|
Donaldson
v. Continuum of Care, Inc. CASE
NO. 4581 CRB-3-02-10 COMPENSATION
REVIEW BOARD WORKERS’
COMPENSATION COMMISSION OCTOBER
6, 2004 DEBORAH
L. DONALDSON CLAIMANT-APPELLANT v. CONTINUUM
OF CARE, INC. EMPLOYER and HARTFORD
INSURANCE GROUP INSURER RESPONDENTS-APPELLEES APPEARANCES: The
claimant was represented by
Nathan J. Shafner, Esq., Embry and Neusner, 118 Poquonnock Road, P.O.
Box 1409,
Groton, CT 06340-1409.1 The
respondents were represented by
Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury
Boulevard, Glastonbury, CT 06033. This
Petition for Review from the
October 21, 2002, Finding and Award of the Commissioner acting for the
Third
District was heard April 30, 2004 before a Compensation Review Board
panel
consisting of the Commission Chairman John A. Mastropietro and
Commissioners A.
Thomas White and Charles F. Senich. OPINION JOHN
A. MASTROPIETRO, CHAIRMAN. The
claimant, Deborah Donaldson, has appealed from the October 21, 2002
Finding and
Award of the Commissioner acting for the Third District. We affirm in
part and
reverse in part the decision of the trial commissioner acting for the
Third
District. The
trial commissioner found the
following pertinent facts. In 1989 the claimant sustained a significant
injury
to her jaw as the result of a root canal procedure. This injury caused
the
claimant to develop a temporo-mandibular joint disorder (hereinafter
“TMJ”)
which resulted in four surgeries to her jaw. Due to chronic pain from
the TMJ
the claimant underwent psychological pain management treatment with
Mark
Kirschner, Ph.D. The claimant has been on narcotic medication for her
pain from
1989 through the dates of the final hearings in this case. The claimant
has a
significant history of alcohol abuse and has attended Alcoholics
Anonymous for
15 years. On
October 21, 1996 the claimant
sustained compensable injuries to her neck, left shoulder and mouth
while
employed for the respondent, Continuum of Care. While the claimant was
working
at the respondent’s halfway house for psychiatric patients she was
injured when
two inmates pinned her up against the wall and tried to strangle her.
The
respondents voluntarily accepted liability for this work related
incident. As a
result of her injuries the claimant underwent TMJ surgery performed by
Dr.
Robert R. Sorrentino. Dr. Sorrentino referred the claimant to Dr.
Jeffrey
Gudin, a pain specialist, for the chronic pain she experienced at the
time. Dr.
Sorrentino also referred the claimant for detoxification. The
respondent-insurer authorized eight weeks of pain management. Dr.
Gudin examined the claimant on
September 1, 1998. He recommended a “structured regimen of sustained
release
opioid analgesics in combination with appropriate neuropathic agents
and muscle
relaxants. Injections of local anesthetics and corticosteroids were
utilized.”
Findings, ¶ V. Dr. Gudin did not recommend detoxification. In June
1999 and
November 1999 Dr. Gudin opined the claimant had reached maximum medical
improvement and had a sedentary work capacity. In
order to get a second opinion,
without a referral from Dr. Gudin, the claimant saw Dr. Mark Thimineur
of the Comprehensive
Pain & Headache Treatment Center. Dr. Thimineur began treating the
claimant
on November 23, 1999. Dr. Thimineur prescribed a pain management
treatment that
changed the claimant’s pain medications, increased her OxyContin intake
and
added a prescription for OxyIR. Additionally, Dr. Thimineur added the
use of
Ketamine to the claimant’s list of prescribed medications. At
the respondent’s request the
claimant was evaluated by a psychologist, Bruce Gottlieb, Ph.D. of the
Pain
Management Center of Farmington. Dr. Gottlieb opined that the claimant
had
severe chronic non-malignant pain syndrome with significant
psychological
factors. Dr. Gottlieb believed the claimant’s condition was unlikely to
change
without eliminating her dependency on the medications she was on. He
further
opined the claimant’s narcotic treatment was palliative. By
agreement between both claimant’s
counsel and respondents’ counsel, the claimant was examined by Dr.
Jerrold
Kaplan on July 27, 2000. Dr. Kaplan opined that the claimant was
depressed and
that there was a significant psychiatric component to her chronic pain.
Dr.
Kaplan was concerned about the claimant’s high dosage of medications
given her
previous history of alcohol and prescription medication abuse. Dr.
Kaplan
believed the claimant needed an inpatient program to assist with her
pain and
psychiatric issues. Dr. Kaplan gave a specific recommendation for
claimant’s
pain management treatment which included psychological and physical
reconditioning components. At
the request of Commissioner Ralph
E. Marcarelli, the claimant was also examined by David S. Kloth, M.D.,
the
Medical Director of Connecticut Pain Care, P.C. Dr. Kloth opined the
claimant
had significant cervical pain which was not adequately addressed by the
pain clinic
at which she was then treating. Dr. Kloth believed the claimant’s
dosages of
medication were causing the claimant to experience some cognitive
impairment
which would significantly improve if the claimant’s medications were
reduced.
