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Gallagher v. John A. Dudley, DMD

CASE NO. 5067 CRB-4-06-3



MARCH 20, 2007











The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson, LLP, Law Offices, 46 West Street, P.O. Box 278, Litchfield, CT 06759-0278.

The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06824-0550.

This Petition for Review1 from the March 2, 2006 Finding and Award of the Commissioner acting for the Fourth District was heard September 22, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns two issues. We must determine whether the claimant’s present treatment is reasonable, necessary and responsive to a compensable accident. If we determine that it is, we must determine if the trial commissioner reached a correct decision regarding the claimant’s premium payments for health insurance. The commissioner decided these premiums should be paid by the respondent by reducing an offset against the proceeds of the claimant’s settlement in a third-party lawsuit stemming from the compensable accident. We conclude the trial commissioner had sufficient evidence to find the claimant’s treatment in this matter reasonable, necessary and responsive to a compensable accident. We, however, find as a matter of law that the trial commissioner erred in seeking to have the respondents compensate the claimant for her health insurance premiums, and reverse the trial commissioner on that issue.

The trial commissioner found the following facts. The claimant was employed by the respondent John A. Dudley, DMD as a dental assistant on June 2, 1999 when an x-ray machine came loose from the wall and fell on her shoulder. She immediately felt tightening pain and spasms in her left shoulder. Shortly thereafter she began treating with Dr. David Kloth. Dr. Kloth had previously treated her for a 1995 motor vehicle accident and she had missed about two years from work as a result of that accident and was undergoing facet denervation treatments on her neck. Following the work-related injury Dr. Kloth treated the claimant during July and August 1999 and observed pain in her left arm and shoulder which he did not relate to her previous motor vehicle accident. She had surgery performed on her left shoulder in July 2000 by Dr. Michael Craig, who attributed the surgery to her 1999 work-related accident.

The claimant continued to treat with Dr. Kloth in 2000 and 2001 and continued to complain of shoulder and neck pain. The respondents had accepted the left shoulder as a compensable injury, and a Voluntary Agreement was approved on March 23, 2001. Meanwhile, a brain MRI in 2000 ruled out multiple sclerosis as a cause. Dr. Kloth performed a radio frequency denervation on the claimant in January 2001. Having already begun to diagnose complex regional pain syndrome, on July 13, 2001 Dr. Kloth opined that the claimant suffered from brachial plexopathy as well, and determined she was totally disabled from work.

The claimant was examined by other physicians during this time period. She was examined by a thoracic surgeon, Dr. Michael Walker, who referred her to Columbia Presbyterian Hospital in New York. She was examined there by Dr. Mark Ginsberg and Dr. J. Kirk Roberts. Dr. Ginsberg opined he did not believe she had thoracic outlet syndrome.

In January 2002 Dr. Kloth opined that the claimant’s arm and shoulder issues were due to the compensable injury. He also noted her spasms were increasing, which appeared to be a myoclonus type problem. Therefore, he recommended that the claimant have a trial period with a spinal cord stimulator. Dr. Kloth’s opinion as to the cause of the claimant’s pain was supported by another physician who examined the claimant in 2002. A neurologist at Yale, Dr. Hunel Patwa, concluded the claimant did not have a problem related to her central nervous system, rather that she had complex regional pain syndrome.

Dr. Kloth recommended the claimant receive a spinal cord stimulator, which the respondents did not authorize. In March 2003 Dr. Kloth had a trial spinal cord stimulator implanted, which had to be adjusted and the doctor then implanted a permanent spinal cord stimulator in the summer. The device resolved her tremor problem.

