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Covaleski v. Casual Corner

CASE NO. 5524 CRB-1-10-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 3, 2010

ROBERT A. COVALESKI

CLAIMANT-APPELLEE

v.

CASUAL CORNER

EMPLOYER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by James M. Quinn, Esq., Quinn & Quinn, LLC, Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

The respondents were represented by Maribeth McGloin, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the January 6, 2010 Finding and Award of the Commissioner acting for the First District was heard August 27, 2010 before a Compensation Review Board panel consisting of Commissioners Jack R. Goldberg, Ernie R. Walker and Peter C. Mlynarczyk.

OPINION

JACK R. GOLDBERG, COMMISSIONER. The respondents in this matter have appealed from a Finding and Award issued to the claimant. The respondents argue that the award is unsupported by medical evidence. We have determined that the respondents’ medical examiner opined in a manner consistent with the award in this case. We also find the decision herein is consistent with our prior ruling regarding this claimant in Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). (“Covaleski I”) Therefore, we affirm the Finding and Award and dismiss this appeal.

The trial commissioner reached the following findings of fact. The issues before her were whether the services at Allied Rehabilitation Center (“Allied”) received by the claimant were medical treatment and whether the need for such services was due to the compensable February 29, 1996 injury. The trial commissioner noted prior Findings determined the claimant had suffered a fracture of his left hip, and injuries to his left side, shoulder and neck, which had necessitated an open reduction with internal fixation of his hip fracture, an osteotomy, and a tendon lengthening. The claimant has been afflicted with cerebral palsy, epilepsy and mild mental retardation since birth. Prior to the accident the claimant had become independent in his job at Casual Corner, walked independently, rode a two-wheel bicycle regularly and performed a variety of household tasks. The claimant attempted to return to his Casual Corner job after the surgery but that effort lasted only two weeks.

Since his injury the claimant has been a regular client at Allied. Allied, a structured workshop, provides the claimant rehabilitation training, counseling, and the opportunity to socialize with his peers in a supervised environment. The claimant is at Allied five days a week and performs piecework for which he is a paid a nominal wage, socializes with other clients, and learns job skills. The claimant was found totally disabled by a trial commissioner on July 10, 2001 and in Covaleski I this board affirmed that the claimant was temporarily totally disabled. Since Covaleski I was decided, vocational assessments have determined the claimant is not capable of independently obtaining and maintaining a job in a competitive work environment at this time. The claimant’s work injury has aggravated his cerebral palsy and affected his ability to walk. He now walks with a straight cane, a quad cane, and with a walker. He uses a wheelchair for long distances. The claimant had an adult tricycle and a four-wheel bike, but now can only use the four-wheeler.

The claimant’s treating physician, David A. Feingold, M.D., has opined that the claimant’s treatment at Allied is medically necessary. He stated that the services at Allied stimulate activity so that loss of strength is minimized and mobility is maximized. He also stated that the sheltered workshop program “is both medically necessary and rehabilitative and without it, I believe that Mr. Covaleski would have a rapid decline in function with medically reasonable concern that this decline in function could possibly be permanent.” Claimant’s Exhibit E.

The respondents’ examiner, Jerrold Kaplan, M.D., said in his report that Allied provided both vocational and medical treatment and “I further agree with Dr. Feingold that the sheltered workshop services are medically necessary for Mr. Covaleski to prevent deterioration in his condition.” Dr. Kaplan further said “[a]spects of the program that specifically deal with his gait, balance, strength and endurance would be considered causally related to his work injury.” Respondent’s Exhibit 3.

Karen Zanetti, the Human Services Supervisor at Allied, testified at a deposition that while there was no specific program at Allied dealing with strength or endurance the claimant had been referred to physical therapy, which he had been receiving. She testified the claimant would break down emotionally if he did not have the program at Allied. She also testified he would likely become withdrawn, quiet and not involved in anything. The trial commissioner also considered evidence regarding the Department of Developmental Services (“DDS”) and their expenditures to Allied on the claimant’s behalf. The relevant statute, §17a-218 C.G.S., requires recipients of those services to pay for them, or to apply to become Medicaid beneficiaries which will then pay for the services. The claimant had not applied for Medicaid as of the date of the Formal Hearing.

