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Galgano v. City of Torrington

CASE NO. 1280 CRD-5-91-8

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

JUNE 30, 1993

NICHOLAS GALGANO

CLAIMANT-APPELLANT

v.

CITY OF TORRINGTON

EMPLOYER

and

LIBERTY MUTUAL INS. CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Thomas P. Griffen, Esq., Silver, Webb, Sweeney and Griffen, P.O. Box 698, 114 West Main Street, New Britain, CT 06050.

The respondents were represented by Scott W. Williams, Esq. and Carolyn A. Signorelli, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601.

The Second Injury Fund was represented at the trial level by Avery Brown, Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106. No appearance was made nor was a brief filed in the appeal on behalf of the Second Injury Fund.

This Petition for Review from the August 12, 1991 Finding and Dismissal of the Commissioner for the Fifth District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Gerald Holinsky and James Metro.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant contests the August 12, 1991 Commissioner of the Fifth District’s ruling dismissing his claim for a back injury on or about February 20, 1980. The pertinent facts are as follows:

The claimant suffered a compensable back injury on September 13, 1979 while in the employ of the respondent. The September 13, 1979 injury is the subject of a Voluntary Agreement approved February 22, 1980. Claimant returned to work and claimed to have suffered another back injury on or about February 20, 1980. The February 20, 1980 injury is the subject of this appeal.

The claimant’s treating physician for both injuries was Frank Vanoni, M.D. Dr. Vanoni billed the carrier for his treatment of the claimant but did not attribute any of his charges to the February 20, 1980 injury. The claimant did not file a timely written notice of claim for the February 20, 1980 injury with the employer or the carrier as required by Section 31-294 C.G.S. The issue before the trial commissioner was whether the claimant had been furnished with medical care and thus, whether the statute of limitations was tolled.

The Commissioner in the Fifth District in his August 12, 1991 Finding and Dismissal found that payments to the treating physicians for services not ascribed to the February 20, 1980 injury do not constitute the furnishing of medical care for that injury. The commissioner further found that an independent medical examination undertaken and paid for by the carrier does not constitute the furnishing of medical care. Based on the findings the commissioner ordered the claim attributed to the February 20, 1980 injury to be dismissed.

On appeal the claimant contends the trial commissioner erred in failing to correct his finding of facts so as to include facts which were undisputed. The claimant argues that the trial commissioner erred in concluding that, under the facts provided, an independent medical examination undertaken and paid for by the carrier does not constitute the furnishing of medical care. The claimant further argues that although he did not provide the respondent with timely written notice as required by Section 31-294 C.G.S., he did satisfy the constructive notice requirements of the statute, i.e. that the claimant was furnished with medical care relating to the February 20, 1980 injury.

The ultimate issue on appeal is (1) whether the commissioner erred in dismissing the claimant’s claim for failure to provide a written notice of claim within one year of the date of the injury as required by Section 31-294 C.G.S., and in failing to find that an independent medical examination undertaken and paid for by the carrier does not constitute the furnishing of medical care.

As the ultimate legal conclusion of the trial commissioner is in large measure predicated on the factual findings of the trial commissioner, the claimant as part of the prosecution of this appeal filed a Motion to Correct. Specifically the factual findings which the claimant seeks to amend or add are either facts which, arguably, more precisely state facts found by the trial commissioner or are facts which are purported to be admitted or undisputed. However, the factual findings included in the claimant’s Motion to Correct even if granted, do not necessarily require a different legal outcome. See e.g., Deleon v. Dunkin Donuts, 10 Conn. Workers’ Comp. Rev. Op. 39, 1113 CRD-3-90-9 (1992). See also, Tortorici v. Sharp Moosop, Inc., 107 Conn. 143 (1927).

The claimant argues on appeal that the independent medical examination conducted by Dr. VanDerwerker in August, 1980 constituted the furnishing of medical care and satisfied the constructive notice provision of Section 31-294 C.G.S. Section 31-294 provides in pertinent part:

No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease .... If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or from the first manifestation of a symptom of the occupational disease ... or if a voluntary agreement has been submitted within said period of one year, or if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice....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 as such physician or surgeon deems reasonable or necessary. Such physician or surgeon shall be selected by the employee from an approved list of physicians and surgeons prepared by the commissioners, but, if such employee is unable to make up the selection, the employer shall do so, subject to ratification by the employee or his next of kin....

Our Supreme Court first considered the furnishing of medical care exception to the formal notice requirement in Gesmundo v. Bush, 133 Conn. 607 (1947). In Gesmundo, the claimant’s work required him to drive a heater-less truck in freezing weather. When the claimant concluded his route he complained to the superintendent and watchman that his feet were frozen. When he reported to work a few days later due to a holiday he reported to the superintendent that his feet were bothering him. The superintendent directed the claimant to consult a particular physician who attended the employer’s injured workers. That physician diagnosed the claimant’s foot problem as frostbite and gave the claimant instructions to follow. The claimant paid the physician for his treatment.

