Strona v. Textron Lycoming Division

The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Avenue, P.O. Box 6503, Hamden, CT 06517.

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 9, 2001 Finding and Award of the Commissioner acting for the Fourth District was heard April 26, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 9, 2001 Finding and Award of the Commissioner acting for the Fourth District. They contend on appeal that the trier erred by finding that their tactics in administering this case amounted to an unreasonable contest of liability. We find no error, and affirm the trial commissioner’s decision.

The claimant suffered compensable injuries to his neck and back on April 29, 1990, resulting in herniated cervical and lumbar discs at C3-C4, C4-C5, C5-C6, and L4-L5. Voluntary agreements were issued naming Dr. Stanley Fromm as his authorized treating physician. The claimant then sustained a compensable medial meniscus tear to his right knee on February 20, 1994, for which Dr. Ralph DePonte was ordered to be an authorized treating physician in a January 24, 2000 Finding and Award. The claimant also developed a compensable psychiatric condition as a medical sequela of his neck and back injuries, for which Dr. Schnitt, a psychiatrist, was named the treating physician.

In the award on appeal here today, the trial commissioner found that Dr. Ann Skopek, an internal medicine doctor with a family practice in Hamden, had been acting as the claimant’s primary care physician since October, 1994, when Dr. Fromm referred the claimant to her so that she could examine and evaluate him for a pre-operative history. The claimant underwent anterior cervical disc excisions and fusions on October 19, 1994, for which Dr. Fromm prescribed Percocet and Valium as a means of managing the associated pain. Dr. Fromm retired in 1995, and the claimant testified that the respondents did not provide him with a successor as a treating physician. He then began seeing a series of doctors for one-time evaluations, including Drs. DePonte, Staub, Hasbani, Kramer, Sabshin, Taub and Saberski.

Because the claimant was without a treating physician, Dr. Skopek agreed to take over the prescription of the claimant’s pain medication. She has maintained this role ever since. Dr. Skopek testified that, in her opinion, the claimant has consistently needed Percocet and Valium in order to maintain his quality of life given his severe orthopedic injuries, and in order to avoid aggravation and further deterioration of his psychiatric condition, which is serious, and which requires its own medication and psychotherapy. The claimant continues to treat with and/or consult Dr. Schnitt, Dr. Hasbani (a neurologist), Dr. DePonte (an orthopedic surgeon), Dr. Kramer (also an orthopedic surgeon), and Dr. Skopek in regard to his compensable injuries. All of these doctors have at one time or another prescribed medication for the claimant, all agree that he is totally disabled, and all agree that one doctor should oversee the distribution of his prescription medications. They further concur that the most appropriate doctor to handle this task would be Dr. Skopek, given her long-standing relationship with the claimant and her role as primary care physician.

The claimant unequivocally testified that he had confidence in Dr. Skopek, as she had always listened to his complaints and diligently answered his questions in an understandable fashion. The doctor stated that she would be able to manage the claimant’s medications despite the complexity of his injuries, and that she would make contact with the various specialists involved in the instant case as necessary in order to assure that he was receiving what was best for him, even if that involved modifying his medications. She assured that she would defer to the specialists if confronted with an unfamiliar symptom, and that she would abide by the rules and regulations of this Commission. Dr. Skopek also testified that the claimant’s dosage had not been increased since she began prescribing him these medications, and that he was following her directions and recommendations faithfully, with no sign of abuse or addiction.

The trier also found that the claimant had previously tried other, non-opioid forms of medication, including Neurontin and Amitriptyline, without any relief of his symptoms. Dr. Becker, the respondents’ expert, had no objection to Dr. Skopek prescribing medication, but discouraged the use of narcotics in favor of medications such as Ultram, Neurontin and Amitriptyline. Upon being deposed, Dr. Becker acknowledged that he had been unaware that such medications had already been tried without success, and stated that he would not recommend them if they were not providing pain relief. He also testified that the claimant was not abusing narcotics, and recommended that one doctor manage the narcotic prescriptions. Dr. Becker was of the opinion that the claimant had a light duty capacity, but his opinion was disregarded in favor of the other doctors’ opinions pronouncing the claimant to be totally disabled.

