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Freel v. City of West Haven Board of Education

CASE NO. 5102 CRB-3-06-6



JUNE 1, 2007











The claimant was represented by John M. Walsh, Jr., Esq., Licari and Walsh, 105 Court Street, New Haven CT 06511.

The respondents were represented by Jeffrey J. Klein, Esq. and James Moran, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review1 from the June 6, 2006 Finding and Orders of the Commissioner acting for the Third District was heard December 15, 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 the consequences of a science exhibition which by all accounts went awry. The claimant is a middle school teacher who on October 17, 2002 agreed to participate in a demonstration of a highly charged “tesla coil” as part of her duties. She has claimed injuries from this event and the respondents have challenged the claim. The trial commissioner concluded that the claimant did suffer a compensable injury as a result of the exhibition, but denied the claimant’s assertion that her cervical spine problems are a result of the incident. The trial commissioner also denied the claimant’s effort to declare her treatment at an out of state facility reasonable and necessary care. The claimant has appealed these findings. We uphold the trial commissioner on the issues related to the claimant’s spine and remand for further consideration the issue of whether some of the claimant’s out of state treatment should be authorized.

The trial commissioner found the following facts. As neither party has filed a Motion to Correct we can presume they are admitted for the purposes of this appeal. He concluded that as part of the “Magic of Science” demonstration performed at the claimant’s school on October 17, 2002 she sat on a metal plate on top of a wooden stool. The device was called a “tesla coil” and the individual performing the demonstration said that fifty thousand volts of electricity were sent through the device. During the course of a three to five minute demonstration the claimant had this electricity pass through her body, which was used to light up a light bulb she was holding in her hand. Findings, ¶¶ 1-10. Following this demonstration the claimant said she felt slightly dizzy and said she did not feel right for the rest of the day. That evening she felt spasms in her chest and hoarseness in her throat and pain in the back of her head. She did not suffer any burns to her skin or clothing. Findings, ¶¶ 11-12. Later that evening she went to Milford Hospital complaining of the aforementioned ailments, as well as heaviness in her chest, a burning sensation in her throat, and tingling in her fingers and toes. Dr. Joseph Antinico at Milford Hospital diagnosed her with elevated blood pressure and anxiety and prescribed Ativan.2 She was discharged after several hours with instructions regarding care for electric shock. Findings, ¶¶ 16-17. The claimant testified to a prior knee injury in 1999 and a prior motor vehicle accident which injured her lumbar spine. Findings, ¶¶ 14-15.

Following her care at Milford Hospital the claimant sought treatment from Dr. David Melchinger on October 20, 2002 complaining about the symptoms she had on October 17, along with stomach problems. She was treated for reflux syndrome and diagnosed with myalgia. She later complained of stomach spasms. Dr. Melchinger’s October 25, 2002 report did not identify any radicular pain. As the claimant continued to complain of neck, back, foot, heel and knee pain Dr. Melchinger on November 4, 2002 referred the claimant to a neurologist, Dr. Arthur Taub. Findings, ¶¶ 18-21.

The claimant was examined on a number of occasions by Dr. Taub, who commenced his treatment by placing the claimant on Oxycodone. While originally in November 2002 he thought that electrical shock could have been the cause of the myalgia and an incidental spinal chord lesion, following an MRI he determined the claimant had a protruding disc at C5-6. He queried whether some viral myopathy proximate to the tesla coil incident might have caused the myalgia. In a June 2003 medical report Dr. Taub concluded he had no evidence that the use of the tesla coil produced physical injury and the events of October 17, 2002 did not cause or affect the preexisting abnormality in the claimant’s cervical spine. He further opined, though, that the event produced significant psychological stress for the claimant and the stress and accompanying muscle tension more likely than not produced hyperventilation, gastrointestinal distress and diffuse myalgia. The claimant had to discontinue the Oxycodone as she suffered weakness and breathlessness. In early 2003 Dr. Taub referred her to an orthopedic surgeon, Dr. Philip Luchini. Findings, ¶¶ 22-27.

