Summary
In McConnell v. Hewitt Associates, 8 Conn. Workers' Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990), the respondents claimed that they were not liable for medical services rendered by Dr. Stanley Fromm prior to the date of the letter from the claimant's then treating physician referring the claimant to Dr. Fromm. The trial commissioner, however, utilized his statutory authority to authorize those services provided by Dr. Fromm. Notwithstanding the retroactive exercise of that authority by the trial commissioner, we upheld that action after concluding that our review of the record revealed no abuse of discretion in this regard.
Summary of this case from Atherton v. RutledgeOpinion
CASE NO. 764 CRD-7-88-8
FEBRUARY 5, 1990
The claimant was represented by Edward R. Smoragiewicz, Esq., Cardwell Smoragiewicz.
The respondents were represented by Kenneth J. McDonnell, Esq., Chabot and Breen.
This Petition for Review from the August 16, 1988 Finding and Award of the Commissioner for the Seventh District was heard September 29, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr., and James J. Metro.
OPINION
Respondents seek to reverse the Seventh District August 16, 1988 Finding and Award. The trial commissioner found that claimant sustained a compensable injury to his neck, left shoulder and back, a brachial plexis injury as well as a thoracic outlet syndrome. These injuries occurred March 20, 1982 when claimant fell from a ladder while working on the exterior of a gate house on the employer's property.
Claimant was awarded total disability benefits for 52 weeks. Additionally the commissioner found that medical, chiropractic and hospital services from Dr. Martino Passero, Dr. Steven A. Jerrett, Dr. James F. Tischler, Dr. Bart M. Pasternak, St. Vincent's Medical Center, Dr. Stanley M. Fromm, Norwalk Hospital, Dr. Hee Jong Lee were all authorized. He therefore ordered payment of bills for services rendered by those providers. Additionally he awarded claimant permanent partial disability benefits for 25% loss of use of the cervical spine and 10% loss of use of his back. The respondents' appeal opposes all these findings and conclusions in a wholesale attack.
Total Disability was found for the following periods: May 16, 1983 to September 5, 1983, September 19, 1983 to November 1, 1983, November 28, 1983 to March 19, 1984 and May 25, 1984 to August 27, 1984.
In its amended Reasons for Appeal the respondents also presented for review; (1) whether the trial commissioner's denial of respondents request that the transcripts of the formal hearing be certified was error, and (2) whether the trial commissioner erred in finding the claimant eligible for scarring and disfigurement benefits. As both issues were not briefed, they are deemed abandoned. Muha v. United Oil Co., 180 Conn. 720 (1980)
A Commissioner's authority to authorize medical care providers is contained in Sec. 31-294 C.G.S. Basney v. Sachs, 132 Conn. 207, 209 (1945); Adams v. Stop Shop, 4 Conn. Workers' Comp. Rev. Op. 80, 380 CRD-2-85 (1987); Bowen v. Stanadyne, 2 Conn. Workers' Comp. Rev. Op. 60, 232 CRD-1-83 (1984). Respondents have cited Kiley v. Executone, 2 Conn. Workers' Comp. Rev. Op. 103, 107 CRD-7-81 (1984) as supportive of the argument that as the April 29, 1983 letter from Dr. Bartholomew Pasternak referring claimant to Dr. Stanley M. Fromm came after the claimant's initial visit, March 30, 1983, the respondents are not liable for services rendered prior to the date of the referral letter. But in Kiley the trial commissioner had found the services of a clinical psychologist from January 22, 1980 to January, 1981 were unauthorized. The C.R.D. ruled that since one of the authorized physicians on May 22, 1980 recommended continuation of treatment by that clinical psychologist, then any reasonable services after May 22, 1980 would be authorized.
Here, the situation is different. The trial commissioner utilized his statutory authority to authorize services provided by Dr. Fromm. We will not overrule a trier's finding and conclusion unless without evidence or so unreasonable as to justify judicial interference. Fair v. People's Savings Bank, 207 Conn. 535 (1988); Bailey v. Mitchell, 113 Conn. 721 (1931). Our review of the record below reveals no abuse of discretion in this regard.
Secondly respondents question the finding of total disability for 52 weeks. A determination of whether a claimant is entitled to benefits for total incapacity is a matter within the trial commissioner's discretion. Osterlund v. State, 129 Conn. 591 (1943); Mazzone v. City of Norwalk, 5 Conn. Workers' Comp. Rev. Op. 111, 482 CRD-7-86 (1988); Whitney v. Lapoint Garden Center, 5 Conn. Workers' Comp. Rev. Op. 74, 497 CRD-7-86 (1988). Such a determination is based on the factual findings. We do not engage in de novo review on appeal. Again, our review is limited to determining whether the conclusion was without evidence, contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Applying this standard we do not consider the trier's conclusions lacking.
Similarly, the commissioner's conclusions on partial permanent disability of the cervical spine and the back are also matters subject to a limited standard of review. In this instance, the commissioner's conclusion of a 25% loss of use of the cervical spine and a 10% loss of use of the back is supported by evidence contained in a June 5, 1987 report of Dr. Stanley M. Fromm, and the testimony of Dr. Jesse Jutkowitz. See claimant's Exhibit D. and July 9, 1987 Formal Hearing at 74-75. Admittedly there was conflicting medical evidence. The findings depend on the weight given the conflicting evidentiary submissions and the credibility of the witnesses. It was for the commissioner to choose. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
We, therefore, affirm the Seventh District Commissioner's August 16, 1988 Finding and Award.
Commissioners A. Thomas White, Jr., and James Metro concur.