Donaldson v. Continuum of Care, Inc.

The claimant was represented by Nathan J. Shafner, Esq., Embry and Neusner, 118 Poquonnock Road, P.O. Box 1409, Groton, CT 06340-1409.1

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

This Petition for Review from the October 21, 2002, Finding and Award of the Commissioner acting for the Third District was heard April 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Deborah Donaldson, has appealed from the October 21, 2002 Finding and Award of the Commissioner acting for the Third District. We affirm in part and reverse in part the decision of the trial commissioner acting for the Third District.

The trial commissioner found the following pertinent facts. In 1989 the claimant sustained a significant injury to her jaw as the result of a root canal procedure. This injury caused the claimant to develop a temporo-mandibular joint disorder (hereinafter “TMJ”) which resulted in four surgeries to her jaw. Due to chronic pain from the TMJ the claimant underwent psychological pain management treatment with Mark Kirschner, Ph.D. The claimant has been on narcotic medication for her pain from 1989 through the dates of the final hearings in this case. The claimant has a significant history of alcohol abuse and has attended Alcoholics Anonymous for 15 years.

On October 21, 1996 the claimant sustained compensable injuries to her neck, left shoulder and mouth while employed for the respondent, Continuum of Care. While the claimant was working at the respondent’s halfway house for psychiatric patients she was injured when two inmates pinned her up against the wall and tried to strangle her. The respondents voluntarily accepted liability for this work related incident. As a result of her injuries the claimant underwent TMJ surgery performed by Dr. Robert R. Sorrentino. Dr. Sorrentino referred the claimant to Dr. Jeffrey Gudin, a pain specialist, for the chronic pain she experienced at the time. Dr. Sorrentino also referred the claimant for detoxification. The respondent-insurer authorized eight weeks of pain management.

Dr. Gudin examined the claimant on September 1, 1998. He recommended a “structured regimen of sustained release opioid analgesics in combination with appropriate neuropathic agents and muscle relaxants. Injections of local anesthetics and corticosteroids were utilized.” Findings, ¶ V. Dr. Gudin did not recommend detoxification. In June 1999 and November 1999 Dr. Gudin opined the claimant had reached maximum medical improvement and had a sedentary work capacity.

In order to get a second opinion, without a referral from Dr. Gudin, the claimant saw Dr. Mark Thimineur of the Comprehensive Pain & Headache Treatment Center. Dr. Thimineur began treating the claimant on November 23, 1999. Dr. Thimineur prescribed a pain management treatment that changed the claimant’s pain medications, increased her OxyContin intake and added a prescription for OxyIR. Additionally, Dr. Thimineur added the use of Ketamine to the claimant’s list of prescribed medications.

At the respondent’s request the claimant was evaluated by a psychologist, Bruce Gottlieb, Ph.D. of the Pain Management Center of Farmington. Dr. Gottlieb opined that the claimant had severe chronic non-malignant pain syndrome with significant psychological factors. Dr. Gottlieb believed the claimant’s condition was unlikely to change without eliminating her dependency on the medications she was on. He further opined the claimant’s narcotic treatment was palliative.

By agreement between both claimant’s counsel and respondents’ counsel, the claimant was examined by Dr. Jerrold Kaplan on July 27, 2000. Dr. Kaplan opined that the claimant was depressed and that there was a significant psychiatric component to her chronic pain. Dr. Kaplan was concerned about the claimant’s high dosage of medications given her previous history of alcohol and prescription medication abuse. Dr. Kaplan believed the claimant needed an inpatient program to assist with her pain and psychiatric issues. Dr. Kaplan gave a specific recommendation for claimant’s pain management treatment which included psychological and physical reconditioning components.

At the request of Commissioner Ralph E. Marcarelli, the claimant was also examined by David S. Kloth, M.D., the Medical Director of Connecticut Pain Care, P.C. Dr. Kloth opined the claimant had significant cervical pain which was not adequately addressed by the pain clinic at which she was then treating. Dr. Kloth believed the claimant’s dosages of medication were causing the claimant to experience some cognitive impairment which would significantly improve if the claimant’s medications were reduced. Dr. Kloth opined that it was inappropriate to prescribe Ketamine to the claimant due to the medications’ potential affect on cognitive behavior and the possibility of a resulting psychological dysfunction. Although Dr. Kloth made specific suggestions regarding alternative medications, he suggested the claimant’s psychological issues and current medication regimen would need to be addressed in order to see any significant improvement in her condition.

