State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Melendez v. The Home Depot

CASE NO. 3835 CRB-04-98-06



JULY 13, 1999











The claimant was represented by Francis J. Ficarra, Esq., 1375 Kings Highway East, Suite 425, Fairfield, CT 06430.

The respondents were represented by Dominick C. Statile, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the May 28, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 28, 1998 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the trier erred by ordering them to pay for medical care provided by physicians located outside the state of Connecticut. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to her left arm during the course of her employment with the respondent Home Depot on or about April 21, 1996. The respondent voluntarily accepted the injury as compensable. The claimant initially received conservative treatment from Dr. Staub, an orthopedic surgeon, but when those measures proved unsatisfactory, he recommended that she undergo arthroscopic surgery, which he performed in August 1996. She continued to have shoulder problems, and was referred to Dr. Kirschenbaum, a pain specialist who also diagnosed reflex sympathetic dystrophy (RSD), and recommended a multi-disciplinary approach to treating the claimant’s condition. This approach included a sympathetic block, psychological support, medication, supervised physical rehabilitation, and possible trigger point injections. The respondents requested that the claimant be examined by Dr. MacEllis Glass, another orthopedic surgeon, who confirmed Dr. Kirschenbaum’s diagnosis of RSD, noting severe problems in the claimant’s left shoulder and left hand.

Meanwhile, the claimant had sent her son to her sister’s home in Pennsylvania in August 1996, because she needed someone to take care of the boy while she was having shoulder surgery. As she continued to require assistance after the operation, she relocated to Pennsylvania in October 1996 in order to live with her sister. While in Pennsylvania, she sought medical treatment for her injuries with local doctors. Dr. Godbout examined the claimant on November 12, 1996, and diagnosed a “frozen left shoulder,” which he thought would be best treated with physical therapy. He recommended that the claimant see a pain specialist, which she did in January 1997 when she began treating with Dr. Trinkle. The pain specialist concurred in the earlier diagnoses of RSD, and disabled the claimant for “an indefinite period” as of February 20, 1997. Findings, ¶ 30-31.

The claimant’s sister decided to move to Texas in April 1997. The claimant and her son accompanied her, and continued to maintain a household with her for a while longer. Subsequently, the claimant’s mother and father moved to Texas, and the claimant and her son moved in with them. The claimant presently resides in Texas. She has established a permanent residence there, and has obtained a driver’s license in that state.

The claimant sought pain management treatment in Texas with Dr. Gonzales, who discussed the case with Dr. Trinkle, the Pennsylvania pain management specialist. Dr. Gonzales observed the claimant’s history of cervical, shoulder and left upper extremity injury, which was complicated by apparent RSD. He was unsure if she also had a significant neurological problem. In his report of May 19, 1997, Dr. Gonzales opined that the claimant was suffering from chronic pain syndrome characterized by increasing disability and functional loss of her upper extremity, among other symptoms. The doctor thought it important for the claimant to remain with her family in order for her to reach optimal recovery and an eventual return to work. Findings, ¶ 51. He recommended a pain management program, which the claimant had not undergone as of September 2, 1997 despite the lack of improvement in her condition. At the time of the formal hearing, the claimant had agreed to start treatment, and was awaiting admittance as an inpatient.

The respondents agreed that the claimant was in need of the treatment recommended by Dr. Gonzales. However, they objected to its being performed out-of-state. The respondents filed a Form 36 on November 17, 1997, seeking to discontinue her total disability benefits on the ground that there was no supporting medical documentation from an authorized treating physician. The trier found that the claimant is currently on daily medication with side effects of drowsiness, which forces her to stay in bed, and (along with the incapacity to her left extremity) prevents her from driving. Findings, ¶ 58-59. She ruled that the claimant’s moves to Pennsylvania and Texas were made necessary by the complications of her work-related injury, and found much of the claimant’s out-of-state treatment to be reasonable and necessary. She thus ordered the respondents to pay many of the outstanding bills, as well as for the inpatient pain management treatment by Dr. Gonzales, and denied the respondents’ Form 36. The respondents have appealed that decision.

