Opinion
CASE NO. 4562 CRB-7-02-8CLAIM NO. 700126005
JULY 29, 2003
The claimant appeared pro se in proceedings before the commissioner for the Seventh District. However, at the time the trial commissioner rendered his decision the claimant was represented by Dennis W. Gillooly, Esq., Kennedy, Johnson, D'Elia Gillooly, LLC, 545 Long Wharf Drive, New Haven, CT 06511.
The respondent was represented by Joseph Passaretti, Esq., Montstream May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the August 14, 2002 Finding and Award of the Commissioner acting for the Seventh District was heard February 21, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and Nancy A. Brouillet.
OPINION
The respondent appeals from the August 14, 2002 Finding and Award of the Commissioner acting for the Seventh District. In that Finding and Award the trial commissioner denied the respondent's Form 36 by which it sought to discontinue temporary partial disability benefits pursuant to § 31-308 (a).
The pertinent facts are as follows. On March 8, 2001 the claimant injured his right knee while in the course of his employment. The respondent accepted the claim and thereafter the claimant received medical treatment with Norwalk Corporate Health Care. On September 25, 2001 Norwalk Corporate Health Care referred the claimant to an orthopedic specialist in Connecticut.
Although the claimant is a resident of Connecticut and the injury occurred in Connecticut, in the first or second week of October 2001 the claimant informed the respondent that he intended to consult with Dr. Warren, an Orthopedic Specialist in New York. The respondent on October 19, 2001 filed a Form 43 in which they informed the claimant that he could not treat with a New York physician and must schedule an appointment with a Connecticut licensed orthopedic specialist. On October 22, 2001, the respondent filed a Form 36 seeking to discontinue the claimant's § 31-308 (a) benefits.
Dr. Warren was not identified in any greater specificity.
As of September 25, 2001 the claimant was on light duty. That status was based on the claimant's inability to work more than 40 hours per week. Prior to his knee injury the claimant worked significant periods of overtime. Also on that same date, a Norwalk Corporate Health Care physician's report indicated the claimant should "Avoid excessive squatting or kneeling until re-evaluated by specialist." [Respondent's Exhibit 1].
On November 8, 2001 the respondent's Form 36 was informally approved and the respondent discontinued payment of § 31-308 (a) benefits. Formal hearing proceedings were held before the Commissioner for the Seventh District and ultimately, the trial commissioner denied the respondent's Form 36. It is from the denial of the Form 36 that the respondent filed this appeal.
The respondent raises the following issue on appeal; (1) whether the trial commissioner erred by failing to apply that part of § 31-294f which provides that an injured employee's refusal to submit to a reasonable examination shall suspend the right to compensation during such refusal and (2) whether the trial commissioner failed to correctly apply § 31-294e (b) and its provision requiring the compensation rights of an injured employee who refuses or fails to obtain reasonable medical treatment be suspended during such refusal and failure.
Sec. 31-294f (a) provides in pertinent part:
(a) An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. . . . The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal.
In short, the respondent argues that as the claimant sought medical treatment with a physician not licensed by the State of Connecticut either of the provisions contained in § 31-294f or § 31-294e (b) are applicable. We begin our review with consideration of whether the trial commissioner erred in failing to conclude the claimant's rights to compensation benefits should have been suspended on the basis of the claimant's refusal to accept or failure to obtain reasonable medical treatment. At the outset we note the respondent appellant did not file a Motion To Correct the findings of the trial commissioner. Thus, the facts as found by the trier stand.
Sec. 31-294e (b) provides, "If it appears to the commissioner that an injured employee has refused to accept and failed to obtain reasonable medical and surgical aid or hospital and nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure."
On appeal the appellant contends that the law compels suspension of the claimant's compensation benefits during the period he failed to seek medical treatment. Taking the appellant's argument one step further, it argues the claimant's failure to treat with an orthopedic specialist licensed by the State of Connecticut is legally the equivalent of failing to obtain reasonable medical treatment as a matter of law.
In the instant matter, the claimant consulted with a New York licensed physician one time. The pecuniary obligation of that consultation was paid for by the claimant's group health carrier. Additionally, there was testimony that the claimant's out of pocket expenses relating to that consultation were paid by the respondent. Findings ¶ 20.
In testimony provided by the claimant which went undisputed by the respondent, the out of state physician gave the claimant a prescription for physical therapy. Those physical therapy visits were paid by the respondent. April 30, 2002 Transcript, p. 18. Ultimately on February 7, 2002 the claimant was examined by a Connecticut licensed orthopedic specialist, Dr. Peter Jokl. The trial commissioner concluded on the basis of Dr. Jokl's report of that same date that the claimant's work capacity between September 2001 and February 2002 was unchanged and thus the claimant was entitled to § 31-308 (a) benefits for the period the respondent had discontinued payments.