The hearing notices for the formal hearings stated the issues to be determined were § 31-294d medical treatment and § 31-307 total incapacity benefits. The claimant sought payment for pain management treatment as prescribed by Dr. Thimineur. The respondents had denied liability for further pain management. The respondents alleged the claimant’s need for this treatment was related to her preexisting TMJ condition as opposed to her work-related injuries. The respondents also alleged that Dr. Thimineur was not an authorized treater.

The trial commissioner concluded the claimant’s chronic pain was the result of her October 21, 1996 work-related injuries. The trial commissioner found there was no credible evidence that Ketamine was improving the claimant’s condition. The trial commissioner determined the claimant’s dosage of medications resulted in “what appears to be some cognitive impairment” which would significantly improve if medications were reduced. Findings, ¶ ¶ OO and PP. The trial commissioner further determined, “the claimant’s condition includes a significant psychiatric component due to chronic pain which resulted from the October 21, 1996 cervical, left shoulder and TMJ injuries.” Findings, ¶ TT. The trial commissioner found that Dr. Thiminuer was not and had not been an authorized treating physician.

The trial commissioner made specific orders regarding the claimant’s future treatment which included an inpatient detoxification program and a comprehensive pain management plan. The trial commissioner ordered that the claimant’s workers’ compensation benefits would be suspended pursuant to §§ 31-294f and 31-296 C.G.S. if the claimant failed to complete the specified treatment.

The claimant’s alleged errors fit into two categories.2 The claimant contends the admission of Dr. Gottlieb’s report resulted in errors relating to the admissibility of evidence. Additionally, the claimant claimed the trial commissioner exceeded her authority in ordering and specifying a particular treatment plan and hospitalization for the claimant.3

We will first address the claimant’s contention that the trial commissioner’s conclusions were based on evidence that was obtained in disregard of the Compensation Act and in violation of the rules of evidence. Claimant’s January 26, 2004 Brief, p. 3. The claimant contends that many of the trial commissioner’s findings of fact were based on the I.M.E. report of Bruce Gottlieb, Ph.D. The claimant asserts that Dr. Gottlieb’s report should not have been allowed into evidence. Additionally, the claimant argues that any medical evidence from a physician who relied on Dr. Gottlieb’s reports should be excluded as well because their opinions were tainted by Dr. Gottlieb’s report which was improperly admitted into evidence. The claimant argues that Dr. Gottlieb is not a “physician or surgeon” under § 31-294f C.G.S., therefore, his examination of the claimant was not legally performed and Dr. Gottlieb’s report should not have been relied on.4 Section 31-294f (a) states in relevant part, “(a) An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner.” We have previously held that psychologists’ reports can be admitted as evidence in Workers’ Compensation proceedings. See Dixon v. United Illuminating Co., 3543 CRB-4-97-03 (April 9, 1998); Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 3143 CRB-5-95-8 (June 26, 1996). Once the reports are admitted the trial commissioner then has the discretion to determine the credibility and weight to give to such reports. Harris, supra.

Furthermore, the claimant herself has submitted the reports of Edward Kravitz, Ph.D., a behavioral psychologist. See Claimant’s Exhibit J. In Bidoae v. Hartford Golf Club, 4424 CRB-6-01-8 (June 27, 2002) we affirmed a trial commissioner who ordered a claimant to submit to the respondent’s Independent Medical Examination by a Vocational Rehabilitation Specialist or be precluded from offering her own vocational expert’s report into evidence. The claimant in that case argued she should not be forced to participate in an Independent Medical Examination with a Vocational Rehabilitation Specialist because that medical treater was not a surgeon or physician under § 31-294f. In Bidoae, we did not predicate our finding on whether the specialist qualified under § 31-294f, instead we upheld the trial commissioner’s finding on the principle of due process. We stated that the notion of due process entitles parties to confront witnesses on equal terms, therefore, if the claimant submits a Vocational Rehabilitation Specialist’s report the respondents should be entitled to submit similar evidence. In this case due process also dictates that the trial commissioner allow the respondents to submit their psychologist’s IME’s report because the claimant has submitted similar evidence. For these reasons we find no error in the trial commissioner’s admission and reliance on Dr. Gottlieb’s report. Logically, we also find no error in other physicians’ reliance on Dr. Gottlieb’s report.

