Sellers v. Sellers Garage, Inc. ( 2015 )

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HEYWARD SELLERS v. SELLERS
GARAGE, INC., ET AL.
(AC 35848)
Lavine, Beach and Pellegrino, Js.
Argued November 12, 2014—officially released March 10, 2015
(Appeal from the Workers’ Compensation Review
Board.)
Heyward Sellers, self-represented, the appellant
(plaintiff).
Richard T. Stabnick, for the appellees (defendants).
Opinion
PELLEGRINO, J. The plaintiff, Heyward Sellers,
appeals from the decision of the Workers’ Compensa-
tion Review Board (board) affirming the decision of the
Workers’ Compensation Commissioner for the Fourth
District (commissioner) dismissing in part his claim for
certain workers’ compensation benefits. On appeal, the
plaintiff claims that the board improperly affirmed the
commissioner’s finding that certain medical treatments
were not reasonable and necessary, and that treatment
with certain medical professionals was not authorized.
We affirm the decision of the board.
The following facts, as determined by the commis-
sioner, are relevant for purposes of this appeal. On
March 21, 1997, the plaintiff sustained a compensable
injury when he was struck in the head by a transmission
frame while employed by the defendant Sellers Garage,
Inc.1 The plaintiff was diagnosed with central pain syn-
drome, myofascial pain syndrome, and tension head-
aches. He was awarded a 10 percent permanent partial
disability to the cervical spine with a date of maximum
medical improvement of December 11, 1997. The Work-
ers’ Compensation Commission approved a voluntary
agreement on September 14, 1998.
On February 18, 2002, James O. Donaldson, a neurolo-
gist, performed a neurological medical examination of
the plaintiff for the defendant, and stated that the plain-
tiff sustained a minor scalp contusion due to the March
21, 1997 incident.2 Donaldson further stated that the
plaintiff did not lose consciousness, have a cerebral
concussion, develop a postconcussion syndrome or
develop a traumatic brain injury, but could have some
headaches and neck and shoulder pain.
On October 27, 2010, William H. Druckemiller, a neu-
rosurgeon, performed a commissioner’s examination of
the plaintiff. According to Druckemiller’s report, the
plaintiff’s continued complaints of pain were signifi-
cantly more than would have been expected from the
findings. The report further indicated that there was no
evidence of a brain injury, and that the plaintiff had
degenerative changes typical for age. Druckemiller
reported that the plaintiff most likely had a chronic
cervical strain and had reached the point of maximum
medical improvement with a 2 percent permanent par-
tial disability rating. The report noted that no treatment
would benefit the plaintiff, and that he should refrain
from overhead work and continuous use of the neck.
On September 20, 2011, Jerrold Kaplan, a physician,
performed a commissioner’s examination of the plain-
tiff. Kaplan had previously performed a commissioner’s
examination of the plaintiff on May 9, 2000. In his 2011
report, Kaplan noted that the plaintiff had ongoing mem-
ory problems, so his recall of his medical problems was
somewhat confused. Kaplan noted that the plaintiff was
complaining of cognitive impairments and neck pain
with headaches back in 2000 related to the 1997 injury.
Kaplan concluded, therefore, that treatment for those
conditions should be considered causally related to the
1997 injury, but that treatment for the bilateral upper
extremities, including pain management related to
those conditions, was not causally related to the
1997 injury.
In his 2011 report, Kaplan noted that the neuropsy-
chological testing he recommended in 2000 was never
done, and he again recommended that it be done to
differentiate between cognitive impairment related to
possible depression or from side effects related to the
plaintiff’s medication. Kaplan also recommended that
an electromyogram and a nerve conduction study be
performed to differentiate the degree of cervical radicu-
lopathy versus peripheral neuropathy. Kaplan stated
that additional recommendations would follow this test-
ing. He also noted that the medications that the plaintiff
was taking may be adding to his cognitive impairment,
as many of the medications have cognitive side effects.
In his deposition on May 6, 2011, Steven Levin, the
plaintiff’s treating physician and pain management doc-
tor, stated that he had been treating the plaintiff with
medications, and that the plaintiff had a light sedentary
work capacity. Levin further testified that based on the
plaintiff’s subjective complaints, he continued to treat
the plaintiff with medications, and that they assist the
plaintiff in the activities of daily living, but do not help
him to continue working.
