State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Evensen v. City of Stamford

CASE NO. 5541 CRB-7-10-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 31, 2011

JOHN EVENSEN, JR.

CLAIMANT-APPELLEE

v.

CITY OF STAMFORD

EMPLOYER

and

PMA MANAGEMENT CORP. OF NEW ENGLAND

ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant appeared without legal representation.

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

This Petition for Review from the March 29, 2010 Finding and Orders of the Commissioner acting for the Fourth District was heard September 24, 2010 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Christine L. Engel and Daniel E. Dilzer.

OPINION

STEPHEN B. DELANEY, COMMISSIONER. The respondents in this matter have appealed from Finding and Orders dated March 29, 2010 concerning the claimant’s bid to have his travel from his home in Florida back to Connecticut reimbursed by the respondent City of Stamford. The claimant argues that § 31-312 C.G.S. constitutes an entitlement to collect mileage reimbursement for such travel when he visits his Connecticut physicians. This issue is a matter of first impression before this tribunal, and we are not persuaded by this interpretation of the statute. Nor are we persuaded by the respondents’ argument that the claimant may not receive travel reimbursements for interstate travel seeking medical treatment for his compensable injuries. We believe that the travel reimbursement statute must be interpreted in a fashion consistent with § 31-294f C.G.S. We believe that when a claimant seeks to have the respondents reimburse interstate travel expenses, the statute requires the prior participation of the respondents. Therefore, we affirm the Finding and Orders in part and vacate the Finding and Orders in part.

The trial commissioner reached the following factual findings at the conclusion of the formal hearing. The claimant is a retired Stamford police officer who suffered four separate compensable orthopedic injuries. The claimant has been paid the full permanency award for each injury. In August 2007 the claimant moved to Florida and he retired from the Stamford police force on July 31, 2008. The claimant testified that he drove from Florida to doctor appointments in Connecticut in October 2008, June 2009 and October 2009 and was entitled to mileage reimbursement pursuant to § 31-312 C.G.S., but presented no documentation as to the medical visits.

The claimant also testified that the statute did not permit the respondents to limit reimbursement to travel within the state of Connecticut. He also testified another former Stamford police officer with a compensable injury had been reimbursed for travel from his home in New Jersey to a Connecticut medical appointment. He also testified that, even with a written authorization from the respondents that treatment would be authorized by a Florida physician, that he was unwilling to change physicians to a Florida treater, expressing concern on a number of issues, including whether a Florida physician would accept a Connecticut fee schedule and whether travel within Florida would be reimbursed.

Witnesses for the City and their risk manager testified that their internal policy was that when a claimant moved out of state they would obtain a new treating physician in their new state and travel to and from that doctor would be reimbursed. They stated that out of state travel to Connecticut was not reimbursable and if it had been reimbursed, it had occurred due to error. The claimant who had received such a reimbursement testified he had received it once, and he was pursuing further reimbursement for other trips.

Based on this record the trial commissioner reached the following conclusions. He found the witnesses for the City and the risk manager credible and reliable. He cited § 31-312 C.G.S. and determined “[t]he statute does not limit reimbursement to any geographic area or jurisdiction.” He further concluded the claimant “refuses to treat in Florida pending satisfaction of a list of demands and has not demonstrated a serious intent to find a treating physician within his newly domiciled state.” Finding, ¶ g. He determined the claimant is entitled to continue to treat in Connecticut and to obtain reimbursement for travel, but limited such reimbursement to the cost of public transportation or common carrier in an effort to reduce the respondents’ reimbursement costs to a reasonable level. Finding, ¶ h. The commissioner further noted the claimant presented no documentation of his three Connecticut physicians’ visits and the City of Stamford was willing to help the claimant to obtain a local physician as well as reimbursing the claimant for travel to a Florida based physician.

