ANDERSON v. RK SPERO CO. EMPLOYER, NO. 4965 CRB-3-05-6 (2-21-2007)


FEBRUARY 21, 2007

This Petition for Review[1] from the June 9, 2005 Finding of Denial of the Commissioner acting for the Third District was heard July 14, 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.

[1] We note that postponements as well as an extension of time were granted during the pendency of this appeal.

The claimant appeared pro se.

The respondents were represented by Lawrence Pellett, Esq., McGann, Bartlett Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

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JOHN A. MASTROPIETRO, CHAIRMAN. The instant appeal involves an issue of whether the trial commissioner should have authorized chiropractic treatment for the claimant as medically necessary. The claimant initiated this treatment on his own after he had reached maximum medical improvement for his compensable back injury. The respondents contested this treatment and the trial commissioner, relying on the opinions of the commissioner’s examiner, declined to authorize the treatments. The claimant has appealed but as we find the trial commissioner relied on competent medical evidence in his Finding of Denial, we must uphold his decision and dismiss the appeal.

The dispute in this matter is limited to the appropriateness of present and future treatment. The circumstances are not disputed. The claimant suffered a compensable injury on June 24, 1997 in a fall sustained at a restaurant while employed by the respondent RK Spero. Findings, ¶¶ 1-2. The respondents have accepted responsibility for the injury and voluntary agreements have been approved granting specific awards for the back, the neck and the right shoulder. Findings, ¶¶ 4-5. It was previously determined the claimant reached maximum medical improvement for the back and neck in 1998 and for the right shoulder in 1999. Findings, ¶ 6. In March 2002 the claimant, who had been laid off from his subsequent employment, aggravated the original back injury picking up a container of milk at his home. Findings, ¶ 9. Immediately after that injury the claimant began treating with Dr. Arkins, who prescribed physical therapy and pain medication and referred the claimant to Dr. Martin Hasenfeld. Findings, ¶¶ 10-13.

Dr. Hasenfeld ordered an MRI which showed disc degeneration. Findings, ¶ 14. He also ordered facet joint injections, prescribed pain medication and recommended a

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discogram for the claimant. Findings, ¶¶ 15-17. On April 1, 2003 the respondents had the claimant examined by Dr. Jacob Mushaweh. Findings, ¶ 18. Dr. Mushaweh did not associate the claimant’s pain with the compensable injury. He opined that the claimant was not a good surgical candidate, and did not recommend a discogram for the claimant. Findings, ¶¶ 19-20. Following Dr. Mushaweh’s examination the respondents issued a Form 43 contesting further treatment. In December 2003 Dr. Robert Margolis conducted a commissioner’s examination on the claimant. He diagnosed lumbar disc degeneration and determined the claimant was at maximum medical improvement. Findings, ¶¶ 22-25.

In January 2004 the claimant began treating on his own initiative with a chiropractor, Dr. James Allen. Findings, ¶ 26. He treated with Dr. Allen 166 times between January 2004 and March 2005. Findings, ¶ 28. On August 3, 2004, Dr. Margolis held another commissioner’s examination of the claimant. He opined that the claimant was capable of light duty work and that the chiropractic treatment was not in his opinion scientifically valid. He recommended the claimant control his diet and exercise. Findings, ¶¶ 30-33.

A formal hearing was held on April 4, 2005. The Commissioner acting for the Third District issued his Finding of Denial on June 9, 2005 concluding that Dr. Allen was not an authorized physician and that based on the commissioner’s examiner, the chiropractic treatment did not constitute reasonable and necessary treatment. Findings, ¶¶ F and L. As a result he dismissed the claim for authorization of Dr. Allen’s treatments. The claimant has appealed from this Finding of Denial. The gravamen of his appeal is his belief that his condition was improved due to his chiropractic treatment.

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As the claimant is proceeding pro se, we believe it is appropriate to explain the scope of authority we possess as an appellate panel. We cannot retry the factual basis of the case. As we stated last year inLentini 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, 78 A2d 339 (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).

