State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Chimblo v. Connecticut Light & Power

CASE NO. 5417 CRB-7-09-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 30, 2009

FRANK M. CHIMBLO

CLAIMANT-APPELLEE

v.

CONNECTICUT LIGHT & POWER

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

NORTHEAST UTILITIES CLAIMS SERVICE

ADMINISTRATOR

APPEARANCES:

The claimant was represented by James T. Baldwin, Esq., Coles, Baldwin & Kaiser, LLC, 1261 Post Road, P.O. Box 577, Fairfield, CT 06824.

The respondent was represented by Michael J. Buonopane, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the January 15, 2009 Finding and Award of the Commissioner acting for the Seventh District was heard June 19, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent filed an appeal from the January 15, 2009 Finding and Award of the Commissioner acting for the Seventh District. In that Finding and Award the trial commissioner ordered the respondent to; authorize ongoing medical treatment, pay all reasonable and necessary prescriptions and appliances related to a back injury stemming from work related injuries occurring October 15, 1976 and May 9, 1979.

The pertinent facts in this matter are as follows. The claimant alleged he sustained an injury to his low back on October 15, 1976 and a May 9, 1979. The commissioner found that a voluntary agreement was approved and the voluntary agreement acknowledged the claimant’s May 9, 1979 back injury and a 40% permanent partial disability of the low back. Following the May 9, 1979 injury the claimant underwent a discetomy at the L4-L5 level. Following the surgery, the claimant was out of work for approximately six months. The claimant returned to work for the respondent for a period of approximately one year.

After leaving the respondent’s employ, the claimant went to school and obtained his electrical contractor’s license. The claimant ran his own electrical contracting business for a period of five years. The claimant’s back surgery was declared a success. However, as time went on, the claimant began to experience increased symptomatology. Between the mid-1980s and 1998 the claimant was seen by a number of physicians. Conflicting opinions were offered by the physicians as to whether surgery would be helpful in relieving the worsening symptoms. In February 1995, claimant’s treating physician, Dr. Thomas D. Rodda suggested that the claimant undergo a spinal fusion at the L4-5 and L-5 sacrum levels and if other changes were detected, a more extensive fusion.

The respondent’s examiner, Dr. Michael E. Karnasiewicz in his September 29, 1995 report stated that the surgical fusion proposed by Dr. Rodda was “a medically acceptable way of treating the claimant’s problems” but did not guarantee relief of symptoms for the claimant. Dr. Karnasiewicz also recommended that the claimant undergo detoxification prior to surgery. Finding, ¶ 24.

In a November 14, 1996 report by Dr. George Ubogy, (a pain management specialist) it was suggested that the claimant need not undergo detoxification prior to surgery but should undergo detoxification after surgery. The respondent finally approved back surgery for the claimant on or about June 11, 1998. According to the claimant, he never underwent surgery because there was a disagreement as to which doctor(s) were authorized to perform the surgery.

In April 2000, Dr. Rodda’s office notes reflect his opinion that the claimant was no longer a candidate for surgery “because of the long period of neurogenic impingement . . . surgery would not be as efficacious as it would have been many years ago.” Finding, ¶ 31. Dr. Rodda also recommended that the claimant lose weight and cut back on his use of narcotic medications. Id.

In either 2001 or 2002 claimant suffered a stroke. In Dr. Rodda’s various office notes pertaining to the claimant between 2003 and 2005, he noted that claimant had a continuing need to reduce his weight and use of narcotic medications. Further, the claimant was at maximum medical improvement without the suggested surgery.

In proceedings before the trial commissioner the claimant testified that he had been taking medication since the date of his injury. He also stated that the respondent reimbursed all out of pocket expenses for his prescriptions “until sometime in 2000 or 2002.” Finding, ¶ 39. The claimant also testified that for many years his prescription reimbursement requests were processed by the respondent’s employee, Mr. Lemery. However, Mr. Lemery retired and the processing of the claimant’s claims for reimbursement was assumed by Mrs. Marilyn Pelletier. According to the claimant, Mrs. Pelletier reimbursed him once and never again. At the time of the formal hearing the claimant sought eight (8) years of unreimbursed out of pocket expenses.

Noting that Dr. Rodda last saw the claimant in 2006 and has since retired, the trial commissioner concluded, inter alia, that the respondent authorize a treating physician agreeable to the claimant, provide “all reasonable and necessary medical treatment, including but not limited to weight loss and detoxification…” Finding, ¶ (1). The trial commissioner also ordered that the respondent “reimburse the claimant for all relevant, verifiable out-of-pocket expenses for related prescriptions, appliances and other medical treatment which remain unpaid as of the date of this decision.”

The respondent appealed the trial commissioner’s January 15, 2009 Finding and Award. In its appeal the respondent presents the following issues; (1) whether the trial commissioner’s inference that the claimant required surgery some ten years after it was authorized by the respondent is unreasonable and without evidence, (2) whether the trier erred in her conclusion that there was no intervening/superseding cause following the 1979 work injury sufficient to relieve the respondent’s liability in this matter. We find the respondent-appellant’s claims to be without merit and therefore affirm the January 15, 2009 Finding and Award.

We begin with our consideration of the respondent-appellant’s allegation that “[i]t is unreasonable to infer that a claimant requires surgery ten years after it was authorized without medical evidence to support it.” See Appellant’s Brief, p. 2. We believe the respondent-appellant’s statement of the issue inaccurately characterized the trial commissioner’s decision in this matter.

The trial commissioner ordered the respondent to provide, inter alia, all reasonable and necessary medical care. While the trial commissioner mentions surgery in ¶ D she also references the respondent’s obligation to provide medical treatment including physical therapy, detoxification, weight loss procedures, surgery and diagnostic imaging. Her order in Finding, ¶ (1) indicates that the respondent authorize “weight loss and detoxification programs, with a physician of the claimant’s choice.”

We believe that the trial commissioner’s order must be reviewed in the context of her other findings and the evidence to which she refers. With this in mind, the commissioner’s conclusion as to the appropriateness of surgery has minimally two (2) conditions precedent which must be completed before surgery; the claimant must undergo the successful completion of a detoxification program and the successful completion of a weight loss reduction program.

Therefore it is only logical to read the trial commissioner’s decision as providing that once these two conditions are met, the claimant will be re-evaluated medically. It would defy what we know to be the standards of medical practice to expect that any surgeon would perform surgery on any patient without (1) assessing the medical treatment value of the surgery at a time that is more contemporaneous with the surgery and (2) evaluating the claimant’s health and ability to withstand the surgery and achieve the intended outcome.

Construing the trial commissioner’s conclusion as one that compels surgery without compliance with ordinary medical standards of care is unfounded. Any commissioner’s authorization of a specific medical course of action subsumes within it the appropriateness of the medical care, i.e., the proposed course of action has been validated by a physician and is consistent with accepted medical standards and practices. Put more succinctly a trial commissioner can determine whether the prescribed surgery should be authorized as reasonable and necessary but is without the power to compel a surgeon to perform the surgery or the claimant to undergo same.

The more rational interpretation of the trial commissioner’s order is that the trial commissioner is concerned with the long periods of time between specific medical care proposals which are reasonable and necessary and the claimant actually undergoing treatment in accordance with the physicians’ recommendations and a commissioner’s approval. It strikes us that the trial commissioner’s January 15, 2009 Finding and Award was an attempt to provide a claimant with the medical treatment to which he is entitled under the Act and establish guidelines for both respondent and claimant as to the steps necessary for effecting treatment.

The second issue presented for review is whether the trial commissioner’s conclusion that claimant’s current condition remained the liability of the respondent was appropriate. The respondent and trial commissioner rely on the legal concepts that an intervening or superseding event may serve to remove the respondent from its liability for medical treatment. Although both reference this legal principle, they differ as to whether the underlying factual circumstances warrant the application of the principle.

Whether the evidence provided supports the conclusion preferred by the respondent is a factual determination solely within the province of the trial commissioner. It was within the trier’s authority to assess the weight and credibility of the evidence before her. The trial commissioner made that determination and in essence concluded that no event occurred which rose to a level sufficient to release the respondent from its obligation under our Act. We will not disturb such a finding unless it is contrary to law, without evidence or based on unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Whether the respondent continues as a payor for benefits to which the claimant may be eligible is a matter that rests on whether the 1979 injury was a substantial factor in the proximate cause analysis, i.e., whether the 1979 injury was a substantial factor in producing the medical condition for which the claimant seeks treatment. As we have stated on a number of occasions our role as an appellate body does not permit us to engage in de novo review. Anderton v. Waste Away, 91 Conn. App. 345 (2005). See also, Sapko v. State/Dept. of Correction, 5335 CRB-8-08-4 (March 23, 2009), appeal docketed AC 30962 (April 9, 2009).

Finally, we consider the matter of some post oral argument filings on the part of the respondent-appellant. Following our consideration of this matter the respondent filed a Motion to the Compensation Review Board for Order to Suspend Trial Court Proceedings. That motion dated October 8, 2009 was filed with this board on October 16, 2009. The respondent’s motion was accompanied by Respondent’s Trial Brief and Motion To Dismiss A Sua Sponte Trial De Novo While The Issue Is Pending At The Compensation Review Board. We deny the respondent’s motion.

In fact we find the motion and some of the arguments put forth in its support to be puzzling in light of the respondent’s own filings as to the appeal under consideration here. In its Motion to Correct the respondent seeks the following correction:

These eight years of unreimbursed out-of-pocket expenses were submitted to the respondent for the first time at the formal hearing. The respondent has not been given due process to review and process the bills and to assert potential defenses that could have been revealed through a prior investigation of these bills. As such, the bills cannot be subject to this order but should be re-submitted to the respondents for an opportunity to reasonably investigate and examine these bills in the interest of due process.

See ¶ 7 of the Respondent’s Motion to Correct.

It strikes us that any post appeal proceedings held by the commissioner for the purpose of determining the specific reimbursement sums due the claimant for medical expenses was in accordance with one of the concerns raised by the respondent in this appeal. Thus, the board does not see how the trial commissioner’s post oral argument proceedings can be interpreted as a sua sponte action on the part of the commissioner. The respondent in its Motion to Correct is the party who by way of inference suggested same.

While this body does not support piecemeal litigation the Workers’ Compensation Commission is accorded continuing jurisdiction. The procedural posture of this case following the trial commissioner’s Finding and Award appears to be somewhat analogous to that which existed in Demarest v. Stamford, 4370 CRB-7-01-3 (March 14, 2002). In Demarest, the trial commissioner was asked to determine the appropriate calculation for the payment of permanent partial benefits pursuant to § 7-433c in light of the recipient’s retirement and the cap set out in § 7-433b. The trial commissioner made a determination as to the applicable amount to be paid and then prescribed the future conduct required to provide the timely payment of benefits to the claimant.

The respondent in Demarest appealed and argued, inter alia, that the trial commissioner’s orders pertaining to conduct in future calculations and payments exceeded his authority. This board was unpersuaded and held that the trier’s efforts to assure the claimant would be paid in a timely manner were consistent with the commission’s continuing jurisdiction and the broad humanitarian purpose of the Act. We believe that a similar analysis is appropriate in the instant matter and therefore deny the respondent’s motion insofar as it seeks to arrest further proceedings designed to determine the amount the respondent owes the claimant for the reimbursement of medical expenses.

We therefore affirm the January 15, 2009 Finding and Award of the Commissioner acting for the Seventh District.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur

Workers’ Compensation Commission

Page last revised: January 5, 2010

Page URL: http://wcc.state.ct.us/crb/2009/5417crb.htm

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