion as to Dr. Thimineur’s role in this case. While the respondents suggest in their Reasons for Appeal he was “unauthorized,” in fact he received a referral from claimant’s original and authorized treating physician. Findings, ¶¶ F-G. We agree with the claimant that this makes his prior treatment of the claimant that of an authorized physician. See Castano v. Astrophonics Corp. of America, 3714 CRB 7-96-11 (December 29, 1998). Castano also stands for the proposition “[O]nce a physician has been selected, the commissioner may authorize or direct a change of physician at the request of the employer or employee, or whenever good cause exists” Id. We believe as this doctor was in the appropriate chain of referral the commissioner’s determination that Dr. Thimineur’s treatment would not be authorized was one of prospective application.1
The trial commissioner agreed with the commissioner’s examiner that Dr. Thimineur’s treatment was unreasonable and directed a change in treating physician. The claimant argues the respondent still must be responsible for the results of the ineffective treatment, comparing it to the slip of a surgeon’s knife. Such ineffective or injurious treatment does not break the chain of causation to the original injury. We believe the weight of our precedent is supportive of this paradigm.
The respondents believe our holding in Estate of Beaudry v. Uniroyal, 4505 CRB-5-02-3 (March 5, 2003) is dispositive of this issue. We can readily distinguish Beaudry from this case. In Beaudry the claimant’s decedent died during surgery. The trial commissioner determined the § 31-306 C.G.S. claim was barred as the death was causally related to surgery which the trial commissioner concluded was unreasonable and unnecessary. We upheld the findings of the trial commissioner in Beaudry. To reach the result desired by the respondents in this action we would have to overturn the findings of the trial commissioner. Since we concluded the issue in Beaudry was “squarely within the purview of the trial commissioner” we must extend deference to his conclusion in this case. We applied this deferential standard in Thomas v. Mohegan Sun Casino, 4754 CRB 2-03-11 (February 18, 2005) where we distinguished that case from Beaudry as “there was some evidence to uphold that trial commissioner’s factual determination” and his decision on medical treatment was supported by the evidence.
We believe this situation is more akin to Student v. Corometrics Medical Systems, Inc., 3980 CRB-8-99-2 (February 9, 2000). In Student the respondents appealed from a trial commissioner’s order directing them to pay for medical care which was found to be unreasonable. We upheld the trial commissioner because he did not find the medical care failed to meet the standard of “reasonable and necessary” treatment under § 31-294d. The situation here is identical. Since the trial commissioner rejected the respondents’ Motion to Correct Finding ¶ BB which would have concluded the claimant’s treatment was not “reasonable and necessary,” we must infer the trial commissioner concluded the treatment met the ‘reasonable and necessary’ standard.2
Further, we held in Student,
It is now uniformly held that aggravation of the primary injury by medical or surgical treatment is compensable. Examples include exacerbation of the claimant’s condition, or death, resulting from antibiotics, antitoxins, sedatives, painkillers, anesthesia, electrical treat [sic] & hardments, or corrective or exploratory surgery.
Citing 1 Larson & L. Larson, Workers’ Compensation Law (1999) § 10.09.
As noted, the trial commissioner had competent evidence that the claimant was unable to work due to her excessive medications. The disability was occasioned as a result of treatment provided for a compensable arm injury. Therefore, we believe the trial commissioner had sufficient evidence to sustain his finding that the claimant was totally disabled and to attribute this disability as a sequelae of an accepted compensable injury.
Therefore, we affirm the trial commissioner’s Findings and Orders and dismiss the appeal.
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.
1 This is not a case where the claimant proceeded on their own initiative and was denied retroactive authorization of a treating physician similar to Donaldson v. Continuum of Care, Inc., 4581 CRB-3-02-10 (October 6, 2004) or Anderson v. R&K Spero Company, 4965 CRB-3-05-6 (February 21, 2007). It should be noted the trial commissioner found that Dr. Thimineur was paid via Medicaid and other government programs, and was not paid by respondents. Findings, ¶ O. BACK TO TEXT
2 The same issue of excessive prescription of medication was present in Student, see footnote one. We also note that this case can be distinguished from Beaudry, supra. In Beaudry the trial commissioner made a specific finding the treatment was not “reasonable or necessary.” This finding was not made in the Student case. BACK TO TEXT