29 Conn. App. 249 | Conn. App. Ct. | 1992
The defendants
The defendants appeal from the review division’s affirmance of the commissioner’s decision to order out of state medical treatment for the plaintiff without first conducting a hearing. The plaintiff’s objections concern the finding that he attained maximum medical improve
The record discloses that during the course of his employment with the defendant Twin Manufacturing, Inc., the plaintiff suffered a traumatic brain injury in 1984 and was paid 156 weeks of permanent partial disability benefits between November, 1986, to November, 1989. In his finding and award of May 14, 1990, the commissioner found that the plaintiff had reached maximum medical improvement on October 30, 1986, but became totally disabled again on November 6, 1989. The commissioner ordered the defendants to provide the plaintiff with up to one year of in-patient hospitalization or treatment at a facility in Connecticut that treats traumatic brain injuries.
In May, 1990, the plaintiff filed a petition for review and reasons for appeal, contesting the finding that he had reached maximum medical improvement on October 30, 1986. In July, 1990, he moved to correct the commissioner’s finding, seeking permission to be treated outside Connecticut. Attached to his motion was a letter addressed to the commissioner from the Connecticut Traumatic Brain Injury Association, which indicated that appropriate facilities necessary to treat the plaintiff do not exist in Connecticut. The letter also contained a list of facilities that provide such treatment. The defendants objected to the plaintiff’s motion, and in October, 1990, the commissioner granted the motion without a hearing.
The defendants claim the commissioner improvidently granted the plaintiff’s motion to correct for several reasons. They contend that (1) the plaintiff lost his right to receive benefits, pursuant to General Statutes § 31-305, when he did not attend independent medical evaluations, (2) the proposed treatment was to occur in a nonmedical facility in violation of General Statutes § 31-294,
I
At the outset, we note that, although General Statutes § 31-294 permits a compensation commissioner to order a change in medical providers, it is silent as to whether this encompasses care outside Connecticut.
We commence our analysis with settled principles of statutory construction designed to ascertain and give effect to the apparent intent of the legislature. Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). When a statute’s words are plain and unambiguous, we look no further for interpretive guidance because we assume the words themselves express the legislature’s intent. Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990). “That axiom only applies in full force, however, ‘[wjhere . . . the language of a statute is . . . absolutely clear’ on its face and where no ambiguity is raised in applying the statute in a particular case.” (Emphasis in original.) Rose v. Freedom of Information Commission, supra, quoting Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991).
By contrast, when we are confronted with ambiguity in a statute, “ ‘we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992), quoting Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). In any event, “we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible. . . . [Cjommon sense must be used,
In this case, the statute is not absolutely clear about whether a compensation commissioner can order treatment outside Connecticut. Rather, General Statutes § 31-294 provides, inter alia, that the employer “shall provide a competent physician or surgeon,” and “shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary.” The statute also provides that such physician or surgeon is to be selected from an approved list of such health care providers. See also General Statutes § 31-279.
Because our review of the legislative history fails to yield insight into the legislature’s intent regarding whether treatment outside Connecticut may be ordered, we look to the policy the statute was designed to implement, and to its relationship to existing legislation and common law principles applicable to the law of workers’ compensation. See United Illuminating Co. v. Groppo, supra.
Although the legislature recently amended the Workers’ Compensation Act; Public Acts 1991, Nos. 91-32 and 91-339; it did not disturb the review division’s construction of General Statutes § 31-294 permitting medical care out of state. “[T]he inference of legislative concurrence with the [review division’s] interpretation [is] to be drawn from legislative silence concerning that interpretation, especially where the legislature makes unrelated amendments in the same statute.” (Internal quotation marks omitted.) Hansen v. Gordon, supra, 36. We conclude that under the circumstances of this case, the review division correctly determined that a
Courts in numerous other jurisdictions have reached this same conclusion. See, e.g., Alcan Electrical & Engineering Co. v. Bringmann, 829 P.2d 1187, 1189 (Alaska 1992); Braewood Convalescent Hospital v. W.C.A.B., 34 Cal. 3d 159, 168, 666 P.2d 14, 193 Cal. Rptr. 157 (1983); Lindsey v. J.R. & R. Enterprises, 575 So. 2d 1296, 1298 (Fla. App. 1990); Chaples v. Gilco, Inc., 280 A.2d 546, 548 (Me. 1971); R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1022-23 (Miss. 1990); Reynaga v. Northwest Farm Bureau, 300 Or. 255, 262, 709 P.2d 1071 (1985); Roadway Express, Inc. v. W.C.A.B. (OSTIR), 520 A.2d 1261, 1263 (Pa. Comm. 1987); Ward v. Dixie Shirt Co., 223 S.C. 448, 459, 76 S.E.2d 605 (1953); see also McAree v. Gerber Products Co., 342 A.2d 608, 612 (R.I. 1975) (out of state treatment not prohibited by Rhode Island law).
We agree with the Rhode Island court’s reasoning in McAree. In an age of medical specialization in which technology is advancing at a pace almost beyond our ability to comprehend, any blanket prohibition against treatment out of state for Connecticut compensation claimants would constitute an unwise “parochial view that adequate treatment is always available in this state.” Alcan Electrical & Engineering Co. v. Bringmann, supra.
