State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Fyler v. Barrieau Moving & Storage

CASE NO. 3985 CRB-01-99-03



APRIL 18, 2000











The claimant was represented by Barry Moller, Esq., Cramer & Anderson Law Offices, P. O. Box 278, 46 West Street, Litchfield, CT 06759-0278.

The respondents were represented by Ellen M. Aspell, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the March 5, 1999 Findings of Facts and Award of the Commissioner acting for the First District was heard October 15, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney. A separate motion related to the issue of attorney’s fees was heard on January 21, 2000 before the same panel.


JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the February 25, 1999 Findings of Facts and Award of the Commissioner acting for the First District. They contend on appeal that the trier erred by finding that a TENS unit constituted reasonable and necessary medical treatment for the instant claimant, and by ruling that the respondents’ failure to provide same amounted to an unreasonable contest under these facts. We affirm the trial commissioner’s decision.

The claimant was working for the respondent employer on December 14, 1996, when he suffered compensable injuries to his back and knee. A voluntary agreement was approved on March 26, 1998, specifying a 9% permanent partial disability of the claimant’s lumbar spine. The trier found that, after initially visiting the Industrial Healthcare Clinic in Hartford, the claimant was referred to Dr. Charles Kime, an orthopedist. While under Dr. Kime’s care, he underwent a discography that showed three levels of disc disruption or degeneration. To repair this condition, surgery would need to be performed on three separate levels of his spine. Given that fact, Dr. Kime opined that the claimant was not an appropriate candidate for surgery. However, the claimant still suffered from chronic low back pain, so the doctor gave him a prescription for a TENS unit1 on February 12, 1998.

Two weeks later, the claimant submitted to an independent medical examination by Dr. Bomar, another orthopedist. He diagnosed the claimant with lumbar degenerative disc disease, which was related to the December 1996 injury. Dr. Bomar further stated that the claimant might never be able to return to full duty, that he “may need further follow-up medication, and some intervention such as a TENS unit might be appropriate.” Findings, ¶ 9, quoting Claimant’s Exhibit C. The trier noted that there was no evidence in the record showing that the respondents contacted either Dr. Kime or Dr. Bomar to discuss possible alternatives to a TENS unit. He also observed that claimant—who testified that he is in constant pain—made three written requests seeking permission from the respondents to obtain a TENS unit, but received no reply.

The trier ruled that a TENS unit was reasonable and necessary medical treatment in this case, and ordered the respondents to furnish the claimant with such a device. He recognized that the Medical Protocols adopted by this Commission on January 1, 1996 describe the exclusive use of passive modalities, such as TENS units, as inappropriate treatment for lumbar musculoligamentous injuries. However, the December 26, 1995 memorandum from then-Commission Chairman Jesse M. Frankl that accompanied the release of those protocols states, “Protocols cannot be absolute. There must be room for medical judgment.” Given this caveat, and the respondents’ failure to inquire about possible alternative treatment while the claimant was enduring intractable pain, the trier ruled that their refusal to furnish a TENS unit was an unreasonable contest of liability, “leaving the injured worker with virtually no hope of resuming a work life. Such a refusal, in these circumstances, violates the purpose and spirit of the Workers’ Compensation Act.” Findings, ¶ B. The respondents have appealed that decision.2

The standard of our review in this matter is quite settled. 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)). As we have explained in the past,

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.

Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984). A physician is no more required to expressly use the words “reasonable” or “necessary” in recommending medical treatment than he or she is made to observe a particular set of semantics in order to diagnose the cause of an injury within a reasonable degree of medical probability. See, e.g., Struckman v. Burns, 205 Conn. 542, 554-55 (1987). Rather, the trier of fact looks at the substance of the medical opinion in deciding what treatment is reasonable. As long as there is substantial evidence in the record to support the trier’s factual findings, this board will not disturb them on appeal. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

Two medical opinions have been presented as evidence in this case. Dr. Kime, after discouraging the claimant (who had reached maximum medical improvement) from having surgery, assessed him with chronic low back pain, and recommended that he remain restricted to light duty work. The only form of treatment mentioned by Dr. Kime was a prescription for a TENS unit. Claimant’s Exhibit B. Dr. Bomar, the respondents’ medical examiner, noted that the claimant was complaining of increased back pain, and had requested a TENS unit. Though he felt the claimant capable of light duty work, he agreed that further treatment (other than surgery) might be advisable, including medication and “some intervention such as TENS unit.” Exhibit C, supra.

