MARILYN DABBO CLAIMANT-APPELLANT
v.
BECKMAN COULTER, INC. EMPLOYER
and
GALLAGHER BASSETT SERVICES INSURER RESPONDENTS-APPELLEES
No. 6174 CRB-2-17-1
Connecticut Attorney General Opinions
Compensation Review Board Workers’ Compensation Commission
March 6, 2018
This
Petition for Review from the January 5, 2017 Finding and
Dismissal of Thomas J. Mullins, the Commissioner acting for
the Fifth District, was heard November 17, 2017 before a
Compensation Review Board panel consisting of Commissioners
Christine L. Engel, Daniel E. Dilzer and Ernie R.
Walker.[1]
The
claimant was represented by James H. McColl, Jr., Esq., The
Dodd Law Firm, L.L.C.
The
respondents were represented by Thomas M. McKeon, Esq., Bai,
Pollock, Blueweiss & Mulcahey, P.C.
OPINION
CHRISTINE L. ENGEL, COMMISSIONER
The
claimant has appealed from a Finding and Dismissal in which
the trial commissioner concluded that the moratorium for
workers’ compensation benefits, subsequent to a tort
settlement, had not been exhausted. The claimant asserts that
the trial commissioner reached an erroneous conclusion by not
crediting the payments made by the group health care carrier
for the claimant’s treatment. The claimant believes
that had the trial commissioner done so, the moratorium would
be exhausted and she would be entitled to additional benefits
at this time for her compensable injury. The respondents
argue that the trial commissioner’s decision was
consistent with the law and the facts, citing appellate
precedent on this issue. Upon review, we find the
respondents’ position more persuasive, and therefore
affirm the Finding and Dismissal.
The
trial commissioner reached the following findings at the
conclusion of the formal hearing. He found the claimant had
sustained a compensable shoulder injury on January 9, 2008,
while working at the Margate Hotel. A voluntary agreement was
approved on October 2, 2009 between the claimant and the
respondents establishing that the claimant’s shoulder
was at maximum medical improvement as of July 2, 2008 with a
9.5 (nine and one-half ) percent permanent impairment.
Compensation for the permanency was paid in full by the
respondents prior to 2016. The claimant filed a civil action
against Klymeg Hotel, L.L.C., and Margate Incorporated, and
the lawsuit was settled on or about April 27, 2012 for a
total sum of $195,000. The claimant received $86,252.37 from
the settlement of the civil claim after reimbursing the
respondents $41,074.88 for workers’ compensation
benefits paid as of the date of settlement and paying her
attorneys a fee of $65,000 and $2,672.75 in costs. At a July
7, 2016 formal hearing, the parties stipulated that as a
result of the claimant’s net recovery from the
settlement of the civil case, the respondents were entitled
to a “moratorium,” as defined in Enquist v.
General Datacom, 218 Conn. 19 (1991), in the amount of
$86,252.37 as of April 27, 2012.
The
trial commissioner also considered issues related to the
claimant’s medical treatment after 2012. On September
4, 2013, the claimant underwent left-shoulder replacement
surgery with Eric J. Olson, M.D., at St. Mary’s
Hospital in Waterbury, and treated with Dr. Olson after the
operation on numerous occasions from 2013 to 2016. Following
the September 2013 surgery, the claimant had sixteen physical
therapy sessions at Physical Therapy & Sports Medicine
Centers between September 17, 2013 and December 12, 2013. On
April 15, 2015, Kevin P. Shea, M.D., conducted a
Respondent’s Medical Examination [hereinafter
“RME”]. Dr. Shea concluded that the
claimant’s September 4, 2013 left-shoulder replacement
surgery and the follow-up treatment through the date of the
RME were reasonable and necessary, and the claimant’s
fall on January 9, 2008 was a substantial factor in causing
the need for her September 4, 2013 left-shoulder replacement
surgery.
The
claimant entered into the evidentiary record bills related to
her treatment. A bill from St. Mary’s Hospital for the
September 4, 2013 left-shoulder replacement surgery listed
the total charges for medical services as $61,962.66, but the
claimant’s group health insurer, Anthem Blue Cross Blue
Shield [hereinafter “Anthem”], made adjustments
to reduce that bill by $41,452.66 and paid only $19,010 in
satisfaction of that bill.[2] The claimant’s church paid
$500 of the bill. The claimant did not prove that she had
paid any portion of the bill from St. Mary’s Hospital
with her own funds. The claimant also produced a bill for
physical therapy in the amount of $4,685, which Anthem had
reduced by $2,961.88 and paid only $1,003.43 in satisfaction
of that bill.[3] The claimant paid $720 of her own
funds in the form of co-pays for her physical therapy. The
claimant also produced bills from Waterbury Orthopaedic
Associates, P.C., for medical treatments by Dr. Olson between
2013 and 2016. The total amount of the charges on those bills
was $9,668.90, but Anthem made adjustments to reduce the bill
by $5,397.84 and paid only $3,468.30 in satisfaction of those
bills.[4] The claimant paid $798.86 from her
own funds to Dr. Olson’s practice in the form of
co-pays.
The
trial commissioner reviewed the claimant’s insurance
coverage. He found she had been covered by Blue Cross Blue
Shield [hereinafter “BCBS”] while employed by
Joseph Bowen, M.D., between October 2010 to May 2014, and Dr.
Bowen had paid 100 (one hundred) percent of the BCBS
premiums. In May 2014, the claimant transferred her
employment from Dr. Bowen to St. Mary’s Hospital. The
claimant testified that St. Mary’s paid some of the
premiums for her health insurance coverage with BCBS from May
2014 to the present, but she did not know what percentage of
the premiums she paid during this period. She testified that
BCBS was the only health insurer which paid medical bills for
her left-shoulder treatment from April 27, 2012 to the
present. The trial commissioner noted that although the
claimant provided evidence that she had paid copays for
physical therapy and to Dr. Olson, she offered no evidence
that she paid out of pocket for her treatment at St.
Mary’s Hospital.
The
trial commissioner also considered the issue of additional
compensation due to the claimant subsequent to the 2013
surgery. The commissioner noted that the claimant was totally
disabled from work for a period of ten weeks after the
surgery. He also noted that on May 20, 2016, Dr. Olson found
that the claimant was at maximum medical improvement with a
25 (twenty-five) percent permanent...
