FINDING AND AWARD

1-7. Paragraphs 1 through 7 of the Commissioner's Finding and Award are made paragraphs 1 through 7 of this Division's Finding and Award.

8. Doctor Norman Markley was authorized February 26, 1982 to be claimant's treating physician. This decision was confirmed by Commissioner Berte in a March 4 letter to the parties.

9. That March 4, 1982 written decision was not appealed within ten days.

10. All charges for services performed by Dr. Markley until March 4, 1982 are to be paid by the Respondents.

11. Claimant was not totally disabled after November 23, 1981.

12. Treatment rendered by Dr. Markley after March 4, 1982 was not reasonable or necessary, and therefore the charges for such services are not reasonable.

WHEREFORE IT IS ADJUDGED, AWARDED, ORDERED AND DECREED that:

A. Dr. Markley's charges for medical services performed until March 4, 1982 be paid by the Respondents.

B. The claim for total disability payments after November 23, 1981 be denied.

C. The claim for Dr. Markley's charges for services performed after March 4, 1982 be denied.

D. The claimant is entitled to a reasonable fee for the testimony of Dr. Markley.

OPINION

JOHN ARCUDI, Chairman.

Claimant, an employee of Stanadyne, Inc. in Hartford on the second shift injured her neck, back and left hip when a stack of racks fell on her at work September 9, 1981. Respondents by their actions seem to have accepted the compensability of this event but never carried out their statutory duty to submit a Voluntary Agreement accepting liability. However, they did pay some medical bills and temporary total disability from September 9 until November 23, 1981.

Thereafter, Claimant alleged she was still totally disabled until August, 1982 at least and sought continued temporary total disability payments. Between September 9 and November 30, 1981 Claimant received treatment from the Mr. Sinai Hospital Emergency Room, Dr. Steven Selden, an orthopedist, Dr. Joseph Sadowski, a neurosurgeon, and Dr. Kevin Dowling, another orthopedist. On November 16 Dr. Dowling, the principal treating physician, told the patient to return to work November 23, 1981. Examinations of the patient December, 1981 and January, 1982 confirmed the November 16 conclusion that Claimant was not totally disabled from work. His December 22, 1981 report in evidence stated however that the patient was still out of work, "wants to return to work, but wants to be shifted to the first shift from the second shift."

On November 24 Claimant was seen by still another orthopedic surgeon, Dr. Robert E. Edkin, on referral from the St. Francis Hospital Emergency Room where she had been treated. He saw her again December 3, December 9, and December 21. Dr. Edkin concluded in his January 13, 1982 report, Exhibit 4, that "she is blowing up her symptomatology way out of proportion to the available findings currently." He could find no evidence of any difficulty from an orthopedic viewpoint compatible with her stated symptoms and advised her to seek medical care elsewhere. Dr. Dowling in his January 5, 1982 report, Exhibit 3-C, had also advised her, if dissatisfied with his return to work recommendation, to seek another medical opinion.

Claimant next sought the services of Dr. Norman Markley, a general Practitioner or family physician, on January 15, 1982 and continued to be treated by him at least until August, 1982. At an informal hearing February 26, 1982 before the First District Commissioner, The Honorable A. Paul Berte, Dr. Markley was authorized to be Claimant's attending physician. This action was reduced to writing in a March 4 letter to the Respondents' attorney, Edward S. Pomeranz, with copies to Claimant, Dr. Markley and Ms. Dorothy Ouellette of Aetna Casualty Surety, the Insurer Respondent. Thereafter, Commissioner Berte became disqualified and further proceedings were before the Honorable Darius J. Spain, Commissioner-at-Large.

Although no transcript of that hearing was presented to this Review Division, Dr. Markley seems to have testified October 18, 1982. His written reports are also in evidence. The bill for, his services is in the District file but is not an exhibit in evidence; he may have testified to the total due in his oral testimony. The District file shows that by March 4, 1982, the amount owed for services completed to that date was $570.00.

Besides Dr. Markley, Claimant was seen for treatment by Dr. Worrell of the University of Connecticut Health Center, October 14, 1982, Dr. Thomas M. Graf, September 28, 1982 and still another orthopedic surgeon, Dr. Wells C. Jacobson, on September 23, 1982. She was examined by two orthopedists on behalf of the Respondents, Dr. James Donovan, January 13, 1982 and Dr. Thomas J. Stevens, October 21, 1982.

