State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dahle v. Stop & Shop Companies, Inc.

CASE NO. 5356 CRB-6-08-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 5, 2009

BARBARA DAHLE

CLAIMANT-APPELLANT

v.

STOP & SHOP COMPANIES, INC.

EMPLOYER

and

MAC RISK MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Barbara J. Collins, Esq., 44 Capitol Avenue, Suite 402, Hartford, CT 06106.

The respondents were represented by Clayton J. Quinn, Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460.

It appears the Second Injury Fund was involved in the initial proceedings before the trial commissioner. They were notified and did appear at oral argument before the board. However they did not file a brief or participate in the appeal proceedings. Appearing on behalf of the Fund, Lisa G. Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 4, 2008 Finding and Award/Finding and Dismissal of the Commissioner acting for the Sixth District was heard on December 12, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 4, 2008 Finding and Award/Finding and Dismissal of the Commissioner acting for the Sixth District. We find no error, and affirm the decision of the trial commissioner.

The parties stipulated to the following factual determinations. On August 8, 2003, the claimant suffered a compensable injury to her left hip and right shoulder. Scott Organ, M.D., the claimant’s treating physician, assigned the claimant a five (5%) percent permanent partial disability rating of the right shoulder. By agreement of the parties, the claimant was paid the permanency award based on a maximum medical improvement date of September 5, 2006. Although the claimant has complained since the date of injury about pain in and problems with both her right shoulder and her left hip, no permanency rating was ever assigned to the left hip.

The issues before the trial commissioner were the claimant’s eligibility for wage differential benefits pursuant to § 31-308a C.G.S.1 and additional medical treatment pursuant to § 31-294d C.G.S.2 The trial commissioner, citing as credible and persuasive the deposition testimony of Dr. Organ wherein the doctor opined that additional treatment for the claimant’s injuries would be palliative and not curative, determined the additional medical treatment sought by the claimant was neither reasonable nor necessary and dismissed the claim. However, relative to the claimant’s entitlement to § 31-308a C.G.S. benefits, the trial commissioner, noting the restrictions ascribed to the claimant by Dr. Organ in his report of February 15, 2006, found the claimant eligible for the benefits and awarded the full amount as permitted by statute.3 The trial commissioner also awarded the claimant’s attorney a twenty (20%) percent attorney’s fee on the full amount of the § 31-308a C.G.S. award in light of the respondents’ decision to contest that claim.

The claimant filed a Motion to Correct which was denied in its entirety. On appeal, the claimant challenges the trial commissioner’s conclusions regarding the efficacy of additional medical treatment. In essence, the claimant argues that the trial commissioner’s reliance on the opinions expressed by Dr. Organ relative to whether the additional medical treatment sought by the claimant would be palliative or curative was improper because Dr. Organ, in his capacity as an orthopedic surgeon, was insufficiently qualified to render such an opinion. The claimant contends that “[a]n orthopedic surgeon can not [sic] definitively state the curative or palliative treatment of a wholly separate specialty. Orthopedic surgeons and pain management doctors treat injuries in a separate and distinct manner. Therefore, neither doctor can offer qualified expert testimony on the intricacies of each others’ specialty.” Appellant’s Brief, p. 11.

The claimant also asserts that the trial commissioner’s decision to deny the claimant additional medical treatment on the basis of the opinion proffered by an unqualified expert witness contravenes the broad humanitarian purpose of the Workers’ Compensation Act. Asserting that “… the Act does not allow the Commissioner the latitude to disregard basic principles regarding witness qualification,” id., at 17, the claimant requests that this “Board consider the ramifications of allowing unqualified doctors opining on the merits of treatment rendered by doctors of a wholly separate field.” Id.

We begin our analysis by reciting the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.

… the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

In the instant matter, we have been asked to review a trial commissioner’s factual determinations relative to the claimant’s eligibility for additional medical treatment. As we have previously remarked, “[w]hether or not medical care satisfies the ‘reasonable and necessary’ standard of § 31-294d is a factual issue to be decided by the trial commissioner.” Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001), citing Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB1-94-4 (April 12, 1995), appeal dismissed, A.C. 14747 (June 29, 1995). In Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984), we set forth the following articulation of the standard.