Based on this record the trial commissioner ordered the respondents to reimburse the claimant for prospective trips from Valrico, FL to treating physicians in Greenwich, CT upon receipt of appropriate documentation. Order, ¶ 1. The claimant was not to be reimbursed for his prior trips to Connecticut unless he produced documentary evidence that treatment had been received. Order, ¶ 2. The claimant was directed pursuant to § 31-312 C.G.S. to use the most inexpensive method of travel available. Order, ¶ 3. The respondents filed a Motion to Correct which was denied in full. The claimant did not file a Motion to Correct or appeal from the Finding and Orders. The respondents, on the other hand, commenced an appeal asserting the law did not require them to reimburse the claimant for either prior or prospective trips to Connecticut. The respondents cite as authority Melendez v. The Home Depot, 3835 CRB-4-98-6 (July 13, 1999), aff’d, 61 Conn. App. 653 (2001) for the position that the claimant should be treating in Florida for his injuries.

We must first consider an administrative issue prior to considering the principal issues of this appeal. The claimant has sought at the hearing to admit additional evidence to the record in the form of various transcripts and exhibits. We deny this motion as some of these documents already appear in the record, and in the alternative we are not persuaded these materials not in the record could not have been presented to the trial commissioner prior to the conclusion of the formal hearing. See Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008).

We commence our inquiry by noting that the parties herein advance diametrically opposed interpretations of law. The respondents appear to advance the theory that the precedent in Melendez, supra, mandates that when a claimant relocates from Connecticut to another state that he or she must obtain a new treating physician in his new domicile. On the other hand, the claimant advances the position of § 31-312 C.G.S. creates a lifetime entitlement for him to have his trips back to Connecticut paid for by the respondents, under whatever terms and conditions the claimant desires. We find neither perspective is good law or good policy.

In resolving these issues we note that we cannot consider the mileage reimbursement statute in a vacuum. The purpose of the claimant’s travel was to obtain medical care for a compensable injury which requires us to reconcile the trial commissioner’s decision with the terms of § 31-294d C.G.S. We must also consider the import of § 1-2z C.G.S. This statute limits our interpretation of statutes to the “plain meaning” of the statute as written, unless such statutory interpretation “might lead to unreasonable or bizarre results.” Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 653 (2007).

The text of the mileage reimbursement statute (§ 31-312 C.G.S.) reads as follows:

a) An employee receiving medical attention under the provisions of this chapter and required to be absent from work for medical treatment, examination, laboratory tests, x-rays or other diagnostic procedures, and not otherwise receiving or eligible to receive weekly compensation, shall be compensated for the time lost from the job for required medical treatment and tests at the rate of such employee’s average earnings, but not less than at the minimum wage established by law, provided the amount payable in any one week shall not exceed the employee’s weekly compensation rate. Time lost from the job shall include necessary travel time from the plant to the place of treatment, the time for the treatment and any other time that is necessary for the treatment, examination or laboratory test. The employer shall furnish or pay for the transportation of the employee by ambulance or taxi where transportation is medically required from the point of departure for treatment and return. In all other cases, the employer shall furnish the employee transportation or reimbursement for the cost of transportation actually used, at a rate equal to the federal mileage reimbursement rate for use of a privately owned automobile set forth in 41 CFR Part 301-10.303, as from time to time amended, for a private motor vehicle or the cost incurred for public transportation, from the employee’s point of departure, whether from the employee’s home or place of employment, and return, if the employee is required to travel beyond a one-fare limit on an available common carrier from the point of departure to the place of treatment, examination or laboratory test. Where the medical attention or treatment is provided at a time other than during the employee’s regular working hours and the employee is not otherwise receiving or eligible to receive weekly compensation, the employee shall be compensated for the time involved for the medical treatment as though it were time lost from the job at the rate of the employee’s average hourly earnings and shall be paid for the cost of necessary transportation as provided in this subsection.

In considering the actual text of this statute we note that it is the obligation of the employer to “furnish the employee transportation or reimbursement for the cost of transportation actually used…” (Emphasis added). We also note that the remainder of the statute provides for a variety of feasible alternative means for the claimant to travel to a medical appointment such as public transportation, common carriers, ambulance or taxi. The statute herein is written in the disjunctive. The employer may choose to “furnish” transportation or reimburse the claimant for travel expenses. This obviously assumes the claimant has offered the respondent the opportunity to make this choice. The record in the present case indicates the claimant decided on his own to travel by car from Florida to Connecticut and then, after the trips had been completed, submitted a large claim for travel reimbursement.