We further stated in Lentini,

The burden of proof in a Workers’ Compensation claim for benefits rests with the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). In this matter, conflicting medical evidence was presented to the trial commissioner. Where the medical opinions are in conflict, the trial commissioner’s determination must stand so long as there is evidence to support it. Carney-Bastrycki v. Hospital for Special Care, 4722 CRB-6-03-9
(September 3, 2004).

As a result, the claimant had the burden of persuasion in this matter. It was his obligation to prove to the trial commissioner his treatment was reasonable and necessary as outlined in § 31-294d C.G.S. When a trial commissioner decides a claimant has not met this burden, our review is limited to whether the grounds for denial are legally correct. If the commissioner’s decision is based on reliance on competent medical evidence, the board “cannot substitute its evaluation of the evidence for that of the trial commissioner” Ben-Eli v. Lowe’s Home ImprovementCenter, 5006 CRB-3-05-10 (November 16, 2006).

The specific issue that the trial commissioner needed to determine in this case was whether the treatment provided by Dr. Allen constituted remedial care for the claimant’s compensable injury. The claimant testified the chiropractic treatment made him feel

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better. That evidence alone is not conclusive on this issue as palliative treatment can be effective, yet not be “curative” as within the definitions in our case law or not be related to the compensable injury.

We have in past cases addressed the subject of the “curative/palliative” distinction upon which the compensability of this medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the “reasonable and necessary” standard of § 31-294d
C.G.S. Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003).

In this matter the trial commissioner relied on the testimony of the commissioner’s examiner, Dr. Robert Margolis, who testified that he did not believe “there is any orthopedic indications on a scientific basis for either initial nor continued chiropractic manipulations of the spinal column.” Respondent’s Exhibit 5, August 3, 2004 letter. Since the trial commissioner adopted these conclusions and the evidence relied upon is competent medical evidence, for the same reasons we stated inCarroll, supra, we must defer to the factual findings of the trial commissioner.[2]

The claimant places great weight on the fact that this commission has included Dr. Allen on the list of approved medical practitioners and that he merely chose him as his physician. While Dr. Allen was capable of being authorized as a treating doctor, he was not the claimant’s original treating doctor and pursuant to § 31-294d(c) C.G.S. the claimant needed to obtain the commission’s authorization to proceed in this fashion, “The commissioner may, without hearing, at the request of the employer or the injured

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employee, when good reason exists, or on his own motion, authorize or direct a change of physician or surgeon or hospital or nursing service provided pursuant to subsection (a) of this section.” “Subsequent changes of physician must be authorized by the trier pursuant to § 31-294d(c), who has 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 (Sept. 5, 1996), affirmed, 49 Conn. App. 339
(1998).” Dudley v. Wadsworth Glen, 3942 CRB-8-98-12 (October 14, 1999), [aff’d, 60 Conn. App. 907 (2000) (per curiam)]. “The trial commissioner has the authority under § 31-294 to authorize a change of physician. His decisions to authorize or not to authorize treatment may not be disturbed unless those conclusions are so unreasonable as to justify our interference.” Dichello, supra. As the trial commissioner relied on competent medical evidence in the Finding of Denial, we do not find an abuse of discretion in the commissioner’s decision herein.

Accordingly, we uphold the trial commissioner’s Finding of Denial and dismiss the appeal.

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

[2] In affirming the trial commissioner in this matter, we reiterate our holding in Carroll regarding the general aspects of chiropractic care, “[t]hough the claimant did not prevail below, this board has in the past affirmed awards that entitled claimants to chiropractic care intended to alleviate the intensity of pain, thereby allowing continued employability. DeFelippi [v. Wal-Mart Stores, Inc., 4349 CRB-5-01-1
(January 15, 2002)], supra, (chronic condition required continuing treatment to keep muscle tightness from escalating); Zalutko [v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001)], supra, (massage and acupuncture pain therapies assisted claimant in staying at work by relaxing muscles, decreasing stress, and allowing claimant to continue with rigorous strengthening program).” Whether chiropractic care can be reasonable medical care in a general sense under § 31-294d C.G.S. is not dispositive of whether it is reasonable medical care in this instance.

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