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Byrd v. Bechtel/Fusco

CASE NO. 4656 CRB-2-03-4



JULY 14, 2004











The claimant appeared pro se at oral argument.

The respondents, Bechtel Fusco and Kemper Insurance, were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The respondent Concentra was represented by Michael C. Harrington, Esq., Murtha Cullina, LLP, 185 Asylum Street, Hartford, CT 06103 and Lynn Rose of Concentra.

The respondent Acordia did not file a brief or appear at oral argument.

This Petition for Review from the April 3, 2003 Memorandum of Decision on Jurisdiction of the Commissioner acting for the Second District was heard November 21, 2003 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Howard H. Belkin and Ernie R. Walker.


GEORGE A. WALDRON, COMMISSIONER. The claimant has petitioned for review from the April 3, 2003 Memorandum of Decision on Jurisdiction by the Commissioner acting for the Second District. He contends on appeal that the trier’s determination regarding jurisdictional authority was made without giving him an opportunity to introduce evidence as required by due process, and that it was incorrect with respect to applicable law. We affirm the trial commissioner’s decision.

To begin, we note that the issue before us on appeal is one of first impression. The claimant, a construction manager for the respondent Bechtel/Fusco, Inc., sustained a broken right ankle after slipping on ice on February 7, 2000. This injury was accepted as compensable by his employer. At the time of the claimant’s mishap, Bechtel/Fusco was functioning as a project management contractor for the UConn 2000-OCIP project, for which workers’ compensation insurance was provided by the respondent Kemper Insurance Group (Kemper). The UConn 2000 project participated in a licensed and approved medical care plan operated by the respondent Concentra Integrated Services, Inc. (Concentra). Also involved in this case were two agents of Kemper: Acordia, Inc., an insurance agency, and Sterling Administrative Services (Sterling), a third-party administrator.

During the ten months following his injury, the claimant reports that he obtained surgery and other medical treatment with no difficulty. Complications arose when he began to require physical therapy that involved treating body parts beyond his ankle. In a letter dated January 17, 2001 that accompanied his written request for a hearing, the claimant stated that his treating orthopedic surgeon had identified a relationship between his ankle injury and back pain that would require physical therapy. However, a Sterling adjuster informed the physical therapist on January 3, 2001 that the insurer would not pay for any physical therapy sessions occurring after December 8, 2000, due to the fact that treatment for the back was not authorized. At the February 19, 2003 formal hearing, the claimant testified that, after Sterling began to contest chiropractic treatment, he requested a copy of the medical care plan from this Commission, and learned that Concentra, not Sterling, was the administrator of the plan. Transcript, p. 4. He expressed concern that decisions regarding his care were being made by individuals or entities who were not specifically authorized by the plan to be so involved. Transcript, pp. 4-5. Those concerns continue to exist on the part of the claimant.

Concentra subsequently issued several utilization review determinations pursuant to Admin. Reg. § 31-279-10(e)(1)-(3),1 two of which the claimant described as having retroactively approved short courses of physical therapy, and a third that reduced the frequency of the treatment recommended by the claimant’s physician. Id., pp. 5-6. The claimant appealed those rulings via the dispute resolution process set forth in Admin. Reg. § 31-279-10(e)(4)-(8).2

According to the claimant and certain documents in our files3, the first appeal was incorrectly referred to Dr. Sewell, a former treater, which resulted in a denial of service because Dr. Sewell had not seen the claimant for eight months and lacked information about the claimant’s present condition. This confusion was resolved within a few days and the appeal was reconsidered, but additional physical therapy was again denied. The claimant testified that he attempted to find out which doctors were involved in reviewing his appeals, but was unsuccessful. He also contends that he requested review by the plan’s medical director pursuant to § 31-279-10(e)(6), but was unable to make any progress. Transcript, p. 7. After conducting his own investigation, the claimant discovered documents listing Dr. Carl Paul Friedman as the medical director, and wrote him a letter. Dr. Friedman allegedly replied that he neither was nor had ever been the medical director of the plan. The claimant asserted that the plan had in fact operated without a medical director until 2002, despite having been in effect since 1996. Transcript, pp. 8-9.