This panel can take administrative notice that as a practical matter what the claimant did was consistent with the pattern and practice for claimants who reside within the state. Use of private automobiles for intrastate travel is clearly the most common and cost-effective mode of transportation for the vast majority of such trips. Seeking prior approval for such a ubiquitous event would be an administrative burden for all concerned, and would not comport with the humanitarian purpose of the Act when dealing with de minimus sums of money. Seeking subsequent reimbursement for mileage under those circumstances is administratively reasonable, especially as most claimants treat within 25 miles of their residence. However, in the present circumstance the use of a private automobile is not indisputably the most appropriate means of transportation from Florida to a medical appointment in Connecticut. The statute places the obligation to provide transportation on the respondent. Were it only a reimbursement statute, and the decision as to what mode of transportation was most appropriate left solely to the claimant’s discretion, the statute would have been written in that fashion. “In construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” Jalowiec Realty Associates v. Planning & Zoning Commission, 278 Conn. 408, 414 (2006). The claimant’s position would render the respondents’ discretion a nullity. Therefore, we find it legally untenable.

We also believe that § 31-312 C.G.S does not stand in a vacuum. The purpose of this statute is to implement the statutory obligation of § 31-294f C.G.S. that a respondent owes the injured claimant “reasonable or necessary medical care” for their compensable injuries. The respondent must make the claimant whole for his or her travel for treatment. Read together, these statutes require the trial commissioner to conclude when considering a bid for travel reimbursement that the claimant received medical care as a result of the trip, that the medical care received was “reasonable or necessary” and the manner in which the claimant traveled to the medical care was “reasonable or necessary.”

In this matter, the trial commissioner made numerous findings as to the claimant’s unwillingness to obtain a new treating physician in Florida. See, i.e. Finding, ¶ g. However, the trial commissioner did not reach a finding that the claimant’s continued treatment in Connecticut was reasonable and necessary medical care under § 31-294d C.G.S, specifically for the travel claimed in this dispute. We reject the respondents’ belief that Melendez, supra, mandates that the claimant must change treating physicians when he or she relocates outside Connecticut. The trial commissioner is the ultimate judge of what modalities of treatment at what locations constitute reasonable or necessary treatment for the claimant’s injuries. Cervero v. Mory’s Association, Inc., 5357 CRB-3-08-6 (May 19, 2009), aff’d, 122 Conn. App. 82 (2010), cert. denied, 298 Conn. 908 (2010). A trial commissioner must consider the totality of the circumstances to determine whether such a change is required when a claimant relocates outside Connecticut.

As a result, we agree with part of the respondents’ argument herein. We do not believe the claimant should, after his trips to Connecticut have already occurred, now be entitled to retrospective reimbursement of his automobile mileage from Florida to Connecticut. The claimant obtained neither the approval of the respondents or the Commission to proceed in this fashion. Applying the reasoning of the trial commissioner in Order, ¶ 3 that the claimant should utilize a more cost effective method for future trips to Connecticut for medical treatment; we cannot affirm the inconsistent reasoning in Order, ¶ 2. We order that Order, ¶ 2 be vacated.1 2

We have considered the claimant’s principal legal argument at some length. that precedent from other jurisdictions supports his bid for travel reimbursement. The claimant relies heavily on a case from Delaware, Paul-White v. Christiana Care IAB No. 1268615 (Del. Industrial Accident Board, October 29, 2009) which he claims supports his bid to have all his mileage reimbursed. We reject this argument for two reasons. First, we are not bound by decisions from other jurisdictions which rely on different workers’ compensation statutes. Atkinson v. United Illuminating Company, 5064 CRB-4-06-3 (April 19, 2007). We are also not persuaded our reasoning herein is at odds with the rationale of the Paul-White case.