Under § 31-294d(a) C.G.S., an employer must provide a competent physician to attend an injured employee, and must furnish any medical aid that the physician deems necessary. Leiner v. Newmark & Lewis, 15 Conn. Workers’ Comp. Rev. Op. 147, 149, 2202 CRB-8-94-10 (Jan. 18, 1996). Once a doctor has been selected, the commissioner may, without hearing, authorize or direct a change of physician at the request of the employer or employee, or when good reason exists. Id.; § 31-294d(c). The employer is not responsible for paying the cost of care by an unauthorized treater. Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD-6-86 (Aug. 26, 1988). Time permitting, a claimant should obtain permission from the trial commissioner to change treating physicians before a new course of treatment is commenced. However, retroactive authorization of a medical provider is also permissible, though the claimant must evince a good reason for unilaterally changing providers. Leiner, supra; Atherton v. Cake Emporium, 11 Conn. Workers’ Comp. Rev. Op. 172, 175-76, 1339 CRD-7-91-11 (Sept. 2, 1993). Ultimately, the trier has a great deal of discretion as to whether or not to authorize a physician’s treatment, and this board must affirm a commissioner’s decision so long as it is reasonable. Landry v. North American Van Lines/Transtar, Inc., 15 Conn. Workers’ Comp. Rev. Op. 397, 399, 1971 CRB-2-94-2 (Aug. 16, 1996).

The most salient Connecticut case concerning authorization of out-of-state medical treatment is Cummings v. Twin Mfg., Inc., 29 Conn. App. 249 (1992). As noted by our Appellate Court in Cummings, the wording of § 31-294d is ambiguous with respect to the authority of a workers’ compensation commissioner to order medical treatment outside of the state of Connecticut. Id., 255. Faced with circumstances in which the claimant sought permission to receive a type of treatment that allegedly could not be provided anywhere in this state, the court held that a commissioner “is not prohibited from ordering out of state care when equally beneficial treatment is unavailable in Connecticut.” Id., 254. In ruling that the commissioner was entitled to authorize out-of-state treatment, the Cummings court relied upon the remedial nature of the Workers’ Compensation Act, the increasing specialization and technological complexity of medical practice, and the legislature’s implied, long-standing acquiescence toward review division decisions that permit out-of-state care. Id, 256-58. The court also held that, before out-of-state medical care may be ordered, an evidentiary hearing is required at which the reasonableness of the treatment can be determined. “[S]uch treatment should be reasonable and necessary, and permitted only when equally beneficial treatment is unavailable in Connecticut.” Id., 260.

Despite the arguments of the respondents, Cummings does not require that (a) the type of care sought by the claimant be unavailable in Connecticut, or (b) that the employer prescribe the out-of-state treatment (see Landry, supra), in order for the trier to be able to retroactively issue authorization in a matter such as this one. In the case of a claimant who moves to another region, it is absurd to suggest that “equally beneficial” treatment remains available to her in Connecticut, due to the expense, inconvenience and possible physical discomfort of returning here to receive medical care. Any other reading of Cummings would effectively restrict a claimant from departing Connecticut while her workers’ compensation case was pending, contrary to the humanitarian and constitutional considerations that oppose such a restriction. See Veillette v. State, 3 Conn. Workers’ Comp. Rev. Op. 135, 288 CRD-2-83 (Jan. 21, 1987) (claimant, a Danielson resident, visited a neurologist in Worcester, Mass.); Phelps v. State of Connecticut/Mansfield Training School, 2 Conn. Workers’ Comp. Rev. Op. 92, 133 CRD-2-82 (July 30, 1984) (claimant moved to Oklahoma and received treatment there). A trial commissioner is thus not bound to deny out-of-state treatment to a claimant who has changed his state of domicile. Instead, as suggested by Cummings, the trier should determine whether, under all of the circumstances, such treatment is reasonable and necessary.

Here, the trier found that the claimant’s relocation to Texas and Pennsylvania was directly caused by the detrimental effect of her work-related injury on her ability to care for herself. She also found that the claimant was diagnosed with RSD by Connecticut physicians, and that two doctors agreed that a pain management program was the best way to treat that condition. Further, the claimant’s treatment in Pennsylvania was consistent with that course of treatment (compare Farkash v. Gerelco, Inc., 12 Conn. Workers’ Comp. Rev. Op. 9, 1566 CRB-8-92-11 (Jan. 12, 1994), and the trier ruled that it was reasonable and necessary under the facts of this case. The trier was not required to disregard these facts, which are supported by evidence in the record, and to punish the claimant for failing to obtain a referral from a Connecticut doctor before seeking treatment in Pennsylvania. The claimant was not in a position to continue treating with Dr. Kirschenbaum once she moved out-of-state, but she still required medical care. The trier determined that she sought such care in a reasonable fashion, and such a decision was well within her discretion as the fact-finder.

The trial commissioner’s decision is hereby affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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