Rodenbaugh v. F.R. Tetro Enterprises

CASE NO. 3823 CRB-05-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 18, 1999

DEBORAH RODENBAUGH

CLAIMANT-APPELLANT

v.

F.R. TETRO ENTERPRISES

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by C. Thomas Furniss, Esq., Furniss & Quinn, P.C., 248 Hudson Street, Hartford, CT 06106.

The respondent employer and its insurer did not appear at oral argument or at the formal hearing below, as the issue only involved the Second Injury Fund and the claimant.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the May 20, 1998 Finding and Dismissal of the Commissioner acting for the Fifth District was heard January 8, 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

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 20, 1998 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision the trial commissioner denied the claimant’s request that the Fund be required to pay for the implantation of an intrathecal infusion pump near the claimant’s spine for the automatic infusion of narcotic medication. The trial commissioner concluded that such treatment did not constitute reasonable or necessary medical treatment pursuant to § 31-294, and further concluded that said treatment was not in accordance the Workers’ Compensation Commission Medical Protocols.1 In support of her appeal, the claimant contends that the uncontradicted medical evidence indicates that the requested treatment was reasonable and necessary medical treatment. We find no error on the part of the trial commissioner.

The “determination of whether medical care is reasonable and necessary, including whether the medical care is palliative care or a curative remedy, is a factual issue to be decided by the trial commissioner.” 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)). This board has explained:

Reasonable or necessary medical care is that which is curative or remedial. 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.

Cummings, supra, (citing Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984)).

In the instant case, there is contradicting medical evidence in the record regarding whether the claimant’s use of an intrathecal infusion pump constituted reasonable medical treatment. When there are conflicting medical opinions in the record, the commissioner as trier of fact may make a conclusion based on the weight and credibility which she affords the evidence before her. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993). We will not disturb such a conclusion when there is sufficient evidence in the record to support it. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988).

In the instant case, the trial commissioner found that the claimant suffered from severe pain in various parts of her body following complications which developed after a compensable injury on October 26, 1992. The claimant’s treating physician, Dr. Thimineur, recommended the implantation of an intrathecal infusion pump near the claimant’s spine for the automatic infusion of narcotic medication. Dr. Thimineur did not contend that said treatment device would cure the claimant’s pain, but opined that her function could be improved even if the pain is not cured. (Finding No. 9). Dr. Thimineur further opined that even if the claimant’s function is improved, it would be unlikely that she would be able to return to work. Id.

Dr. Kinan Hreib of the Lahey Hitchcock Clinic performed a trial commissioner’s examination of the claimant and issued a report dated November 25, 1997. In that report, he opines that “unfortunately, because of the patient’s overall dependency on medications, now it is unclear if the morphine pump would be effective.” (Finding No. 10). In that report, Dr. Hreib explained:

“Other options include treatment with a combination of tricyclics, as well as selective serotonin reuptake inhibitors. . . . Other options include some of the anticonvulsants. . . . Other options include topical Capsaicin. The patient should undergo some type of physical therapy. Unfortunately, this condition of chronic pain is likely to get worse unless physical therapy and appropriate treatment is institute[d] early on in the disease. Therefore, I am not certain that, at this time, physical therapy by itself will be sufficient, but, nevertheless, it is a reasonable approach considering her age and inability to work. In the present condition, the patient is clearly unable to work. However, I do not believe that all options have been exercised.”

(Claimant’s Exh. I).

We conclude that there was sufficient evidence presented to support the commissioner’s conclusion that the requested intrathecal infusion pump did not constitute reasonable or necessary medical treatment pursuant to § 31-294d.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The determination of whether treatment constitutes reasonable or necessary medical care pursuant to § 31-294d does not require that such treatment accord with the Workers’ Compensation Commission Medical Protocols, as those protocols are not absolute. Section 31-280(b)(26). BACK TO TEXT