CASE NO. 5609 CRB-6-10-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 16, 2011
SPECIALTY RISK SERVICES
The claimant appeared without legal representation at oral argument. In the proceedings before the trial commissioner the claimant was represented by Angelo Cicchiello, Esq., Cicchiello & Cicchiello, LLP, 364 Franklin Avenue, Hartford, CT 06114.
The respondents were represented by Erik S. Bartlett, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the September 22, 2010 Finding & Dismissal of the Commissioner acting for the Sixth District was heard June 24, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding & Dismissal which determined her pain management treatment was no longer reasonable and necessary medical treatment as required by the Workers’ Compensation Act. We find this decision was based on medical evidence the trial commissioner found persuasive. We also find the decision was consistent with the legal standards we have employed to ascertain when a respondent is obligated to provide treatment. Finding no legal error, we affirm the Finding & Dismissal and dismiss this appeal.
The trial commissioner reached the following factual findings after a formal hearing that commenced October 8, 2009 with the record closing on July 16, 2010. He found the claimant had sustained compensable injuries on June 5, 2001 and was currently receiving temporary total disability benefits for a variety of compensable injuries. The primary focus of the formal hearing was to determine the compensability of the claimant’s continued pain management treatment under the direction of Dr. Eugene Lucier and weekly social worker therapy/treatment provided by the New Britain General Hospital under a psychiatric team headed by Dr. Augustine Noonan. The trial commissioner found the claimant had suffered a variety of injuries and had treated with a variety of physicians since 2001. Her treatments had included multiple surgeries as well as more conservative modalities such as pain management and psychiatric therapy. The claimant had undergone those treatments for a significant period of time but was not making progress and the treatments were not yielding positive results. The claimant favored continuing these treatments and the medical opinions were divided on whether it was necessary or curative.
The trial commissioner found that Dr. Lucier had opined that further pain management was palliative in nature. The commissioner also found that the commissioner’s examiner, Dr. Donald Grayson, had opined the social worker therapy was no longer indicated and at best palliative. The trial commissioner further found the claimant’s testimony exaggerated and inconsistent as to the need for treatment, and noted she doubted she would ever be able to work again. He also found her testimony as to the amount of pain she was suffering was out of proportion to the nature and extent of her physical injuries.
Based on these subordinate facts the trial commissioner concluded the claimant’s position was not credible and she had not sustained her burden of proof. He found the claims for pain management treatment and social worker treatment as palliative in nature and therefore, not reasonable and necessary medical treatment under the Workers’ Compensation Act. The claimant filed a Motion to Correct and a Motion to Submit Additional Evidence. Both motions were denied by the trial commissioner. Counsel for the claimant filed a Petition for Review and Reasons for Appeal, asserting this therapy was reasonable and necessary treatment. The claimant has subsequently chosen to pursue this appeal as a pro se litigant. Her argument is based on her belief that a number of physicians, specifically, Dr. Raymond Sullivan and Dr. Jonathan Kost, had opined that her current pain management treatment is reasonable and necessary.
In considering this matter we note that the claimant had the burden of persuasion. It was her obligation to prove to the trial commissioner her ongoing treatment was reasonable and necessary treatment as outlined in § 31-294d C.G.S. When a trial commissioner decides a claimant has not met this burden, our review is limited to whether the grounds for denial are legally correct. If the commissioner’s decision is based on reliance on competent medical evidence, the board “cannot substitute its evaluation of the evidence for that of the trial commissioner” Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006). We further note that on appeal we generally extend deference to the decisions made by the trial commissioner. “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).
The trial commissioner herein relied on the opinions of Dr. Lucier and Dr. Grayson in determining the claimant’s pain management and social worker therapy were palliative. We will review their testimony to ascertain if evidence on the record supports this conclusion.
Dr. Lucier testified at a deposition held December 11, 2009. He testified that the claimant’s intake of pain medication was “definitely not curative,” Claimant’s Exhibit Z, p. 48. He also agreed that “there’s no chance that this medication is eliminating her pain to return her back to work.”. Id., at 45. He testified the medication did not repair the damage from her injuries and “masks the pain.”. Id. Dr. Lucier also testified that the claimant had had no increase in her level of function since January 2007. Id., at 44.
Dr. Grayson testified at a deposition held October 5, 2009. He testified that his review of the reports of Dr. Sullivan did not lead him to believe the claimant’s pain had gotten better as time has progressed. Respondents Exhibit 1, pp. 116-117. As the treatment had continued for four years without showing improvement Dr. Grayson testified “I agree with you that it would be more palliative than therapeutic.”. Id., at 117. Dr. Grayson further testified ongoing pain management would be palliative rather than curative. Id., at 116. In regards to her therapy for psychiatric issues, Dr. Grayson testified “I just don’t think regular weekly visits are producing anything.”. Id., at 135.
The claimant points to extensive medical evidence which she believes establishes that the pain management and social worker treatments are beneficial for her. However, the quantity of evidence presented is not critical to a trial commissioner’s decision. It is the weight the commissioner places on the evidence presented on the record that is decisive. Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). When expert witnesses present conflicting opinions, the trial commissioner may choose the ones that are deemed more persuasive. Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006). Therefore, we must look at how the commissioner applied the law. We explained the law in regards to whether treatment is curative or palliative in Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).
In Carroll we held “[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. While “therapy designed to keep the employee at work or to return him to work is curative” id., therapy that does not return a claimant to work may be deemed palliative and therefore not reasonable and necessary medical care. See also Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984). Conversely, in Palumbo v. Bridgeport, 4991 CRB-4-05-9 (September 7, 2006) pain management treatment that kept the claimant gainfully employed was deemed curative care.
In Anderson v. R & K Spero Company, et al., 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). The Appellate Court affirmed our decision, citing Covert v. Richard Patterson, 4094 CRB-03-99-08 (September 29, 2000) for the proportion 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 find the trial commissioner in this matter followed the clear legal standard delineated in Anderson, supra. Expert witnesses testified the treatment at issue was not curative in nature. The claimant was not in the workforce and the record does not suggest she will be returning to the workforce in the immediate future. The treatments at issue had not returned the claimant to the workforce although they had been pursued over a number of years. We cannot find the trial commissioner’s factual determinations herein “clearly erroneous.”. Burns v. Wal-Mart Stores, Inc., 5343 CRB-7-08-5 (March 23, 2009); Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).
We also address two other issues raised in the appeal. The claimant cited the denial of her Motion to Correct as grounds for appeal. We find no error. Those corrections sought to interpose the claimant’s 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, 4287 CRB-5-00-9 (August 3, 2001), 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). We conclude the trial commissioner did not find these arguments persuasive. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). We are also not persuaded that the claimant’s Motion to Admit Additional Evidence should be granted, as we are not persuaded this evidence could not have been presented at the original hearing, see Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010) and Diaz v. Jaime Pineda, a/k/a Jamie Pineda d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008), 117 Conn. App. 619 (2009).
We find the trial commissioner in this matter reached a decision which was based on probative evidence he found persuasive. The trial commissioner appropriately applied the legal standard on this issue. The Finding & Dismissal is affirmed and the appeal is dismissed.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.