Dr. Markley's treatment consisted mainly of manual manipulation and physiotherapy to the affected areas of the body. In the Formal Hearings before Commissioner Spain, the Respondents presented the testimony of two orthopedic surgeons, Dr. Kevin Dowling, the previous treating physician, December 20, 1982, and Dr. Thomas J. Steven, January 17, 1983. Both these orthopedists testified that the treatment administered by Dr. Markley was not reasonable or necessary. Their testimony formed part of the evidentiary basis for Commissioner Spain's Finding, Paragraph 11, which the Claimant has appealed.

These two physicians also testified that Claimant was not disabled from work when they saw her. The reports in evidence from the other. three orthopedists, Dr. Edkin, Dr. Wells C. Jacobson and Dr. James Donovan, also confirmed that there were no anatomic deficits present in the Claimant which would justify a determination that she was unable to work. Besides Dr. Markley himself in his report of May 10, 1982 stated the patient was able to return to work May 3, 1982. All this evidence provided a sufficient basis for Paragraph 10 of the Finding that Claimant was not disabled from work after November 23, 1981.

Claimant in her appeal from these conclusions argues that Commissioner Berte's action at the Informal Hearing of February 26 confirmed by his letter of March 4, 1982 was tantamount to res adjudicata on the issue of the authorized physician and treatment by such an authorized physician. The law in fact does grant power to the Commissioner without hearing to authorize or direct a change of physician. Commissioner Berte did in fact properly exercise such power on February 26 and March 4. The Respondents contend that the exercise of such power simply made Dr. Markley the authorized physician and did not certify that all treatment by him was therefore reasonable and necessary. Respondents-Appellees rely on Section 31-298 which provides that the Commissioner shall determine the reasonableness of charges for medical services.

In addition to that sentence of Section 31-294 already cited which permits the Commissioner to designate an authorized physician, other language of that same statute obligates the employer to "furnish such medical and surgical aid or hospital or nursing service as such physician or surgeon deems reasonable or necessary." Further language in 31-294 limits the employer's pecuniary liability for such services to a community standard and not to the measure a grateful Midas might employ in rewarding his healer.

These statutory provisions have received a paucity of court interpretation despite their presence in our law from its inception, Mahoney v. Gamble Desmond Co., 90 Conn. 255 (1916), Quinn v. Poli, 104 Conn. 393 (1926), Henderson v. Mazzotta, 113 Conn. 747 (1931), Covey v. Honiss Oyster House, Inc., 117 Conn. 282 (1933), Caldwell v. United States Aluminum Co., 131 Conn. 96 (1944), Costa v. Farrel Birmingham Co., Inc., 17 Conn. Sup. 53 (1950). Mahoney v. Desmond, supra, 260 reduced a $50.00 medical fee allowance by the Commissioner to $25.00, but it upheld the power of the Commissioner to make a finding of a reasonable fee conforming to community standards. Quinn v. Poli, supra, disallowed payment for alcohol rubs after a hip injury, because they were a "temporary palliative" and not a "curative remedy." Henderson v. Mazzotta, supra, remanded a matter to the Commissioner to make findings concerning the need for another physician if the physician originally supplied by the employer was no longer available.

Covey v. Honiss, supra, upheld a Commissioner's award of $1,265.00 for medical fees in a case occurring during the Great Depression. Chief Justice Maltbie wrote:

"The statute leaves to the Commissioner the determination of the amount properly to be awarded, and unless in fixing the amount he abused the discretion thus reposed in him, by acting unreasonably or violating some rule of law or otherwise, his determination is final."

Covey v. Honiss Oyster House, Inc., 117 Conn. 282, 284.

Caldwell v. United States Aluminum Co., supra, permitted a New York resident who worked for a Bridgeport employer to utilize a New York doctor's services as the employee was still disabled and too ill to travel to Bridgeport where he had been treated by physicians supplied by the employer. Justice Ells's opinion cited Bongialatte v. Lines Co., 97 Conn. 548 (1922) and language from Carney v. Plimpton Mfg. Co., 111 Conn. 401 (1930):

"The underlying reason for the statute . . . stated in Carney v. Plimpton Mfg. Co. . . recognizes `the legislative idea that the employer as well as society benefit by the early restoration to health of the injured employee.'"