Here it appears the respondent completed the appropriate procedural steps necessary to inform the claimant that seeking medical treatment with a physician outside the State of Connecticut would not be accepted by the respondent. We fully appreciate that a respondent faced with a claimant who is insistent upon treating with a medical provider who is not among those listed among the approved list of physicians, would ponder what other action it must take to deter the claimant from engaging in out of state treatment. See § 31-294d (b).
We also appreciate that one of the purposes of directing treatment with a physician within the State of Connecticut is to protect the due process rights of the respondent in the event that a claim must be litigated. A physician who provides treatment and is located outside Connecticut may fall into the class of persons to whom a subpoena issued pursuant to Connecticut law is not legally effective. Thus, if litigation should proceed, a respondent would face additional expenses associated with compelling the production of information and records from those who are beyond the legal reach of a subpoena issued by a Connecticut authority. Therefore, we understand the respondent's desire to stand its ground on this issue. However, whether a claimant has failed to obtain reasonable medical treatment is still a matter to be determined by a commissioner on the basis of the particular factual circumstances in the case.
The impact of additional expenses to procure records and information would also burden the claimant.
In Cummings v. Twin Mfg., Inc., 29 Conn. App. 249 (1992) our Appellate Court declined to hold that out of state medical treatment is not permitted as a matter of law. More recently the Appellate Court inMelendez v. Home Depot Inc., 61 Conn. App. 653, 657 (2001) relied on its earlier opinion in Cummings, supra, and stated, "The test for determining whether the commissioner can order payment for out-of-state medical treatment is whether the treatment is reasonable and necessary.Cummings, supra, p. 259."
In Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 258 (1992) the court noted, "In an age of medical specialization in which technology is advancing at a pace almost beyond our ability to comprehend, any blanket prohibition against treatment out of state for Connecticut compensation claimants would constitute an unwise `parochial view that adequate treatment is always available in this state.'" Alcan Electrical Engineering Co. v. Bringmann, 829 P.2d 1187, 1189 (Alaska 1992).
In Melendez, the court considered a situation in which a claimant, who suffered from severe pain as a result of an accepted work injury, moved in with a sister in Pennsylvania in order to receive assistance with her daily personal needs. Ultimately, the claimant and her sister relocated to Texas. The respondents, as in the matter at hand, appealed the trier's denial of their Form 36. The respondents argued that under the Workers' Compensation Act out of state medical treatment was only permitted "when equally beneficial treatment is not available in Connecticut." Melendez, supra pp. 656-57. The Melendez court also stated,
The compensation review division has construed the Workers' Compensation Act "to permit out of state treatment when there is good reason, such as the need for a specialized type of treatment . . . orunder other proper circumstances. . . ." (Citations omitted; emphasis added; internal quotations omitted.) Cummings supra at 256., citing J. Asselin, Connecticut Workers' Compensation Practice Manual (1985) p. 183 n. 329. Good reason exists for out-of-state medical treatment when the treatment is reasonable and necessary. Cummings, supra, 259.
We note that the court in Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 256 (1992) cited the following as its legal authority for this proposition, "J. Asselin, The Connecticut Workers' Compensation Practice Manual (1988 Sup.), p. 179 n. 320, quoting Veillette v. State, 3 Conn. Workers' Comp.Rev.Op. 135 (1987)."
In the instant matter, the trial commissioner may not have specifically articulated the "other proper circumstances" that existed, but we believe the trier implicitly determined the claimant's consultation with the out of state physician was reasonable medical treatment in light of the testimony that the respondent paid out of pocket expenses relating to the consultation and authorized and paid for eight physical therapy visits as prescribed by the out of state physician. Thus, under either § 31-294f or § 31-294e (b) suspension of the claimant's compensation rights would not have been appropriate.
Having concluded as we have here today we do wish to make one final point. Those who read this opinion should not interpret it as countenancing medical treatment by physicians licensed outside the State of Connecticut when such care is rendered pursuant to our Workers' Compensation Act. However, in this case there were unique factual circumstances. Primary among those circumstances were, that while the claimant treated with a physician outside the State of Connecticut, there were actions taken by the respondent from which the trial commissioner could reasonably infer the respondent's acquiescence to the claimant's conduct.
We therefore affirm the August 14, 2002 Finding and Award of the Commissioner acting for the Seventh District.
Commissioner Howard H. Belkin concurs.
As noted in the heading of this opinion, this matter was originally heard on January 24, 2003, by a three-commissioner panel of the Compensation Review Board that included Nancy A. Brouillet, whose term of service has since expired. Former Commissioner Brouillet did not participate in the drafting or review of this written opinion, and has had no involvement in the issuance of this decision.