Dr. Kloth opined that it was inappropriate to prescribe Ketamine to the
claimant due to the medications’ potential affect on cognitive behavior
and the
possibility of a resulting psychological dysfunction. Although Dr.
Kloth made
specific suggestions regarding alternative medications, he suggested
the
claimant’s psychological issues and current medication regimen would
need to be
addressed in order to see any significant improvement in her condition. The
hearing notices for the formal
hearings stated the issues to be determined were § 31-294d medical
treatment
and § 31-307 total incapacity benefits. The claimant sought
payment for pain
management treatment as prescribed by Dr. Thimineur. The respondents
had denied
liability for further pain management. The respondents alleged the
claimant’s
need for this treatment was related to her preexisting TMJ condition as
opposed
to her work-related injuries. The respondents also alleged that Dr.
Thimineur
was not an authorized treater. The
trial commissioner concluded the
claimant’s chronic pain was the result of her October 21, 1996
work-related
injuries. The trial commissioner found there was no credible evidence
that
Ketamine was improving the claimant’s condition. The trial commissioner
determined the claimant’s dosage of medications resulted in “what
appears to be
some cognitive impairment” which would significantly improve if
medications
were reduced. Findings, ¶ ¶ OO and PP. The trial commissioner
further
determined, “the claimant’s condition includes a significant
psychiatric
component due to chronic pain which resulted from the October 21, 1996
cervical, left shoulder and TMJ injuries.” Findings, ¶ TT. The
trial
commissioner found that Dr. Thiminuer was not and had not been an
authorized
treating physician. The
trial commissioner made specific
orders regarding the claimant’s future treatment which included an
inpatient
detoxification program and a comprehensive pain management plan. The
trial
commissioner ordered that the claimant’s workers’ compensation benefits
would
be suspended pursuant to §§ 31-294f and 31-296 C.G.S. if the
claimant failed to
complete the specified treatment. The
claimant’s alleged errors fit
into two categories.2 The claimant contends the admission of Dr.
Gottlieb’s report resulted in errors relating to the admissibility of
evidence.
Additionally, the claimant claimed the trial commissioner exceeded her
authority in ordering and specifying a particular treatment plan and
hospitalization
for the claimant.3 We
will first address the claimant’s
contention that the trial commissioner’s conclusions were based on
evidence
that was obtained in disregard of the Compensation Act and in violation
of the
rules of evidence. Claimant’s January 26, 2004 Brief, p. 3. The
claimant
contends that many of the trial commissioner’s findings of fact were
based on
the I.M.E. report of Bruce Gottlieb, Ph.D. The claimant asserts that
Dr.
Gottlieb’s report should not have been allowed into evidence.
Additionally, the
claimant argues that any medical evidence from a physician who relied
on Dr.
Gottlieb’s reports should be excluded as well because their opinions
were
tainted by Dr. Gottlieb’s report which was improperly admitted into
evidence.
The claimant argues that Dr. Gottlieb is not a “physician or surgeon”
under §
31-294f C.G.S., therefore, his examination of the claimant was not
legally
performed and Dr. Gottlieb’s report should not have been relied on.4 Section 31-294f (a) states in relevant 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.” We have previously held that psychologists’
reports can
be admitted as evidence in Workers’ Compensation proceedings. See Dixon
v. United Illuminating Co., 3543 CRB-4-97-03 (April 9,
1998); Harris
v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op.
357,
3143 CRB-5-95-8 (June 26, 1996). Once the reports are admitted the
trial
commissioner then has the discretion to determine the credibility and
weight to
give to such reports. Harris, supra. Furthermore,
the claimant herself
has submitted the reports of Edward Kravitz, Ph.D., a behavioral
psychologist.
See Claimant’s Exhibit J. In Bidoae
v. Hartford Golf Club, 4424 CRB-6-01-8 (June 27, 2002) we
affirmed a
trial commissioner who ordered a claimant to submit to the respondent’s
Independent Medical Examination by a Vocational Rehabilitation
Specialist or be
precluded from offering her own vocational expert’s report into
evidence. The
claimant in that case argued she should not be forced to participate in
an
Independent Medical Examination with a Vocational Rehabilitation
Specialist
because that medical treater was not a surgeon or physician under
§ 31-294f. In
Bidoae,
we did not predicate our finding on whether the specialist qualified
under §
31-294f, instead we upheld the trial commissioner’s finding on the
principle of
due process. We stated that the notion of due process entitles parties
to
confront witnesses on equal terms, therefore, if the claimant submits a
Vocational Rehabilitation Specialist’s report the respondents should be
entitled to submit similar evidence. In this case due process also
dictates
that the trial commissioner allow the respondents to submit their
psychologist’s IME’s report because the claimant has submitted similar
evidence. For these reasons we find no error in the trial
commissioner’s
admission and reliance on Dr. Gottlieb’s report. Logically, we also
find no
error in other physicians’ reliance on Dr. Gottlieb’s report. Next
we will address the claimant’s
contention that the trial commissioner went beyond her authority when
she
ordered specific treatment and hospitalization for the claimant.
Claimant’s
January 26, 2004 Brief. An issue at the formal hearing was “the need
for pain
management to be performed by Dr. Mark Thimineur and the causation of
that pain
management therapy.” October 11, 2001 Transcript, p. 5. The trial
commissioner
ordered the claimant to treat with a physician other than Dr. Thimineur
and in
a different manner than Dr. Thimineur had prescribed. First
we will address the trier’s
determination that Dr. Thimineur was not an authorized treating
physician. The
trial commissioner found that the respondent-insurer initially
authorized eight
weeks of pain management therapy. Findings, ¶ 81. Dr. Gudin, a
pain management
specialist, initially evaluated the claimant on September 1, 1998 and
continued
her treatment through November 2, 1999. Findings, ¶ 83, 95. Dr.
Thimineur
initially treated the claimant on November 23, 1999. February 4, 2002
Transcript, p. 8. Dr. Thimineur testified that the claimant stopped
treating
with Dr. Gudin, another physician in his practice, when Dr. Gudin left
the
practice to go to New Jersey. February 4, 2002 Transcript, p. 8.
However, Dr.
Thimineur initially treated the claimant prior to Dr. Gudin leaving the
practice in January 2000. Id., p. 7-8. Dr. Thiminuer’s initial notes
regarding
the claimant dated November 23, 1999 state, “Miss Donaldson has
requested to be
evaluated by myself as she is considering changing physicians in the
practice.
This is our usual practice; I am providing her with [an] initial
history and
[a] physical on a discussion of my understanding of her problems and my
approach to the problem. She would then be free to choose which
physician she
may want to follow.” Claimant’s Exhibit A. In Dr. Kravitz’s notes dated
November 12, 1999 the claimant reported that she had set up an
appointment with
Dr. Thiminuer for a second opinion. Claimant’s Exhibit J. In Dr.
Kravitz’s
November 30, 1999 office notes he stated; “Mrs. Donaldson reported that
her
husband had tried to speak with Dr. Gudin about transferring her care
to Dr.
Thimineur but reportedly he refused to go along with this.” Id. The
claimant
testified that Dr. Gudin left the facility that she was being seen at
abruptly.
December 3, 2001, Transcript p. 18. The claimant stated that she went
to see
Dr. Thimineur since he was in the same group, but she does not recall
whether
she was ever specifically authorized to see Dr. Thimineur. Id., p. 20. The
decision to authorize a treater
is a factual determination within the trial commissioner’s purview and
we will
not disturb such a finding unless it is apparent that it is
unreasonable. Murray
v. Black Tie Limousine, 3899 CRB-3-98-9 (November 4, 1999).
The
trial commissioner found, “without referral from Dr. Gudin, the
claimant on her
own sought a second opinion with Dr. Mark Thimineur of the
Comprehensive Pain
& Headache Treatment Center.” Findings, ¶ Z. She further
found, “Dr. Mark
Thiminuer is not and has not been an authorized treating physician.”
Findings,
¶ b). Based on the testimony and evidence before the trial
commissioner we find
no error in these findings. We
also find no error in the trial
commissioner’s decision not to retroactively authorize Dr. Thimineur to
be the
claimant’s treating physician. Retroactive authorization is limited to
circumstances where the claimant can demonstrate good cause for
changing
providers. Murray, supra. Here, there is evidence
that the
claimant made this change of providers for her own reasons and on her
own. At
issue at the hearing was whether
Dr. Thiminuer’s treatment was reasonable or necessary as contemplated
by §
31-294d. October 11, 2001, December 3, 2001, February 4, 2002, February
27,
2002 and May 24, 2002 hearing notices. The trial commissioner made
findings
that the claimant’s use of Ketamine was not improving her condition and
resulted in a cognitive impairment which would improve if the Ketamine
was
reduced or eliminated. Findings, ¶ ¶ NN, OO and PP. The trial
commissioner based
her findings on the medical opinions of several physicians who opined
that the
claimant’s regimen of prescription drugs was potentially harmful to the
claimant and not reasonable or necessary. Findings, ¶¶ 130,
139, 140, 145-151.
