DeFelippi v. Wal-Mart Stores, Inc.

The claimant was represented by David Leard, Esq., Manasse, Slaiby & Leard, L.L.P., 249 Winsted Road, Suite 103, Torrington, CT 06790.

The respondent was represented by Deirdre J. Lewis, Esq. and Anita Varunes, Esq., Kenny, Brimmer, Melley & Mahoney, 5 Grand Street, Hartford, CT 06106-1505.

This Petition for Review from the January 18, 2001 Finding and Award of the Commissioner acting for the Fifth District was heard September 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the January 18, 2001 Finding and Award of the Commissioner acting for the Fifth District. It contends on appeal that the trier erred by finding that the claimant’s treatment with Dr. Kocis was reasonable and compensable, and that she exacerbated an earlier accepted injury on May 16, 1999. The claimant, meanwhile, has moved to dismiss the respondent’s appeal on the ground that it was untimely filed. We deny the Motion to Dismiss, but affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to her neck on February 9, 1998, which was accepted by voluntary agreement. A second voluntary agreement specifying a 10% permanent partial disability with a November 24, 1998 maximum medical improvement date was approved on January 13, 1999. Dr. Bruno is listed as the licensed treating physician on both agreements. Through April 2000, Dr. Bruno and two colleagues, Drs. Kocis and Downs, had operated Chiropractic Care Office, L.L.C., where both he and Dr. Kocis treated the claimant following her injury. When Dr. Kocis established a solo practice in April 2000, the claimant continued to treat with him.

Dr. Bruno had earlier referred the claimant to a neurosurgeon, Dr. Karnasiewicz, who discovered a herniated disc at C6-C7 and recommended continuing chiropractic care, though surgery could be a future option. This chiropractic care enabled the claimant to return to work, along with accommodations in hours and duties that Wal-Mart made for her. In May 1999, the claimant exacerbated her cervical injury while lifting at work. She reported the injury to her supervisor, but no claim was filed. A few months later, Dr. Kocis suggested that the claimant lessen the frequency of her treatments to less than one per week, and that she commence a home exercise program. The claimant disagreed, and continued seeing him on a weekly basis. In fact, she felt that her ongoing treatment was so important that she agreed to be financially responsible for it on January 31, 2000.

One week later, she suffered increased arm and neck pain after working a 14-hour shift. The claimant had also begun a second job doing telemarketing around that time period. Dr. Kocis’ notes reported increased pain and an increased work load as of March 3, 2000, and reflected that the claimant’s pain varied and was affected by weather and household activities. In August 2000, he again referred the claimant to Dr. Karnasiewicz’s office for evaluation. She was seen by Dr. Waitze, an associate of Dr. Karnasiewicz, who found diffuse degenerative disc disease and who recommended continuing chiropractic care. See Claimant’s Exhibit B.

The trial commissioner noted that the respondent failed to introduce any medical evidence concerning the claimant’s need for continuing care or the relationship between her accepted injury and said care. He concluded that both Drs. Bruno and Kocis were authorized treaters, and he placed Drs. Karnasiewicz and Waitze in the chain of authorization as well. He found that all chiropractic treatment through 1999 was reasonable and necessary, while less frequent treatment was needed beginning in 2000. Instead, the claimant should have begun the home exercise regimen recommended by Dr. Kocis. The trier thus ordered the respondent to pay for all of the chiropractic treatment through 1999, and one treatment every two weeks thereafter, as well as the bills of Drs. Waitze and Karnasiewicz. The respondent has appealed that decision to this board.

We first address the claimant’s Motion to Dismiss. At the time of the trier’s January 18, 2001 decision, § 31-301(a) gave a party ten days within which to file an appeal from the date that meaningful notice of the commissioner’s decision was sent to that party. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999). According to the certified mail receipts attached to the original Finding and Award, the respondent’s attorney received that decision on January 22, 2001. Because January 28, 2001 was a Sunday, an appeal petition from that decision would have had to be filed by the close of business on January 29, 2001 in order to be timely under § 31-301(a). The respondent’s counsel faxed a copy of a petition for review to the Fifth District office on the afternoon of Monday, January 29, while the original petition for review along with five copies thereof (as required by § 31-301(a)) was received by mail on Tuesday, January 30, 2001. The claimant contends that this board does not have the authority to accept faxed petitions for review as “substantially compliant” with the statute, which has been strictly construed in most of this board’s decisions.

