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Melendez v. Home Depot Inc.2/6/2001
The defendants, The Home Depot, Inc. (Home Depot), Insurance Company of Pennsylvania and GAB Robins North America, Inc., appeal from the decision of the workers' compensation review board (board) affirming the finding and award of compensation by the workers' compensation commissioner (commissioner) to the plaintiff, Nydia Melendez. The defendants claim that the board improperly concluded that their obligations under the Workers' Compensation Act, General Statutes ยง 31-275 et seq., were not discharged because the plaintiff received unauthorized medical treatment outside Connecticut. We affirm the decision of the board.
The commissioner found the following facts. The plaintiff was employed by Home Depot on April 21, 1996. On that day, the plaintiff injured her left arm during the course of her employment. Home Depot later voluntarily accepted liability for the plaintiff's injury. The plaintiff initially received treatment for her injury in Connecticut from Edward M. Staub, a physician. In August, 1996, because the plaintiff was suffering from chronic pain and was not responding to the initial course of treatment, Staub performed surgery on the plaintiff's left shoulder. Because the plaintiff needed someone to care for her son while she was recovering from the surgery, the plaintiff sent the child to live with her sister in Pennsylvania. After surgery, the plaintiff continued to suffer chronic pain. She was unable to bathe or dress herself, and she required help with her daily personal and medical needs. Accordingly, in September, 1996, Staub referred the plaintiff to Lawrence Kirschenbaum, a pain specialist in Connecticut. On October 1, 1996, Kirschenbaum evaluated the plaintiff and recommended a course of treatment. Later that month, because she needed help in caring for herself, the plaintiff moved to her sister's home in Pennsylvania.
In Pennsylvania, several physicians evaluated and treated the plaintiff. In January, 1997, one of those physicians, Wilmer S. Trinkle, rendered his opinion that the plaintiff was totally disabled for an indefinite period. The plaintiff continued to receive treatment from physicians in Pennsylvania through April, 1997. That month, the plaintiff and her sister moved from Pennsylvania to Texas, where the plaintiff established a permanent residence.
In Texas, the plaintiff continued treatment with a physician, Joe G. Gonzalez. By May, 1997, Gonzalez had concluded that the severity of the plaintiff's disability was increasing and that for the plaintiff to achieve optimal recovery and to return to work, she needed to be near the structure and support that only her family could provide.
In November, 1997, Home Depot filed a form 36 with the commissioner seeking termination of the plaintiff's workers' compensation benefits because she did not have documentation from an authorized treating physician stating that she was totally disabled. Home Depot also denied liability for the plaintiff's out-of-state medical treatment because her treating physicians were not authorized within the chain of referral. The commissioner denied the defendants' form 36 and found that the defendants were liable for the plaintiff's out-of-state medical treatment because the treatment was reasonable and necessary. The board affirmed the commissioner's ruling, and this appeal followed.
"We first note our standard of review. The commissioner has the power and the duty to determine the facts." Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 776, 712 A.2d 436 (1998). "The role of this court is to determine whether the review [board's] decision results from an incorrect application of the law to the subordinate facts or from an inference illega
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