Dellarocco v. Town of Old Saybrook

CASE NO. 5324 CRB-8-08-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 16, 2009

CHARLES DELLAROCCO

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

TOWN OF OLD SAYBROOK

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant representing himself did not appear.

The respondents were represented by Robert J. Enright, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the February 11, 2008 Finding and Award of the Commissioner acting for the Eight District was heard September 26, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The instant matter is the subject of appeals both from the claimant and the respondents. The respondents argue that the trial commissioner should not have awarded the claimant benefits under § 31-312 C.G.S. for hours spent seeking medical treatment. At the time the claimant was being treated he was receiving contemporaneous weekly compensation payments due to a voluntary agreement and stipulation. The claimant argues that the trial commissioner improperly failed to award him these benefits for visits he made to obtain prescription medication. We are persuaded that the trial commissioner erred in awarding § 31-312 C.G.S. benefits to the claimant in this instance; hence we uphold the respondents’ appeal. As to the claimant’s appeal, we are not persuaded the trial commissioner erred regarding the issues raised by the claimant. We also believe such an award was not permitted based on our reading of § 31-312 C.G.S. We affirm the commissioner on those issues.

The trial commissioner found the following facts after a formal hearing which concluded January 30, 2008. The claimant suffered a compensable lumbar injury in 2003 and both parties entered into a Stipulation To Date on October 6, 2006 for $5,018 for all indemnity benefits claimed for the time period September 1, 2005 to November 8, 2005. A Voluntary Agreement was approved on April 27, 2005 giving the claimant an eight percent permanent partial disability to the back for 29.92 weeks and an eight percent permanent partial disability to the cervical spine for 9.36 weeks for a total of 39.28 weeks, and named Dr. Jeffrey Bash as treating physician. The Voluntary Agreement set the date of maximum medical improvement at November 16, 2004.1

The commissioner considered the issue of reimbursement for time the claimant spent at medical appointments during these time periods. The respondents argued that these reimbursements were barred as the claimant was entitled during these periods to receive weekly compensation. The claimant argued that the statute did not apply to permanent partial disability payments which may be distributed as a lump sum.

The claimant also sought reimbursement for time spent obtaining prescriptions from Dr. Sean O’Donnell of Middlesex Orthopedic Surgeons. He contends that mileage should be paid for obtaining a prescription for narcotics from a physician’s office and then filling it at a pharmacy. The respondents denied responsibility citing a lack of causal connection to the claimant’s treatment with Dr. O’Donnell, as well as denying responsibility for lost time strictly in association with trips to pharmacies or trips to a physician’s office to acquire medication.

After considering the evidence presented by both parties, the trial commissioner determined in a Finding and Award dated February 11, 2008 that a claimant receiving weekly permanent partial disability payments remains eligible under § 31-312(a) C.G.S. to receive reimbursement for medical visits. He ordered the respondents to reimburse the claimant for visits to his authorized treating physicians and therapists during the periods covered by the voluntary agreement and stipulation. He denied the claimant’s bid to have his appointments with Dr. O’Donnell and his trips to obtain medication reimbursed. The respondents filed a timely Motion to Correct, which was granted in part. The claimant and the respondents have appealed from this Finding and Award.

At the outset, we wish to delineate the standard of appellate review applicable to this matter. We dealt with a similar type of circumstance in Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

On appeal we have a limited scope of review, as our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004).

This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing. As we held in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).

In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.

“While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. ‘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, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found 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).” Id.

We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).

Id.

This case is also based solely on an interpretation of law. The respondents argue that the statute does not permit reimbursements for time spent at medical appointments during a period in which the claimant is receiving weekly compensation either for temporary or permanent disability, citing the definition of “compensation” in § 31-275(4) C.G.S.

“Compensation” means benefits or payments mandated by the provisions of this chapter, including, but not limited to, indemnity, medical and surgical aid or hospital and nursing service required under section 31-294d and any type of payment for disability, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, payments made under the provisions of section 31-284b, 31-293a or 31-310, or any adjustment in benefits or payments required by this chapter (Emphasis added)

We agree with the respondents’ statutory construction. Section 31-312(a) C.G.S. precludes reimbursement of a claimant’s time attending medical appointments when he or she is “otherwise receiving or eligible to receive weekly compensation.” We note that it is a long standing precedent that a claimant may not receive two forms of compensation for the same time period, Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006) and to reimburse a claimant for time spent at medical appointments during a period he will be receiving permanent partial disability payments would amount to an “impermissible double recovery.” Id. The “plain meaning” of the relevant statutes pursuant to § 1-2z C.G.S. also does not provide that we should treat payment for permanent partial disability differently than payment for temporary disability as it relates to § 31-312(a) C.G.S. See Muniz v. Allied Community Resources, Inc., 5025 CRB-5-05-11 (November 1, 2006), aff’d, 108 Conn. App. 581 (2008), cert. denied, 289 Conn. 927 (2008). For those reasons, we conclude that the trial commissioner’s award of § 31-312(a) C.G.S. benefits to the claimant was based on a misapplication of the law. We must reach the same result we reached in Christensen, supra, and vacate those elements of the Finding and Award dealing with reimbursement of time spent at medical appointments.

We may deal expeditiously with the claimant’s appeal for two reasons. The claimant, who is acting pro se, did not appear at oral argument before this panel and we must rely on his brief. This brief cites as legal authority cases such as Marra, supra, which make clear it is the trial commissioner’s determination as to what constitutes reasonable and necessary medical care. The record reflects that the commissioner presented a cogent explanation (lack of referral from a treating physician) to justify his determination of this issue. We must respect his conclusions. Daniels v. Alander, 268 Conn. 320, 330 (2004).2

More importantly, we believe the claimant’s bid for statutory reimbursement for his visits to Dr. O’Donnell and the pharmacy are indistinguishable from the awards which we have previously determined were a legally impermissible double recovery. The claimant cannot be paid for the same time twice when he visits a medical professional while collecting a disability award for the same time period.

The respondents’ appeal is sustained and those elements of the Finding and Award dealing with reimbursement under § 31-312 C.G.S. for time and mileage for medical treatment are herein set aside.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 The respondents argue in their Motion to Correct that the trial commissioner listed an incorrect date for the Voluntary Agreement, claiming only one agreement was approved on July 18, 2006. Our review of the file indicates Voluntary Agreements were approved on both April 27, 2005 and July 18, 2006. The 2006 Agreement states it is an “AMENDED VA.” The difference between the two documents is a higher average weekly wage in the 2006 Agreement. For the purposes of resolving the legal issues in this appeal we do not believe this constitutes a material issue. BACK TO TEXT

2 We also note the claimant offers no authority that traveling to a pharmacy constitutes “medical treatment, examination, laboratory tests, x-rays or other diagnostic procedures” within the scope of § 31-312(a) C.G.S. While the claimant points out “narcotic drug” is a defined term in § 31-275(1)(f) C.G.S., said definition limits eligibility for benefits under certain circumstances and pursuant to § 1-2z C.G.S. this statute cannot be read as to compel the commissioner to award the claimant benefits under § 31-312(a) C.G.S. for traveling to the drugstore. BACK TO TEXT