The issues in this case became bifurcated at the time of the February 19, 2003 formal hearing. As the trial commissioner noted in his decision, separate proceedings were already in progress to determine the compensability of the claimant’s back, hip and knee injury claims, as the respondents continued to contest the relationship of those conditions to the claimant’s compensable injury. The trial commissioner decided that the best option would be to schedule a pretrial on the issue of compensability of those body parts. Transcript, pp. 32-33. Meanwhile, the claimant sought to have the trier review the entire scope of the respondents’ conduct in administering his claim under the medical care plan. He wanted the commissioner to consider evidence and make findings as to Concentra’s alleged noncompliance with the process mandated by § 31-279-10 and the terms of its own medical care plan, as he was maintaining that Concentra’s failure to properly administer his claim amounted to an arbitrary, capricious and unreasonable denial of treatment under § 31-279-10(f),4 which in his view was therefore reviewable by the trial commissioner. Transcript, p. 16. The claimant insisted that no other means was available of obtaining review for alleged infractions of workers’ compensation law by the administrators of a medical care plan. Transcript, pp. 12-13, 18-20.5

In opposition to the claimant’s argument, the respondents contended that the commissioner had only the power to determine whether or not it was arbitrary, capricious or unreasonable for the medical care plan to have denied physical therapy on the claimant’s ankle. Transcript, pp. 21-22. They did not believe that the Workers’ Compensation Act gave the trier authority to oversee the general setup of a managed care program.

The trial commissioner agreed with this assessment in his written decision. He observed that the claimant was not specifically seeking the medical treatment that was denied as a result of the utilization review process, nor was he appealing a determination by the chief executive officer of the medical care plan relating to payment for services, as contemplated by § 31-279-10(f). Instead, the claimant was alleging more generally that the medical care plan was not functioning according to the language of the approved plan or § 31-279 C.G.S. and its attendant regulations. He sought a finding that the plan was noncompliant with applicable law, which would then be referred to the chairman of this Commission. “The issues which he raises in this proceeding are not directed to the employer or insurance company but at its managed care plan. [Those] issues . . . , while based on information he has acquired through his workers’ compensation claim, are not dependent on facts which specifically flow from his workers’ compensation claim.” Memorandum of Decision, p. 3.

The trial commissioner noted that this agency is one of limited and statutory jurisdiction, whose various powers and responsibilities derive exclusively from enabling legislation. Castro v. Viera, 207 Conn. 420, 427-28 (1988). By targeting the respondents’ conduct in administering their medical care plan, the claimant was raising an issue that encroached upon the chairman’s statutory authority under § 31-279(c)-(d) C.G.S. to approve or disapprove proposed medical care plans. The trier equated the approval of such a plan with a license granted pursuant to § 4-166(6) C.G.S. and § 4-182 C.G.S., which are part of the Uniform Administrative Procedure Act. “Concomitant with the Chairman’s authority to approve or disapprove plans is the authority to revoke, suspend or withdraw his approval if it is determined that the medical care plan is not in compliance with the law. . . . The proper procedure for the claimant to follow with regard to the allegations which are the subject of this hearing is to submit his allegations in writing to the Chairman for his review and investigation. If the allegations have merit the procedures as set forth in Section 4-182 C.G.S. can be instituted.” Memorandum of Decision, pp. 4-5. The trier then dismissed the claimant’s request for review, which decision he now appeals to this board.6

In his brief entitled “Appeal of Determination” and dated September 17, 2003, the claimant asserts that he was denied due process because the trial commissioner did not give him an opportunity to gather and present evidence regarding his various complaints before making a decision on jurisdiction. Underlying this argument is the claimant’s assertion that the language of § 31-278 stating, “Each commissioner shall hear all claims and questions arising under this chapter in the district to which the commissioner is assigned,” precluded the commissioner from declining to hear his claim. In the claimant’s view, any allegation or complaint based upon a breach of the provisions in the Workers’ Compensation Act is subject to adjudication by a commissioner, as long as the claimant seeks some form of relief under the Act.

