Haskos v. Nroe-Ernest DePalma

CASE NO. 3421 CRB-3-96-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 22, 1998

ACHILLES HASKOS

CLAIMANT-APPELLEE

v.

NROE-ERNEST DEPALMA

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Jeffrey Friedler, Esq., 142 Temple St., New Haven, CT 06510.

The respondents were represented by Nancy E. Limoncelli, Esq., Law Offices of Christine L. Harrigan, 185 Asylum Street, City Place, Hartford, CT 06103.

This Petition for Review from the September 4, 1996 Finding and Award of the Commissioner acting for the Third District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 4, 1996 Finding and Award of the Commissioner acting for the Third District. In that decision, the trial commissioner found that due to a compensable injury which had occurred on February 23, 1961, the claimant underwent five surgical procedures to his back and was totally disabled since 1969. At issue was the responsibility for payment of the installation of a dry sauna in the claimant’s home, which the trial commissioner found to be reasonable medical treatment. On appeal, the respondents contend that the dry sauna was not reasonable medical treatment because it is palliative rather than curative. We find no error on the part of the trial commissioner.

The “determination of whether medical care is reasonable and necessary, including whether the medical care is palliative care or a curative remedy, is a factual issue to be decided by the trial commissioner.” Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995) (citing Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994)). This Board has explained:

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.

Cummings, supra, (citing Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984)).

In the instant case, the conflicting medical evidence was presented by the parties regarding whether the claimant’s use of a sauna constituted reasonable medical treatment, including whether it was palliative. When there are conflicting medical opinions in the record, the commissioner as trier of fact may make a conclusion based on the weight and credibility which he affords the evidence before him. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993). We will not disturb such a conclusion when there is sufficient evidence in the record to support it. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988).

The trial commissioner found in the case at hand that the claimant suffered from chronic pain syndrome caused by failed back surgery. Dr. Davey, a neurosurgeon, indicated on June 22, 1995 that the claimant’s treatment should include pain management, periodic psychiatric counseling, and the use of home measures such as exercises and heat. The claimant’s treating psychiatrist, Dr. Fabbri, who treated the claimant for chronic pain syndrome, recommended the use of the dry heat sauna as a form of therapy. (Finding No. 11) The trial commissioner heard testimony from the medical providers and from the claimant and concluded that the claimant obtained a significant physical benefit to his back by using the sauna. (Finding H; Finding 14). We conclude that there was sufficient evidence presented to support the commissioner’s decision.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.