Opinion
CASE NO. 03899 CRB-03-98-09CLAIM NO. 300020310
NOVEMBER 4, 1999
The claimant was represented by Joseph B. Barnes, Esq.
The respondent employer was represented by William C. Brown, Esq., McGann, Bartlett, Brown.
The respondent insurer was represented by David J. Weil, Esq., Nuzzo Roberts, L.L.C., who did not appear at oral argument.
The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, who did not appear at oral argument.
This Petition for Review from the September 10, 1998 Finding and Award of the Commissioner acting for the Third District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
OPINION
The respondent employer has filed a petition for review from the September 10, 1998 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant, a limousine driver, was an employee rather than an independent contractor, and further concluded that the claimant had sustained compensable injuries when he was involved in an automobile accident. In support of its appeal, the respondent contends that (1) the claimant was an independent contractor rather than an employee; (2) the claimant's medical condition was not caused by the accident; (3) the claimant's medical treatment was not properly authorized; and (4) the award of temporary total disability benefits is not supported by the medical evidence.
We note that the Board has issued a decision affirming the trial commissioner's decision to grant the claimant's Motion to Open Dismissal. See Murray v. Black Tie Limousine, Case No. 3306 CRB-3-96-3 (Aug. 21, 1997).
The trial commissioner found that the claimant was employed as a limousine driver for the respondent on November 25, 1994, when he was involved in an automobile accident while driving passengers. He was taken by an ambulance to the hospital and released, and on the following day he was diagnosed with a back sprain/strain. The claimant was treated from December 1, 1994 through March 30, 1995 by Dr. Rippel for right rib, lumbar and cervical pain. The claimant subsequently treated with Dr. Kornblut, a chiropractor, who diagnosed post-traumatic cervical lumbar radiculitis. Dr. Kornblut referred the claimant to Dr. Katz, an orthopedist, who diagnosed hyperextension injuries to the cervical and lumbar spines with L4 radiculopathy. An MRI showed a herniated L4-L5 disc.
The claimant moved to Wisconsin to be with family members because he was not receiving any indemnity or medical benefits. In Wisconsin, he treated with Dr. Hoffmann. Subsequently, the claimant was referred to Dr. Tibbetts, a neurosurgeon, who saw the claimant on December 6, 1994 and recommended cervical decompressive surgery. On February 13, 1996, the claimant visited Dr. Hoffmann who noted that the claimant had sustained a herniated C4-5 disc as a result of the motor vehicle accident. On November 5, 1996, Dr. Tibbetts performed a C4-5 anterior cervical discectomy and fusion.
We will first address the respondent's contention that the trial commissioner erroneously found the claimant to be an employee rather than an independent contractor. In Hanson v. Transportation General, Inc., 45 Conn. App. 441, 446, (1997), aff'd., 245 Conn. 613 (1998), the court explained:
Our courts have long recognized that independent contractors are not within the coverage of the Workers' Compensation Act. . . . The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. Hanson, supra, 45 Conn. App. at 446, quoting Chute v. Mobil Shipping Transportation Co., 32 Conn. App. 16, 19-20, cert. denied, 227 Conn. 919 (1993).
In the instant case, the trial commissioner's conclusion that the claimant was an employee rather than an independent contractor is supported by the findings and by the evidence in the record. Specifically, the trial commissioner found that the respondent owned, licensed, and maintained the limousines, and that a dispatcher notified the driver when and where to pick up a client. Managers employed by the respondent issued a "trip ticket" for each limousine job. (Finding ¶ 7). Moreover, the trial commissioner found that the claimant was paid hourly and that taxes and social security were withheld from his pay. The trial commissioner concluded that the respondent "had the right to direct and control" the claimant in the performance of his services as a limousine driver. (Finding ¶ U). This conclusion is fully supported by the findings and by the record, and thus we may not disturb it.
Secondly, the respondent contends that the claimant did not present any evidence as to causation regarding the change in condition of his cervical spine from the time he left Connecticut to the date surgery was recommended in December of 1995. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank Trust Co., 204 Conn. 104, 117 (1987). As we have often stated, this board does not retry the facts because the power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority "entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses." Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
In the instant case, the trial commissioner made numerous findings of fact regarding causation. Specifically, the trial commissioner found that the claimant was initially treated by Dr. Rippel for pain on the right side and low back, and that Dr. Rippel's records indicate that the claimant was treated for a work-related injury (Finding ¶ 15-16); that the claimant was treated by Dr. Kornblut for pain in the neck, upper back, shoulders, and fingers, along with headaches and dizziness, and that Dr. Kornblut attributed these conditions to the automobile accident (Finding ¶ 17); that Dr. Hoffmann opined that the claimant suffered from cervical spinal stenosis related to a herniated disc and cervical strain caused by the automobile accident (Finding ¶ 40); and that in an October 28, 1996 pre-operative consultation, Dr. Ness concluded that the claimant's herniated cervical and lumbar discs were secondary to his motor vehicle accident (Finding ¶ 38). The trial commissioner's conclusion that the claimant's cervical condition which necessitated surgery was caused by his compensable injury is fully supported by the findings and by the medical evidence in the record.