The Supreme Court held that the purpose of the notice provision of the Workers’ Compensation Act “is to inform the employer that an injury has been suffered upon which a claim for compensation will or may be founded. The exception is, no doubt, based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of such a claim.” Id at 612. (citation omitted). The Gesmundo court held that “[t]he examination by the doctor and the giving of instructions to the plaintiff [claimant] constituted ‘medical treatment’ as those words are used in he statute... [I]t is the fact that the defendant, through its superintendent, made provision for medical treatment that makes unnecessary the formal notice.” Id.

In Kulis v. Moll, 172 Conn. 104 (1976) the Supreme Court dismissed a claim for failure to comply with the formal notice requirements and held that an employer’s mere driving of a worker to a hospital did not constitute the furnishing of medical or surgical care within the meaning of Sec. 31-294. In Kulis, the claimant was hired by the respondent-employer to clean the outside of a house. The respondent found the claimant lying on the ground at the base of a ladder and upon request of the claimant drove the claimant to a hospital. The respondent did not pay for the claimant’s care or otherwise provide information to hospital personnel. Fifteen months later the respondent received a written notice of claim.

The Kulis court held that Sec. 31-294 somewhat specifically outlines and describes the kind of medical or surgical care which serves to obviate the need for a written notice of claim. For example, the court noted that Sec. 31-294 requires that an employer “‘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 as such physician or surgeon deems reasonable or necessary.’” The court then reviewed additional directives within Sec. 31-294 and its contemplation of medical and surgical care.

Our Appellate Court also considered the meaning of furnishing medical care in Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984). In Carlino, the Appellate Court held that a health care worker, who reported to the employer’s personnel health physician the details of a back injury and where the physician did not examine the claimant but merely referred her to a psychiatrist constituted the furnishing of medical care.

Having reviewed Kulis, supra, Gesmundo, supra and Carlino, supra we cannot say that an independent medical examination constitutes the furnishing of medical care and satisfies the expectation to the written notice of claim requirement. The authority for the type of medical examination conducted by Dr. VanDerwerker, in August, 1980 was a medical examination the authority for which is found in Sec. 31-305.1 Clearly, the purpose of that medical examination was not for treatment but as Sec. 31-305 indicates to determine “the nature of the injury and the incapacity resultant therefrom.” Such an examination by a physician is for an entirely different purpose than the medical care and treatment referred to in Sec. 31-294.

Further, the use of the independent medical examination is a key tool dispute resolution process for Workers’ Compensation claims. We believe the construction of the statute urged by the claimant would have a chilling effect on the use and efficacy of independent medical examination and our dispute resolution process.

We therefore affirm the trial commissioner’s August 12, 1991 Finding and Dismissal.

COMMISSIONER JAMES METRO, Concurring. I concur with the Chairman’s opinion. However, I do think that some additional explanation from this panel is necessary as to why Dr. Vanoni’s medical treatment of the claimant following the alleged fall of February 20, 1980 was not considered to be the “furnishing of medical care” thus satisfying the constructive notice provisions of Sec. 31-294.

I note that although the claimant contends that Dr. Vanoni did render medical treatment following the alleged fall at work on February 20, 1980 the trial commissioner did not make any factual finding linking medical treatment rendered by Dr. Vanoni after February 20, 1980 to a fall at work occurring on or about February 20, 1980. Nor did the claimant in the Motion to Correct submitted to the trial commissioner request any change of the trial commissioner’s factual findings to reflect that Dr. Vanoni misascribed his treatment of claimant’s back during February, March and April, 1980 to a September, 1979 work injury to his back and that the treatment occurring during this period constituted the furnishing of medical care obviating the need for a written notice of claim. Without such a factual finding, or the request for the correction and inclusion of such a factual finding, this appellate body is powerless to conclude that the medical treatment rendered by Dr. Vanoni after February 20, 1980 even arguably could be considered to satisfy the constructive notice provisions of Sec. 31-294 as to the furnishing of medical care. Additionally I note that the claimant did not present this issue as one of its reasons of appeal and thus, the issue was not properly preserved for review on appeal.

1 Sec. 31-305 provides in pertinent part:

At any time while claiming or receiving compensation upon the reasonable request of the employer or at the direction of the commissioner, an injured employee shall submit himself to examination by a reputable practicing physician or surgeon, with a view to a determination of the nature of the injury and the incapacity resultant therefrom. Such physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the commissioners and shall be paid by the employer .... BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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