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Owens v. State of Connecticut/Department of Mental Health & Addiction Services

CASE NO. 5661 CRB-8-11-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 21, 2012

SUSAN OWENS

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF MENTAL HEALTH & ADDICTION SERVICES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GALLAGHER BASSETT SERVICES, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Mark S. Loman, Esq., 116 Cottage Grove Road, Suite 101, Bloomfield, CT 06002.

The respondent was represented by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, PO Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 17, 2011 Finding and Award of the Commissioner acting for the Eighth District was heard November 18, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case involves a determination as to what constitutes a “reasonable” basis to contest a claimant’s bid for surgery and when sanctions are warranted for unreasonable contest. The trial commissioner decided in the instant Finding and Award that the respondent in this matter should have agreed with the claimant’s position and authorized spinal surgery instead of pursuing a formal hearing. The commissioner therefore imposed sanctions on the respondent for unreasonable contest. The respondent has appealed, arguing the opinions of their expert witness and the commissioner’s examiner provided grounds for a good faith contest of the bid for surgery. We note that we generally extend broad discretion to the trial commissioner to decide when sanctions are warranted. While this is an extraordinarily close case, we are not satisfied the trial commissioner properly applied precedent in considering whether the imposition of sanctions was warranted. We sustain the appeal and vacate the award of sanctions in this matter.

The trial commissioner reached the following findings of fact which are relevant to our consideration of this appeal. It is undisputed the claimant sustained a compensable injury on April 7, 1996, when she sustained an injury to her cervical spine as a result of an inmate assault. The claimant was treated conservatively and complained that her symptoms worsened over the passage of time. In 2007, Dr. Bruce H. Moeckel of Middlesex Orthopedic Surgeons noted that the claimant’s prior MRI disclosed a small herniated disc and referred the claimant for another course of physical therapy. This modality of treatment did not yield relief and the claimant underwent another MRI in 2008 which disclosed a larger herniation with severe right neural foraminal stenosis. Dr. Jeffrey Bash, of Middlesex Orthopedic Surgeons, noted the claimant suffered from persistent pain in the right, greater than left, area with numbness and tingling with severe pain in her arms more so than the pain in the neck. He diagnosed the claimant with a herniated disc, cervical stenosis C4-5, 5-6, intractable cervical radicular syndrome with C6 and C5 radiculapthy. After consulting with the claimant, Dr. Bash determined in January 2009 she preferred to pursue a surgical option consisting of anterior cervical diskectomy and fusion at C4-5 and C5-6.

The respondent had their expert, Dr. William Druckemiller, examine the claimant on May 11, 2009. Dr. Druckemiller concluded that the claimant’s symptoms were not classic for a cervical degenerative problem or disc herniation and did not believe her arm symptoms were neurological. He did not believe the neurological findings were consistent with a cervical radiculopathy and that a surgical option would provide less than a 50 percent likelihood of significant pain relief and suggested a bone scan to rule out multiple joint difficulties. Dr. Bash reviewed Dr. Druckemiller’s opinion and did request a bone scan. Dr. Bash later opined that after surgery the claimant could achieve up to an 85 percent relief in arm pain and numbness in her hands and that the claimant would likewise not achieve a 100 percent relief in neck pain. The claimant continued to treat with Dr. Bash through 2009 while complaining of excruciating pain in her neck and arms, at which time her medications were renewed and she continued to seek surgical intervention.

On March 4, 2010, the claimant was evaluated by Dr. W. Jay Krompinger, of Orthopedic Associates of Hartford, at the request of Commissioner Walker. Dr. Krompinger diagnosed the claimant with symptomatic cervical spondylosis with soft tissue dysfunction. He opined that there was probably a 50 percent chance at best that she would have some improvement through surgical intervention and opined, “In my judgment, it is not out of the question” and noted that her prognosis would be guarded but there appeared not to be any other specific intervention to consider. Dr. Krompinger reviewed Dr. Druckemiller’s opinion and reiterated that her prognosis would be difficult to establish with surgical intervention and suggested he would not be inclined to operate on this patient and “largely agreed” with Dr. Druckemiller’s conclusion concerning the feasibility and expectations of surgical intervention.

