CASE NO. 5665 CRB-5-11-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 6, 2012
RONALD T. BRIGGS
CITY OF WATERBURY
BERKELEY ADMINISTRATORS OF CONNECTICUT, INC.
The claimant was represented by Francis J. Grady, Esq., Grady & Riley LLP, 80 Buckingham Street, Waterbury, CT 06710.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the June 2, 2011 Finding and Dismissal of the Commissioner acting for the Fifth District was heard on December 16, 2011 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Scott A. Barton.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 2, 2011 Finding and Dismissal of the Commissioner acting for the Fifth District. We find no error and accordingly affirm the decision of the trial commissioner.
The trial commissioner made the following factual findings which are pertinent to our review. On September 14, 1992, the claimant, who was employed as a firefighter for the City of Waterbury, sustained a compensable neck injury which resulted in a tenpercent permanent partial disability rating from Michael Karnasiewicz, M.D., in April 1995. In June 1995, the claimant retired from the City. He next saw Dr. Karnasiewicz in November 2002 with complaints of headaches. In his report of November 4, 2002, Dr. Karnasiewicz indicated that since 1995, the claimant had been treating with Thomas Greco, M.D., a rheumatologist. Dr. Karnasiewicz noted that Dr. Greco had prescribed Relafen for the claimant’s headaches and the claimant had reported that the Relafen seemed to help. The trial commissioner found that Dr. Greco had also prescribed Soma and Lidoderm patches and that Dr. Greco, in a letter dated January 13, 2011 to claimant’s counsel, stated that it was his “belief, with a reasonable degree of medical probability, that Mr. Briggs’ ongoing treatment as well as his need for Relafen and Lidoderm patches are closely related to the work-related injury on 1992,” Joint Exhibit 1, and “that the treatment and medications are necessary to allow Mr. Briggs to carry on his activities of daily living.” Id. Dr. Greco also indicated “with a reasonable degree of medical probability, that the treatment and medication are necessary for Mr. Briggs to continue working at a part-time basis.” Id.
At trial, the claimant confirmed that he uses Lidoderm patches and takes Relafen for treatment of his neck and lower back pain, testifying that while the medications provide some temporary relief of symptoms, his symptoms do return. The claimant stated that he is no better today than he was six years ago and that his condition had actually “declined” but the medications helped him “tolerate” it.” January 25, 2011 Transcript, p. 32. The claimant also testified that the only employment activity he had performed since his retirement was part-time work at a neighborhood bar he co-owns with three other partners. The claimant indicated that his responsibilities at the bar consisted of pouring drinks and making sandwiches, and he also would spend approximately a halfhour per week ordering inventory. The claimant also stated that he did not have a set schedule and “when he does work, it is at his discretion and he might not go in at all.” Findings, ¶ d. See also January 25, 2011 Transcript, p. 28.
On May 13, 2005, the claimant underwent a respondents’ medical examination with William H. Druckemiller, M.D., a neurosurgeon. Dr. Druckemiller opined that the claimant’s neck and back pain could be attributed to either mild degenerative changes or chronic lumbar and cervical strains. Dr. Druckemiller also indicated that if the claimant was in fact working only two hours a day with no lifting, he doubted the claimant’s parttime employment was a contributing factor to his neck and back problems. Dr. Druckemiller concluded that “[o]bviously no further treatment is likely to be curative and there does not appear to be anything of a surgical nature that should be considered.” Joint Exhibit 8.
On April 28, 2010, the claimant underwent a respondents’ medical examination with Aris D. Yannopoulos, M.D., an orthopedist. Dr. Yannopoulos concluded:
[n]either the Relafen nor the lidoderm patches are curative but it is my impression that these are reasonable treatments for degenerative changes resulting in chronic, ongoing neck and low back pain. The patient has no evidence of any pathology that warrants any surgery, and if this mild method of treatment allows the patient to function reasonably well then I think that it is acceptable to continue with this, as Dr. Greco has done for many years.
Joint Exhibit 7.