The claimant had sued the manufacturer of the x-ray machine and received a $225,000 settlement, of which the parties have stipulated $112,206.35 is a credit against future workers’ compensation benefits for the June 2, 1999 accident. The parties disputed whether the claimant was totally disabled as a result of the accident, whether the treatment provided by Dr. Kloth was necessary, and whether the claimant should be reimbursed for her group health insurance premiums. The respondents denied she suffered from brachial plexopathy and scheduled the claimant for a respondents’ examination. Their examiner, Dr. Lawrence Schweitzer, determined the claimant had a work capacity as a teacher, had reached maximum medical improvement for her shoulder, and had cervical spine symptoms unrelated to the compensable accident. The trial commissioner had a commissioner’s examination performed by a neurologist, Dr. K.N. Sena. He concluded the claimant had sustained a soft tissue injury on June 2, 1999, but she did not suffer from brachial plexopathy or complex regional pain syndrome. He believed the claimant’s episodes of myoclonic jerks were non-organic in origin and opined that the claimant did not need the spinal cord stimulator. He deferred questions as to her work capacity to a functional assessment, but did opine that her thoracic spine treatment was unrelated to the 1999 accident.

After formal hearings that commenced September 9, 2003 and concluded November 7, 2005, the trial commissioner issued a Finding and Award on March 2, 2006. He determined the claimant suffered a compensable injury on June 2, 1999 and she was totally disabled from July 13, 2001 until September 19, 2003, when she was released to light duty status. The trial commissioner determined she did not conduct a good faith job search after that date. He found the claimant maintained her insurance coverage by paying premiums of $357 per month, and later $395 per month for a group health carrier. The trial commissioner found Dr. Kloth’s opinions more credible than Dr. Sena because of his long familiarity with the case and his specialty in pain management treatment. He found Dr. Kloth’s treatment reasonable and necessary.

Therefore, the trial commissioner, having found the claimant suffered from brachial plexopathy and complex regional pain syndrome as a result of the compensable injury, ordered the respondents to pay a temporary total disability award. Additionally, the trier ordered respondents to pay for Dr. Kloth’s treatment and to reimburse the claimant for group health insurance premiums. The respondents filed a Motion to Correct seeking to add additional findings. Among the requested additions were additional information regarding prior injuries of the claimant, additional findings regarding medical testimony and to substitute the opinions of Dr. Sena as to the claimant’s condition for that of Dr. Kloth. The commissioner rejected that motion in its totality, and the respondents appealed.

The respondents’ appeal can be bifurcated in two sections. First, they seek to overturn the trial commissioner’s determination of causality and appropriate treatment, as he reached a conclusion consistent with the testimony of the treating physician and not the commissioner’s examiner. As this is a “prototypical question of fact;” Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (August 23, 2002); we are limited to determining if the commissioner was presented with competent evidence supportive of his findings. The second issue is one of legal interpretation: whether the trial commissioner had the authority to effectively reimburse the claimant for her insurance premiums. We agree with the respondents on this issue that our case law precludes such relief, and begin our discussion with that issue.

In cases involving third-party recovery, we have recognized that it has long been settled law that a “moratorium” exists wherein a claimant’s award from a third party tort action must be credited against the claimant’s workers’ compensation award. See Schiano v. Bliss Exterminating, 1341 CRD-4-91-11; 1852 CRB-4-93-9 (December 7, 1994), aff’d, 57 Conn. App. 406 (2000). In that decision, we held “the commissioner’s finding is consistent with § 31-293 which, as discussed above, entitles an employer to an offset for funds recovered by a claimant in a third party action.” The purpose of a moratorium is “the avoidance of two independent compensations for the injury.” Longo v. Leibovitz, 3464 CRB-3-96-11 (January 15, 1998).

Because a workers’ compensation claimant is not entitled to double recovery for his injury, for the purpose of future payments on his claim, those civil damages are essentially treated by § 31-293 as a cash advance that has come from his workers’ compensation insurer. . . . Accordingly, the insurer possesses a “credit” for the amount of the claimant’s recovery in the judgment or compromise that results from the third party suit. Bilodeau v. Bristol Association for Retarded Citizens, 4245 CRB-6-00-5 (May 29, 2001). (internal citations omitted).

In this instance the respondents argue that to permit the claimant to credit her insurance premiums so as to reduce the amount due to moratorium is improper. Our holding in Bilodeau supports this view. It is not the claimant who is entitled to an offset but rather her group health carrier. “Both § 31-299a(b) and § 38a-470 provide that a group health insurer possesses reimbursement rights against an employer or its compensation carrier when, pursuant to a health insurance policy, it pays benefits for medical treatment that is later shown to be related to a compensable injury.” Id.