The claimant had treated in 1999 with Dr. Luchini for her knee injury. Findings, ¶ 14. Dr. Luchini believed the occupational electric injury aggravated her pre-existing knee injury, as well as being related to her cervical sprain. In September 2003 Dr. Luchini determined the claimant had a 5% impairment to her cervical spine and opined it was as a direct result of an injury which occurred at work on October 17, 2002. Findings, ¶¶ 27-29.

Following her treatment with Dr. Luchini the claimant decided to seek treatment with an expert in electric shock injuries. She commenced treatment under her own initiative with Dr. Nelson H. Hendler at the Mensana Clinic in Stevenson, Maryland. She was treated at Mensana on four occasions. While at Mensana the claimant received spinal nerve blocks which relieved her pain. Dr. Hendler offered his medical opinion that the claimant’s symptoms were causally related to the October 17, 2002 tesla coil accident. Findings, ¶¶ 30-34.

The respondents had the claimant examined by their expert witness, Dr. K.N. Sena on November 18, 2004. Dr. Sena concluded the claimant had cervical spine degenerative disease with herniated disc syndrome and symptoms of bilateral ulnar neuropathy. While he determined the claimant had a 2.5% permanent partial impairment due to the neck issues, he did not find a causal relationship between these conditions and the October 17, 2002 tesla coil accident. He also did not believe the claimant had suffered an electric shock injury due to the absence of exit or entry burns. Findings, ¶¶ 36-38.

Based on the subordinate facts as stated herein the trial commissioner concluded that the Commission had jurisdiction over the injury. He found Dr. Taub’s opinions credible in regards to a pre-existing cervical spine condition and the anxiety, gastrointestinal distress and myalgia produced following the incident. Finding the claimant’s testimony at the formal hearing inconsistent with the medical history provided to Dr. Luchini the commissioner did not find the doctor’s opinion credible, as it was not based on an accurate history. He found the claimant’s treatment at Mensana Clinic was unauthorized. He did not find Dr. Hendler’s opinions “fully credible and persuasive” as to the issue presented. Conversely, he found Dr. Sena’s opinion that the claimant’s cervical spine issues and neuropathy were not related to the October 17, 2002 tesla coil accident “fully credible and persuasive.” The trial commissioner concluded the claimant had a preexisting cervical spine condition and her testimony was not fully credible and persuasive. Consequently, he determined she failed to sustain her burden of proof as to injuries to her back, neck, knee, right heel and left foot; but determined her hyperventilation, gastrointestinal distress; diffuse myalgia and anxiety symptoms were causally related to the October 17, 2002 incident and arose in and out of her employment with the respondents.

In the Finding and Orders the trial commissioner denied the claim for cervical spine, neck, knee, right heel and left foot injuries. He also denied the claim for reimbursement to the claimant of treatment at Mensana Clinic. He ordered the respondents to pay the claimant benefits for her hyperventilation, gastrointestinal distress, diffuse myalgia and anxiety conditions. The claimant took a timely appeal from the Finding and Orders, seeking to have this board reverse the trial commissioner as to the relief he denied.

As an appellate panel we extend a deferential standard of review on appeal to the factual findings reached by the trial commissioner. As we stated last year in Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006),

The power and duty of determining the facts rests with the commissioner, the trier of facts, Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, (1951). The conclusions drawn by him from the facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).

With regard to the issue of whether the claimant’s cervical spine ailments are causally related to the October 17, 2002 tesla coil incident, the trial commissioner found two physicians credible who opined that this element of the claimant’s ailments were not causally linked to the compensable accident. We believe Dr. Taub and Dr. Sena provided competent medical evidence on this issue and the trial commissioner was permitted to rely on their opinions as opposed to the witnesses supportive of the claimant. ‘“As the finder of fact, the trier has the sole authority to decide what evidence is reliable and what is not . . . .’ Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004).” Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006).3

We have a more substantial concern related to the trial commissioner’s determination that the claimant’s entire treatment at the Mensana Clinic should be deemed unauthorized. We note that the respondents had not accepted the October 17, 2002 incident as a compensable injury at the time the claimant initiated treatment there on her own initiative and using her own group health insurance and personal resources. Therefore, we are persuaded that the absence of a referral from an authorized treating physician is not a bar to retroactive authorization by the trial commissioner. See Murray v. Mass Mutual Life Insurance Co., 4590 CRB-1-02-11 (November 20, 2003).