While the power of an Article III court7 to hear and determine cases is part and parcel of its authority to adjudicate particular types of legal controversies, the same is not true for administrative agencies such as this Commission. Castro, supra, 426-28. Unless the language of the Workers’ Compensation Act gives a commissioner the authority to assume jurisdiction over a claim, such power does not exist. Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 758 (1999); Castro, supra. It cannot be acquired by the commissioner of his or her own volition, nor can it be conferred by an agreement among the parties. Id., 426, 428. “A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly described by the enabling legislation.” Discuillo v. Stone & Webster, 242 Conn. 570, 576 (1997).

With respect to § 31-278, our Supreme Court has stated that a commissioner’s subject matter jurisdiction is limited to “adjudicating claims arising under the act, that is, claims by an injured employee seeking compensation from his employer for injuries arising out of and in the course of employment.” Stickney, supra, 762. The statute grants a commissioner powers insofar as they are necessary to perform the duties imposed on him or her by the provisions of Chapter 568, and to accomplish the Act’s purposes. If the central issue of a claim does not involve a duty imposed on the commissioners by the Act, jurisdiction does not lie. For example, interpretations of outside statutory provisions are permissible if incidentally necessary to the resolution of a case arising under the Act, but the core component of a claim must be one whose determination is explicitly authorized by the Act. Id., p. 764 n.5; see also pp. 767-68 n.8. If a commissioner lacks jurisdiction over an issue, this Commission would not have the legal authority to issue a judgment on anything beyond the jurisdictional question itself. Therefore, the existence of jurisdiction is a threshold matter that must be established before any further ruling is possible.

In order to properly resolve a jurisdictional question, it is not always necessary for a claimant to present detailed evidence regarding the totality of the underlying facts before an answer can be reached. Some claimants seek resolution of issues that are inherently beyond the trial commissioner’s authority. For example, where a claim is raised that a particular statute is unconstitutional, there is no need to take evidence in order for a commissioner to rule that this agency lacks the authority to determine constitutionality. See, e.g., Rayhall v. Akim Co., Inc., 4321 CRB-2-00-12 (November 5, 2001), aff’d, 263 Conn. 328 (2003); Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). Once the question has been framed, such an unconstitutionality claim is ripe for dismissal for lack of subject matter jurisdiction.

Not all of the powers and responsibilities created by the Workers’ Compensation Act and its appurtenant regulations are assigned to the sixteen commissioners that have been appointed under § 31-276(a) C.G.S. Each statutory section within the Act that sets forth administrative or decisionmaking duties specifies the individual charged with their enforcement. Where that role is unclear from the language, the context of the statute or regulation must be taken into account in determining its meaning, as the Workers’ Compensation Act must be read as a unified whole. Badolato v. New Britain, 250 Conn. 753, 760 (1999); Davis v. Forman School, 54 Conn. App. 841, 844 (1999).

Of relevance here is the host of administrative duties that are delegated to the chairman of the Workers’ Compensation Commission pursuant to § 31-280 C.G.S. Among those duties is the one set forth in § 31-280(12), which makes the chairman responsible for reviewing and approving applications for the employer-sponsored medical care plans described in § 31-279. Under that section and the regulations in § 31-279-10, the chairman is the sole individual with authority to approve the establishment of a medical care plan. He is also charged with the duty of setting standards for such plans, in consultation with a medical advisory panel. See § 31-279(d). The provisions of the regulation that address issues concerning the structure and operation of the plan would seem to direct all inquiry to the chairman. For example, § 31-279-10(a)(10) states that all medical care plans must include a statement from the employer stating that participation in the medical care plan is not inconsistent with any eligible employee’s collective bargaining agreement and that a copy of said agreement will be made available to the chairman on request. Another example is § 31-279-10(g), requiring each medical care plan to direct a quarterly report to the chairman detailing the results of appeals processed pursuant to the utilization review and dispute resolution procedures of § 31-279-10(e).