The claimant was examined by Dr. Joseph Aferzon on July 14, 2009, and again on June 22, 2010, following an April 5, 2010 cervical MRI, where he indicated he was in agreement that the claimant’s best choice would be a two-level anterior cervical disc fusion. Dr. Bash reviewed the April 5, 2010 MRI and noted that it disclosed “foraminal stenosis bilaterally, right side greater than left. Disc degeneration at C5-6. There is advanced disc degeneration with moderate to large central herniation with severe neural foraminal narrowing on the left and also significant neural foraminal stenosis on the right. There is some disc bulging at C6-7.” Findings, ¶ 11. Dr. Bash indicated if the claimant remained symptomatic he would proceed with cervical fusion at the C4-5 and C5-6 level. The claimant returned to Dr. Bash on May 4, 2010, complaining of persistent pain into the arm in both the C5 and C6 distributions. Subsequently, the claimant underwent a two-level fusion at the C5 and C6 levels on July 2, 2010.

The claimant sought temporary total disability benefits from July 2, 2010, through October 21, 2010. The respondent did not dispute these were the dates on which the claimant was temporarily totally disabled as a result of the surgery, but did dispute that the surgery was reasonable and necessary. The trial commissioner pointed to Dr. Druckemiller’s testimony on this issue. Dr. Druckemiller indicated under this circumstance within the Greater Hartford area any number of physicians would recommend surgery for the claimant, and there are a number of physicians who would not recommend surgery for this particular situation. The claimant reported that following the surgery her level of pain decreased and the respondent did not dispute this report. Dr. Druckemiller was not surprised that the claimant’s surgery resulted in an improvement in her condition, but he was unclear how much she had improved.

The trial commissioner also noted that Anthem Blue Cross and Blue Shield was asserting a lien in the amount of $17,543.33 for medical benefits that relate to the April 7, 1996 claim. The claimant’s attorney also sought payment of attorney’s fees in connection with pursuing her denial of the surgery and payment of temporary total disability benefits as unreasonable, and asserted an affidavit detailing $3,281.25 in legal time and expenses.

Based on this factual record, the trial commissioner concluded that the claimant’s compensable injury of April 7, 1996, created the need for the 2010 fusion surgery and that this surgery was reasonable and medically necessary. The trial commissioner reviewed the evidence relied upon by the respondent and concluded as follows.

C) After careful review of the opinions of Dr. Krompinger, the Commissioner’s Examiner, and Dr. Druckemiller, the Respondent’s Examiner, neither reach an opinion that the surgery proposed by the treating physician, Dr. Bash, was medically unnecessary or unreasonable. Both expressed concern that the likelihood of success was approximately fifty-fifty. They did not rule out the surgical procedure.
D) Given the lack of certainty on the part of the Respondent and Commissioner Examiner’s opinions, the Respondent’s reliance on their opinions as justification for refusing to authorize surgical intervention as sought by the Claimant was unreasonable.

The commissioner approved the affidavit for attorney’s fee’s submitted by claimant’s counsel and awarded him $3,281.25 for prosecution of this claim. The commissioner approved the Anthem Blue Cross Blue Shield claim for reimbursement and also directed the respondent to pay the claimant for her period of temporary total disability. The respondent filed a Motion to Correct Motion to Articulate seeking modification of the Finding and Award or a clarification of the trial commissioner’s reasoning. This motion was denied in its entirety. The respondent has pursued this instant appeal.1