Caldwell v. United States Aluminum Co., supra, 100.

The Costa, case decided by Judge Howard W. Alcorn involved an employee suffering from silicotuberculosis. He ceased work July 25, 1944 and had been totally disabled thereafter. On March 9, 1948 his disease was apparently diagnosed as incurable. The employer argued that thereafter his treatment and care at Laurel Heights Tuberculosis Sanatarium was merely palliative since no treatment could any longer be curative. The Commissioner had found that "with supervised bed rest, diet and exercise, the life span of a person suffering from silicosis or silicotuberculosis may be prolonged." The Superior Court upheld the Award against the employer to pay medical expenses after March 9, 1948.

Although the Sec. 31-294 language and its predecessors purports to make the "physician or surgeon" the judge of what he "deems reasonable or necessary" medical care, our review of the decisions indicates that the Commissioner has fact become the decider of what is "reasonable or necessary." This has been accomplished by utilizing the cited language in Sec. 31-298 making the Commissioner the judge of the reasonableness of medical charges. Fees for medical services can only be reasonable if the services themselves are reasonable or necessary. Given the long lacuna in appellate court comment on these statutory concepts, it is worthwhile to restate the principles trial commissioners need to apply in interpreting them. Basically, the Workers' Compensation Law contemplates insofar as possible that the work injured or diseased employee be restored to the status quo ante, i.e. to the status of a healthy productive member of society. More specifically, it was the work injury or disease which destroyed the employee's health and productive capacity. The law therefore makes provision for medical care to repair the employee's work damaged health with the objective of restoring all or at least some work capacity. During the period that medical care is necessary it also provides wage replacement payments to sustain the worker and the worker's dependents. If medical care cannot restore a sufficient state of health to create some work capacity, then the law further provides vocational training and education hopefully to create some work capacity suitable to the worker's reduced state of health.

This rationale for the law's existence determines the meaning of the terms, community cost standard, reasonable or necessary, curative, remedial or palliative medical care. Reasonable or necessary medical care is that which is curative or 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 enable the employee 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. Finally, any therapy which is life prolonging is curative.

How do we apply the statutes and these guidelines to the medical treatment provided by Dr. Markley in the instant case? We begin by dividing the series of treatments into two parts, the first part being the services provided as of Commissioner Berte's March 4, 1982 letter and the second being all services provided after that date. The Respondents under Sec. 31-301 could have appealed that March 4 decision of the Commissioner but did not. Instead the Respondents chose not to pay any part of Dr. Markley's bill and thus forced the issues to a hearing before Commissioner Spain. But Commissioner Spain did not have authority in this instance to reverse Commissioner Berte's unappealed from decision. For the purposes of the services performed to that date Commissioner Berte's March 4 decision had become res adjudicata.

However, with respect to any care by Dr. Markley after March 4, Commissioner Spain could and did pass upon the reasonableness of fees charged for those services and by implication on whether those services were reasonable or necessary. A question linked to the determination of the reasonableness of medical care but separate therefrom and also to be decided by Commissioner Spain was whether the Claimant continued to be totally disabled from work. An ability to work and the need for continued medical care are not mutually exclusive concepts. Thus, many an employee who has been receiving workers' compensation will return to work and continue to get some medical treatment to maintain or restore health or to prolong life.

In this instance the Claimant could conceivably return to work while receiving authorized treatment from Dr. Markley. And this in essence is the result we reach here. The Claimant was able to work as of November 23, 1981 and not entitled to disability benefits thereafter. There is ample evidence to support Commissioner Spain's finding in this regard. Her treatments by Dr. Markley until March 4, 1982 were authorized; the charges for services to that date were reasonable as the Respondents never appealed the March 4, 1982 letter, and therefore Respondents must pay for those services. But the services performed by him after March 4, 1982, were not reasonable or necessary, therefore the charges for them were not reasonable, and the Respondents are not obligated to pay that part of the doctor's bill. Since the Claimant does prevail on that part of her claim for the payment of Dr. Markley's services to March 4, then she is also entitled to a fee for his testimonial appearance at the hearing.

The decision of the Commissioner is modified, and the matter is remanded to the Commissioner to ascertain the amount of such a fee.

Commissioners Kolinsky and Verrilli join in this opinion.