Next, we will address the respondent's argument that the claimant's treatment with Dr. Kornblut and Dr. Katz was not properly authorized. Once a physician has been selected by a claimant, the commissioner may authorize or direct a change of physician at the request of the employer or employee, or whenever good reason exists. Castano v. Astrophonic Corp. of America, 3714 CRB-7-97-11 (Dec. 29, 1998) (citing § 31-294d). The decision to authorize the treatment of a physician is a factual matter committed to the discretion of the trier, and this board may not disturb such a conclusion unless it is so unreasonable as to justify our interference. Id. (citing Corona v. Briganti, 10 Conn. Workers' Comp. Rev. Op. 113, 114, 1160 CRD-7-91-11 (May 8, 1992)).
A trial commissioner may allow retroactive authorization of a medical provider when a good reason is demonstrated by the claimant for making a unilateral change of providers. Leiner v. Newmark Lewis, 15 Conn. Workers' Comp. Rev. Op. 147, 149, 2202 CRB-8-94-10 (Jan. 18, 1996); Atherton v. Cake Emporium, 11 Conn. Workers' Comp. Rev. Op. 172, 174, 1339 CRD-7-91-1 (Sept. 2, 1993). In the instant case, it appears from the findings of fact that the claimant unilaterally chose to treat with Dr. Kornblut after having initially treated with Dr. Rippel. The trial commissioner found that after treating with Dr. Rippel, when the claimant's "condition did not change, he sought chiropractic care from Dr. Jeffrey Kornblut, who treated him from April 19, 1995 to August 30, 1995." Therefore, as the trial commissioner found the respondent liable for the cost of medical treatment from Dr. Kornblut, a reasonable inference is that the trial commissioner retroactively authorized the claimant's change of treaters. We find no abuse of discretion.
Finally, we will address the issue of temporary total disability. The trial commissioner awarded the claimant temporary total disability benefits from the date of the accident through May 11, 1995 and from October 27, 1995 through November 8, 1996. Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers' Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers' Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). Upon review of the factual issues underlying this determination, we will only disturb the commissioner's decision if his conclusions were contrary to law, or based on impermissible or unreasonable factual inferences. Id., citing Fair, supra.
In the instant case, the respondent contends that the claimant did not prove that he was totally disabled. During the formal hearing, the respondent did not present any medical evidence, or other evidence such as an opinion from a vocational expert, regarding this issue. The trial commissioner found that the claimant was employed as a limousine driver at the time of his injury, and that he had driven trucks or limousines "most of his life." (Finding ¶ 3). The trial commissioner relied upon the medical opinions of the claimant's treaters, Dr. Katz and Dr. Hoffmann, and although their reports are not extremely enlightening on the issue of whether the claimant was disabled from performing any type of reasonable employment, we conclude that they are sufficient to support the trial commissioner's decision. See Garcia v. Legare Plumbing Heat, 3856 CRB-2-98-7 (Sept. 23, 1999); see also Gerena v. Rockbestos Co., 14 Conn. Workers' Comp. Rev. Op. 394, 1986 CRB-5-94-3 (October 17, 1995).
In the instant case, Dr. Katz issued a report dated May 11, 1995 which states, in part: "The patient has been unable to work since his job requires long periods of sitting which aggravates the symptoms." (Claimant's Exh. L). In that report, the doctor noted that the claimant complained of neck and back pain which had been persistent since the accident in 1994.
In finding the claimant to be totally disabled from October 27, 1995 through November 8, 1996, the trial commissioner relied upon the opinion of Dr. Hoffmann. (Finding ¶ 28, citing Claimant's Exh. N). Dr. Hoffmann opined in a report dated April 25, 1996, that the claimant's injuries disabled him from his former employment as a limousine driver. Dr. Hoffmann indicated that the patient suffered from chronic pain, and that any jarring such as driving in a car would worsen his pain. Dr. Hoffmann further stated that the claimant "has some weakness and nerve damage from the herniated disks (sic) in his neck and until he recovers from the neurosurgery to his neck, I do not believe he is a candidate for any type of physical labor. . . . (W)hat sort of employment is he capable of performing? At this time very limited because of the discomfort and pain from the herniated disk (sic) in his neck." (Claimant's Exh. N).
Finally, we note that the respondent argues that pursuant to § 31-294e, the claimant should not have been awarded temporary total disability benefits during the period that surgery was postponed due to the claimant's failure to stop smoking and to keep his high blood pressure under control. "(I)n cases where § 31-294e(b) has been found applicable, the issue has always centered on the refusal of potentially pivotal surgery." Barnett v. Harborview Manor, 3189 CRB-3-95-10 (Feb. 27, 1997) (emphasis added). As the determination of whether a claimant has refused reasonable medical treatment is a factual determination for the trial commissioner to make, we will not hold that the postponement of surgery due to a claimant's failure to stop smoking or to keep his blood pressure under control requires a trial commissioner to find that the claimant has refused medical treatment.
The trial commissioner's decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.