Next we will address the claimant’s contention that the trial commissioner went beyond her authority when she ordered specific treatment and hospitalization for the claimant. Claimant’s January 26, 2004 Brief. An issue at the formal hearing was “the need for pain management to be performed by Dr. Mark Thimineur and the causation of that pain management therapy.” October 11, 2001 Transcript, p. 5. The trial commissioner ordered the claimant to treat with a physician other than Dr. Thimineur and in a different manner than Dr. Thimineur had prescribed.

First we will address the trier’s determination that Dr. Thimineur was not an authorized treating physician. The trial commissioner found that the respondent-insurer initially authorized eight weeks of pain management therapy. Findings, ¶ 81. Dr. Gudin, a pain management specialist, initially evaluated the claimant on September 1, 1998 and continued her treatment through November 2, 1999. Findings, ¶ 83, 95. Dr. Thimineur initially treated the claimant on November 23, 1999. February 4, 2002 Transcript, p. 8. Dr. Thimineur testified that the claimant stopped treating with Dr. Gudin, another physician in his practice, when Dr. Gudin left the practice to go to New Jersey. February 4, 2002 Transcript, p. 8. However, Dr. Thimineur initially treated the claimant prior to Dr. Gudin leaving the practice in January 2000. Id., p. 7-8. Dr. Thiminuer’s initial notes regarding the claimant dated November 23, 1999 state, “Miss Donaldson has requested to be evaluated by myself as she is considering changing physicians in the practice. This is our usual practice; I am providing her with [an] initial history and [a] physical on a discussion of my understanding of her problems and my approach to the problem. She would then be free to choose which physician she may want to follow.” Claimant’s Exhibit A. In Dr. Kravitz’s notes dated November 12, 1999 the claimant reported that she had set up an appointment with Dr. Thiminuer for a second opinion. Claimant’s Exhibit J. In Dr. Kravitz’s November 30, 1999 office notes he stated; “Mrs. Donaldson reported that her husband had tried to speak with Dr. Gudin about transferring her care to Dr. Thimineur but reportedly he refused to go along with this.” Id. The claimant testified that Dr. Gudin left the facility that she was being seen at abruptly. December 3, 2001, Transcript p. 18. The claimant stated that she went to see Dr. Thimineur since he was in the same group, but she does not recall whether she was ever specifically authorized to see Dr. Thimineur. Id., p. 20.

The decision to authorize a treater is a factual determination within the trial commissioner’s purview and we will not disturb such a finding unless it is apparent that it is unreasonable. Murray v. Black Tie Limousine, 3899 CRB-3-98-9 (November 4, 1999). The trial commissioner found, “without referral from Dr. Gudin, the claimant on her own sought a second opinion with Dr. Mark Thimineur of the Comprehensive Pain & Headache Treatment Center.” Findings, ¶ Z. She further found, “Dr. Mark Thiminuer is not and has not been an authorized treating physician.” Findings, ¶ b). Based on the testimony and evidence before the trial commissioner we find no error in these findings.

We also find no error in the trial commissioner’s decision not to retroactively authorize Dr. Thimineur to be the claimant’s treating physician. Retroactive authorization is limited to circumstances where the claimant can demonstrate good cause for changing providers. Murray, supra. Here, there is evidence that the claimant made this change of providers for her own reasons and on her own.

At issue at the hearing was whether Dr. Thiminuer’s treatment was reasonable or necessary as contemplated by § 31-294d. October 11, 2001, December 3, 2001, February 4, 2002, February 27, 2002 and May 24, 2002 hearing notices. The trial commissioner made findings that the claimant’s use of Ketamine was not improving her condition and resulted in a cognitive impairment which would improve if the Ketamine was reduced or eliminated. Findings, ¶ ¶ NN, OO and PP. The trial commissioner based her findings on the medical opinions of several physicians who opined that the claimant’s regimen of prescription drugs was potentially harmful to the claimant and not reasonable or necessary. Findings, ¶¶ 130, 139, 140, 145-151. Additionally, the trial commissioner found that Dr. Thimineur’s treatment was based on the assumption that the claimant had sustained a traumatic brain injury, however, there was no credible evidence in the record that the claimant had sustained such an injury. Findings, ¶¶ EE and FF. These findings equate to a finding that Dr. Thimimuer’s treatment of the claimant was not reasonable and necessary.