Reasonable or necessary medical care is that which is curative or remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work. Any therapy designed to keep the employee at work or to return him to work is curative. Similarly, any therapy designed to eliminate pain so that the employee can work is curative. Finally, any therapy which is life-prolonging is curative.

Id., at 64.

Applying the Bowen analysis in Outlaw v. Pray Automotive of Greenwich, 3981 CRB-7-99-2 (March 23, 2000), we affirmed the decision of the trial commissioner authorizing a portion of the claimant’s chiropractic treatment, stating, “[a]s for the curative value of her therapy, as long as it was designed to repair the damage done to the claimant by her compensable injury, it was reasonable and necessary under the Workers’ Compensation Act.” Id. In reaching his decision, the trial commissioner relied on comments by the treating physician to the effect that the treatment was not intended to merely make the claimant “feel better” but, rather, was an attempt to mitigate her symptoms. We concluded that “[t]he trial commissioner was entitled to give credence to those remarks in his role as the arbiter of credibility, and this board may not question his factual inferences on review.” Id.

Similarly, in Zalutko, supra, we affirmed the trial commissioner’s decision to find reasonable and necessary the claimant’s acupuncture and massage therapy sessions on the basis that the claimant and the doctor testified that the treatments seemed to afford the claimant some relief and the claimant believed they enabled her to keep working. A second doctor involved in the claim also testified that the other treater’s “services were clearly needed to alleviate the claimant’s pain during the reconditioning process, making them ‘an important component to her being able to even get through the rigorous therapeutic protocols that we had in place for her.’” Id. Stating that “for the purposes of the Workers’ Compensation Act, therapy that is designed to eliminate pain so that the employee may return to work is considered curative, and is reasonable and necessary under § 31-294d,” id., we concluded that the trial commissioner did not abuse his discretion in determining that the majority of the claimant’s acupuncture sessions and massage therapy sessions constituted reasonable and necessary treatment.

However, in Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003), we affirmed a decision by the trial commissioner denying the claimant chiropractic treatment on the basis of Dr. Druckemiller’s observation that the claimant “states that he does get relief with the treatments, and then his symptoms come back. I would doubt they will be curative. I do not feel any further medical treatment is likely to benefit the patient.” Id. Although we recognized that this board has historically affirmed the authorization of chiropractic care awards which successfully reduced a claimant’s pain symptoms and thereby afforded the claimant the ability to remain employed, we stated that relative to the Carroll claimant, “[t]he commissioner certainly appears to have concluded that the claimant did not prove that continued therapy … was in fact curative, in the sense that it allowed him to continue working.” Id.

In the instant matter, our review of the evidentiary record suggests the claimant similarly failed to provide the trial commissioner with convincing evidence that undertaking a pain management regimen would afford her sufficient pain relief such that she would be able to resume employment. For instance, the claimant’s treating physician, Dr.Organ, testified at his deposition that he “didn’t know” whether the pain management or physiatry would be palliative or curative, Claimant’s Exhibit A, p. 24 and stated that even though he was not an “expert in those two fields, in my estimation, it would be more palliative than curative.”4 Id., at 25. Dr. Organ admitted he had referred the claimant for pain management because he “could not objectively measure something or discover a mechanical cause for her persistent complaints,” id., at 11, and that pain management can be helpful “[w]hen there’s not a defined pathology where I could intervene with surgery or physical therapy that works and people are still in discomfort ….” Id., at 11-12.

Dr. Organ also indicated he had referred the claimant to a spine specialist for evaluation of the degenerative changes in her lumbar spine. Id., at 14. Noting that an MRI taken in 2006 had revealed a bulging disc, Dr. Organ commented, “[t]here’s definitely not a direct linear relationship between a bulging disc and her symptoms. And the other findings on her MRI speak to a chronic degenerative process.” Id., at 15. Dr. Organ testified, “it was apparent to me that I wasn’t going to be able to help her with the tools in my toolbox, so to speak,” id., at 19, “and that’s why I think she needs to be seen by somebody outside to see is there anything further diagnostically that can be done, is there anything treatment-wise that can be done, and maybe the answer to those are no.” Id., at 27.

On February 15, 2006, the claimant underwent a respondents’ medical examination with Thomas J. Stevens, M.D., who concluded that the claimant did have a work capacity, albeit with lifting restrictions. See Respondents’ Exhibit 1. Dr. Stevens also indicated that the claimant’s “affect is little [sic] bit unusual, but I did not detect any obvious findings other than some degenerative changes present in the lumbar spine which may explain some of the problems she is having in the left hip.” Id., at 4. At his deposition, Dr. Stevens elaborated on his findings, stating that the MRI taken on March 3, 2006 revealed that the claimant had arthritis in her spine, Respondents’ Exhibit 2, p. 10, but

[t]hese findings preceded her injury. She probably came to this fall with this kind of back condition she had. I mean, these are old. These take fifteen and twenty years to develop in the spine … so my intention was that she came to this injury, so to speak, with a bad back initially, so even though she has a bad back and the MRI shows it, the bulges aren’t very impressive because a lot of people have bulges, and arthropathy takes years to develop.

Id., at 10-11.

When queried specifically regarding whether a pain management regimen would be of value to the claimant, Dr. Stevens replied, “[p]ain-management clinics would have a spectrum of what they do for patients … but this woman hasn’t taken any pain pills. Unless she fails on simple analgesics, I wouldn’t put her through a $7,000 program.” Id., at 14. Dr. Stevens also indicated he believed the claimant might benefit from medication to lose weight, but remarked that the claimant was not taking medication because “she didn’t believe in it.” Id., at 11.5 In addition, upon reviewing Dr. Organ’s office note of August 22, 2005, Dr. Stevens noted that Dr. Organ had diagnosed possible bursitis of the hip, but the claimant refused to have an injection.6 Id., at 13-14.

The claimant’s resistance to injections and the use of pain medication is echoed in the January 18, 2007 report of Eugene Lucier, M.D., of the Connecticut Spine and Pain Center. See September 25, 2007 Deposition of Scott Organ, M.D. (Claimant’s Exhibit A), Claimant’s Exhibit E. Having diagnosed the claimant with, inter alia, likely left hip bursitis, Dr. Lucier indicated he advised the claimant undergo an injection to the bursa of the hip, which suggestion the claimant rejected. Id., at 2. Dr. Lucier commented, “I did talk about pain medication. She does not want to use pain medications.” Id., at 3. In light of the claimant’s refusal to entertain either injections or pain medication as possible therapeutic treatments, Dr. Lucier recommended the claimant undergo additional physical therapy, a suggestion to which the claimant was amenable. Id., at 3. Similarly, in his correspondence to claimant’s counsel of February 1, 2007, Dr. Lucier wrote that he had recommended the claimant undergo physical therapy for her arm as it was his opinion the claimant would not regain function without it. Claimant’s Exhibit B. Dr. Lucier remarked, “I doubt that she would be employable in any type of physical employment because of the weakness and pain in her arm.” Id. Dr. Lucier also suggested the claimant undergo a functional capacity evaluation. Id.

We note that Dr. Lucier, a pain management specialist, did not recommend the claimant be admitted to a pain management program. In fact, our review of Dr. Lucier’s medical reports suggests his remarks may have actually served to provide additional support for the trial commissioner’s determination that pain management treatment would not be appropriate in this matter. As such, we are unpersuaded by the claimant’s assertions relative to the trial commissioner’s ostensible erroneous reliance on an orthopedist’s opinion as to whether a pain management regimen constituted reasonable and necessary treatment. Furthermore, even if the trial commissioner had chosen to rely solely on the testimony of Dr. Organ, "[i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” Tartaglino, supra.

In addition, § 31-298 C.G.S. affords a trial commissioner considerable latitude in the manner in which hearings are conducted and evidentiary submissions are evaluated.7 “Whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court.” DiBella v. Widlitz, 207 Conn. 194, 202 (1988). We are therefore unwilling to subject trial commissioners to the constraints requested by the claimant when trial commissioners are called upon to assess the evidentiary merit of testimony from medical practitioners who are opining on the efficacy of treatment protocols which may lie outside their specific specialty. Such constraints would only serve to complicate unnecessarily the evaluation of expert witness testimony and thwart one of the fundamental goals of the workers’ compensation statutes to “compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citations omitted; internal quotation marks omitted.) Stickney v. Sunlight Construction, Inc., 48 Conn. App. 609, 617 (1998), cert. granted, 245 Conn. 919 (1998), aff’d, 248 Conn. 754 (1999), quoting Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381 (1997).

In conclusion, we find the medical opinions in the instant record provide ample support for the determination by the trial commissioner that a pain management regimen would be palliative rather than curative and thus would not constitute reasonable or necessary treatment. Dr. Organ’s testimony indicates he considered pain management and/or physiatry an option of last resort, and neither Dr. Stevens nor Dr. Lucier advocated on the claimant’s behalf for such a program. In fact, a review of the entirety of Dr. Organ’s testimony would support the inference by the trial commissioner that even Dr. Organ was far from convinced the claimant would actually benefit from this course of treatment. Such an inference is not subject to secondguessing at the appellate level, particularly in light of the fact that Dr. Organ testified that he had been treating the claimant since 1999. Claimant’s Exhibit A, p. 6. In addition, Dr. Lucier pronounced the claimant unemployable for any sort of physical occupation as the result of an injury completely unrelated to the compensable injuries accepted by the respondents, while both Dr. Organ and Dr. Stevens attributed the claimant’s complaints at least in part to the existence of long-term degenerative disc disease. “If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000).

The claimant also filed a Motion to Correct which was denied in its entirety. Our review of the proposed corrections indicates the claimant was primarily engaged in an attempt “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). We find no error in the trial commissioner’s refusal to grant those corrections, as “[t]he [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.

Having found no error, the June 4, 2008 Finding and Award/Finding and Dismissal of the Commissioner acting for the Sixth District is hereby affirmed.

Commissioners Charles F. Senich and Jack R. Goldberg concur in this opinion.

1 Sec. 31-308a C.G.S. (Rev. to 2003) states, “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.

(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation. BACK TO TEXT

2 Sec. 31-294d(a)(1) C.G.S. (Rev. to 2003) states, in pertinent part, that “[t]he employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. BACK TO TEXT

3 Based on the claimant’s permanency rating of five (5%) percent of the right shoulder, the trial commissioner awarded the claimant 9.75 weeks of § 31-308a C.G.S. benefits at her compensation rate of $381.21 for a total award of $3,716.80. BACK TO TEXT

4 At his deposition, Dr. Organ testified as follows:

Q: And at that point would pain management or would treatment from a physiatrist, would the treatment that they would be able to render be curative in nature or would it be palliative in nature?

A: I don’t know. I only know that I could not find objective findings from an orthopedic point of view that would lend themselves to a definitive orthopedic treatment. She had pain that I can’t explain, so I had to defer to those specialists to actually identify the cause of the pain and then determine whether it would be curative or palliative.

Claimant’s Exhibit A, pp. 24-25. BACK TO TEXT

5 Dr. Stevens also noted this fact in his IME report of February 15, 2006, wherein he wrote that the claimant “is currently taking no medication. She does not believe in it.” Respondents’ Exhibit 1, p. 2. BACK TO TEXT

6 In his office note of May 5, 2004, Dr. Organ again referenced the claimant’s resistance to injections, stating, “[a]bsent any obvious findings on the MRI and with her adversion [sic] to needles, not wanting any surgical intervention at the elbow or the hip.” September 25, 2007 Deposition of Scott Organ, M.D. (Claimant’s Exhibit A), Claimant’s Exhibit F. BACK TO TEXT

7 Sec. 31-298 C.G.S. (Rev. to 2003) states, in pertinent part, “… In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter…. BACK TO TEXT

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