The claimant had thus reached maximum medical improvement, but was still experiencing pain due to his compensable injury, and was not a good candidate for surgery. It was consistent with the humanitarian spirit of the Workers’ Compensation Act, and the role of a treating physician, for Dr. Kime to suggest some type of treatment to help the claimant manage his pain. Here, he recommended only one modality: a TENS unit. Dr. Bomar did not challenge this prescription. Absent any specific alternatives, it was logical for the trier to infer from these two medical opinions that a TENS unit was reasonable and necessary treatment in this particular case.

The respondents, of course, raise the issue of the medical protocols. As the trial commissioner correctly noted, the protocols adopted by the Medical Advisory Panel effective January 1, 1996 are not rigid rules. The former Chairman’s December 26, 1995 memorandum states, “Medical providers are urged to contact the insurer or managed care organization if they feel that a treatment pattern other than the published protocol is required. It is expected that the payer or managed care organization will work with the provider to ensure that the injured worker receives the most appropriate treatment.” Though the exclusive use of TENS units is generally considered an inappropriate form of treatment for lumbar injuries, there could still be specific cases where the employment of a neural stimulator becomes a desirable option. The involved parties—including the insurer and/or managed care organization—have a duty to ascertain whether, under the circumstances, this otherwise exceptional treatment is suitable.

Here, Dr. Bomar’s report is dated March 5, 1998. On March 24, 1998, claimant’s counsel sent a letter to the insurer requesting authorization for the TENS unit, stating that it was “especially necessary due to the discomfort he is experiencing following his three level discogram.” A second letter was sent on April 16, 1998, in which it was mentioned that the claimant had been significantly relieved and become more mobile when he had used a TENS unit in the past. Finally, counsel sent a third letter on July 1, 1998, reiterating Dr. Kime’s recommendation of the neural stimulator, and suggesting that the insurer is not prevented from supplying that unit, “even though the protocols indicate otherwise.” Claimant’s Exhibit A. Apparently, the insurer did not believe that it had a duty to respond to these requests, in light of the phrase in the former Chairman’s memorandum that urges medical providers to contact the insurer if they think that a treatment pattern outside the protocol is advisable. “[I]t appears that the burden would be on the claimant and his physician, in the face of the denial of the [TENS] Unit, to demonstrate to the respondents its medical necessity.” Brief, 5.

First, there is no indication in the record that the respondents ever took the trouble to expressly deny authorization for a TENS unit. The commissioner instead found that they simply ignored the matter, perhaps hoping that the claimant would abandon his request. Such behavior was inconsistent with the respondents’ duty under § 31-294d and § 31-300 to provide prompt medical care and to avoid unduly delaying the payment of benefits. Our workers’ compensation system demands cooperation by both parties in order to function properly. The respondents had a responsibility to communicate their views regarding the TENS unit, rather than remaining silent and waiting for the claimant to guess that they were expecting a telephone call from his doctor so that they might discuss the issue of alternative treatment personally.

Second, Dr. Kime effectively did raise the issue by prescribing a TENS unit in his report. Dr. Bomar mentioned it as well. Where both physicians have suggested that such a device might be beneficial, and might be able to relieve the claimant’s pain enough for him to feel comfortable returning to light duty employment, the insurer or managed care provider should consider itself on notice that an alternative treatment plan has been recommended, and begin participating in a dialogue regarding this plan. We find no error in the trier’s conclusion that, under the circumstances of this case, the respondents’ attempts to hide behind a myopic adherence to the precise wording of the medical protocols and their accompanying documentation constituted an unreasonable contest of the instant claim. This sort of gamesmanship is always violative of the remedial spirit of the Act, but it further lowers itself into the domain of cruelty where a claimant is in severe pain and no other treatment has been identified that might alleviate his discomfort.

The trial commissioner’s decision is affirmed.

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

1 A transcutaneous electrical nerve stimulation (TENS) unit is a small, portable device used to relieve pain. Electrodes are placed on the skin of the patient, through which electrical impulses are sent to nerve fibers. This causes the blockage of pain signals being carried from the brain. BACK TO TEXT

2 In their Reasons for Appeal and in their appellant’s brief of September 15, 1999, the respondents also contested the trier’s award of a $1,000 attorney’s fee on the ground that there was no evidence in the record to support that amount. This panel heard oral argument regarding the fee amount on October 15, 1999. Ten days later, the respondents filed a request to withdraw this issue from consideration on appeal. The claimant objected to this request, and oral argument on the motion to withdraw was scheduled for January 21, 2000. By the time that date arrived, the respondents had already submitted a check to the claimant for the $1,000 attorney’s fee. We hold that this payment of the disputed fee renders the related appellate issues moot, including the motion to withdraw. BACK TO TEXT

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