The determination of whether medical care is reasonable and necessary is a factual issue to be decided by the trial commissioner. Rodenbaugh v. F.R. Tetro Enterprises, 3823 CRB-5-98-5 (August 18, 1999), quoting 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)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Here, the trial commissioner’s determination was based on medical evidence in the record, therefore, the findings will stand.

Once the trial commissioner had determined Dr. Thiminuer was not an authorized treater and his prescribed treatment was not reasonable and necessary it was reasonable that the trial commissioner would make further orders in order to avoid leaving the claimant without the ability to obtain further treatment. Cotugno v. Lexington Caterers, Inc., 4390 CRB-2-01-5 (June 21, 2002). Dr. Thiminuer himself indicated that if the claimant were removed from all pain management drugs, her physical and mental conditions would worsen, and that the claimant might be at risk for suicide. February 4, 2002 Transcript, p. 34. Here, the trial commissioner’s ordered Dr. Kloth to be the claimant’s authorized treater. The claimant should have been aware that there was a chance the trial commissioner might not find in her favor and would need to authorize a new treating physician. We find no error with the appointment of Dr. Kloth as claimant’s authorized treater.

However, the trial commissioner went beyond her authority when she made specific orders regarding a treatment plan to be imposed on a treating physician without that physician’s acquiescence. The treatment plan the trial commissioner ordered was substantially similar to that which Dr. Kaplan has recommended, however, there is no evidence that Dr. Kloth would agree to treat the claimant in the specific manner the trial commissioner prescribed. We therefore reverse the trial commissioner’s orders regarding a specific treatment plan for Dr. Kloth to follow.

Therefore, we affirm in part and reverse in part the October 21, 2002, Finding and Award of the Commissioner to the Third District.

Commissioners A. Thomas White and Charles F. Senich concur.

1 Ancillary to this appeal the claimant’s former attorney filed a Motion to Withdraw as counsel which was denied by this board. See Donaldson v. Continuum of Care, Inc., 4581 CRB-3-02-10 (July 29, 2003). However, subsequent to that decision the claimant retained the services of new counsel, Attorney Nathan J. Shafner, who represented her at oral argument on this appeal. BACK TO TEXT

2 In addition to the Reasons of Appeal and Brief that the claimant’s attorney filed on her behalf the claimant filed her own Reasons of Appeal on February 21, 2003. Although we normally do not review appeal documents filed by an individual who was represented by counsel, because of the unique circumstances in this case we will briefly address the claimant’s own alleged error at this point. The reason we will do so is because it is evident that the status of the claimant’s representation was ambiguous when she filed the document. On November 26, 2002 the claimant’s then attorney filed a Motion to Extend Time to File Statement of Reasons of Appeal and in that document he stated, “the Appellant’s appeal may be prejudiced if present counsel continues to handle said appeal.” Later, on February 27, 2003 her attorney ultimately filed a Motion to Withdraw as Counsel, see footnote 1 above. The claimant argues that the commissioner erred in failing to admit a referral form dated December 20, 1999. The claimant initially proposed that this evidence be submitted via a Motion to Modify Award dated December 3, 2002. The trial commissioner denied this motion on December 17, 2002 and stated that this evidence was not unavailable at the formal hearings because the date of the proposed evidence was two years prior to the first formal hearing in this matter. We may not set aside this ruling absent a clear abuse of discretion. York v. General Dynamics Corp., 13 Conn. Workers’ Comp. Rev. Op. 166, 1770 CRB-2-93-6 (March 9, 1995). As the trial commissioner articulated a reasonable reason for denying the motion, we find no error. BACK TO TEXT

3 At oral argument the claimant alleged additional evidentiary errors. However, since those alleged errors were never brought forward prior to oral argument we will not address those issues in this opinion. BACK TO TEXT

4 The claimant also claims that Dr. Gottlieb was identified as an M.D. as opposed to a Ph.D. when the respondents sent the notification of the IME to the claimant. Although the respondents did identify Dr. Gottlieb as an M.D. in the notice of the examination, Claimant’s Exhibit C, the respondents contend that Dr. Gottlieb’s initial identification as a M.D. was merely a clerical error. BACK TO TEXT