In contrast, any involvement by the other workers’ compensation commissioners in the case of a claimant receiving treatment pursuant to a medical care plan is both complementary to and extraneous to the internal workings of the plan. Pursuant to § 31-279((b)(2) and § 31-279-10(a)(12), commissioners become involved in a case when a claimant seeks treatment outside a plan, or seeks review of the ultimate decision on the necessity and appropriateness of medical and health care services as per § 31-279-10(f) following exhaustion of the dispute resolution process.8 Each of these points of entry into the case is also a reflection on the quintessential function of the trial commissioner: to determine a claimant’s entitlement to medical treatment for a compensable injury.

Nothing in the framework of the medical care plan statute and regulations suggests that the legislature intended a trial commissioner to become involved in the oversight of a medical care plan’s operation, or to make findings concerning irregularities or improprieties that may exist in the operation of such a plan. Given this context, the absence of an explicit prohibition against a commissioner hearing complaints of fraud and/or improper conduct in the operation of a medical care plan is not by itself enough to imply that a commissioner may assume jurisdiction over such issues. The legislature would have had to include specific affirmative language establishing such authority. Thus, standing alone, such issues fall within the chairman’s purview as the person responsible for approving and monitoring the functioning of medical care plans. Someone seeking to pursue such complaints would have to address them to the chairman’s attention in his capacity as the administrative head of this agency.

The claimant attempts to argue that such issues indeed belong before a commissioner in this case, as he sees himself as having been denied treatment for his compensable ankle injury due to the manner in which the respondents’ plan was administered. However, this analysis overlooks the respondents’ right to contest the claimant’s assertion that his back, hip and knee symptoms were sequelae of the compensable ankle injury. The treatment denied the claimant was therapy for body parts that had not yet been accepted. As noted above, those issues had been bifurcated for separate resolution by a trial commissioner, and were pending during the formal hearing on this matter. Because those injuries had not yet been ruled compensable, thereby entitling the claimant to treatment for them under the medical care plan, it was premature for him to allege that care for those injuries had been improperly denied due to malfunctions in the plan. See Gonzalez v. Coca-Cola Bottling Co. of New York, 4284 CRB-8-00-8 (September 13, 2001).

The trial commissioner not only took this into account, but also noted that the claimant was not specifically seeking the medical treatment that had been denied as a result of Concentra’s utilization review. The claimant’s primary allegation was that the medical care plan was in breach of the statute and the “full span of medical care regulations,” and that he was entitled to seek remedies for those breaches. Claimant’s Brief, p. 10. The trier correctly ruled that this was a matter that belonged before the chairman, based upon the structure of the medical care plan statute and regulations.

This is so notwithstanding the language in § 31-280(a) stating, “The chairman may not hear any matter arising under this chapter, except appeals brought before the Compensation Review Board and except as provided in subdivision (14) of subsection (b) of this section [concerning chairman’s presiding over informal hearings where necessary].” Unlike most issues that traditionally arise under the Act, the general body of commissioners does not make decisions regarding the approval and denial of medical care plans. Instead, the chairman alone has been assigned the specific administrative responsibility to oversee the approval and denial of such plans under § 31-279 C.G.S. With that duty necessarily comes the authority to hear complaints regarding the alleged deficient operation of a medical care plan.