In Paul-White the claimant relocated from Delaware to a number of other states. She briefly lived in the Tampa, FL area, where she located a local treating physician. Id., 3. She also lived in other locations. In considering the overall request for reimbursements the Delaware hearing officer adopted the respondents’ argument that a “reasonableness restriction must apply. It is axiomatic that when interpreting statutory language the courts should avoid interpretations that lead to absurdities.” Paul-White, supra, 11.3 We believe our determination herein requiring the claimant to seek the use of the most reasonable form of transportation for interstate travel is consistent with this reasoning, as well as with the facts of the Paul-White case wherein the claimant was able to locate a treating physician in Tampa.4

We find no error in the trial commissioner’s reasoning in Order, ¶ 3. The trial commissioner did not find that the claimant’s treatment in Connecticut was not reasonable and necessary. Therefore, the claimant is entitled under § 31-312 C.G.S. to reasonable travel reimbursement for his travel to a treating physician. Should the claimant obtain a treating physician in Florida, he is entitled to mileage reimbursement from his home in Valrico to the location of the doctor’s office, unless the respondents agree to furnish a reasonable alternative form of transportation.

We also find no error in Order, ¶ 1. We anticipate the claimant and respondents will coordinate their efforts to provide necessary transportation from Florida to any necessary Connecticut medical appointments. We reiterate the claimant is only able to obtain reasonable transportation or reimbursement when it directly pertains to reasonable and necessary treatment for a compensable injury. In the absence of documentation substantiating such treatment, the respondents bear no obligation to the claimant for travel costs.

We therefore order Order, ¶ 2 vacated. We affirm the trial commissioner on Order, ¶¶ 1 and 3. The appeal is affirmed in part and dismissed in part.

Commissioners Christine L. Engel and Daniel E. Dilzer concur in this opinion.

1 We also find Order, ¶ 2 conflicts with established precedent and therefore must be reversed on appeal. Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). Order, ¶ 2 allows the claimant to submit a reimbursement request to the respondents for the three trips that he claims he previously made to physicians in Connecticut. As we stated herein, the claimant made no effort to obtain cooperation from the respondents in furnishing transportation prior to making these reimbursement requests, which is inconsistent with the plain meaning of the statute. In addition, Finding, ¶ I found the claimant provided no documentation at the hearing of his three visits to Connecticut physicians. Consequently, no evidence was submitted that the claimant received “reasonable or necessary” medical care when he traveled to Connecticut. We believe the claimant is now foreclosed from seeking reimbursement as he failed to present probative evidence to the finder of fact prior to the close of the formal hearing. To permit the record to be reopened to give the claimant a second chance to prove his case amounts to impermissible piecemeal litigation. See Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010), Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) and Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005). The claimant should have been able to properly address this issue at the time of the formal hearing, and not get a second chance after the trial commissioner was left unpersuaded. We therefore order Order, ¶ 2 vacated. BACK TO TEXT

2 As a result, the fact another claimant may have been approved for use of a personal car and mileage reimbursement for a trip between New Jersey and Connecticut is not dispositive of whether a different form of transportation is more appropriate under other circumstances. This panel takes administrative notice that automobile travel is the most common means of travel between these two states. BACK TO TEXT

3 The leading treatise on Workers’ Compensation has delineated a “reasonable expense” standard for a claimant’s out of town trips to a specialist for treatment. See Larson’s Workers’ Compensation Law, § 94.03(2)(b). This panel anticipates trial commissioners will rule on future disputes in a discretionary manner applying such a standard on a case-by-case basis. BACK TO TEXT

4 As noted herein, the trial commissioner made no finding on whether a new treating physician should be authorized for the claimant in the metropolitan Tampa, FL area. In the event further proceedings occur on this issue the trial commissioner may wish to consider. a) the nature and severity of the claimant’s injuries; b) the available medical treatment accessible to the claimant in his new domicile; c) the length of time the claimant has been treating with his present treating physician and; d) whether the claimant’s relocation is expected to be permanent in nature. Following the logic of Cummings v. Twin Mfg. Co., 29 Conn. App. 249, 260 (1992) and Freel v. City of West Haven Board of Education, 5102 CRB-3-06-6 (June 1, 2007) if suitable medical care for the claimant is unavailable in his new domicile, he must be allowed to continue to treat in Connecticut. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: October 19, 2011

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