Additionally, the trial commissioner found that Dr. Thimineur’s
treatment was
based on the assumption that the claimant had sustained a traumatic
brain
injury, however, there was no credible evidence in the record that the
claimant
had sustained such an injury. Findings, ¶¶ EE and FF. These
findings equate to
a finding that Dr. Thimimuer’s treatment of the claimant was not
reasonable and
necessary. The
determination of whether medical
care is reasonable and necessary is a factual issue to be decided by
the trial
commissioner. Rodenbaugh v. F.R. Tetro Enterprises,
3823
CRB-5-98-5 (August 18, 1999), quoting Cummings
v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op.
225,
228, 2008 CRB-1-94-4 (April 12, 1995) (citing Burgos v. United
Technologies, 12
Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 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). Here, the trial
commissioner’s
determination was based on medical evidence in the record, therefore,
the
findings will stand. Once
the trial commissioner had
determined Dr. Thiminuer was not an authorized treater and his
prescribed
treatment was not reasonable and necessary it was reasonable that the
trial
commissioner would make further orders in order to avoid leaving the
claimant without
the ability to obtain further treatment. Cotugno
v. Lexington Caterers, Inc., 4390 CRB-2-01-5 (June 21,
2002). Dr.
Thiminuer himself indicated that if the claimant were removed from all
pain
management drugs, her physical and mental conditions would worsen, and
that the
claimant might be at risk for suicide. February 4, 2002 Transcript, p.
34.
Here, the trial commissioner’s ordered Dr. Kloth to be the claimant’s
authorized treater. The claimant should have been aware that there was
a chance
the trial commissioner might not find in her favor and would need to
authorize
a new treating physician. We find no error with the appointment of Dr.
Kloth as
claimant’s authorized treater. However,
the trial commissioner went
beyond her authority when she made specific orders regarding a
treatment plan
to be imposed on a treating physician without that physician’s
acquiescence.
The treatment plan the trial commissioner ordered was substantially
similar to that
which Dr. Kaplan has recommended, however, there is no evidence that
Dr. Kloth
would agree to treat the claimant in the specific manner the trial
commissioner
prescribed. We therefore reverse the trial commissioner’s orders
regarding a
specific treatment plan for Dr. Kloth to follow. Therefore,
we affirm in part and
reverse in part the October 21, 2002, Finding and Award of the
Commissioner to
the Third District. Commissioners
A. Thomas White and
Charles F. Senich concur. 1
Ancillary to this appeal the claimant’s former attorney filed a Motion
to
Withdraw as counsel which was denied by this board. See Donaldson
v. Continuum of Care, Inc., 4581 CRB-3-02-10 (July 29,
2003).
However, subsequent to that decision the claimant retained the services
of new
counsel, Attorney Nathan J. Shafner, who represented her at oral
argument on
this appeal. BACK TO TEXT 2
In addition to the Reasons of Appeal and Brief that the claimant’s
attorney
filed on her behalf the claimant filed her own Reasons of Appeal on
February
21, 2003. Although we normally do not review appeal documents filed by
an
individual who was represented by counsel, because of the unique
circumstances
in this case we will briefly address the claimant’s own alleged error
at this
point. The reason we will do so is because it is evident that the
status of the
claimant’s representation was ambiguous when she filed the document. On
November
26, 2002 the claimant’s then attorney filed a Motion to Extend Time to
File
Statement of Reasons of Appeal and in that document he stated, “the
Appellant’s
appeal may be prejudiced if present counsel continues to handle said
appeal.”
Later, on February 27, 2003 her attorney ultimately filed a Motion to
Withdraw
as Counsel, see footnote 1 above. The claimant argues that the
commissioner
erred in failing to admit a referral form dated December 20, 1999. The
claimant
initially proposed that this evidence be submitted via a Motion to
Modify Award
dated December 3, 2002. The trial commissioner denied this motion on
December
17, 2002 and stated that this evidence was not unavailable at the
formal
hearings because the date of the proposed evidence was two years prior
to the
first formal hearing in this matter. We may not set aside this ruling
absent a
clear abuse of discretion. York v. General Dynamics Corp., 13
Conn. Workers’
Comp. Rev. Op. 166, 1770 CRB-2-93-6 (March 9, 1995). As the trial
commissioner
articulated a reasonable reason for denying the motion, we find no
error. BACK
TO TEXT 3
At oral argument the claimant alleged additional evidentiary errors.
However,
since those alleged errors were never brought forward prior to oral
argument we
will not address those issues in this opinion. BACK
TO TEXT 4
The claimant also claims that Dr. Gottlieb was identified as an M.D. as
opposed
to a Ph.D. when the respondents sent the notification of the IME to the
claimant. Although the respondents did identify Dr. Gottlieb as an M.D.
in the
notice of the examination, Claimant’s Exhibit C, the respondents
contend that
Dr. Gottlieb’s initial identification as a M.D. was merely a clerical
error. BACK
TO TEXT |