Furthermore, the chairman would not be required to conduct a formal workers’ compensation hearing under § 31-278 and § 31-298 C.G.S were he to consider a claim that a provider had breached the terms of a medical care plan or the law relevant to such plans. In his Memorandum of Decision, the trial commissioner cited the provisions of the Uniform Administrative Procedure Act in holding that the approval of a medical care plan equates to the granting of a certificate, permit or other form of license under § 4-166(6). We agree. The UAPA’s definition of “agency” in § 4-166(1)9 applies to the Workers’ Compensation Commission. As there are no specific provisions in chapter 568 setting forth a procedure by which the chairman must consider complaints of violations concerning the operation of medical care plans, the general procedures set forth in § 4-182 C.G.S. are applicable. The trial commissioner correctly observed that § 31-279 and its attendant regulations do not require a hearing to be conducted before the granting, denial or renewal of a medical care plan may occur. Thus, the less formal requirements of § 4-182 C.G.S.(c)-(d)10 set forth the procedures applicable to an investigation of any complaint the claimant might file with the chairman. Upon the filing of such a complaint, a determination could then be made as to whether any violations of law have occurred, and whether circumstances warrant the revocation or suspension of the respondents’ medical care plan.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Howard H. Belkin and Ernie R. Walker concur.

1 Administrative Regulation § 31-279-10(e) provides, “Each medical care plan shall include provision for both a service utilization review providing a method to evaluate the necessity and appropriateness of medical and health care services recommended by a provider, and a means of dispute resolution if payment for such medical and health care services is denied. Such service utilization review and dispute resolution shall include, at a minimum, the following review and appeal procedures:

(1) Initiation of a review by any one or more of the following parties: the employee, the provider, the employer, or the medical care plan itself, either directly or through a utilization review contractor. If a party other than the plan initiates the review, such party shall supply to the plan all information in its possession which is relevant to the review. The plan may also request such information as it deems necessary to conduct the review.

(2) Upon receipt of all proffered and requested information, the plan shall review such recommended treatment, utilizing written clinical criteria which have been established by the plan and periodically evaluated by appropriate providers of medical and health care services required under Chapter 568 of the Connecticut General Statutes.

(3) Not more than two (2) business days after receipt of all such information, the plan shall provide written notice to the provider and employee of its determination regarding the recommended treatment. Any written notice of a determination not to certify an admission, service, procedure or extension of stay shall include the reasons therefor and the name and telephone number of the person to contact with regard to an appeal. The provider and the employee shall also be provided with a copy of the written review and appeal procedures….” BACK TO TEXT

2 Administrative Reg. § 31-279-10(e) requires a medical care plan to contain the following dispute resolution procedures, at minimum:

“…(4) The provider or the employee may, within fifteen (15) days of the written notice of determination, notify the plan of his or her intent to appeal a determination to deny payment for the recommended treatment.

(5) Upon such appeal, the plan shall provide, at the request of the employee or provider, a practitioner in a specialty relating to the employee’s condition for the purpose of reviewing the plan’s initial decision.

(6) Within fifteen (15) days of the request for such review and submission of any further documentation regarding the review, the reviewing practitioner shall submit his opinion regarding such recommended treatment to the medical director of the medical care plan who shall, within fifteen (15) days thereafter, render a written decision regarding such treatment.

(7) The employee, the provider or the employer may request a further review of the medical director’s written decision; such request for further review shall be in writing and shall be submitted to the chief executive officer of the medical care plan within fifteen (15) days of the medical director’s written decision. The party requesting further review shall have an opportunity for a hearing if such party requests it in writing and may, at such party’s expense, produce whatever written support or oral testimony it wishes at any such hearing. Such hearing shall be conducted within fifteen (15) days of the written request therefor. The chief executive officer of the medical care plan shall make any final determination of such request for further review and may utilize an advisory committee to assist him in his determination. The chief executive officer shall issue a final written decision on the request for further review as soon as practical but, in any event, within thirty (30) days of the later of the date of submission of the written request for such review or the date of conclusion of the hearing requested as part of such review.

