Opinion
CASE NO. 493 CRD-6-86
AUGUST 26, 1988
The claimant was represented by Edmund T. Grady, Esq., Riscassi Davis, P.C.
The respondent-employer was represented at the trial level by Joel J. Rottner, Esq. and at the trial level and on appeal by Paul S. Bialobrzeski, Esq.
This Petition for Review from the June 27, 1986 Finding and Award of the Commissioner at Large acting for the Sixth District was heard March 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
FINDING AND AWARD
The June 27, 1986 Finding and Award of the Commissioner at Large acting for the Sixth District is affirmed and adopted as the Finding and Award of this Division.
OPINION
Compensability of Claimant's December 12, 1977 back injury is not here contested. But the respondent does object to Claimant's choice of treating physician arguing that the Hartford orthopedic surgeon, Dr. Edward Powers, was not an authorized treating physician. Respondent further contends since Dr. Powers was not an authorized treater it was error to admit his October 24, 1983 deposition into evidence.
Respondent has not cited any rule of evidence which holds only authorized treating physicians may testify in a workers' compensation claim. The issues of evidentiary capacity, materiality and relevance have no relationship to the witness' status as a treating physician. Rather, those three requirements relate to the witness' competence and his qualifications as an expert. Dr. Powers was a board-certified orthopedic surgeon who treated Claimant. Given those facts, the trial Commissioner correctly ruled that the doctor's testimony was admissible.
Although the fact of authorization for a treating physician has little relevance to the admissibility of his testimony, it does concern to the obligation to pay for such a physician's services. If the physician was not authorized, then the claimant must pay for that doctor's treatments. Section 31-294, C.G.S., in the portion cited in the footnote below, sets out the methods by which an employee may select his own physician and the authority of the Commissioner to authorize or direct a change of physicians. The June 27, 1986 Finding and Award, Paragraphs 6, 7, 8 and 9, narrate facts found which justify the Commissioner's conclusion in Paragraph 10 that Dr. Powers was authorized. As there was sufficient evidence before the trier on which to base those facts, we have affirmed those findings.
Sec. 31-294 provides in pertinent part: ". . . but the employee may thereafter select his own physician as provided by this chapter for any further treatment without prior approval of the commissioner. In the event of the failure of the employer promptly to provide such physician or surgeon or such medical, surgical or hospital or nursing service, the injured employee may provide such physician or surgeon, selected from the approved list prepared by the commissioners, or such medical, surgical or hospital or nursing service at the expense of the employer; or, at his option, the injured employee may refuse the medical, surgical and hospital or nursing service provided by his employer and provide the same at his own expense. The commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of such physician or surgeon or such hospital or nursing service.
One other issue raised below by both parties merits some comment. Each requested recusation, Claimant on the ground that the respondent employer was a lawyer who had appeared before the Commissioner often and Respondent on the ground that Claimant's husband was an insurance adjuster who had had contacts with the Commissioner. At the outset of the December 5, 1985 hearing, both motions were denied. The Commissioner did not recall any contacts with Claimant's husband and declared if he were to disqualify himself in all cases where he had previous contacts with the attorneys involved, then he could hold no hearings. The respondent raised the recusation issue once more before us. Ordinarily, the issue is one entirely at the discretion of the trier. We see nothing to distinguish this case from the general rule. If anything, the objection here borders on the frivolous.
The appeal is dismissed and the June 27, 1986 Finding and Award is affirmed.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.