The commissioner then wrote, “Despite the claimant’s significant disability status, the Respondent has continuously interfered with the doctor/patient relationship that he has had for five plus years with Dr. Skopek by alleging that Dr. Skopek should not treat the Claimant and prescribe pain medications, even though the Claimant’s authorized treaters, Drs. Hasbani, DePonte, Kramer and most emphatically, Dr. Schnitt have recommended the continuation of the pain medication that Dr. Skopek has been prescribing.” Findings, ¶ 43. He commended Dr. Skopek for monitoring the claimant’s pain medication despite the respondents’ failure to recognize her as a treater, and chided the respondents for waiting until July 1999 to provide voluntary agreements with the names of successor treaters to replace Dr. Fromm. The trier ordered that Dr. Skopek be recognized as an authorized attending physician, and that the respondents pay for the claimant’s Percocet and Valium prescriptions. He also concluded that the respondents had unreasonably contested liability as per § 31-300 C.G.S., and awarded the claimant an attorney’s fee of $4,425.00 for the 29.5 hours of time that his counsel was forced to expend on this matter. The respondents have appealed the finding of unreasonable contest to this board, along with the denial of their Motion to Correct.

On appeal, the respondents propose that the evidentiary record establishes the existence of numerous facts that contradict the trial commissioner’s findings. In their Motion to Correct, they sought to revise the award to show that the claimant had been treated by many different doctors between 1995 and 2000, and that some of those doctors had questioned the wisdom of long-term opioid use, while the claimant had never even mentioned Dr. Skopek’s name as a possible treating physician until 1999. As we noted, these corrections were denied. This board must treat the factual findings of the trier of fact with deference upon review, as it is the duty of the trial commissioner alone to resolve issues concerning the weight and credibility of the evidence, including the records and testimony of lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 261 Conn. 929 (1999); Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). Even portions of the evidence that are superficially uncontradicted may be ignored by the trial commissioner in his findings if he does not find them to be persuasive. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). We are empowered to disturb the trier’s findings only if they are without support in the evidence, or if they omit material facts that are truly admitted and undisputed. Mosman, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). As for the trier’s legal conclusions, they must also remain intact unless they result from an incorrect application of the law to the facts, or from an inference unreasonably drawn from said facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).

Section 31-300 allows a commissioner to award a reasonable attorney’s fee in any case where the claimant prevails and where the trier finds that the employer or insurer has unreasonably contested liability. Whether or not a respondent has unreasonably contested liability is a question of fact for the trial commissioner, subject to the same standard of review as other factual issues. Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000); Aguayo v. Franklin Mushroom Farms, Inc., 3697 CRB-2-97-1 (Jan. 28, 1999). The manner in which a party defends a case can be relevant to whether its contest of a claim is reasonable. Bailey v. State/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999), aff’d in part, rev’d in part on other grounds, 65 Conn. App. 592 (2001).

At trial, the respondents vehemently and consistently argued that the claimant was never without an authorized treating physician, and in fact, that he had no fewer than four different authorized treaters for his compensable neck, back, knee and psychiatric conditions. The respondents’ counsel carefully detailed the succession of appointments and referrals that followed the retirement of Dr. Fromm, most prominently including the claimant’s referral to Dr. Hasbani in June 1995, and to Dr. Kramer in December 1995, both of whom remain authorized treaters. The respondents offered evidence to show that Dr. Hasbani treated the claimant in September 1996, June 1997, July 1998, and December 1998, and that he referred the claimant to Dr. Gudin in order to be evaluated for admission to a pain management clinic in November 1998. They also offer evidence to show that Dr. Taub and Dr. Shanley both recommended avoiding opioids, and that Dr. Becker also maintained his opposition to long-term narcotic therapy due to the risks of habituation and addiction. These opinions would tend to support their refusal to accede to Dr. Skopek’s narcotic prescription refills as a continuing method of pain control.

