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Fallon v. Rite Aid Corporation

CASE NO. 4813 CRB-4-04-5



MAY 16, 2005











The claimant was represented by Richard Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.

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

This Petition for Review from the May 13, 2004, Finding and Award of the Commissioner acting for the Fourth District was heard December 17, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Rite Aid Corporation and Travelers Insurance Company, have appealed from the May 13, 2004, Finding and Award of the Commissioner acting for the Fourth District. We affirm the trial commissioner’s decision.

The record below contains testimony from the claimant regarding her unusual medical history. When the claimant was a child she had severe scoliosis which left her deformed and limited her physical activities. June 25, 2002 Transcript, pp. 24-25. She had been told by several doctors that she was not a surgical candidate, however, in 1987 she was evaluated by Dr. John Doherty of the Hospital for Special Surgery in New York who told her he was willing to operate on her condition. At that time Dr. Doherty was very concerned that the claimant’s back bone was pushing on her lungs causing her breathing difficulties. He opined that if she remained untreated eventually her back bone would push against her heart and she would become wheelchair bound for the rest of her life. In 1987 Dr. Doherty performed fusion surgery on the claimant’s spine in order to correct the scoliosis condition in her back. About five months after this surgery the claimant returned to work as a Pharmacist for the respondent-employer. Id., p. 27.

The claimant explained that her back surgery was a success, however, five months later her hip was bothering her. Id. Again the claimant sought treatment at the Hospital for Special Surgery with their hip specialist, Dr. Paul Pellicci. Dr. Pellicci diagnosed the claimant with osteonecrosis and osteoarthritis of the left hip and performed a total hip replacement on her in 1989. Claimant’s Exhibit G, Dr. Pellicci’s September 28, 2002 letter.

Later in 1998, the claimant sustained a non-work related injury to her left hip while she was on vacation. At that time she treated with Dr. Joseph Wu in Connecticut. X-rays taken revealed that the claimant’s prosthesis was still in place and stable. On April 28,1 1999, Dr. Wu diagnosed the claimant with trochanteric bursitis of the left hip for which the claimant underwent physical therapy.

On July 26, 2001, during the course of the claimant’s employment for the respondent-employer, the claimant tripped and fell and as a result alleged injuries to her hips, arms, neck, head, knees, back, hands and shoulders. The next day she was examined by Dr. Mark Perrotti who ordered x-rays of the claimant’s injuries. The x-ray of her left hip replacement raised a question as to whether there was a minimal loosening of the intramedullary portion of the prosthesis. There was no abnormality of the hip noted. Claimant’s Exhibit A, July 27, 2001 report. Dr. Perrotti referred the claimant back to Dr. Wu.

On August 2, 2001 Dr. Wu diagnosed the claimant with shoulder impingements and recommended physical therapy. On September 5, 2001 Dr. Wu examined the claimant for right shoulder pain and diagnosed the claimant with a right shoulder rotator cuff tear. On October 10, 2001 Dr. Pellicci reviewed the claimant’s x-rays and diagnosed a fracture of the left hip. On October 17, 2001 Dr. Wu expressed his opinion that the claimant should treat with Dr. Pellicci for her left hip and Dr. Oheneba Boachie-Adjei for her back. Claimant’s Exhibit C. On October 17, 2001 Dr. Wu opined that the claimant’s back, neck, right shoulder, arm and right hip symptoms were all related to her work related injury, however, he did not state whether the fracture of the hip was causally related to the July 26, 2001 fall.

On October 10, 2001, Dr. Pellicci examined the claimant at the Hospital for Special Surgery in New York. Dr. Pellicci’s records indicated the claimant had a “fracture greater trochanter, secondary to her fall in July with loosening of the femoral component and wear of the polyethylene.” Claimant’s Exhibit G. On October 30, 2001, Dr. Pellicci performed revision surgery of the claimant’s left total hip replacement in order to address the claimant’s injuries.

On February 11, 2002, Dr. Pellicci examined the claimant’s knee and opined the claimant had patellofemoral degenerative disease that was aggravated by the work related accident. On March 18, 2002, Dr. Pellicci reviewed an MRI of the claimant’s left knee and indicated that the claimant had a tear of the lateral meniscus, chondromalacia patella and edema of the infrapatellar fat pad of the left knee. On July 23, 2002, Dr. Pellicci performed arthroscopic surgery on the claimant’s left knee.

In November 2001, the claimant’s neck, back and left leg were examined by Dr. Boachie-Adjei. Dr. Boachie-Adjei referred the claimant to Dr. Stephen Fealy at the Hospital for Special Surgery in New York for her right shoulder complaints. On February 12, 2002, Dr. Fealy performed right shoulder arthroscopy, debridement, and right shoulder subacromial decompression and arthroscopic acromioplasty. Dr. Fealy opined that it was reasonably possible that the claimant’s right shoulder injury was causally related to the work related injury.

