Opinion
CASE NO. 888 CRD-2-89-6
FEBRUARY 26, 1991
The claimant was represented by William E. McCoy, Esq.
The respondents were represented by Robert McGann, Esq., McGann, Bartlett Brown.
Both parties agreed to waive oral argument and to have the instant matter decided on the basis of papers submitted.
This Petition for Review from the June 20, 1989 Finding and Award of the Commissioner for the Second District was heard September 28, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
The respondents employers appealing this Award are a New London group of neurosurgeons. The claimant employee was a secretary receptionist for the group. On June 11, 1985 she injured her right arm and neck when she stretched to reach a phone book. Thereafter she continued to work losing only an occasional day until December 19, 1985 when she was forced to discontinue working due to pain. The commissioner awarded her total disability benefits from December 19, 1985 until June 11, 1986. He also awarded specific benefits for a five per cent (5%) loss of use of her right arm and directed respondents to pay "claimant's reasonable medical expenses occasioned by the Injury."
Respondents contend the trial commissioner erred in finding that claimant was totally disabled from December 19, 1985 to June 11, 1986 and in ordering respondents to pay all reasonable medical bills specifically those of Drs. William Druckemiller and William Sweet.
Whether a claimant is totally disabled is a factual determination for the trial commissioner. See, e.g., Neumann v. Southern Connecticut Gas Co., 4 Conn. Workers' Comp. Rev. Op. 62, 265 CRD-4-83 (1987). Our limited review can only determine whether there was evidence to support the commissioner's conclusion and whether the conclusion was contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The medical testimony upon which the commissioner's Finding and Award relies is that of Dr. William H. Druckemiller, a Hartford neurosurgeon. In his January 23, 1987 deposition that doctor states he first saw the claimant December 26, 1985 and continued to see her until she reached maximum medical improvement June 17, 1986. See Druckemiller deposition, January 23, 1987, pp. 3-7. At page 7, the doctor testified as follow:
Q[.] When you saw Mary in December of `85 was she disabled from employment at the time?
A[.] I don't remember well enough. I didn't state it in my history. Given her pain I would say that she was probably disabled from certain actions. I doubt I would consider her totally disabled.
Q[.] Would she be able to perform her secretarial functions, for example?
A. Probably not. But that's based on her complaint of pain. I have a very difficult time with pain problems in deciding whether someone's able to work, because certain people will work in pain and others will not. And it's a subjective feeling. Basically she should not have been lifting with the right hand or working overhead or excessive motions of her hand and arm.
This testimony together with claimant's own testimony about her physical condition and her symptoms constitute a sufficient basis for the commissioner's conclusion that claimant was totally disabled from work. See e.g., Transcript of January 20, 1987 at 63-67.
We will not substitute our conclusions for the commissioner's when those conclusions depend upon the weight and credibility to be accorded the evidence presented. Adzima v. UAC/Norden Division, 177 Conn. 107 (1979).
Respondents' other contention is bizarre. Their argument is that one of her employers, the neurosurgeon Dr. Donald W. Cooper treated her for her pain symptoms several times between June and December, 1985. Therefore Dr. Cooper become her authorized treating physician. Hence any other doctor whom she saw was unauthorized and therefore not to be paid by the respondents.
As we stated in Greiger v. Leake Nelson, 890 CRD-4-89-6 (decided January 10, 1991). "Connecticut since 1967 has permitted the employee rather than the employer to choose the physician." The effect of the 1967 enactment does not change simply because the employer happens to be a doctor. In fact, especially when the doctor employer is resisting the employee's claim as is the case here, it is important to allow the claimant to seek medical attention elsewhere.
The claimant made the choice here, and she consulted a well recognized and competent board certified Hartford neurosurgeon.
However, as the award below did not specifically find that the reasonable medical expenses included the services of Dr. Druckemiller and Dr. Sweet, we must remand for further proceedings to clarify that point.
We therefore affirm the decision below but remand the matter on the question of which physician services are included in the order to pay reasonable medical expenses.
Commissioners Frank Verrilli and George Waldron concur.