Cummings v. Twin Mfg., Inc.

• Decision Date: 22 September 1992
• Docket Number: No. 10625,10625
• Citation: 614 A.2d 857,29 Conn.App. 249
• Court: Connecticut Court of Appeals
• Parties: David CUMMINGS v. TWIN MANUFACTURING, INC., et al.

Page 857

614 A.2d 857

29 Conn.App. 249

David CUMMINGS v. TWIN MANUFACTURING, INC., et al.

No. 10625.

Appellate Court of Connecticut.

Argued June 10, 1992.

Decided Sept. 22, 1992.

William C. Brown, Vernon, for appellants-appellees (defendants).

Dean B. Kilbourne, Bristol, for appellee-appellant (plaintiff).

Before DUPONT, C.J., and NORCOTT and HEIMAN, JJ.

NORCOTT, Judge.

The defendants ¹ appeal and the plaintiff cross appeals from the decision of the compensation review division of the workers' compensation commission dismissing their appeals concerning the commissioner's finding and award.

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 improvement in 1986, but became totally disabled again in November, 1989. We affirm the review division's dismissal of the plaintiff's appeal, and reverse its decision dismissing the defendants' appeal.

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. ² The defendants then filed a petition for review, a request to submit additional evidence and reasons for appeal.

In November, 1990, the state's Second Injury and Compensation Assurance Fund sent a memorandum to the commissioner, requesting that he add an addendum to his finding, stating that he authorized treatment "at a facility approved and recommended by the Second Injury Fund." The commissioner granted this request conditioned on its approval by the plaintiff and his counsel. ³ The defendants again filed a petition for review, a request to submit additional evidence and reasons for appeal. On August 29, 1991, the compensation review division dismissed both the plaintiff's and the defendants' appeals. In its memorandum of decision, the review division determined that no further hearing was required on the plaintiff's request for out of state treatment because a full hearing had been conducted before the commissioner issued his May 14, 1990 finding and award. The review division also determined that the commissioner's ruling was proper because General Statutes § 31-294 permits him to order such changes. This appeal followed.

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, ⁴ (3) the commissioner lacks authority to order medical treatment out of state, (4) there was no evidence that the treatment to be rendered was for any compensable injury, and (5) no evidentiary hearing was conducted at which the defendants could challenge the report of the brain injury association. We agree with the defendants' fifth reason.

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. Although our appellate courts have yet to construe this portion of the statute, we conclude that a compensation commissioner is not prohibited from ordering out of state care when equally beneficial treatment is unavailable in 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, '[w]here ... 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 Inc. 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.... [C]ommon sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." (Citations omitted; internal quotation marks omitted). West Haven v. Hartford Ins. Co., 221 Conn. 149, 157-58, 602 A.2d 988 (1992).

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. ⁵ Further, the physician chosen must be licensed to practice in Connecticut. See General Statutes § 31-275(9). ⁶

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.

It is well settled that the legislature's longstanding policy has been that our Workers' Compensation Act, General Statutes § 31-275 et seq., is remedial in nature and "should be broadly construed to accomplish its humanitarian purpose." (Internal quotation marks omitted.) Hansen v. Gordon, 221 Conn. 29, 32, 602 A.2d 560 (1992). At least since 1932, the compensation review division has construed General Statutes § 31-294 and its predecessors to permit out of state treatment when "there is good reason, such as the need for a specialized type of treatment"; J. Asselin, The Connecticut Workers' Compensation Practice Manual (1985), p. 183 n. 329, citing Dufresne v. Sears, Roebuck & Co., 9 Conn.Comp.Dec. 450 (1932); or under other "proper circumstances, as when a claimant in 'a sparsely populated Connecticut area seeks medical attention in a nearby metropolitan community across the border ...'." J. Asselin, The Connecticut Workers' Compensation Practice Manual (1988 Sup.), p. 179 n. 320, quoting Veillette v. State, 3 Conn.Workers' Comp.Rev.Op. 135 (1987); see also Caldwell v. United States Aluminum Co., 131 Conn. 96, 38 A.2d 6 (1944) (upholding commissioner's award of costs for medical care when employer failed to respond to nonresident claimant's request for authorization of out of state treatment).

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, 221 Conn. at 36, 602 A.2d 560. We conclude that under the circumstances of this case, the review division correctly determined that a compensation commissioner may order treatment outside Connecticut. This comports with the remedial nature of our workers' compensation statutes; id., 32; and constitutes a reasonable and...