In the recent case of Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (Dec. 19, 2001), this board was asked to dismiss an appeal that, on its face, had not been filed within ten days of the date notice was sent as per § 31-301(a). There, the trier’s decision was dated December 4, 2000, and notice of the decision was mailed to an outdated address. The prospective appellant did not receive the certified letter containing the decision until January 3, 2001. Under Kudlacz, supra, a party who asserts that it did not receive notice of a trier’s decision during the ten-day appeal period must be given an opportunity to show that, through no fault of its own, notice was received after the appeal period had already expired. In such cases, the party would have ten days from the date notice was actually received in which to file an appeal.

However, on December 13, 2000, the party in question here called the Second District office in order to learn whether a ruling had been issued, and an employee of this Commission immediately faxed a copy of the Finding and Award to that party. An appeal petition was first filed on December 22, 2000, and a second petition for review was filed on January 8, 2001. The movant for dismissal of that appeal argued that the faxed copy of the decision constituted meaningful notice within the original ten-day appeal period under § 31-301(a), thereby obligating the prospective appellant to file its appeal by the close of the next business day, i.e., the tenth day under the statute. We disagreed, as § 31-321 states that a notice required under the Workers’ Compensation Act must be written and served “personally or by registered certified mail addressed to the person upon whom it is to be served at his last known residence or place of business.” We explained that such delivery of notice is a necessary component of meaningful notice for the purpose of determining appeal periods under § 31-301(a).

Importantly, we did not disavow any use of facsimile machines or other electronic delivery of notices for all purposes related to workers’ compensation appeals. “Where a method of statutory notice is prescribed by law, this board would risk violating the due process rights of parties were we to hold that an ‘unofficial’ and less formal type of notice, e.g., transmission of a copy by fax machine, was also sufficient to trigger a responsive obligation of the party receiving such ‘lesser’ notice. . . . We decline to hold that a party’s right of appeal should be lost in such a manner, even if we would allow a party to protect its own rights by faxing a document where personal delivery was impracticable and a filing deadline was imminent.” (Emphasis added.) As both parties here acknowledge, this board in past cases has allowed parties to preserve appeal rights by faxing papers within the appeal period. See Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 n.1 (July 29, 1994), aff’d, 39 Conn. App. 935 (1995) (per curiam); Trinkley v. State/Ella Grasso Regional Center, 9 Conn. Workers’ Comp. Rev. Op. 58, 924 CRD-5-89-10 (Feb. 6, 1991), rev’d on other grounds, 220 Conn. 739 (1992). We do not consider those holdings to be aberrations, nor are they at odds with our traditionally strict interpretation of the time limits inherent in § 31-301(a).

This approach is consistent with Practice Book § 4-4, which delineates as a component of Superior Court procedure, “Papers may be filed, signed, or verified by electronic means that comply with procedures and technical standards established by the office of the chief court administrator. A paper filed by electronic means in compliance with such procedures and standards constitutes a written paper for the purpose of applying these rules.” We note also that formal pleadings are not required in workers’ compensation matters under § 31-298, beyond any informal notices that this commission approves. As long as a party files some document indicating its intent to appeal within the statutory deadline prescribed by § 31-301(a), this board will generally allow that party to pursue its appellate rights. In the case before us today, as the respondent’s original petition for review arrived (with copies in quadruplicate) only one day late, we will construe Wal-Mart’s appeal as having been timely filed by virtue of the fax received on January 29, 2001.

This is not to say that we find merit in the substance of that appeal, however. The respondent argues that the trier erred by finding that Dr. Kocis was an authorized treater of the claimant, and that her treatments after reaching maximum medical improvement were reasonable and necessary. Where a claimant is treated by a doctor other than her authorized treating physician, she has the burden of proving that said treatment was either provided pursuant to a valid referral or that it was otherwise appropriate for retroactive authorization. Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (Oct. 4, 1996). Under § 31-294(c), the trier may “at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of physician . . . .” Though a claimant should obtain advance permission to change physicians before commencing a new course of treatment, retroactive authorization of a medical provider is permissible as long as the claimant has a good reason for unilaterally changing providers. Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). “Ultimately, the trier has a great deal of discretion in deciding whether treatment should be authorized, and this board may not overturn such a ruling as long as it is reasonable.” Id.