On April 1, 2002 Dr. Enzo Sella examined the claimant at the respondents’ request. Dr. Sella opined that the claimant did not sustain a left hip fracture. Furthermore, Dr. Sella believed that there were competent physicians in Connecticut that could have treated the claimant and that the claimant unnecessarily treated at the Hospital for Special Surgery in New York for her injuries. In February 2002 Dr. Mark Glickstein performed a medical records review and he was of the opinion that there was a suggestion of a superimposed fracture of the claimant’s left hip.

On April 1, 2002, a voluntary agreement was approved for injuries occurring on July 26, 2001. The injuries accepted were “left and right upper extremities, contusion left hip, TMJ injuries hip.” Findings, ¶ 4. Dr. Wu was listed as the claimant’s treating physician on that voluntary agreement.

The trial commissioner determined that the claimant sustained work related injuries to her left hip, left knee, jaw, right shoulder, neck, arms, back and right hip when she fell down at her place of employment on July 26, 2001. Further, the trier found that Dr. Pellicci’s left total hip revision surgery and left knee surgeries were causally related to injuries caused by the July 2001 fall. The trial commissioner authorized the claimant’s treatment with Dr. Pellicci in New York. The trier found Dr. Pellicci’s treatment of the claimant was reasonable and necessary because of the doctor’s familiarity and ongoing monitoring of the claimant’s condition due to the prior surgery which he performed on the claimant’s leg. The trial commissioner also determined that the claimant’s right shoulder injury and need for surgery was causally related to her work incident, however, he found Dr. Fealy was not an authorized treating physician and the claimant could have obtained treatment in Connecticut.

The trial commissioner ordered the respondents to accept compensability for the claimant’s left hip and left knee surgery. He further ordered the respondents to provide medical treatment for the claimant’s right shoulder with a Connecticut physician and related medical treatment for the other injuries that he found compensable or had been accepted as being compensable. Also, the trier authorized the claimant to continue to treat with Dr. Pellicci for her left leg condition.

The respondents have filed a petition for review from the trial commissioner’s finding and award.2 The respondents contend that the trial commissioner erred in determining that the claimant sustained compensable injuries to her right hip and neck. The respondents argue that there is no medical documentation regarding treatment for a particular injury to the claimant’s neck or right hip.

In workers’ compensation cases the claimant has the burden of proving that she had injuries which were causally related to a work place incident. Duddy v. Filene’s (May Dept. Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Alicea v. ABCD of Bridgeport, 4318 CRB-4-00-12 (November 15, 2001). On review we will uphold the legal conclusions of the trier unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003).

A review of Dr. Wu’s testimony and medical records is informative as to the existence of injuries to and compensability of the claimant’s neck and right hip conditions. Dr. Wu testified that he treated the claimant for a shoulder injury. When Dr. Wu was asked whether injuries to the claimant’s neck were speculative because he had never treated the claimant for such he answered that the “right shoulder itself is certainly and anatomically encompasses muscles from the neck to the back, at least the mid-back, so to that extent that would certainly be consistent with the complaint.” Respondents’ Exhibit 1, June 11, 2002 Deposition Dr. Wu, pp. 28-29. In Dr. Wu’s October 17, 2001 medical report he specifically opined in part, “the symptoms which she presents with, i.e. neck, back, right shoulder and arm as well as the right hip pain as far as I am concerned would be related to the fall at work.” Claimant’s Exhibit B. Dr. Wu testified that this opinion was based on his treatment of the claimant in conjunction with the medical history he obtained from her. Respondents’ Exhibit 1, supra, p. 50. Furthermore, Dr. Wu testified that in his office records there was a note from the claimant in which she described the injuries that she claimed to have suffered from the July 2001 fall. This letter included the claimant’s delineation of injuries to both of her hips and neck. Id., pp. 42-46. Although Dr. Wu testified that he did not have documentation that he specifically treated the claimant for neck or right hip injuries, he also testified that some of his medical records from that period may have been missing. Id., 53-54. Given the total substance of Dr. Wu’s testimony and medical records we find it reasonable that the trial commissioner could infer that the claimant had a compensable neck and right hip injuries. We also note, Dr. Boachie-Adjei’s records indicated that the claimant reported neck pain as a result of her work related fall. Claimant’s Exhibit H. There is evidence in the record to support a finding of compensability of the right hip and neck, therefore, we will not disturb the commissioner’s findings regarding these body parts on review.

The respondents further contend that it was error for the trial commissioner to find that Dr. Pellicci, an out-of-state physician, was an authorized treater. In Cummings v. Twin Mfg., 29 Conn. App. 249 (1992) the court affirmed the commission’s long standing practice of authorizing out-of-state medical treatment when there was good reason to do so. The court stated, “although a commissioner may order out-of-state treatment in appropriate circumstances, our holding is not to be interpreted as meaning that such treatment must be ordered in all circumstances. We reiterate that such treatment should be reasonable and necessary, and permitted only when equally beneficial treatment is unavailable in Connecticut.” Id., 260. The court specifically explained that this was a factual determination for the trial commissioner. Id.

The respondents have argued that all of the evidence in the case indicates that equally beneficial treatment could be found in Connecticut. This board has previously discussed the determination of what is reasonable and necessary out-of-state medical treatment in light of Cummings, supra, in D’Amico v. State/Dept. of Correction, 4029 CRB-5-99-4 (May 18, 2000). In D’Amico this board affirmed a trial commissioner’s order authorizing a claimant to be evaluated and admitted for inpatient treatment at a particular Massachusetts rehabilitation facility. The respondents in D’Amico argued that the court’s use of the phrase “equally beneficial” in Cummings, supra, meant that the claimant must demonstrate “a qualitative difference between the form of treatment offered out-of-state and that available in Connecticut, with the claimant having to conclusively establish that the extraterritorial care is likely to succeed in improving his condition.” We disagreed with the respondents in that case and explained, “if anything, the court [in Cummings] reinforced the discretionary role of the fact-finder in weighing the credibility of expert opinions regarding the advisability of out-of-state care.” Id. In D’Amico, we affirmed the trier’s determination and found that the commissioner could infer that better results would be obtained from a particular out-of-state treatment “even assuming arguendo that the specific types of therapy used within each program are identical.” Id. Similarly, in Melendez v. Home Depot, 3835 CRB-4-98-6 (July 13, 1999), aff’d, 61 Conn. App. 653 (2001) this board explained that Cummings, supra, does not require that the type of care the claimant is seeking be unavailable in Connecticut. Therefore, in this case the fact that similar, if not identical, treatment to Dr. Pellici’s treatment was available in Connecticut does not compel the conclusion that that Dr. Pellicci’s treatment could not be authorized.

Here, the trial commissioner found that, “Dr. Pellicci’s left total hip revision and left knee surgeries were causally related to the fall down incident and that his treatment in New York was reasonable and necessary due to the prior surgery which he had performed on her leg.” Finding and Award, p. 9. We have previously stressed “the importance of using physicians who are licensed in Connecticut.” Diaz v. Robert W. Baker Nursery, Inc., 3309 CRB-1-96-3 (March 5, 1998), citing § 31-294d; § 31-280-1. Furthermore, we acknowledge the fact that authorization of out-of-state treatment should not be granted without due consideration because of difficulties that may arise when dealing with these physicians in litigation. Id. However, given the humanitarian nature of our Workers’ Compensation Act we believe that there are certain circumstances where authorization of out-of-state treatment to a physician who had previously treated a claimant may be appropriate.

In this case the underlying factual circumstances support the trier’s authorization of Dr. Pellicci’s treatment for the claimant’s left hip injuries. This claimant had a complicated medical history. Dr. Pellicci had previously performed a total left hip replacement on the claimant. A goal of the workers’ compensation system is to provide treatment that restores the claimant’s health as quickly as possible in order for her to return to having a working capacity. See, Caldwell v. United States Aluminum Co., 131 Conn. 96, 100 (1944); See also, Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001). There is certainly a psychological component to this healing process. Therefore, if a claimant has an established relationship with a physician who has successfully treated the claimant for a complex injury to a particular body part it seems that permitting treatment with that physician furthers the act’s purpose.

Furthermore, in this case the Connecticut physician, Dr. Wu, did not observe the tear that Dr. Pellicci ultimately reported to have repaired. There is also evidence in the record that Dr. Wu was unfamiliar with the claimant’s prosthesis. The claimant testified that when she went to Dr. Wu for a second opinion he said that he saw cement in her left hip x-ray, however, the claimant’s hip replacement actually had a cementless stem. June 25, 2002 Transcript, p. 34; see also, Claimant’s Exhibit G, Dr. Pellicci’s September 28, 2002 letter with description of the prosthesis. Ultimately, the determination of whether medical treatment is reasonable and necessary is a factual finding. Here we see no reason to overturn the trial commissioner’s authorization of Dr. Pellicci’s treatment for the claimant’s left hip.

Additionally, we believe the trial commissioner’s authorization of Dr. Pellicci’s treatment to the claimant’s knee was proper. Here, Dr. Pellicci had previously treated the claimant’s left hip on the same leg. It can be established that problems with a person’s gait can be caused by knee problems. As the claimant already experienced significant hip related problems which could be impacted by knee surgery on the same leg it is not unreasonable to allow Dr. Pellicci to treat the claimant for both of those body parts.

Therefore, we affirm the May 13, 2004 Finding and Award of the Commissioner acting for the Fourth District.

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

1 Finding ¶ 16 list Dr. Wu’s diagnosis date as April 18, 1999, however, the actual report is dated April 28, 1999. This appears to be a scrivener’s error. BACK TO TEXT

2 The claimant also filed a petition for review, however, that was later withdrawn. BACK TO TEXT


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   Connecticut Workers' Compensation Commission.

   Forms, publications, statutes, and most other
   information is now located at our NEW site: