Coull v. Capitol Auto Service

The claimant was represented by Dean B. Kilbourne, Esq., Kilbourne & Tully, P. C., 120 Laurel St., Bristol, CT 06010.

The respondents were represented by Jean D. Molloy, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the January 31, 1994 Finding and Award of Compensation of the Commissioner acting for the Eighth District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and George A. Waldron.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 31, 1994 Finding and Award of the Commissioner for the Eighth District. They argue that the commissioner improperly failed to specify that payment for trigger point injections was not authorized, and further, that there would not be enough evidence in the record to support a contrary finding. We dismiss the respondents’ appeal.

The claimant suffered a compensable back strain on December 16, 1988, for which he received disability benefits, including payment for a five percent permanent partial disability of the back. He also received subsistence benefits from 1991-92 while enrolled in an educational program sponsored by the Division of Workers’ Rehabilitation. The claimant testified that he slipped and fell on ice while attending that program on January 29, 1992, again injuring his back. In accordance with the testimony of Dr. Gerald Becker, the respondents’ medical examiner, the trial commissioner found that the claimant had a five percent permanent partial impairment as a result of the 1988 injury and subsequent fall. The commissioner specifically noted that there was no medical evidence to support a finding that the claimant’s permanency rating had increased.

The claimant’s continued complaints of pain throughout his treatment with three physicians led to his referral to the Yale Center for Pain Management in February 1993. The doctors there prescribed trigger point injections and physical therapy for relief of his pain. Dr. Becker testified, however, that the chiropractic treatment received by the claimant since 1989 had not provided much curative value, only temporarily relieving the claimant’s symptoms. He also disagreed with the trigger point injection therapy and the claimant’s use of Percocet to treat his long-term back strain.

The commissioner cited a December 1991 Finding and Award, where another commissioner had found post-1989 chiropractic treatment by Dr. David Clukey, the authorized treating physician, palliative and thus unauthorized. He concluded that there was no evidence to indicate that Dr. Clukey’s treatment since that time had changed, and deferred to the previous finding in that regard. However, the commissioner also noted that the treatment by Dr. Edward Spellman, Dr. James Sabshin and the Yale Pain Clinic was performed pursuant to a referral by an authorized physician, and was thereby authorized as well. He ordered that the respondents pay the reasonable medical expenses of Drs. Spellman and the Yale Pain Clinic, and dismissed the claims for additional permanent partial disability and for payment of Dr. Clukey’s medical bills. The commissioner did not specifically state whether or not further treatment with the Yale Pain Clinic was authorized, which is the gravamen of the respondents’ appeal.

We observe that the respondents’ filed a Motion to Correct seeking to add a finding that the claimant had reached maximum medical improvement, and that further trigger point injections at the Yale Pain Clinic were unauthorized. The commissioner denied this Motion to Correct in its entirety. The claimant interprets this as evidence that the commissioner authorized the claimant to return to the Yale Pain Clinic for trigger point injection therapy in his Finding and Award. The respondents argue that such an authorization would be improper, as the evidence indicated that the trigger point injections would merely be palliative, not curative, and would not increase the claimant’s ability to work. See § 31-294d C.G.S. We believe, however, that the denial of the Motion to Correct is indicative of the scope of the Finding and Award itself.

Nowhere in the Finding and Award is the issue of future treatment of any kind discussed by the trial commissioner. Rather, his findings are directed at the authorization of treatment already received by the claimant. He specifically authorized the bills of Dr. Spellman, Dr. Sabshin and the Yale Pain Clinic because this treatment was obtained pursuant to a referral by an authorized physician. He specifically denied payment of the bills of Dr. Clukey because a previous Finding and Award concluded that his treatment was merely palliative, and there was no evidence that the nature of Dr. Clukey’s treatment had changed since that date. The respondents’ Motion to Correct, which sought to add a finding as to future trigger point injection therapy, was also denied by the commissioner. The inevitable conclusion from these facts is that the trial commissioner did not make, and did not intend to make, any finding as to future trigger point injection therapy. He merely approved payment of the existing bill from the Yale Pain Clinic.

This Board reviews the findings of a trial commissioner for error. We do not make our own findings or hear evidence on review. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). Here, we agree with the respondents that no finding was made by the commissioner on the issue of future medical treatment. Thus, further trigger point injection therapy was neither approved nor disapproved. Contrary to the respondents’ assertion, however, the commissioner did not err in failing to make a determination on that issue. It was simply not included within the scope of his Finding and Award. Therefore, this Board need consider the issue no further.