(8) In the case of an emergency condition, an employee or his representative shall be provided a minimum of twenty-four (24) hours following an admission, service or procedure to request certification and continuing treatment for that emergency condition before a utilization determination is made. If a determination is made not to provide such continuing treatment and the employee or his representative, the provider, or the employer requests a review of such determination, an expedited review shall be conducted by the medical director and a final decision rendered within two (2) days of the request for review.” See also, n.1, supra. span class="back">BACK TO TEXT

3 These documents have not been admitted as exhibits, as no evidence was taken at the February 19, 2003 formal hearing (which led to the trial commissioner’s April 3, 2003 Memorandum of Decision on Jurisdiction). Rather, they are part of the official file maintained by this Commission. span class="back">BACK TO TEXT

4 Administrative Regulation § 31-279-10(f) states, “The necessity and appropriateness of medical and health care services recommended by providers of a medical care plan shall not be subject to review by a Workers’ Compensation Commissioner until the plan’s utilization review and dispute resolution review and appeal procedures, as described in subsection (e), have been exhausted. The decision of the chief executive officer of the plan relating to payment for such medical and health care services shall be subject to modification only upon showing that it was unreasonable, arbitrary or capricious.” BACK TO TEXT

5 The following exchange from page 18 of the February 19, 2003 Transcript illustrates the claimant’s request:

THE COMMISSIONER: So if I understand you correctly, what you’re looking for is a review of their entire managed care plan.

MR. BYRD: I’m just asking you to review the utilization review process as it pertains to me. And after that review if you find that there is sufficient evidence, that there is a bigger problem than just Leonard Byrd and his problem with getting medical care approved, then I’m requesting you to forward this to the Chairman so that there is one avenue that a Chairman can get information of a potential abuse so that he can forward it to the Insurance Commission. span class="back">BACK TO TEXT

6 The claimant has also filed a Motion to Submit Additional Evidence pursuant to Admin. Reg. § 31-301-9, and has described the nature of the evidence he wishes to introduce. As none of the information offered by the claimant is material, i.e., likely to have an effect on the outcome of this case, we do not believe that the requirements of the regulation have been met. Accordingly, we deny the claimant’s motion. span class="back">BACK TO TEXT

7 Article III of the United States Constitution authorizes the establishment of both the United States Supreme Court and lower courts of general jurisdiction. See also, Article Fifth, § 1 of the Connecticut Constitution. span class="back">BACK TO TEXT

8 A trial commissioner’s authority under § 31-279-10(f) is limited to reviewing the substance of a medical care plan CEO’s decision regarding the necessity and appropriateness of medical and health care services recommended by providers of a medical care plan. This limited grant of authority comes into existence only when utilization review and dispute resolution procedures under a plan have been exhausted, and it empowers the commissioner to consider only whether recommended medical treatment for a compensable injury has been unreasonably, arbitrarily or capriciously denied by the plan CEO. It does not give the commissioner authority to stray beyond the parameters of that specific question in order to consider the larger framework of the medical care plan itself, nor does it empower a commissioner to grant any remedy other than the reversal of a CEO’s decision with respect to the medical treatment specifically sought by the claimant. If such authority to consider allegations of improper administration of medical care plans by an entity such as Concentra were to exist, it would have to come from another statutory or regulatory source. span class="back">BACK TO TEXT

9 Section 4-166(1) C.G.S. defines the term “agency” as used in Chapter 54 as, “each state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the general assembly, the courts, the Council on Probate Judicial Conduct, the Governor, Lieutenant Governor or Attorney General, or town or regional boards of education, or automobile dispute settlement panels established pursuant to section 42-181. . . .” BACK TO TEXT

10 Section 4-182 C.G.S. provides, “(a) When the grant, denial or renewal of a license is required to be preceded by notice and opportunity for hearing, the provisions of this chapter concerning contested cases apply.

(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.

(c) No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

(d) (1) When an agency is authorized under the general statutes to issue a license, but is not specifically authorized to revoke or suspend such license, the agency may: (A) Revoke or suspend such license in accordance with the provisions of subsection (c) of this section; or (B) (i) adopt regulations, in accordance with the provisions of chapter 54, that provide a procedure for the revocation or suspension of such license consistent with the requirements of said subsection (c), and (ii) revoke or suspend such license in accordance with such regulations.

(2) Nothing in this subsection shall be construed to affect (A) the validity of any regulation adopted in accordance with this chapter and effective on or before October 1, 1999, or (B) any contested case in which a notice under section 4-177 is issued on or before October 1, 1999.” BACK TO TEXT


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