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Cotugno v. Lexington Caterers, Inc.

CASE NO. 4390 CRB-2-01-5



JUNE 21, 2002











The claimant was represented by Lori M. Comforti, Esq., Anderson & Ferdon, P.C., 82 Chelsea Harbor Drive, P.O. Drawer 749, Norwich, CT 06360.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the May 10, 2001 Finding and Order of the Commissioner acting for the Second District was heard January 25, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the May 10, 2001 Finding and Order of the Commissioner acting for the Second District. She argues on appeal that the trier erred by finding that narcotic medication and pain management therapy were not reasonable or necessary medical care in her situation. We find no error, and affirm the trier’s decision, though we include an instruction that the case be remanded for consideration of an additional issue.

The claimant sustained a compensable lumbar spine injury on August 2, 1995. Over the course of the next five years, the claimant tried over fourteen medications for her discomfort, including pain medications, opioids, marijuana, Neurontin, Serzone, Effexor, Restoril, and Clonopin. She also had pain management consultations with various doctors, including Dr. Warner at the William W. Backus Hospital, and she treated with Drs. Gahm and Kime. In November 1999, she was taken by ambulance to the emergency room at Backus Hospital. After being forced to wait in a holding room, she became angry and fled, only to be returned by the police several hours later. The claimant then filed a lawsuit against the hospital. The medical records from Backus Hospital indicated that the claimant might be abusing pain medications. Dr. Lewis, who examined the claimant at the respondents’ request, concluded that she was suffering from opiate recovery, cannabis abuse, anxiety disorder, malingering, and degenerative spinal disease. She also noted that the claimant had a history of using medications from friends and family and obtaining medication from multiple providers. In that doctor’s opinion, she needed to be weaned off her addictive medications. Dr. Lewis was concerned that Dr. Warner’s proposed therapy involved the use of addictive medications.

Both parties agreed that the claimant needed pain management services as a result of her compensable injury, however. On August 21, 2000, the trial commissioner issued a Finding and Award directing that she obtain pain management services at St. Francis Hospital in Hartford, given her history with Backus Hospital and the fact that her treating doctors were located in Hartford. See Administratively Noticed Exhibit 5. The claimant had not attended the formal proceedings that led to the award, and no witnesses had testified. The claimant’s records were then sent to St. Francis Pain Management Center, whereupon one of its doctors, Dr. Moraski, responded that the claimant was not a suitable candidate for the pain management center. She observed that the claimant had already undergone similar interventional treatments, and stated that St. Francis was not inclined to practice long-term narcotic therapy and does not run a detoxification program. A new formal hearing was then assigned.

At that hearing, which was held on February 7, 2001, the claimant testified that she continues to occasionally use marijuana (“maybe a joint a week”) as a means of self-medicating, and admitted that she had used drugs that were prescribed for friends and family members. Transcript, p. 47-52. She also said that she had received psychiatric medication from a prior doctor without any treatment. She had begun treating with Dr. Jaziri, a psychiatrist. In January 2001, she claimed to have stayed in bed for ten or eleven days without eating properly, which led Dr. Okasha to recommend that she be treated at Backus Hospital. She was admitted there on January 11, 2001, when notes were taken indicating that the claimant reported “increasing depression, hopelessness, anxiety, frustration, and progressive isolativeness secondary to chronic pain due to two unsuccessful disc surgeries.” Findings, ¶ 15. While there, she had surgery to remove a submandibular mass, and also continued to seek medication. Dr. Paggioli consulted with her regarding pain management on January 17, 2001, and opined that she should either be on low doses of narcotics or none at all, as her pain would still rate a 9 on a scale of 1 to 10 no matter how high a dosage she took. He increased her Baclofen prescription (a non-narcotic analgesic), which the claimant testified seemed to alleviate her pain.

After the February formal hearing, the parties agreed that the claimant would be allowed to seek treatment with Dr. Paggioli for pain management. However, he also refused to treat the claimant, indicating that her condition would not be narcotic responsive, and that he had nothing to offer her. Meanwhile, Dr. Kime issued a report dated January 30, 2001 that suggests the claimant’s current narcotic medication dosage is reasonable and necessary, and opines that the claimant will need narcotics to control her pain long-term. Following another formal hearing on March 22, 2001, the trial commissioner issued an order concluding that the claimant was an abuser of both prescription and illegal drugs, and accepting Dr. Paggioli’s opinion that narcotic medication is not reasonable or necessary treatment for the claimant. She concluded that pain management therapy was not reasonable and necessary medical care given the claimant’s history. That decision is now before us on appeal, along with a Motion to Submit Additional Evidence that was filed on May 22, 2001.

We first address the claimant’s motion, where she argues that the commissioner’s order was outside the scope of the stated issues because it was based in large part on the claimant’s addiction to narcotics. She now seeks to submit three documents as additional evidence. Administrative Regulation § 31-301-9 states that a party seeking to submit additional evidence on appeal must show that such evidence is material and that there were good reasons for failing to present it earlier. The movant must indicate in her motion “the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner.” See Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001); Warren v. Federal Express Corp., 4163 CRB-2-99-12 n.2 (Feb. 27, 2001).