II
Next, we must determine if an evidentiary hearing is required before a compensation commissioner can
General Statutes § 31-294 provides in pertinent part that “[t]he commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change” in medical providers. Although our appellate courts have yet to construe this portion of the statute, judicial construction of other portions of the statute has repeatedly found that what is required or permitted must be reasonable. See, e.g., Collins v. West Haven, 210 Conn. 423, 429, 555 A.2d 981 (1989) (notice of claim to apprise city of request for heart and hypertension benefits); Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154, 158, 565 A.2d 8 (1989) (medical care); see also Pokorny v. Getta’s Garage, 219 Conn. 439, 455-57, 594 A.2d 446 (1991) (double recovery of medical costs not permitted).
Under the circumstances of this case, we believe that the same reasonableness requirement applies when a compensation commissioner orders out of state treatment. See J. Asselin, Connecticut Workers’ Compensation Practice Manual, supra, pp. 182-83 (“medical treatment furnished by the employer must be reasonably accessible to the employee”). In this context, th^ reasonableness and necessity of such care hinges on whether equally beneficial treatment is available in Connecticut. See 2 A. Larson, Workmen’s Compensation Law (1989) § 61.13 (b) (2), pp. 937-41. In order to resolve this question of fact, we believe it is proper for the commissioner first to conduct an evidentiary hearing. See J. Asselin, Connecticut Workers’ Compensation Manual, supra, p. 180.
Although a commissioner may order out of state treatment in appropriate circumstances, our holding is not to be interpreted as meaning that such treatment must be ordered in all circumstances. We reiterate that such treatment should be reasonable and necessary, and permitted only when equally beneficial treatment is unavailable in Connecticut. Thus, it follows that the commissioner need not always find that the proposed treatment is reasonable. See Pagliarulo v. Bridgeport Machines, Inc., supra, 159. In some circumstances, what constitutes reasonableness may require expert testimony to ascertain. Whether to accept or reject such
Finally, we are mindful of the various concerns related to health care provided outside Connecticut. Although a compensation commissioner would be unable to subpoena physicians and documents
Concerning the plaintiffs cross appeal, our review of the record discloses that the compensation review division properly denied the motion to correct the trial commissioner’s findings because the commissioner is the trier of the facts; Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989); McCurdy v. State, 26 Conn. App. 466, 469, 601 A.2d 560 (1992); and the conclusions he reaches must stand unless they result from an incorrect application of the law or from an inference illegally drawn from facts he found. Id. In this case, the commissioner found that “Dr. Dean Hokanson testified that the [plaintiff] had reached max
The decision of the compensation review division dismissing the plaintiff’s appeal is affirmed. The decision dismissing the defendants’ appeal is reversed and the case is remanded to the compensation review division with direction to remand the matter to the workers’ compensation commissioner for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
The defendants are Twin Manufacturing, Inc., the plaintiff’s employer, and Frank B. Hall Risk Management, Inc., the insurer.
In granting the motion, the trial commissioner wrote: “Said Motion is hereby Granted, and paragraph 3, page 6 of the Commissioner’s Finding and Award dated May 14, 1990 is modified so that the respondent shall
Our review of the record fails to disclose, and the parties in their briefs do not identify, any document in which the plaintiff and his counsel agreed to the fund’s request.
General Statutes § 31-294 (c) provides in pertinent part: “The employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems rea
General Statutes § 31-294 was repealed by Public Acts 1991, No. 91-32, § 40, effective July 1, 1991, and recodified in Public Acts 1991, No. 91-32. The above mentioned language has been reenacted and codified in Public Acts 1993, No. 91-32, § 12. The legislature’s action does not affect the appeals here. See Hansen v. Gordon, 221 Conn. 29, 32-33 n.1, 602 A.2d 560 (1992).
General Statutes § 31-279 provides in pertinent part that the compensation commissioners “shall maintain an approved list of practicing physicians, surgeons, podiatrists and dentists from which an injured employee shall choose for examination and treatment under the provisions of this chapter. ...”
General Statutes § 31-275 (9) provides: “ ‘Physician’ shall include any person licensed and authorized to practice a healing art as defined in section 20-1 and duly licensed under the provisions of chapters 370, 371, 372 and 373 to practice in this state.”
This reasoning also leads ineluctably to the conclusion that treatment outside Connecticut may be proper when the claimant is referred to an out of state health care provider. See Pokorny v. Getta’s Garage, 219 Conn. 439, 456, 594 A.2d 446 (1991). General Statutes § 31-294 “ ‘clearly places responsibility on the employer to furnish all necessary medical and rehabilitative services. By statute, this includes not only the furnishing of a physician to attend the injured employee, but also whatever medical treatment or diagnostic procedures such physician deems reasonable or necessary. Thus, the employer is responsible not only for the initial treating physician, but also for any other physician, hospital, diagnostic or treatment center to which such treating physician refers the claimant . . ” (Emphasis added.) Id., citing J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 178. See also Chaples v. Gilco, Inc., 280 A.2d 546, 548 (Me. 1971) (medical services rendered by out of state physician not licensed in Maine not improper when in state physician on panel selected to provide care by Maine Industrial Accident Commission referred claimant to out of state physician).
The leading Connecticut commentator on the law of workers’ compensation recognizes that despite the language of General Statutes § 31-294, in certain circumstances a hearing may be appropriate. See J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), p. 180. “If the claimant desires to change physicians, he should make such a request, in writing, to the commissioner having jurisdiction over the claim. The request
General Statutes §§ 31-278 and 31-298 permit the trial commissioner to subpoena witnesses, including physicians, and medical records.
“Maximum medical improvement is that time when there is no reasonable prognosis for complete or partial cure and no improvement in the physical condition or appearance of the injured body member can be reasonably made.” Cappellino v. Cheshire, 27 Conn. App. 699, 703 n.2, 608 A.2d 1185 (1992).