155 Conn. App. 635
Conn. App. Ct.2015Background
- In 1997 Heyward Sellers sustained a compensable head injury at work and was diagnosed with central pain syndrome, myofascial pain syndrome, and tension headaches; a voluntary agreement awarded a 10% permanent partial disability to the cervical spine.
- Multiple commissioner examinations occurred: Dr. Donaldson (2002) found only a minor scalp contusion; Dr. Druckemiller (2010) found no brain injury, age-related degenerative changes, chronic cervical strain, and that no treatment would benefit plaintiff; Dr. Kaplan (2011) tied cognitive impairment, neck pain, and headaches to the 1997 injury and recommended neuropsychological testing and EMG/nerve conduction studies.
- Treating pain physician Dr. Steven Levin provided ongoing medication management; Levin testified medications aided activities of daily living but were palliative and did not enable the plaintiff to work; Levin stated plaintiff reached maximum medical improvement by March 2002.
- At hearing the commissioner credited Kaplan that cognitive/headache/neck treatment was related to the 1997 incident, ordered the recommended testing and supplementation of Kaplan’s report, but found Levin’s medications palliative and not reasonable and necessary after May 6, 2011.
- The commissioner also found Levin to be the sole authorized treating physician; treatment by other doctors (Drs. Sabshin and Kraus) was outside the chain of authorization and not compensable.
- The Workers’ Compensation Review Board affirmed the commissioner’s findings; Sellers appealed, arguing (1) the medications were wrongly characterized as palliative/not reasonable and necessary, and (2) other physicians’ treatment was improperly deemed unauthorized.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Levin’s medications were "reasonable and necessary" after May 6, 2011 | Levin’s treatment is necessary for daily functioning and thus reasonable/necessary; commissioner erred to deem them palliative solely because they do not return plaintiff to work | Evidence (other examiners) shows MMI reached, further diagnostic testing required, and medications are palliative; not reasonable/necessary now | Affirmed: medications were properly found palliative and not reasonable/necessary after May 6, 2011; additional testing could change that conclusion subject to due process |
| Whether treatment by Drs. Sabshin and Kraus was within the authorized chain of referral | Plaintiff contends their treatment should be compensable | No evidence commissioner authorized change of physician from Levin; Levin was sole authorized treating physician | Affirmed: treatment by Sabshin and Kraus was outside the chain of authorization and not compensable |
Key Cases Cited
- Anderson v. R & K Spero Co., 107 Conn. App. 608, 946 A.2d 273 (2008) (deferential standard of review to commissioner on factual findings and determination whether treatment is reasonable and necessary)
- Cervero v. Morey’s Assn., Inc., 122 Conn. App. 82, 996 A.2d 1247 (2010) (finder of fact may accept or reject expert testimony in whole or in part)
- Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 832 A.2d 679 (2003) (claimant should obtain permission to change physicians before commencing new treatment)