First, the claimant seeks to submit a letter from Dr. Kime dated April 10, 2001, that addresses Dr. Paggioli’s opinion on narcotic pain medication. Dr. Paggioli’s opinion regarding the improvidence of further pain management therapy at Backus Hospital was rendered shortly after the February 7, 2001 formal hearing, and was apparently conveyed to the respondents via telephone message. As of the March 22, 2001 formal hearing, Dr. Paggioli had not honored the respondents’ request that he provide the parties with a note explaining his reasoning. See Administratively Noticed Exhibit 7. At said hearing, the commissioner offered the claimant’s counsel the right to take a deposition or obtain a statement from Dr. Paggioli within thirty days. Transcript, pp. 3-4. “If the parties do not notify me between now and April 30th that there will be further evidence from Dr. Paggioli then the record will close on May 1, 2001 and I will start making my decision.” Id., 4. At this time, it was clear to both parties that neither St. Francis nor Backus Hospital was willing to treat the claimant for pain management due to her narcotics addiction. Id., 7. It was also clear that this dilemma would need to be resolved before the trier could render a decision.

The claimant did not depose Dr. Paggioli. She did obtain an allegedly responsive letter from Dr. Kime dated April 10, 2001, that stated his opinion remained the same regardless of Dr. Paggioli’s opinion, due to the chronic nature of her condition and her lack of other pain management alternatives. However, there was no attempt to introduce this letter into evidence before the April 30 deadline set by the trier, and the claimant alleges that it only became available after the close of the proceedings. Essentially, this letter (which is not attached to the Motion to Submit Additional Evidence) contains the same opinion as was present in Dr. Kime’s January 30, 2001 report, which was entered into evidence as Claimant’s Exhibit C. From the claimant’s synopsis of that letter in her Memorandum of Law, the only additional element of information in the April 10 letter appears to be a reaffirmance of his opinion in the face of Dr. Paggioli’s contrary view. We do not believe that this evidence would be likely to have an effect on the trier’s decision, as most of it is cumulative, and we are unconvinced that this opinion could not have been provided before the closing of the record.

As for the May 4, 2000 report from Natchaug Hospital stating that the claimant was determined not to be drug dependent after testing, we recognize that based on its subject matter, it could have been relevant in this case. However, even though the trial commissioner had ordered the claimant to submit to treatment with Natchaug Hospital for detoxification, she was entitled to give whatever weight she chose to the reports of that hospital. If, as the claimant asserts in her motion, the trier decided that the hospital’s report was not reliable because the detoxification assessment was performed by a licensed social worker rather than a physician, she was within her authority in making that decision. A social worker is not classified as a practitioner of the “healing arts” under § 20-1 C.G.S., and a trial commissioner has broad discretion to determine whether a given piece of evidence is credible, or whether it should be admitted under § 31-298 C.G.S. as a competent medical report. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001); Dixon v. United Illuminating Co., 3543 CRB-4-97-3 (April 9, 1998).

Also, a letter from Dr. Sugerman that the claimant offers as additional evidence explains that Natchaug Hospital does not offer psychiatric assessments in determining one’s need for detoxification, and wonders why the claimant’s psychiatrist cannot provide this service. This letter is dated May 16, 2000. We are not persuaded by the claimant’s argument that her alleged narcotic abuse was not at issue in this matter. Though the parties had earlier agreed that she should receive pain management therapy, the claimant was specifically turned down for pain management treatment on account of narcotics abuse, and the matter of her narcotics addiction had interfered with other attempts to get her admitted to a pain management program. Different doctors had spoken of her need to be weaned off narcotic medication, and the respondents clarified their position that the claimant should only be treated with non-narcotic analgesics if she was to be approved for pain management therapy. March 22, 2001 Transcript, pp. 9-10. Detoxification was clearly an issue that was closely tied to the suitability of pain management therapy in this case. Thus, Dr. Sugerman’s opinion should have been offered into the record earlier. Accordingly, we deny the claimant’s Motion to Submit Additional Evidence.

With regard to the other issues on appeal, we agree with the respondents’ observation that there is an abundance of evidence in the record to support the trial commissioner’s conclusions that the claimant should not continue to receive narcotic medication. Thus, we find no error in the trial commissioner’s decision to discontinue that form of therapy. Her decision not to authorize an alternate form of pain management therapy was also within her discretion, as neither party advocated for a particular pain management program that did not require narcotics. Though Dr. Moraski suggested in December of 2000 that she look into programs at Bristol Hospital and Baystate Hospital in Springfield, MA, neither party obtained information about these programs that the commissioner could have taken into account. See Respondents’ Exhibit 2. Under the totality of the circumstances, the trier exercised her discretion reasonably. See, e.g., Covert v. Patterson, 4094 CRB-3-99-8 (Sept. 29, 2000).

The one issue that concerns us on review, however, is the absence of a finding regarding the manner in which the claimant should cease treatment. As the claimant points out, the medical reports in evidence that recommend the cessation of narcotic medication all suggest that she be weaned off narcotics, rather than stop immediately, which could result in dangerous withdrawal symptoms. The trial commissioner’s finding that the claimant has a narcotics abuse problem is patently inconsistent with the report of Natchaug Hospital, where the claimant was initially sent for detoxification and then turned away because she was not drug dependent, in their view. Though the trier was entitled to disregard the Natchaug Hospital report, as noted above, and was entitled to conclude that the claimant was a narcotics addict, it follows that the claimant would probably then require some sort of detoxification procedure and medication reduction regimen before she could safely stop using those drugs. As such, we will remand this matter to the trier solely to review the claimant’s current status as to narcotics usage and dependency, and to consider the utility of a detoxification program. It would be helpful, of course, if the claimant were to investigate such programs beforehand, in order to determine whether she was qualified to participate in one.

The trial commissioner’s decision is accordingly affirmed, with one issue being reserved for further consideration on remand.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

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