Additionally, the respondents cite case law specifically proscribing the reimbursement of health insurance premiums by a workers’ compensation carrier. In Civardi v. Norwich, 231 Conn. 287 (1994) the Supreme Court determined that health insurance premiums were not “compensation,” Id., 298. Their decision determined a U.S. Supreme Court case District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 127 (1992) placed this situation within the realm of preemption by the federal ERISA statute. Civardi, supra, 298-299 n.14. We have followed this reasoning in our decisions. In Luce v. UTC/Pratt & Whitney, 3080 CRB 1-95-6 (December 16, 1996), aff’d, 47 Conn. App. 909 (1997) (per curiam), aff’d, 247 Conn. 126, 130-131 fn.8 (1998); we held,

[w]e would undeniably be disregarding the spirit of the [United States] Supreme Court decision in Greater Washington Board of Trade, if we were to allow a claimant to collect the value of insurance premiums as compensation even though direct payment of those premiums by a private employer cannot be mandated by state law. Id. Therefore, the claimant’s argument that the value of his medical, dental, life, disability, and accidental death and dismemberment insurance premiums should be included in the average weekly wage under § 31-310 must fail on appeal. Luce, supra.

Since we cannot see any difference between directly reimbursing a party for insurance premiums, which is impermissible as per Luce, and crediting them so as to reduce a credit due under moratorium, we reverse the Finding and Award in relation to the claimant’s insurance premiums.2 We find the trial commissioner proceeded on solid ground in the remainder of the Finding and Award.

The principal argument raised by the respondents on appeal is that the commissioner’s examiner, Dr. Sena, concluded the claimant was not suffering from brachial plexopathy or complex regional pain syndrome and did not need a spinal cord stimulator for curative care from the compensable 1999 accident. We recently upheld a trial commissioner who determined a treating physician was more credible than a commissioner’s examiner in Ben-Eli v. Lowes’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), and uphold the trial commissioner here for the same rationale as in that case.

Our holding in Ben-Eli cited precedent from Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). “[C]ases such as Tartaglino [v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999)], supra, and Nieves [v. SCM Company, 3317 CRB-6-96-4 (July 9, 1997)], establish that the trier of fact is not absolutely bound to credit any doctor’s opinion, including that of a commissioner’s examiner, and that a trier’s decision is not erroneous as a matter of law simply by virtue of the fact that he or she has not given a reason for failing to adopt such an opinion.” We applied the test enunciated in Strong v. UTC/Pratt & Whitney, 4563 CRB 1-02-8 (August 25, 2003) to determine whether the testimony offered by the treating physicians was sufficient to justify an award against the adverse testimony of the commissioner’s examiner. “If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis. Landry v. Light Metals Coloring Co., 4514 CRB-6-02-4 (April 3, 2003); Napolitano v. Bridgeport, 4388 CRB-4-01-5 (September 6, 2002).” Strong, supra. Our inquiry is limited to whether this evidence is legally sufficient, otherwise “this board cannot substitute its evaluation of the evidence for that of the trial commissioner.” Ben-Eli, supra.

The respondents point to evidence presented to the trial commissioner that the claimant suffered spasms prior to the compensable injury as a result of a prior motor vehicle accident. The claimant, however, presented substantive evidence that her spasms subsequent to the x-ray machine collapse, were of a different nature. In her testimony the claimant stated that following the compensable injury “[m]y whole torso would jerk” (September 9, 2003 Transcript, p. 26); “it’s a totally different scale that we’re talking about,” id., 33, “not until after the’ 99 did I ever have the whole jerking torso spasm where my whole body would just jerk.” Id., p. 46. On January 21, 2002, Dr. Kloth opined in writing, “[i]t is my medical opinion, given reasonable medical probability, that her current left upper extremity and shoulder symptoms are directly related to the work related injury of June 2, 1999.” Respondents’ Exhibit 8.

Dr. Kloth testified at length before the commissioner on two occasions, January 14, 2004 and November 2, 2004. He reiterated his opinion the claimant had a brachial plexus injury as a direct result of the June 2, 1999 injury. January 14, 2004 Transcript, pp. 21-22. He testified another physician, Dr. Roberts, had concurred prior to the implantation of the spinal cord stimulator that the claimant would benefit from its implantation. Id., 34-35. On cross-examination Dr. Kloth concurred with the claimant’s testimony that the spasms following the 1999 accident were “much more violent and involved more muscle groups and were more widespread.” November 2, 2004 Transcript, p. 62.3 On redirect examination he reiterated his opinion the 1999 accident caused a brachial plexus stretch injury. Id., p. 83. His opinions were also shared by Dr. Patwa, who attributed her condition to the 1999 accident. Claimant’s Exhibit F.

Therefore the trial commissioner was presented with substantial testimony from Dr. Kloth regarding the impact of the 1999 accident which met the standard delineated in Struckman v. Burns, 205 Conn. 542, 554-555 (1987), for competent medical testimony. This testimony was inconsistent with the opinions of the commissioner’s examiner, but the commissioner explained in Findings, ¶ Q his rationale for crediting the opinions of the treating physician over that of the commissioner’s examiner, citing his specialty in pain management and familiarity with the claimant’s condition. We believe that just as the trial commissioner in Ben-Eli adequately explained his decision not to rely on the commissioner’s examiner, the trial commissioner in this matter also justified his decision.

The respondents also challenge the determination of the trial commissioner that Dr. Kloth’s treatment regimen was medically necessary. We have cited in a number of recent opinions that it is a factual question whether treatment is curative and thus compensable. See Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006) and Palumbo v. City of Bridgeport, 4991 CRB-4-05-9 (September 7, 2006). Dr. Kloth justified his decision to proceed with a spinal cord stimulator, as he opined “it was reasonable, medically necessary and appropriate.” November 2, 2004 Transcript, p. 85. He specifically testified that the client lacked a work capacity prior to implantation of the spinal cord stimulator and testified he believed it was curative care. November 2, 2004 Transcript, p. 50-52. His report of April 13, 2004 indicated the claimant was now “an excellent candidate for a vocational rehabilitation program” and “anxious to return to work as soon as possible.” Respondents’ Exhibit 9. As a result, the trial commissioner was presented with sufficient evidence to conclude that Dr. Kloth’s treatment was curative care and that it was medically necessary.

“[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).4 We believe that the commissioner was presented with sufficient evidence to justify the Finding and Award as to the issues of temporary total and partial disability and medical treatment. We also uphold the commissioner’s findings regarding the payment of fees related to Dr. Kloth’s testimony.

Therefore, we uphold the Finding and Award except for those provisions regarding reimbursement of insurance premiums. The trial commissioner is directed to correct the Finding and Award accordingly.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 We decline the entreaty of the claimant to remand this matter for factual findings on whether the medical insurance carrier can enforce a lien against the respondents. They are not a party to this action and we believe the precedent in Luce renders this issue irrelevant as to whether the premiums paid by the claimant can be reimbursed to her. BACK TO TEXT

3 The respondents appear to argue that the 1999 accident merely exacerbated a prior condition. This argument is inconsistent with precedents such as Epps v. Beiersdorf, 41 Conn. App. 430 (1996) and Gartrell v. Dept. of Correction, 259 Conn. 29, 40 (2002) wherein an employer “takes the employee in the state of health in which it finds the employee.” Dr. Kloth testified in any event that the 1999 injury was “unrelated to the mechanical injury of her cervical spine from the motor vehicle accident of approximately five years earlier.” November 2, 2004 Transcript, p. 83. BACK TO TEXT

4 Accordingly, since the respondents’ Motion to Correct essentially sought to interpose the respondents’ evaluation of the medical evidence for that of the trial commissioner, we find no error in its denial. See D’Amico, supra. BACK TO TEXT


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   Connecticut Workers' Compensation Commission.

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   information is now located at our NEW site: