JOSE AQUINO, CLAIMANT-APPELLEE vs. MT. VERNON DIE CASTING CO., EMPLOYER and ARGONAUT INSURANCE CO., INSURER, RESPONDENTS-APPELLANTS

CASE NO. 159 CRD-7-82Workers’ Compensation Commission
JULY 11, 1984

The Claimant-Appellee was represented by Joseph N. Tauber, Esq.

The Respondents-Appellants were represented by Thomas H. Cotter, Esq.

This Petition for Review from the August 3, 1982 Finding and Award of the Commissioner for the Seventh District was argued June 24, 1983 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Robin Waller.

FINDING AND AWARD

The Corrected Finding and Award of the Seventh District Commissioner is affirmed and adopted as the Finding and Award of this Compensation Review Division.

OPINION

JOHN ARCUDI, CHAIRMAN

Claimant sustained severe crushing injuries to the second, third, fourth and fifth fingers of his right hand April 6, 1979. The respondents-appellants immediately accepted compensability and prepared a Voluntary Agreement duly executed by all parties and approved by the Seventh District Commissioner April 30, 1979.

The issues on this appeal relate to payment for surgical procedures performed by Dr. Allen C. Chamberlin, a Stamford orthopedic surgeon, February 20, May 6, and October 23, 1981 and January 21, 1982. Claimant had been originally treated by another orthopedic surgeon Dr. Jeffrey Benjamin. Dr. Benjamin had himself performed eight surgical procedures, April 6, May 7, June 6, July 20, October 4, 1979 and January 25, June 25 and September 9, 1980.

Dr. Benjamin in a deposition submitted in evidence testified that none of the surgical procedures performed by Dr. Chamberlin was necessary. Claimant on his first visit to Dr. Chamberlin in early 1981 related that Dr. Benjamin felt nothing more could be done to improve the condition of the hand. Dr. Chamberlin testified in his opinion further improvement was possible, and he performed the four subsequent surgical procedures in an effort to achieve such further improvement. This treatment succeeded in reducing claimant’s disability somewhat. The trial Commissioner ruled that the procedures performed by Dr. Chamberlin were reasonable and necessary and ordered the respondents to pay a sum for those services about 20% less than the doctor requested.

We have treated similar issues in a recent matter, Bowen v. Stanadyne, Inc., 232 CRD-1-83 (June 19, 1984). We there pointed out that although Section 31-294 language purports to make the “physician or surgeon” the judge of what he deems “reasonable or necessary” medical care, the trial Commissioner really is the determiner of what is “reasonable or necessary.” This is so because Section 31-298 makes the Commissioner the judge of the reasonableness of medical charges, and no charges can be reasonable if they are for services which are not reasonable or necessary. We also there stated that “Reasonable or necessary medical care is that which is curative or remedial.” Finally, in that case we referred to the language in Section 31-294 granting power to a Commissioner to authorize or direct a change of physician, Basney v. Sachs, 132 Conn. 207, 209 (1945).

Before the August 3, 1982 Finding and Award here being appealed, the trial Commissioner issued a July 18, 1980 Finding and Award concerning other issues raised. There he found that Dr. Benjamin had authorized claimant to return to light work January 3, 1980. Again on November 4, 1980 there was another Finding and Award indicating that claimant had returned to work April 15, 1980 but that claimant’s earning capacity was reduced due to the 1979 injury. Based on this background and on the evidence presented prior to his August 3, 1982 Finding, the Commissioner decided that Dr. Chamberlin was an authorized physician rendering reasonable and necessary medical care who was entitled to the reasonable fee for his services set by the Commissioner. There was certainly sufficient evidence before the Commissioner on which to base such a conclusion. We “. . . cannot review the conclusions of the Commissioner when these depend upon the weight of the evidence and the credibility of the witnesses” Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).

Therefore the decision of the Commissioner below is affirmed and the appeal is dismissed.

Commissioners Berte and Waller join in this opinion.

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