With Drs. Kocis and Bruno practicing together, and the claimant keeping weekly appointments with Dr. Bruno, it would hardly be unreasonable for the claimant to have assumed that it was permissible for her to see Dr. Kocis as well. Indeed, one would expect that a weekly client such as the claimant would at some point need to avail herself of another doctor at the Chiropractic Care Office if Dr. Bruno were ever on vacation, or otherwise unavailable. According to Dr. Bruno’s November 24, 1998 note, he felt that the claimant needed to continue therapy in order to remain functional. “Although not curative, [the treatment] is not wholly palliative. This claimant is stuck in a twilight zone because she does not seem to be surgical . . . but at the same time does not seem to be curative from chiropractic intervention.” Claimant’s Exhibit A.

According to the office notes, Dr. Bruno continued to treat the claimant through approximately January 4, 1999. At least, his signature was at the bottom of the page containing that day’s notation. The next page of office notes, spanning January 11, 1999 to February 1, 1999, was signed by Dr. Kocis, who evidently began his involvement with the claimant’s treatment at that point. All pages thereafter are also signed by Dr. Kocis. Insofar as there was a transition between doctors, it seems to have been seamless, and there is no indication that Dr. Bruno and Dr. Kocis had a difference of opinion that led the claimant to treat with the latter rather than the former. Indeed, there is no evidence that the claimant directed this change, or that she expressed a desire to switch treaters. For all we can tell, Dr. Kocis could have started treating the claimant because Dr. Bruno had too big a patient load, and asked Dr. Kocis to conduct her weekly therapy.

We do not believe these circumstances made it unreasonable for the trier to retroactively authorize the claimant’s treatment with Dr. Kocis. Her shift to another doctor within the three-practitioner firm of Chiropractic Care Office, L.L.C. was not so drastic that the trier should have automatically penalized the claimant for not obtaining advance permission from this Commission to make that change, or not procuring a written referral from Dr. Bruno. We thus uphold the trier’s retroactive authorization of Dr. Kocis as a treating physician of the claimant.

As for the respondent’s argument that the claimant’s treatment following her arrival at maximum medical improvement was unnecessary and palliative, we direct its attention to the following pronouncement by this board. “Reasonably 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 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.” Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001), quoting Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984). Again, the trial commissioner is the individual charged with determining evidentiary credibility, and this board cannot disturb his findings if there is evidence in the record to support them. Zalutko, supra; Outlaw v. Pray Automotive of Greenwich, 3981 CRB-7-99-2 (March 23, 2000).

The trier approved all chiropractic treatment through the end of 1999. Though he felt that the claimant should have begun a home exercise program when it was suggested by Dr. Kocis, this does not equate to a finding that the claimant was unaided by the chiropractic treatment she received beyond that date. The office notes reflect that Dr. Kocis often expressed the hope that they would be able to cut the claimant’s treatments down to one per week or fewer from March through June of 1999, but they also reflect that the claimant sought more frequent treatment during those few months because she continued to have acute pain symptoms, including an episode of aggravated neck pain that occurred while she was stacking items on a rack at work on May 16, 1999. Beyond those dates, the claimant did not seek treatment more than once per week, though she insisted that she needed to appear on a weekly basis to keep her symptoms in check so that she could work properly. See Exhibit A, supra, July 19, 1999 note.

Dr. Kocis might have hoped that they would be able to decrease her treatments further in the future, but he agreed that the claimant needed some sort of treatment to keep muscle tightness from escalating. Eventually, he described her as having a chronic condition that would require care over a long period of time in order to keep her in the workplace. See September 27, 1999 note. Little seems to have changed since; on February 14, 2000 Dr. Kocis stated that the claimant “would still like to be seen on a weekly basis as she feels she cannot get through two weeks without care,” and he opined on May 15, 2000 that she “certainly does have a reason to come in weekly as her employment seems to aggravate her original condition and we will work out a financial arrangement to continue to give her care.” The notes do not reflect any instance since June 1999 where the claimant appeared more than once per week.

Dr. Kocis’ notes directly support the trier’s decision to authorize all treatment through the end of 1999, and one treatment per week afterward. This chiropractic care enables the claimant to maintain employability by alleviating the intensity of her pain, and is directly related to her workplace injuries. We have no ground upon which to disturb the trial commissioner’s findings on this matter. Zalutko, supra.