Following a formal hearing in which the plaintiff
sought reimbursement for treatment and expenses from
June 30, 2006, to the present, the commissioner credited
Kaplan’s testimony that the treatment for the cognitive
impairments, headaches, and neck pain suffered by the
plaintiff was related to the March 21, 1997 compensable
incident. The commissioner ordered the defendant to
provide neuropsychological testing, an electromyo-
gram, and a nerve conduction study as recommended
by Kaplan, with the results to be forwarded to Kaplan
for further comment in a supplement to his commission-
er’s examination report. The commissioner found Levin
to be persuasive in his testimony that continued medica-
tions assist the plaintiff in his activities of daily life, but
do not help him to continue working. He further found
the medications prescribed by Levin to be palliative
rather than curative, and not reasonable and necessary
medical treatment after May 6, 2011, the date of Levin’s
deposition. Finally, the commissioner concluded that
Levin was the plaintiff’s sole authorized treating physi-
cian, and that all medical treatment provided by other
physicians was outside the chain of referral and not
subject to compensation by the defendant. The plaintiff
appealed to the board, which affirmed the commission-
er’s finding and orders, concluding that the findings
were all supported by the evidence in the record. This
appeal followed.
I
On appeal, the plaintiff first claims that the board
erred in affirming the finding of the commissioner that
the medications prescribed by Levin were palliative
rather than curative and, therefore, not reasonable and
necessary medical treatment. We disagree with the
plaintiff.
General Statutes § 31-294d (a) (1) provides in relevant
part: ‘‘The employer, as soon as the employer has knowl-
edge of an injury, shall provide a competent physician or
surgeon to attend the injured employee and, in addition,
shall furnish any medical and surgical aid or hospital
and nursing service, including medical rehabilitation
services and prescription drugs, as the physician or
surgeon deems reasonable or necessary. . . .’’ (Empha-
sis added.) The issue is whether the commissioner prop-
erly found that the treatment prescribed by Levin was
not reasonable and necessary after May 6, 2011.3
‘‘As a preliminary matter, we set forth our standard
of review. The commissioner is the sole trier of fact and
[t]he conclusions drawn by [the commissioner] from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them. . . . The review [board’s] hearing of an
appeal from the commissioner is not a de novo hearing
of the facts. . . . [I]t is [obligated] to hear the appeal
on the record and not retry the facts. . . . On appeal,
the board must determine whether there is any evidence
in the record to support the commissioner’s finding and
award. . . . Our scope of review of [the] actions of the
[board] is [similarly] . . . limited. . . . [However]
[t]he decision of the [board] must be correct in law,
and it must not include facts found without evidence
or fail to include material facts which are admitted or
undisputed. . . . Put another way, the board is pre-
cluded from substituting its judgment for that of the
commissioner with respect to factual determinations.’’
(Internal quotation marks omitted.) Anderson v. R &
K Spero Co., 107 Conn. App. 608, 613–14, 946 A.2d 273
(2008). The determination regarding whether treatment
is reasonable and necessary, including whether the
treatment is curative or palliative, is a question of fact
to be resolved by the commissioner. Id., 614, citing
Covert v. Patterson, No. 4094, CRB-03-99-08 (September
29, 2000).
According to the plaintiff, the board erred in affirming
the finding of the commissioner that the treatment pre-
scribed by Levin was not reasonable and necessary. As
part of this claim, the plaintiff argues that the commis-
sioner improperly found that Levin’s treatment was pal-
liative rather than curative and, therefore, not
reasonable and necessary, based solely on the fact that
it did not assist the plaintiff to continue working.4 We
disagree and conclude that the commissioner properly
found, on the basis of all of the evidence in the record,
that the treatment prescribed by Levin was not reason-
able and necessary.
In his deposition, Levin testified that the plaintiff
had reached maximum medical improvement in March,
2002, but that he continued to see the plaintiff for pain
management. In 2010, Druckemiller indicated that the
plaintiff showed no signs of a brain injury but, rather,
had degenerative changes typical for his age. Drucke-
miller indicated that the plaintiff most likely had a
chronic cervical strain and had reached the point of
maximum medical improvement, adding that no treat-
ment would benefit the plaintiff. Finally, Kaplan’s report
specifically called for additional neuropsychological
testing, an electromyogram, and a nerve conduction
study of the plaintiff. Kaplan did not discount the possi-
bility of further treatment. On the contrary, Kaplan’s
report indicated that additional treatment recommenda-
tions might be forthcoming following this additional
testing. Kaplan also expressed concern that the medica-
tions being utilized by Levin to treat the plaintiff’s pain
might be adding to his cognitive impairment.5
On the basis of all of the evidence in the record, and
with the expectation that the plaintiff would undergo
additional testing, the commissioner found that Levin’s
treatments were not reasonable and necessary. The
commissioner specifically stated that after the addi-
tional testing was complete, ‘‘[t]he results shall be for-
warded to Dr. Kaplan for further comment in a
supplement to his Commissioners’ Examination report.
