In the Matter of Claim of Simonet v. Summit Hotel Management
| Decision Date | 04 October 2005 |
| Docket Number | W. C. No. 4-623-335. |
| Court | Connecticut Supreme Court |
| Parties | IN THE MATTER OF THE CLAIM OF PHYLLIS SIMONET, Claimant, v. SUMMIT HOTEL MANAGEMENT d/b/a MARRIOTT HOTEL, Employer, and COMMERCE & INDUSTRY, Insurer, Respondents. |
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) that denied medical benefits in the form of ongoing chiropractic care from Dr. McClure. The claimant contends that the respondents waived the right to raise §8-42-101(3)(a)(III) as a defense to the claim for medical benefits, that the ALJ erred in denying payment of Dr. McClure's bills under the same provision, and that the ALJ's finding that further chiropractic care is not reasonable and necessary has no support in the record. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was injured on July 21, 2003, when a box containing several large cans fell from a shelf and hit her nose. She was treated by Daniel McClure, D.C., a chiropractor, who was authorized but who had not received level I accreditation under the Division's accreditation program. Dr. McClure treated the claimant using a variety of methods, including spinal and extremity manipulation, soft tissue muscle work, cervical traction, cranial work, and other forms of treatment. He treated her six times in August 2003 and then twice a week during the months of September and October of that year. She was unavailable for treatment in November and then resumed twice weekly treatments in December. During January through April 2004 he treated her approximately once each week. Although Dr. McClure noted in his chart that the claimant continued to progress, the ALJ found that her pain complaints and assessment remained essentially the same, with no improvement. In July 2004 Dr. McClure requested authorization from the respondents for twelve additional sessions, and the respondents denied that request. The ALJ expressly credited the opinions of Alan Margolis, D.C., who reviewed the medical records and opined that further chiropractic care was not reasonable or necessary.
Based upon her factual findings the ALJ denied further chiropractic care and denied payment of Dr. McClure's bills for treatment rendered after July 19, 2004. Specifically, the ALJ concluded that payment for the medical bills was precluded after ninety days by §8-42-101(3)(a)(III) because Dr. McClure was not level I accredited by the Division and, in any event, the ALJ concluded that ongoing chiropractic care was neither reasonable nor necessary.
On appeal the claimant argues that the respondents waived the application of §8-42-101(3)(a)(III), that in any event the statute does not bar payment of a chiropractor's bills after ninety days, and that the ALJ's findings with respect to the reasonableness and necessity of ongoing chiropractic care are not supported by substantial evidence. We are not persuaded that the ALJ erred.
Section 8-42-101(3)(a)(III) provides that "compensation for fees for chiropractic treatments shall not be made more than ninety days after the first of such treatments nor after the twelfth such treatment, whichever first occurs, unless the chiropractor has received level I accreditation." The claimant argues that the ALJ was precluded from applying §8-42-101(3)(a)(III) because it constitutes an affirmative defense that should have been pleaded prior to the hearing by the respondents. The respondents argue in response that the statute creates a "jurisdictional" bar that prohibits payment of compensation for certain chiropractic treatment following the expiration of ninety days. The respondents assert that, as a "jurisdictional" bar to the payment of benefits, no party may waive its application.
Although we disagree with the respondents' argument, we conclude that the ALJ did not err in applying §8-42-101(3)(a)(III). At the commencement of the hearing the parties agreed that the issue for hearing was "reasonableness and necessity of chiropractic visits from July 19th, 2004 to the present." Tr. p. 3. The respondents then moved for summary judgment based upon §8-42-101(3)(a)(III) and based upon the stipulation that Dr. McClure had not received level I accreditation. Tr. p. 4-6. Following some discussion of the issue, the claimant stated that he did not know whether the statute constituted "an affirmative defense or not," but that it had not been previously raised. Tr. p. 11. The ALJ then denied the motion for summary judgment because she was uncertain that the claimant had been provided with notice of the statutory issue. Tr. p. 14. When the claimant requested that the ALJ deny the motion based upon his lack of notice, she observed that she had already denied it, but that she was attempting to determine how "to go forward." Tr. p. 15. The claimant then stated that the ALJ should "[a]ddress this legal issue." Tr. p. 15. The parties then proceeded with the evidentiary portion of the hearing. Following the presentation of testimony a brief discussion occurred during which the claimant's counsel stated to the ALJ that "if you say yea or nay to the chiropractic treatment from July 19th up to the present and chiropractic treatment in the future, Claimant is satisfied." Tr. p. 41.
From this record we infer that no error occurred in the ALJ's consideration of the application of §8-42-101(3)(a)(III). Although the claimant objected to the absence of notice of that issue at the commencement of the hearing, that was the basis for the denial of the motion for summary judgment, and he was offered an opportunity to present argument on the issue. Indeed, there were apparently no disputed facts relevant to the statutory question, the parties having stipulated that Dr. McClure had not received level I accreditation and it being undisputed that the respondents had paid for treatment exceeding the statutory limits. The ALJ at the commencement of the hearing stated that she was "inclined to give Claimant an opportunity to address" the issue, and, indeed, claimant's counsel filed a position statement following the hearing. Tr. p. 14. Because the application of §8-42-101(3)(a)(III) raised a purely legal issue, based on stipulated facts, and because the claimant's counsel was given ample opportunity to address that legal issue we perceive no error.
In any event, any error committed by the ALJ in this respect was harmless. As we read the ALJ's order, she found that the chiropractic treatment after July 19, 2004 was not reasonable and necessary. She found the opinions of Dr. Margolis to be persuasive and, partly based on those opinions, concluded that "[f]urther or ongoing chiropractic care is not reasonable or necessary." It is evident from the face of Dr. Margolis's report that he was asked to address Dr. McClure's request for an additional twelve sessions after July 19, 2004. In recommending "an adverse determination for the requested continued chiropractic treatment of 12 sessions," Dr. Margolis was opining, in effect, that no treatment after July 19, 2004 was reasonable. Hence, in finding that chiropractic care after that date was not reasonable or necessary, any error committed by the ALJ with regard to the application of §8-42-101(3)(a)(III) was harmless. Because the respondents would not have been liable in any event for the disputed care, the ALJ should properly never have reached whether the treatment should be denied under the statute.
The claimant also contends that the ALJ erred in interpreting §8-42-101(3)(a)(III) as barring payment of Dr. McClure's bills for treatment after July 19, 2004. The claimant argues that §8-42-101(3)(a)(III) should be read in conjunction with §8-43-404(5), which permits an employer to designate the medical provider in the first instance. The statutes conflict, the claimant contends, because the right of selection of an authorized provider may pass to the claimant where the employer fails to designate a doctor. The claimant may then select a chiropractor who is not level I accredited, only to lose the right to medical treatment following the expiration of the ninety-day period set forth in §8-42-101(3)(a)(III). This loss of medical treatment, according to the claimant, is contrary to the "underlying interests of the Act."
When these conflicting provisions are harmonized, the claimant contends, §8-42-101(3)(a)(III) must be construed as creating a limited period of authorization of non-level I accredited chiropractors, which elapses after ninety days or twelve visits. The claimant's argument continues that, upon expiration of that ninety-day period of authorization, the duty to designate a provider again devolves upon the employer or the claimant if the employer declines to authorize a new provider. In the present case, because the employer failed to designate a new provider at the end of each ninety-day period, the right to continue to select Dr. McClure continued to pass to the claimant for successive ninety-day periods.
As with the previous issue, the ALJ's determination that ongoing chiropractic care was not reasonable or...
To continue reading
Request your trial