The respondent raised a number of arguments in its appeal. They argue that their contest of the proposed surgery was reasonable. They further argue that pursuant to Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001), that sanctions may only be applied when the reasonableness of the claimant’s request for surgery was so clear that it would be indisputable by a reasonable person and therefore the delay in approving surgery lacked good cause. They note that in Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009), we pointed out that any sanction on the respondent must be supported by factual findings on the record. Finally, they suggest the trial commissioner abused his discretion by sanctioning the respondent, arguing that they had been willing to accept a settlement of the claim suggested by the trial commissioner.2 3

The claimant believes the trial commissioner’s decision was well founded and supported by relevant precedent. She cites Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002), as vesting the decision on whether surgery is reasonable with the trier of fact. She also cites Cirrito v. Resource Group Ltd. Of Conn., 4248 CRB-1-00-6 (June 19, 2001), as standing for the proposition that even a 5 percent likelihood of success for a medical procedure may be deemed “reasonable.”

Since Cirrito, supra, this tribunal has had two subsequent appellate decisions considering issues of whether spinal surgery could be considered “reasonable or necessary” medical care within the scope of § 31-294d C.G.S. In Vannoy-Joseph v. State/DMHAS, 5164 CRB-8-06-11 (January 29, 2008), we remanded a decision regarding the efficacy of disc replacement surgery back to the trial commissioner. In that case we pointed out “[e]valuating the appropriateness of a proposed medical treatment is a delicate task. While respecting the complex diagnostic and outcome-predictive skill that is central to a physician’s expertise, a workers’ compensation commissioner must assess the credibility of the evidence supporting the various treatment options and decide which is the most reasonable under all of the circumstances.” Id.

We reiterated this approach in 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). In Cervero, the trial commissioner denied the claimant’s bid for two-level disc replacement surgery and the claimant appealed, asserting that the precedent in Cirrito had not been followed. We affirmed the trial commissioner’s decision, in part because he found Dr. William Druckemiller, who was the commissioner’s examiner, a credible and persuasive witness. In Cervero, Dr. Druckemiller testified “the patient is not a good surgical candidate and I personally would not perform that surgery.” Id. We pointed out “a close reading of the Cirrito opinion indicates it stands for the discretion of a trial commissioner to approve treatments which may have a relatively low percentage of success. It does not, as the claimant suggests, establish that once the “worthy of attempt” threshold is reached the commissioner is obligated to approve surgery.” (Emphasis in original.) Id. The trial commissioner determined the testimony by the claimant’s proposed treater was not persuasive on the question of whether the surgery was reasonable or necessary and we pointed to the totality of testimony on the record which supported this conclusion.

Our decision in Cervero was appealed and the Appellate Court affirmed our decision, see 122 Conn. App. 82 (2010), “The board properly concluded that the commissioner’s finding that surgery was not warranted was supported by sufficient evidence in the record.” Id., at 93. Cervero stands for the proposition that a trial commissioner must, after evaluating all the evidence, determine if the claimant’s bid for surgery meets the statutory standard of “reasonable or necessary.”

The trial commissioner in this case found that the claimant’s surgery met that standard of being “reasonable or necessary” and the respondent did not appeal this decision. The critical question is whether the respondent was unreasonable in contesting this request. The trial commissioner concluded they were. We have extended broad latitude to trial commissioners in determining what specific circumstances warrant the imposition of sanctions. Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). Nonetheless, the Appellate Court has pointed out that the imposition of sanctions must be based on a factual predicate, McFarland v. State/Dept. of Developmental Services, 115 Conn. App. 306, 323 (2009). We must compare the facts found by the trial commissioner with the evidence on the record to ascertain if the factual predicate to impose sanctions exists. We must also ascertain if the proper legal standards have been applied. If these predicates do not exist, then the commissioner’s decision cannot be sustained.

The respondent presented evidence from its expert witness, Dr. Druckemiller, contesting the claimant’s need for surgery. The claimant points out that this witness did not expressly “rule out” having the surgery performed. This is correct. However, the totality of his testimony was not an endorsement of the surgery, and he made clear that he was not inclined to have performed the surgery himself. Respondent’s Exhibit 4, pp. 13-14 and p. 27. His initial opinion was that surgery would not relieve any of the claimant’s arm symptoms and would yield less than a 50 percent likelihood of significant pain relief. Respondent’s Exhibit 2. The Commissioner’s Examiner reviewed Dr. Druckemiller’s report and adopted his opinions, stating “I am largely in agreement with the conclusions he rendered in the last paragraph of his report concerning the feasibility and expectations of surgical intervention.” Respondent’s Exhibit 3.

The claimant points to testimony in the record by Dr. Druckemiller which indicated he believed that surgery was a reasonable option in this case. In specific, we note he testified “within the Hartford area, Greater Hartford area, 20 miles of where we are sitting, you’ll find any number of people who would recommend surgery and there are people who would not recommend surgery for this particular situation,” Respondent’s Exhibit 4, p. 14. The witness described his estimate of success from surgery as “fifty-fifty.” Id., p. 21. The witness further described the thought process of Dr. Aferzon in recommending the operation as “reasonable.” Id., pp. 23-25. While this supports the trial commissioner’s conclusion that surgery was reasonable or necessary, we are not persuaded that this sufficiently justifies the imposition of sanctions.

The issue for the commissioner was whether the respondent’s unwillingness to accede to the claimant’s bid for surgery was unreasonable. In reviewing the totality of Dr. Druckemiller and Dr. Krompinger’s testimony we find that they were not advocates of surgical intervention. In light of the standard delineated for approval of spinal surgery in Cervero, supra, we believe a reasonable person could evaluate this evidence and believe after a hearing the trial commissioner could deny the claimant’s bid for surgery.

We understand that we generally provide great deference to the factual determination of a trial commissioner and as an appellate panel we must extend “every reasonable presumption in favor of the action” Daniels v. Alander, 268 Conn. 320, 330 (2004). We further believe the commissioner outlined a factual predicate for his actions. Finally, we reiterate that it is proper for a trial commissioner to sanction a respondent who unreasonably denies a claimant medical treatment. Lee v. Cultec, Inc., 5546 CRB-7-10-4 (February 25, 2011).

Nonetheless, we compare this matter to our precedent where a respondent was penalized for denial of treatment, in particular, Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006). In Marra, we upheld sanctions against the respondent because although the respondent’s expert disagreed with the treating physician as to the definition of the claimant’s ailment; there was total agreement on the issue of causation. In the present case, after reviewing the totality of Dr. Druckemiller and Dr. Krompinger’s testimony, one is left with the reasonable assurance they believed the claimant should not undergo surgery. We believe it would be inequitable to penalize the respondent for reliance on those opinions. The testimony the respondent relied on herein was substantially similar to the testimony the trial commissioner found persuasive in Cervero, supra, and upheld by the Appellate Court.

We believe the trial commissioner erred in his apparent reliance on the Cirrito precedent as the basis for determining when a claim for surgery is reasonable. Therefore, we sustain the appeal and vacate the award of sanctions to the claimant.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 The respondent filed a “Motion for Review of Trial Commissioner’s Determination of Motion for Articulation/Motion to Correct” on August 4, 2011, with this tribunal. We find no need to deal with the pleading independently of ruling on the underlying appeal. BACK TO TEXT

2 The respondent further suggest that based on their interpretation of the decision in Bode v. Connecticut Mason, The Learning Corridor OCIP, 5423 CRB-3-09-2 (March 3, 2010), aff’d and rev’d in part, 130 Conn. App. 672 (2011), cert. denied, 302 Conn. 942 (2011), that the Compensation Review Board should undertake an independent assessment of the weight and credibility placed on expert witnesses who did not appear in person to testify before the trial commissioner. We decline this entreaty as we believe this would be inconsistent with the clear imprimatur of the Supreme Court in Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). BACK TO TEXT

3 An appellate tribunal such as ours may not consider matters such as unsuccessful settlement negotiations unless they appear on the record. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: June 26, 2012

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