While a claimant can seek care from an unauthorized treater when the respondents challenge the claim, the claimant still must assume the risk the trial commissioner will not retroactively authorize the treatment as reasonable and necessary. Anderson v. R&K Spero Company, 4965 CRB-3-05-6 (February 21, 2007). “[R]etroactive authorization of a medical provider is permissible as long as the claimant has a good reason for unilaterally changing providers.” Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). We have in the past stated that we permit trial commissioners “considerable discretion to grant or deny such changes. Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 445, 2249 CRB-5-94-12 (September 5, 1996), aff’d, 49 Conn. App. 339 (1998)” Anderson, supra. This discretion must be consistent with the other subordinate facts found by the commissioner.

The trial commissioner found that the claimant had suffered a compensable injury on October 17, 2002 involving hyperventilation, gastrointestinal distress, diffuse myalgia and anxiety.4 Obviously any treatment provided to the claimant for ailments which were not compensable injuries would be beyond the remedies provided for under Chapter 568. Donahue, supra. As the medical records concerning the treatment at Mensana Clinic document a variety of tests and treatments by a number of professionals, see Claimant’s Exhibit G, we are unwilling to reach the inference that the entire treatment regimen at Mensana Clinic was unrelated to the compensable injury in the absence of a specific finding stating this directly.

We believe this issue is akin to the circumstances in Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006) where the Findings by the trial commissioner regarding disability omitted requisite facts and we decided “[w]hile this board is obligated to defer to facts found by the trial commissioner the record herein is simply inadequate to make such an inference regarding this issue on appeal.” Id. In Bennett we ordered a remand, and in this instance we believe that a remand for additional findings is necessary to determine if any treatment at Mensana Clinic was reasonable and necessary treatment for the compensable injury as defined by § 31-294d C.G.S.

We therefore direct the issue of the claimant’s treatment at Mensana Clinic should be remanded for additional findings by the trial commissioner. Upon remand, the trial commissioner must determine if any of the treatment provided therein was for the compensable injury, and if so, if “equally beneficial treatment is unavailable in Connecticut.” Cummings v. Twin Mfg. Co., 29 Conn. App. 249, 260 (1992). The trial commissioner may authorize such portions of the Mensana Clinic treatment that he finds meet these requirements.

Therefore we affirm the Finding and Orders with the exception of the issue related to whether any treatment at Mensana Clinic constitutes reasonable and necessary treatment for the compensable injury as defined by § 31-294d C.G.S. That issue is remanded for further consideration.

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

1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 The Findings and Order identify this physician as Dr. Antinco, see Findings, ¶ 17. We deem this a harmless scrivener’s error. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

3 Counsel for the claimant argues the trial commissioner acted unreasonably in finding the claimant’s recollection of her medical history was not credible, thus finding Dr. Luchini’s opinions on causation not credible. We note that the trial commissioner is the sole judge of any witnesses’ credibility. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006). Even if we were to determine the trial commissioner’s conclusions on this issue were factually unfounded, we would still have to credit the two experts he relied on (Dr. Taub and Dr. Sena) who offered competent medical evidence supportive of his decision. As the claimant has the burden of persuasion that her disability is linked to a compensable injury, we must uphold the trial commissioner’s findings regarding her cervical spine ailments. See Donahue v. Veridiem, Inc., 5074 CRB-6-06-3 (March 28, 2007). BACK TO TEXT

4 Respondents’ position that “there no longer exists jurisdiction to order the reimbursement of medical treatment because the injury did not arise out of and in the course of employment.” Respondents’ Brief, p. 8, is simply incompatible with the facts found by the trial commissioner. See Findings, ¶ 1. BACK TO TEXT


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   Connecticut Workers' Compensation Commission.

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