CASE NO. 5089 CRB-7-06-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 10, 2007
NEW MILFORD NURSING HOME
ROYAL AND SUNALLIANCE
The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson LLP, 46 West Street, P.O. Box 278 Litchfield, CT 06759-0278.
The respondents were represented by Stacey Francoline, Esq., and Marie Gallo Hall, 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 May 4, 2006 Finding and Award by the Commissioner acting for the Seventh District was heard November 17, 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. Did the trial commissioner act appropriately in approving psychiatric treatment by a provider not within the network of approved providers in the respondent’s medical care plan? The respondents argue this authorization is inconsistent with the terms of § 31-279(c)(2) C.G.S. The claimant argues the evidence in the record supports the trial commissioner’s decision. Our examination of the record indicates the respondents’ expert witness suggested the claimant should continue to treat with her current psychiatrist. Therefore, we affirm the trial commissioner.
There is agreement that the claimant suffered a compensable back injury while attempting to lift a patient on January 23, 2002.1 The sequelae of that injury has involved a number of orthopedic treatments, pain management and issues related to her mental state subsequent to her physical injury. The record indicates the claimant suffered an extraordinarily difficult adolescence, including being abused by family members, drug addiction, incarceration and estrangement from her children. At the time of the compensable injury the claimant was no longer using drugs, was gainfully employed and was working to improve her status in life.
The respondents had the claimant examined by their expert, Dr. Jarob Mushaweh. On June 17, 2003, Dr. Mushaweh offered an opinion as to whether the claimant should have surgery and noted that depression was an issue to be considered in regards to her having surgery. The claimant did have lumbar spine surgery in October 2003 but her pain issues persisted. She visited a family physician, Dr. Kamm (who was not her authorized treating physician for the compensation claim), who referred her to a psychiatrist, Dr. Mark Ligorski. She began treating by Dr. Ligorski and paid for the treatment via her group health insurance. Findings, ¶¶ 5 and 8.
A second expert retained by the respondents performed an IME on the claimant in early 2005. On March 24, 2005 Kimberlee Sass, Ph.D., a neuropsychologist, examined the claimant. She concluded “in my opinion, the patient’s depression is causally related to the subject accident.” She also concluded “[t]o date, Ms. Jurado’s psychiatric needs have not been adequately addressed . . .,” and “[c]ertainly, the patient should continue to treat with her psychiatrist . . . ” while suggesting additional treatment with a psychologist with expertise in pain management. See Claimant’s Exhibit D.
A formal hearing was held on March 20, 2006. The claimant testified at that hearing that “Dr. Ligorski has opened up a door, that I could, actually, sit down with a person and not be judged.” March 20, 2006 Transcript. The claimant also testified at the hearing that she had been recently treated at Danbury Hospital for a nervous breakdown. A number of exhibits were presented including medical reports from her treating physicians, Dr. David Kloth, Dr. Daniel George and Dr. Alan S. Waitze; a report from Dr. Mark Ligorski; the IME reports from Dr. Jarob Mushaweh and Dr. Kimberlee Sass; and depositions of Dr. Mushaweh and Dr. Sass.
On May 4, 2006 the commissioner acting for the Seventh District issued his Finding and Award. He approved Dr. Ligorski as an authorized treating physician for the claimant because he believed a change in her treating psychiatrist at this point in time could prove detrimental to the claimant’s well-being and chances for recovery. He ordered the respondents to pay Dr. Ligorski’s reasonable and necessary charges for medical treatment going forward. Following the denial of a Motion to Correct, the respondents appealed.
The respondents argue that the terms of § 31-279(c)(2) C.G.S. preclude the remedy approved by the trial commissioner. They believe that once an injury is accepted by the respondents, there is no discretion on the part of the trial commissioner to authorize any treatment outside the medical care plan established by the respondent’s insurance carrier. They rely on our precedent in Gonzalez v. Coca-Cola Bottling Co. of New York, 4284 CRB-8-00-8 (September 13, 2001) for this argument.
The claimant cites Gonzalez for the opposite argument. In Gonzalez we pointed out that “an employer who initially denies the compensability of a reported injury cannot also insist that a claimant seek treatment only from doctors within its medical care plan.” They believe the facts herein, where the claimant commenced psychiatric treatment on her own, mirror the facts in that case where we upheld the commissioner’s finding that authorized “out of network” medical care.
The actual text of § 31-279(c)(2) C.G.S. states as follows “The election by 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.” We believe the statutory construction suggested by the respondents is inconsistent with the precedent restated by the Supreme Court in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) “[s]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” Id., 309-310. The phrase “subject to the order of the commissioner” provides authority under the statute for a trial commissioner to authorize an “out of network” medical provider upon the presentation of competent evidence justifying such an order.
The respondents challenge the adequacy of the evidence provided to justify the Finding and Award. We have generally been deferential to the factual determinations of a trial commissioner “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton v. Mottolese, 267 Conn. 1, 54 (2003). We held in Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002),“[a]ll we may do is review the trier’s findings to determine whether there is any evidence in the record to support them, and to determine whether the trier might have omitted from her findings material facts that are truly admitted or undisputed.”
The trial commissioner herein had two relevant forms of evidence supportive of his decision. He had the hearing testimony of the claimant testifying to the efficacy of her treatment with Dr. Ligorski and he had the IME report of the respondent’s expert, Dr. Sass, suggesting that the claimant continue treating with Dr. Ligorski. The plain language in Dr. Sass’s report is supportive of the trial commissioner’s decision. While Dr. Sass made a different recommendation at her deposition (suggesting the claimant start treating with a Hamden based psychologist); that is not dispositive of this issue, especially as during Dr. Sass’s testimony she agreed with claimant’s counsel that Dr. Ligorski would be “ahead of the game as compared to other people who might not have built up this trust and bond.” See Respondents’ Exhibit 3, pp. 45-46.
“It is properly within the commissioner’s discretion to accept or reject all, or part of, a medical opinion. Misenti v. International Silver Co., 215 Conn. 206, 209-10, 575 A.2d 690 (1990); Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001); Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998). Safford v. Owens Brockway, 262 Conn. 526, 536 (2003).” Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006).
“We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion. Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995).” Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006).
We do not find it erroneous for a trial commissioner to rely on representations made by a respondent’s expert witness that support the continuation of treatment by a previously unauthorized provider. We acknowledge that in cases such as Anderson v. R&K Spero Company, 4965 CRB-3-05-6 (February 21, 2007) we have explained that a claimant assumes the risk a trial commissioner will not retroactively authorize treatment by an unauthorized provider. In the instant matter the claimant convinced the trial commissioner such treatment was reasonable and necessary.
The determination of “reasonable and necessary” medical care has always been a fact driven exercise determined on a case by case basis. In the present case, we believe the trial commissioner was presented with sufficient evidence to justify authorization of a physician outside the respondent’s medical care plan. Therefore, we affirm the trial commissioner and dismiss this appeal.2
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.
1 A Voluntary Agreement for the back injury was approved by the Commissioner on February 20, 2003. BACK TO TEXT
2 The respondents assert error from the trial commissioner’s denial of its Motion to Correct. Since the Motion to Correct essentially sought to interpose the respondents’ conclusions as to the evidence presented and the respondents’ legal opinions as to the application of the relevant statute, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT