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CASE NO. 5142 CRB-5-06-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 28, 2007
MED-CENTER HOME HEALTHCARE, INC.
AIG CLAIMS SERVICE, INC.
The claimant appeared pro se.
The respondents Med-Center Home Healthcare, Inc. and AIG Claims Service were represented by Robert K. Jahn, Esq., Morrison Mahoney, LLP, One Constitution Plaza, Hartford, CT 06103.
Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 appeared on behalf of the Second Injury Fund.
This Petition for Review from the September 20, 2006 Finding and Award of the Commissioner acting for the Fifth District was heard May 18, 2007 before a Compensation Review Board panel consisting of Commissioners Scott A. Barton, George Waldron and Ernie R. Walker.
SCOTT A. BARTON, COMMISSIONER. The respondents have appealed from the September 20, 2006 Finding and Award of the Commissioner acting for the Fifth District. In that Finding and Award the trial commissioner was asked to determine, inter alia, the claimant’s work capacity, the compensability of her right knee injury and entitlement to medical treatment. The trial commissioner found in the claimant’s favor and concluded; the claimant was and continues to be totally disabled as a result of a slip and fall suffered while in the course of her employment on December 27, 1996, the respondent was liable for medical treatment for claimant’s right knee and that medical treatment was to include physical therapy for her left shoulder and knee and surgery on the right knee for a partial knee replacement, the claimant was entitled to payment/reimbursement for unpaid medication claims and mileage claims and the claimant was entitled to cost of living adjustments [COLAs].
The respondents took this appeal and the ultimate issues presented for review are: whether the trial commissioner erred in concluding the claimant’s right knee problems were related to the December 27, 1996 incident, whether the trial commissioner erred in awarding medical treatment for the right knee and whether the trial commissioner erred in concluding the claimant was totally disabled.
The pertinent facts in the matter are as follows. On December 27, 1996 the claimant slipped and fell while in the course of her employment. Issues relating to this claim were previously heard by this board and were the subject of our opinion in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006), [hereafter O’Connor I]. In O’Connor I we affirmed the trial commissioner’s finding that the December 1996 injury resulted in the claimant having to undergo wrist surgery and that as a result of the wrist surgery the claimant suffered an embolism. As a result of the embolism the claimant was prescribed coumadin and the issue considered in O’Connor I was whether the trial commissioner correctly concluded that the claimant’s embolism and the prescribed treatment thereafter was causally related to the December 1996 injury. We affirmed the trial commissioner’s June 7, 2005 Finding and Award.
In the September 20, 2006 Finding and Award at issue here, the trial commissioner took administrative notice of a June 7, 2005 Finding and Award. We note that the June 7, 2005 Finding and Award reflects that the respondent accepted the claim for a right knee injury. Thus the issue presented before the trier in the instant matter was whether the treatment the claimant sought for her right knee was reasonable and necessary medical care. The trial commissioner concluded it was and we affirm his conclusion.
The first issue we consider is whether the trial commissioner erred in making factual findings which were not supported by the evidence and based upon unreasonable inferences. The respondents argue that the trial commissioner’s conclusion that the claimant was totally disabled was unsupported by the evidence. The respondents contend that the trial commissioner relied on the opinions of claimant’s treating physicians, Dr. Mongelluzzo and Dr. Kaplan. The respondents then reference Exhibits K and M and contend that these exhibits do not support a finding that the claimant is totally disabled. The respondents quote from Dr. Kaplan’s report dated March 30, 2006 and his statement “she [claimant] is capable of only the most sedentary of duties” and argue that this statement along with the other evidence cannot stand as support for a finding of total disability. We disagree. Whether a claimant is totally disabled as opposed to partially disabled on the basis of the evidence presented is a matter to be determined by the commissioner. Sellers v. Sellers Garage, 5090 CRB-5-06-5 (May 11, 2007).
In the instant matter the claimant testified as to the physical limitations she suffered and the accommodations she has made in her personal life for her injuries. May 24, 2006 Transcript, pp. 34-35, 84. We think it is not unreasonable to infer from the claimant’s medical history and the reports of claimant’s treating physician, Dr. Kaplan, that the claimant is totally disabled from employment. We, therefore, conclude the trial commissioner did not abuse his discretion in concluding that the claimant is totally disabled. Thus, having concluded that trial commissioner’s conclusion that claimant is totally disabled it follows that she is also entitled to COLAs consistent with § 31-307a.
In their appeal respondents also contend that the trial commissioner erred in ordering the respondents to pay for a partial knee replacement. Again the trier’s determination is based on the weight and credibility to be accorded the evidence. Here Dr. Kaplan’s opinion supported a partial knee replacement for the claimant. The respondents contend that as the trial commissioner failed to rely on the opinion of the commissioner’s examiner, Dr. Waskowitz, the trier should have articulated why he was not relying on Dr. Waskowitz’s opinion. Our Appellate Court has noted that it is not compulsory for a trial commissioner to articulate reasons for not adopting the opinions expressed in a commissioner’s examination. Determinations of the weight and credibility to be accorded the evidence rest with the trial commissioner. Gillis v. White Oak Corp., 49 Conn. App. 630 (1998). However, we note that in Finding ¶ 29 the trial commissioner states,
I accept Dr. Kaplan’s opinion particularly on the issue of surgery to be more credible and persuasive than those other opinions rendered as he has been the claimant’s long term treater. He is in the best position to decide the claimant’s course of treatment. That along with the claimant’s willingness and insistence that she needs the partial knee replacement and her worsening symptoms leads me to conclude that said surgery is reasonable, necessary and compensable.
We think the above provides the articulation which the respondents seek.
Additionally, the appellants contend the medical care approved by the trial commissioner is merely palliative and as such is not reasonable and necessary medical treatment. In Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) this board noted:
“Reasonable medical care is that which is curative and remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to return to work. Any therapy designed to keep the employee at work or to return him to work is curative. Similarly, any therapy designed to eliminate pain so that the employee can work is curative.” DeFelippi v. Wal-Mart Stores, Inc., 4349 CRB-5-01-1 (January 15, 2002), quoting Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 64, 232 CRD-1-83 (June 19, 1984).
We believe Dr. Kaplan’s March 30, 2006 report provides support that the claimant’s proposed knee surgery is intended to reduce her functional disability. Claimant’s Exhibit K. We also conclude that the trial commissioner’s order for physical therapy is rooted in the evidence. Thus, the trial commissioner’s conclusions regarding claimant’s medical treatment are affirmed. See Findings ¶ 17 and ¶ 18.
We also affirm the trial commissioner’s award as to prescription drugs and mileage insofar as they are related to claimant’s December 27, 1996 claim. However, as the trial commissioner did not determine the exact amounts to be paid we remand this matter back to the trial commissioner for a determination of the specific amounts to be paid by the respondents consistent with this opinion.
We, therefore, affirm the September 20, 2006 Finding and Award of the Commissioner acting for the Fifth District.
Commissioners George Waldron and Ernie R. Walker concur.
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