Based on this evidence the trial commissioner concluded that the claimant’s services at Allied were medically necessary pursuant to § 31-294d C.G.S.1 She found the opinion of Dr. Feingold to be credible and persuasive as to the necessity of these services and found Dr. Kaplan, while less persuasive than Dr. Feingold, generally agreed with Dr. Feingold’s opinion on this issue. She ordered the respondents to pay the cost of future services from Allied, to reimburse the claimant for any out-of-pocket expense at Allied, and to reimburse DDS for expenses it has paid for services from Allied since the statute applicable to this issue was amended in 2005. That final point was removed from the Finding and Award following a Motion to Correct filed by the respondents. The trial commissioner granted the corrections sought by the respondents pertaining to the issue of DDS reimbursement, noting that DDS had not filed a lien nor made a demand for reimbursement. Therefore, were such issues to be addressed, the matter would need to be addressed at a future hearing. The commissioner did not grant other corrections that would have substantively changed the outcome of the decision. The respondents have pursued this appeal.

The respondents advance a number of arguments on appeal. They argue that the evidence before the trial commissioner did not support a finding that Allied’s services were “medically necessary” treatment for the compensable injury. They point out that Allied is not a medical provider as the term is generally applied. Finally, they argue that on equitable grounds that the claimant should access the Medicaid program to pay for this program, rather than have the cost borne by compensation insurance. We are not persuaded by any of these arguments.

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “As 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). In the present matter, the trial commissioner determined that the services provided by Allied were medically necessary within the scope of the statute. We must ascertain if there was evidence to support this conclusion and whether it was reasonable.

The trial commissioner cited the opinion of Dr. Feingold as being persuasive and credible and cited the opinion of the respondents’ examiner, Dr. Kaplan, as generally supportive of Dr. Feingold’s conclusions. Dr. Feingold stated that the program at Allied acted “to stimulate activity so that loss of strength is minimized. Mobility is maximized.” Dr. Feingold also opined that the program at Allied “slowed deterioration of his gait.” Claimant’s Exhibit E. We note that these issues involve the physical condition of the claimant and relate to the compensable injury he suffered. We acknowledge that the respondents present a cogent argument that the claimant’s program at Allied would be appropriate for an individual with cerebral palsy who had not been injured on the job. Nonetheless, when probative evidence supports the claimant we cannot second-guess a trial commissioner’s decision that services aimed at preserving the claimant’s mobility following a serious hip injury are related to that compensable injury.2

We also note that the trial commissioner found that Dr. Kaplan agreed with Dr. Feingold’s general conclusions. Dr. Kaplan concluded that Allied’s “sheltered workshop program provides both vocational and medical treatment. I further agree with Dr. Feingold that the sheltered workshop services are medically necessary for Mr. Covaleski to prevent deterioration in his condition.” Respondent’s Exhibit 3.

The respondents offer a number of arguments in response to the medical evidence. They argue that much of Dr. Kaplan’s opinion focused on the nature of Allied’s services that were not related to the compensable injury. Respondent’s Brief p. 11. As we noted, the trial commissioner also relied on Dr. Feingold’s opinion, which she found more persuasive. The trial commissioner may also decide to rely on part of an expert’s opinion and choose not to rely on the expert on other issues. Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). The respondents also argue that Allied does not offer “medical” treatment. Respondent’s Brief p. 10. The claimant argues that pursuant to Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (January 6, 1997) reasonable medical care as defined in our statutes is afforded a broader scope, including such necessary modalities as wheelchairs. We find the claimant’s view of the law more congruent with the binding appellate precedent on § 31-294d C.G.S.

In Anderson v. R & K Spero Company, 107 Conn. App. 608 (2008) the Appellate Court had occasion to consider the “reasonable medical care” provision of § 31-294d C.G.S. In Anderson the trial commissioner determined that no further chiropractic treatment for the claimant was necessary, and this board affirmed the decision. Anderson v. R & K Spero Company, 4965 CRB-3-05-6 (February 21, 2007), aff’d, 107 Conn. App. 608 (2008). The Appellate Court affirmed our decision, citing Covert v. Patterson, 4094 CRB-3-99-8 (September 29, 2000) for the proposition that the determination as to whether medical care is reasonable or necessary, including the determination as to whether care is palliative or curative, is a factual issue for the trial commissioner to determine. Anderson, supra, at 614.

We followed this reasoning in Palumbo v. Bridgeport, 4991 CRB-4-05-9 (September 7, 2006). In Palumbo the respondent made a similar argument to the argument presented in this case that the pain management treatment received by the claimant was palliative and not curative. We however found Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) stood for the opposite conclusion “[w]e have in past cases addressed the subject of the ‘curative/palliative’ distinction upon which the compensability of his medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the ‘reasonable and necessary’ standard of § 31-294d C.G.S.” (Emphasis added). Id. We believe the trial commissioner’s decision on this point was reasonable given the facts presented. We also note the various cases on point do not, as the respondents suggest, limit the modality of treatments that a trial commissioner may find medically reasonable.

The claimant in this matter is not in the competitive work force. It is mutually agreed by both expert witnesses in this matter that were the claimant to not receive treatment at Allied, he would be incapable of performing labor even in the noncompetitive work force. Given the record herein, we cannot conclude that as a matter of law the trial commissioner erred in determining the claimant’s treatment was curative and not palliative.

The claimant also argued that based on the “law of the case” doctrine the trial commissioner’s decision must be affirmed. They cite Lopez v. Bradlees, Inc., 4968 CRB-7-05-7 (July 21, 2006) for the proposition that the prior relief granted in Covaleski I must be maintained. While we agree based on the facts in this case the claimant has established a continued right to services at Allied, we wish to clarify the scope of the “law of the case” doctrine.

In Lopez v. Bradlees, supra, we cited Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) and noted, “[t]he ‘law of the case’ doctrine does not deprive a commissioner of the ability to determine conditions have changed since the issuance of a prior ruling.” Id. We conclude the trial commissioner determined that the claimant’s circumstances had not changed since the decision in Covaleski I so as to render the care at Allied no longer appropriate. The respondents have the right to present evidence that conditions have changed and in the event the trial commissioner finds their arguments persuasive, the “law of the case” doctrine does not preclude the trial commissioner from revisiting the issue of treatment.3

We also find unpersuasive the equitable argument raised by the respondents that the claimant, acting through his sister and limited guardian, should be obligated to access Medicaid and utilize a general social service program to pay for his treatment at Allied. In the absence of any citation by the respondents of a statute or appellate decision mandating that the claimant proceed in this fashion, we cannot override the trial commissioner’s decision that the program at Allied should continue to be funded by workers’ compensation.

We are satisfied that the trial commissioner’s decision was grounded in factual evidence on the record. We do not find legal error. We affirm the Finding and Award and dismiss this appeal.4

Commissioners Ernie R. Walker and Peter C. Mlynarczyk concur in this opinion.

1 The statute, § 31-294d (a)(1) C.G.S., reads as follows:

(a)(1) The 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. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider. BACK TO TEXT

2 Respondents argue this constitutes treatment for a “pre-existing condition.” Respondent’s Brief p. 12. However, we are not persuaded this circumstance is dissimilar from Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996) where the claimant asserted a work-related injury which aggravated a pre-existing condition. BACK TO TEXT

3 This panel followed similar reasoning concerning Osterlund cases in Romanchuk v. Griffin Health Services, 5515 CRB 4-09-12 (October 20, 2010). See fn. 2 in Romanchuk. Id. BACK TO TEXT

4 We uphold the trial commissioner’s denial of those corrections in the respondents’ Motion to Correct that she decided to deny. Those corrections sought to interpose the respondents’ conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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