Based on the foregoing, the trial commissioner found the opinions of Drs. Druckemiller and Yannopoulos more credible than Dr. Greco’s relative to the issue of whether the claimant’s use of Relafen and Lidoderm patches was palliative or curative pursuant to the provisions of § 31-294d C.G.S.1 Concluding that the claimant’s use of the named medications was palliative, the trial commissioner dismissed the claim. The claimant filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the claimant asserts that the trier’s conclusion that the claimant’s use of the medications Relafen and Lidoderm was palliative rather than curative constituted error.2
The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled.
... the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits.Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
In the instant matter, the claimant has challenged the trier’s determination that the claimant’s use of the Relafen and Lidoderm patches is palliative rather than curative. This board has previously remarked that “[w]hether or not medical care satisfies the ‘reasonable and necessary’ standard of § 31-294d is a factual issue to be decided by the trial commissioner. ” Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001), citing Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB1-94-4 (April 12, 1995), appeal dismissed, A.C. 14747 (June 29, 1995). The trier must decide the issue on the basis of the medical reports in the record, and if the medical evidence does not persuade the trier that a proposed treatment option is reasonable pursuant to § 31-294d C.G.S., this board is not empowered to reassess that evidence and draw a different inference. Phaiah, supra; Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001).
In Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984), this board articulated the proper method of analysis as follows:
Reasonable or necessary medical care is that which is curative or remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work. Any therapy designed to keep the employee at work or to return him to work is curative. Similarly, any therapy designed to eliminate pain so that the employee can work is curative. Finally, any therapy which is life prolonging is curative.
Id., at 64.
Applying the Bowen analysis in Zalutko, supra, we affirmed the trial commissioner’s decision to find reasonable and necessary the claimant’s acupuncture and massage therapy sessions based on the testimony of the claimant and the doctor that the acupuncture and massage seemed to afford the claimant some relief and the testimony of the claimant that she believed the treatments enabled her to keep working. A second doctor involved in the claimant’s medical care also testified that the pain therapies “were clearly needed to alleviate the claimant’s pain during the reconditioning process, making them ‘an important component to her being able to even get through the rigorous therapeutic protocols that we had in place for her.’” Id. Stating that “for the purposes of the Workers’ Compensation Act, therapy that is designed to eliminate pain so that the employee may return to work is considered curative, and is reasonable and necessary under § 31-294d,” id., we concluded that the trial commissioner did not abuse his discretion in determining that the majority of the claimant’s acupuncture sessions and massage therapy sessions constituted reasonable and necessary treatment.
However, in Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003), we affirmed a decision by the trial commissioner to deny the claimant chiropractic treatment. The record contained testimony by Dr. Druckemiller stating that the claimant “does get relief with the treatments, and then his symptoms come back. I would doubt they will be curative. I do not feel any further medical treatment is likely to benefit the patient.” Id. Thus, although this board had previously affirmed the authorization of chiropractic care awards which successfully reduced a claimant’s pain symptoms and thereby afforded the claimant the ability to remain employed, in Carroll, we remarked that “[t]he commissioner certainly appears to have concluded that the claimant did not prove that continued therapy ... was in fact curative, in the sense that it allowed him to continue working.” Id.
Similarly, in Dahle v. Stop & Shop Companies, Inc., 5356 CRB-6-08-6 (June 5, 2009), we affirmed the trier’s dismissal of a claim for a pain management regimen. The claimant’s challenge was predicated on the argument that the trial commissioner’s reliance on the opinion expressed by an orthopedic surgeon relative to whether the pain management treatment sought by the claimant would be palliative or curative was improper because an orthopedic surgeon was not qualified to render such an opinion. However, the record indicated that the pain management doctor consulted by the claimant had not recommended a pain management regimen for the claimant and in fact had concluded that the claimant was unemployable for any sort of physical occupation as the result of an injury completely unrelated to the compensable injuries accepted by the respondents. The record also contained testimony from two orthopedic experts attributing the claimant’s complaints at least in part to the existence of long-term degenerative disc disease.3 In light of this evidence, this board stated:
We are ... unwilling to subject trial commissioners to the constraints requested by the claimant when trial commissioners are called upon to assess the evidentiary merit of testimony from medical practitioners who are opining on the efficacy of treatment protocols which may lie outside their specific specialty. Such constraints would only serve to complicate unnecessarily the evaluation of expert witness testimony and thwart one of the fundamental goals of the workers’ compensation statutes to “compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citations omitted; internal quotation marks omitted.)
Id., quoting Stickney v. Sunlight Construction, Inc., 48 Conn. App. 609, 617 (1998), cert. granted, 245 Conn. 919 (1998), aff’d, 248 Conn. 754 (1999). See also Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381 (1997).
Turning to the matter at bar, we note, as mentioned previously herein, that although both Drs. Druckemiller and Yannopoulos agreed with Dr. Greco that the Relafen and Lidoderm patches were reasonable modalities of treatment under the circumstances, they primarily attributed the claimant’s lumbar and cervical pain to degenerative changes and expressly stated that the Relafen and Lidoderm patches were not curative. Joint Exhibits 7, 8. As such, a distinction must be drawn between treatment which is medically “reasonable” and treatment which is in accordance with the provisions of § 31-294d C.G.S. and satisfies at least one of the prongs of the legal standard set forth in Bowen, supra. In the instant matter, both Drs. Druckemiller and Yannopoulos identified degenerative disk disease as the current primary cause of the claimant’s lumbar and cervical issues; thus the trier could not reasonably infer that the treatment sought by the claimant would “repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work.”4 Id. (Emphasis ours.)
Moreover, while we recognize that Dr. Greco opined that the requested medications are necessary to allow the claimant to perform the activities of daily living and to maintain his part-time employment in the bar he co-owns, Joint Exhibit 1, we also note that the claimant testified that his work schedule at the bar was highly discretionary. “I don’t work weekends, that’s for sure. I might go two, three, four hours a day. I might not go in at all. It’s at my discretion, because there’s partners and we all share the work.” January 25, 2011 Transcript, p. 28. With regard to his duties while at the bar, the claimant testified that he poured drinks, made sandwiches, and spent approximately a halfhour a week ordering inventory. Id., at 29. When asked under cross-examination to estimate how many hours he worked in the bar during 2010, the claimant replied that “[w]orking there and being there are two different things --” Id., at 36. He then went on to testify:
I don’t keep track. I can go in for two hours, I can go in for four hours. I can go in for five hours and sit down and play cards with the guys for an hour and watch a ball game. I couldn’t even give you an honest answer. I wouldn’t want to throw one out there. It’s a very casual, relaxed atmosphere. We go in, play cards; hey, let’s go out and play some golf; let’s watch a ball game on TV. Like I said, I can go in there for two hours or I can go in there for five hours.
In light of the foregoing, it may be reasonably inferred that the trier simply did not find that the claimant’s testimony relative to his employment provided an adequate basis for concluding that the treatment sought satisfied the Bowen standard that the proposed treatment either allow the employee to maintain or return to employment or “eliminate pain so that the employee can work.” Id. As such, the trier’s conclusions must stand, as this board is simply not empowered to second-guess factual determinations of this nature. “If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001).
The claimant also filed a Motion to Correct which was denied in its entirety. Insofar as our review of the proposed corrections indicates the claimant was primarily engaged in an attempt “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), we find no error in the trial commissioner’s refusal to grant those corrections. “The [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.
Having found no error, the June 2, 2011 Finding and Dismissal of the Commissioner acting for the Fifth District is hereby affirmed.
Commissioners Stephen B. Delaney and Scott A. Barton concur in this opinion.
1 § 31-294d (a) C.G.S. (Rev. to April 1991) states: “The employer, as soon as he 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, as the physician or surgeon deems reasonable or necessary.” It should be noted that P.A. 91-32, effective April 22, 1991, inter alia repealed § 31-294 and substituted §§ 31-294b-g C.G.S. BACK TO TEXT
2 The respondents filed a Motion to Dismiss on July 13, 2011 asserting that they had not received the claimant’s Reasons of Appeal within the ten-day deadline and moving for dismissal for lack of due diligence. Given that the claimant’s Petition for Review was filed on July 11, 2011 and the Reasons of Appeal were filed on July 15, 2011, the claimant’s Objection to the Motion to Dismiss is hereby sustained. BACK TO TEXT
3 We also noted that the record revealed a strong reluctance on the part of the claimant to use pain medication. BACK TO TEXT
4 As noted previously herein, the claimant testified that his medical condition has deteriorated over the last six years, even with the use of the medications. January 25, 2011 Transcript, p. 32. BACK TO TEXT