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Serluca v. Stone & Webster Engineering

CASE NO. 5118 CRB-8-06-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 13, 2007

FRED SERLUCA

CLAIMANT-APPELLANT

v.

STONE & WEBSTER ENGINEERING

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Gerard Rucci, Esq., Law Offices of Gerard R. Rucci, LLC, 111 Huntington Street, New London, CT 06320.

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

This Petition for Review1 from the July 26, 2006 Finding & Award/Finding & Dismissal by the Commissioner acting for the Eighth District was heard January 19, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Litigation often commences not as a result of a substantive dispute between the parties, but due to a misunderstanding concerning the actual rights the parties already possess. This is the circumstance of the present appeal. The claimant has appealed based on his belief that the trial commissioner’s Finding & Award/Finding & Dismissal permanently bars his ability to seek further medical treatment for certain compensable injuries. We do not believe the trial commissioner’s decision has this effect, and take this opportunity to clarify the situation while affirming the trial commissioner’s decision.

Following a formal hearing that was held over 14 sessions from September 24, 2002 to March 28, 2006 the trial commissioner issued his findings on the following issues: “permanent and total disability, compensability of the alleged psychiatric condition/depression, compensability of a right inguinal hernia, compensability of the left and right hip conditions, authorization for medical treatment/pain management and 36 approval.” The trial commissioner did find that the claimant had sustained a compensable injury to his lower back on April 26, 1995 and had a discectomy in December 1996. Having determined that “I do not find the claimant credible and/or persuasive as to most of his testimony” Findings, ¶ D, the trial commissioner did not find most of the claimant’s asserted ailments compensable. He did “find the claimant credible and/or persuasive in regard to the claim of injury to his low back, left leg and left foot.” Findings, ¶ G.

While the trial commissioner did believe the claimant had an injury to his low back, left leg and left foot, he did not find the claimant credible in regards to the issues of medication and/or pain management, Findings, ¶ I, and did not find him credible on the issue of having satisfied the Osterlund standard for total disability, Findings, ¶ K. The trial commissioner then focused on the condition of the claimant’s low back, left leg and left foot. He determined “the claimant has not yet reached maximum medical improvement” as to these injuries, Findings, ¶ S; but upon review of the evidence concluded that the claimant’s treatment was palliative, and not curative. In Finding, ¶ V the trial commissioner concluded “[t]he claimant’s claim for further medical care as to the low back, left leg and left foot is Dismissed as of November 2, 2000 as I find both Dr. Lange and Dr. Druckemiller credible that said treatment would be and is palliative and not improving the claimant’s condition.”2

The claimant issued his Reasons of Appeal on August 4, 2006 “because the Commissioner could not reasonably have concluded that all future medical care would be palliative and not improving the Claimant’s condition.” At oral argument before the board counsel for the claimant expressed concern that the text of Finding, ¶ V of the Finding & Award/Finding & Dismissal could be interpreted to have binding prospective effect against future medical care for the claimant. The respondents do not agree with the claimant’s interpretation of Finding, ¶ V. We credit the respondents with the better view of the substance of the law, but certainly understand the objective of claimant’s counsel, i.e. protecting his client’s interest in potential future medical care.

The claimant believes our holding in Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004) is supportive of his view a trial commissioner cannot prospectively rule on a claimant’s future medical treatment. We agree. Our holding in that case is directly on point.

With regard to the claimant’s entitlement to ongoing medical treatment, we must clarify the trier’s order. Absent the execution and approval of a full and final settlement, an accepted workers’ compensation claim theoretically remains open for the duration of a claimant’s lifetime. Though a commissioner may determine that current circumstances at the time of a formal hearing do not warrant further benefits or ongoing treatment such as pain management therapy, a claimant always retains the right to seek medical treatment or benefits for future time periods should circumstances change. Given this limit on the trier’s authority, we read ¶ o of his findings as stating that the claimant’s current claims for compensation beyond November 4, 2002 were all denied, save for the 20% permanency award and the prescription for Elavil.

See also Hunt v. Naugatuck, 273 Conn. 97, 103-104 (2005) and Besade v. Interstate Security Services, 212 Conn. 441, 444-445 (1989).

Based on the precedent in Schenkel the trial commissioner could decide that as of the date of the commissioner’s examination that the treatment being provided to the claimant did not constitute curative care as defined in Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003), and that is a factual determination which cannot be revisited on appeal. This determination of the claimant’s current medical treatment is not probative of what determination the Commission may reach regarding the claimant’s future medical treatment. At such time as the claimant seeks to establish that future treatment constitutes reasonable and necessary treatment for the compensable injury he will be able to pursue this request de novo. As respondents point out in their brief, § 31-315 C.G.S. provides a statutory avenue to argue conditions have changed since the prior hearing, and at the new hearing the claimant will be left to his proof.3

Therefore, having clarified the legal effect of Finding, ¶ V of the Finding & Award/Finding & Dismissal, we herein affirm the trial commissioner’s decision.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 We note that a postponement and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 Dr. Druckemiller performed a respondent/employer’s examination. Findings, ¶ 48. Dr. Lange was the Commissioner’s examiner and performed a commissioner’s examination of the claimant on September 10, 2000. Commissioner Brouillet approved a Form 36 based on that examination on November 2, 2000. Findings, ¶¶ 59-73. BACK TO TEXT

3 Since there has not been a finding the claimant has reached maximum medical improvement it is likely there will be a future hearing regarding this injury so as to establish whether the claimant is entitled to an award under § 31-308(b) C.G.S. See Boccuzzi v. Norwalk Courtyard Marriott, 4123 CRB-7-99-9 (October 11, 2000). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: July 17, 2007

Page URL: http://wcc.state.ct.us/crb/2007/5118crb.htm

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