Our difficulty on review is this: the factual findings that the respondents characterize as “blatant factual errors;” Brief, p. 14; were also consistent with portions of the record, namely, the version of events presented by the claimant and his counsel, as per his testimony. Much depended here upon whether the trial commissioner would find the claimant to be a credible witness, and it certainly appears as if he did. At the July 5, 2000 formal hearing, the trier aptly framed the question before him as “why Mr. Strona has not availed himself of the curative possibilities of those doctors who are his authorized treaters,” if, as the respondents insist, he had indeed been bestowed with the opportunity to see those physicians. Id., p. 15. Claimant’s counsel then explained that his client had been having problems with authorization prior to 1999, which had caused Dr. DePonte, Dr. Kramer and Dr. Hasbani to bill through Medicare, and resulted in the claimant owing them money. Given the nature of his psychological problems, these circumstances made the claimant very reluctant to see a doctor. Transcript, pp. 32-33, 67.

The claimant testified that the respondent insurer did not authorize or approve any of his proposed treaters until 1999, despite numerous hearings at which the claimant appeared pro se. Id., pp. 53-55. He explained, “I went back to Doctor Skopek because over the period of time, we’re talking years that this had been going on, it was obvious that I wasn’t going to get approval. We were just going for evaluations. We weren’t getting any kind of decision on who was going to treat or not. I didn’t want to have to go to five or six different doctors and get medications from five or six different doctors. I wanted a doctor who knew what was happening with my health, overall health.” Id., 54. He also testified that, despite a commissioner’s assignment of Dr. Hasbani and Dr. Kramer as his treaters during an informal hearing, “their bills were not paid for, they would never issue voluntary agreements. I had to pay for the bills myself or put them through my private insurance. The insurance company would not acknowledge them and this goes back to 1995, I had old bills.” Id., 86; see also, p. 92-93.

We note that there are documents in the record that could be read to support the claimant’s contentions. For example, Dr. Hasbani wrote a letter to Dr. Skopek dated July 8, 1997 that states, “I am seeing Mr. Strona in neurological reevaluation on July 9, 1997. Unfortunately, while I have seen him once every six months or so for the last two years, we have not achieved any level of treatment since we have been holding off and waiting for the insurance company—his workers’ compensation carrier—to approve treatments. I am today asking ITT to make a determination once and for all whether they would allow me to treat him as part of the workmen’s comp. and if not to deny it in writing so that I may then be able to treat him under his private insurance and Medicare.” Claimant’s Exhibit A. Then, on December 14, 1998, Dr. Hasbani wrote a letter to claimant’s counsel observing that the claimant had been evaluated by Dr. Gudin, and recommending that the claimant have MRIs performed of the cervical and lumbar spine. The letter continues, “It is my understanding that [a commissioner] had directed []the insurance company to name me as the treating physician for Mr. Strona. I have not yet received any confirmation to this effect. If, nevertheless, this was the directive[] . . . I would then ask the Insurance Company . . . to send me a confirmation and an approval for the above-requested tests.” Respondent’s Exhibit 5.

Despite the respondents’ adamant argument that any delays in treatment in this matter were not due to their failure to administer this claim reasonably, it is not the place of this board to override the trier’s appraisal of the testimony and evidence that was before him. A finding of unreasonable contest is a matter of considerable discretion; Saleh, supra; and it was within the trier’s authority here to find the claimant’s account of events credible after listening to his testimony. Our ability to reassess the relative weight of the evidence on review is inferior to the ability of the trier of fact to make that determination following formal hearings, and we are justifiably forbidden from doing so by our law. See, e.g., Fair, supra, 539-40. As the trier’s decision is based upon testimony in the record concerning the respondents’ failure to properly authorize treatment, which is corroborated by Dr. Hasbani’s reports, we do not have the authority to reverse that ruling on appeal. Therefore, we must uphold the factual findings and legal conclusions of the trial commissioner.1

The trial commissioner’s decision is hereby affirmed.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 We decline to award further attorney’s fees based upon the time spent and costs incurred by claimant’s counsel in defending this appeal, as we disagree with the claimant’s assertion that the respondents’ appeal was taken in bad faith. See Claimant’s Brief, p. 7. BACK TO TEXT