Should Dr. Kaplan recommend additional treatment
after the testing, such treatment shall be considered
reasonable and necessary but shall be subject to the
[defendants’] due process rights.’’ ‘‘[I]t is the exclusive
function of the finder of fact to reject or accept evidence
and to believe or to disbelieve any expert testimony.
The trier may accept or reject, in whole or in part, the
testimony of an expert witness.’’ Cervero v. Morey’s
Assn., Inc., 122 Conn. App. 82, 90, 996 A.2d 1247, cert.
denied, 298 Conn. 908, 3 A.3d 68 (2010). Restricted by
our deferential standard of review, we conclude that
the facts are consistent with the commissioner’s finding
and that the board properly affirmed this finding.
II
The plaintiff also claims that the commissioner
improperly found that the medical treatment by physi-
cians James K. Sabshin and Mark Kraus was outside
the chain of authorization. We disagree.
The following additional facts are necessary for the
resolution of this claim. Following the formal hearing
at which both parties submitted exhibits, the commis-
sioner found that Levin was the sole authorized treating
physician. The commissioner indicated that any treat-
ment by physicians other than Levin, including Kraus
and Sabshin, was outside the chain of authorization
and, therefore, was not subject to compensation by the
defendant. On appeal, the plaintiff challenges this deter-
mination.
General Statutes § 31-294d (c) provides that ‘‘[t]he
commissioner may, without hearing, at the request of
the employer or the injured employee, when good rea-
son exists, or on his own motion, authorize or direct a
change of physician or surgeon or hospital or nursing
service provided pursuant to subsection (a) of this sec-
tion.’’ ‘‘A claimant should obtain permission to change
physicians before commencing a new course of treat-
ment. This may include a valid referral from an author-
ized physician.’’ (Internal quotation marks omitted.)
Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 22, 832
A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210
(2003). In the present case, the evidence in the record
indicated that Levin was the plaintiff’s treating physi-
cian, and the plaintiff presented no evidence indicating
that the commissioner authorized or directed a change
in physician from Levin to Kraus or Sabshin. The board,
therefore, properly affirmed the dismissal of all medical
treatment by Sabshin and Kraus as outside the chain
of authorization.6
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
Traveler’s Insurance Company, the workers’ compensation insurer for
Sellers Garage, Inc., is also a defendant in this case. For convenience, we
refer in this opinion to Sellers Garage, Inc., as the defendant.
2
The commissioner indicated that this examination took place on March
4, 2002. Donaldson’s report, dated March 4, 2002, stated that the examination
took place on February 18, 2002.
3
Pursuant to § 31-294d (a) (1), the employer is responsible for providing
reasonable or necessary medical care. In the present case, the commissioner
found the medications prescribed by Levin ‘‘to be palliative and not curative
and do not constitute reasonable and necessary medical treatment after
May 6, 2011.’’ On the basis of our review of the record, we conclude that
the evidence is sufficient to support the decision of the commissioner under
either standard.
4
‘‘Reasonable or necessary medical care is that which is curative or reme-
dial. Curative or remedial care is that which seeks to repair the damage to
health caused by the job even if not enough health is restored to enable
the employee to return to work. Any therapy designed to keep the employee
at work or to return him to work is curative. Similarly, any therapy designed
to eliminate pain so that the employee can work is curative. Finally, any
therapy which is life prolonging is curative.’’ Bowen v. Stanadyne, Inc., No.
232, CRD-1-83 (June 19, 1984).
5
Kaplan’s report states in part: ‘‘I am concerned that the medications
being utilized by Dr. Levin to treat [the plaintiff’s] pain may be adding to
his cognitive impairment. Many of these medications have cognitive side
effects. I would recommend attempting to cut back on some of these medica-
tions to determine whether or not [the plaintiff’s] cognitive condition
improves.’’
6
To the extent the plaintiff contends that the commissioner should have
considered Sabshin’s report in determining whether the plaintiff’s treatment
was reasonable and necessary, we again note that ‘‘[i]t is the exclusive
function of the finder of fact to reject or accept evidence and to believe or
disbelieve any expert testimony.’’ Cervero v. Morey’s Assn., Inc., supra, 122
Conn. App. 90. On the basis of our review of the record, we conclude that
the board properly affirmed the finding of the commissioner as supported
by the evidence in the record.