Opinion
CASE NO. 288 CRD-2-83
JANUARY 21, 1987
The claimant was represented by Robert J. Krzys, Esq.
The respondent was represented by Robert Girard, Esq., Assistant Attorney General.
This Petition for Review from the December 8, 1983 Finding and Award of the Commissioner for the Second District was heard August 16, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Paul Berte and Gerald Kolinsky.
FINDING AND AWARD
The Finding and Award of the Second District Commissioner is affirmed and adopted as the Finding and Award of this tribunal.
Appellant's failure to file a Motion to Correct here forecloses any attack it may have wished to make on the trial Commissioner's Finding. However, given the facts as found we must consider the claimed errors of law. No brief was filed by respondent but its Reasons of Appeal did identify the issue, and some explication of appellant's Position was made in oral argument.
Basically, the respondent state of Connecticut argues that medical treatment out of state in Massachusetts is unauthorized under 31-294 C.G.S. Claimant was a state police officer who resided and was employed in northeastern Connecticut near the Massachusetts and Rhode Island border. He was assigned to the Danielson barracks and incurred a compensable back injury while on duty at 4:30 a.m. in Killingly April 11, 1972. His back symptoms subsided after about two weeks.
The applicable section of 31-294 C.G.S. is as follows: ". . . Such physician or surgeon shall be selected by the employee from an approved list . . . prepared by the commissioners . . .".
However, in the spring of 1978 pain symptoms reoccurred, and he sought attention from his family physician, Dr. Lavius Robinson in Danielson, Connecticut. He did not achieve relief, and therefore visited a specialist, Dr. Vincent Birbiglia, a neurologist of Worcester, Massachusetts August 9, 1979. After cervical myelography, a diagnosis of herniated intervertebral discs at the C5-C6 and C6-C7 levels was reached. Thereafter Dr. Bernard Stone and Dr. Francis Waters, orthopedic surgeons, performed discectomies at the levels indicated October 10, 1979 in Worcester. It is this treatment which the state claims is unauthorized.
Its argument relies on Administrative Regulations 31-279-7 which declares the approved list to be "all such practioners [practitioners] to whom a license shall be issued in his field by the state of Connecticut" A similar issue was raised in Phelps v. State of Connecticut, 133 CRD-2-82, 2 Conn. Workers' Comp. Rev. Op. 92 (1984). We there permitted medical treatment furnished in Oklahoma after claimant had become domiciled in that state to be authorized under our statute. We there questioned the constitutionality of any state action which would interfere with the movement of U.S. citizens from one state to another suggesting it might be an impermissible burden on interstate commerce. Although the instant matter is not completely on all fours, we think similar considerations prevail.
Sec. 31-279-7. List of approved physicians. The list of approved practicing physicians, surgeons, podiatrists and dentists from which an injured employee may select for examination and treatment shall be composed of all such practitioners to whom a license shall be issued in his field by the state of Connecticut, unless a practitioner shall request removal of his name by the board of compensation commissioners, or his name shall have been removed for failure to comply with these regulations.
Even apart from constitutional law Connecticut courts have considered out of state treatment for workers, Caldwell v. United States Aluminum Co., 131 Conn. 96 (1944), and the cases there cited. Those precedents refer to the liberality of practice prevailing in workers' compensation matters. We think the principles there expressed permit an employee residing in a sparsely populated Connecticut area to seek medical attention from specialists in a nearby metropolitan medical community across the border under proper circumstances as found by the district Commissioner.
The decision of the Commissioner is affirmed and the appeal is dismissed.
Commissioners A. Paul Berte and Gerald Kolinsky concur.