Paresi v. American Cruise Lines

The claimant was represented by John L. Boccalatte, Esq., Farrell, Guarino & Boccalatte, P.C., 141 Broad Street, Middletown, CT 06457.

The respondents were represented by Lucas D. Strunk, Esq. and Margaret E. Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, who neither filed a brief nor appeared at oral argument.

This Petition for Review from the January 27, 1992 Finding and Award of the Commissioner acting for the Third District was heard March 12, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 27, 1992 Finding and Award of the Commissioner acting for the Third District. Both respondents challenge the commissioner’s conclusion that the claimant’s failure to timely file a written notice of claim did not bar these proceedings because the employer furnished medical care to the claimant within the one-year time period. The respondent-insurer also challenges the commissioner’s conclusion that its workers’ compensation policy issued to the employer covered the claimant’s injury, notwithstanding the fact that the policy purports to limit its coverage so as to exclude liability for injury to a certain class of employees which includes the claimant. We affirm the trial commissioner.

The trial commissioner found the following facts. On October 3, 1984, the claimant was employed by the respondent-employer as a galley assistant aboard the cruise ship Independence. On that date, the respondents had in force a workers’ compensation insurance policy. That policy provides that it “does not cover bodily injury to a master or member of the crew of any vessel.” The claimant’s job as a galley assistant involved food preparation for the ship’s passengers, and he was clearly a member of the crew of the vessel.

On October 3, 1984, while the Independence was docking in Maryland, the ship’s captain ordered the claimant to go onto the dock to catch lines. In the process of doing so, the claimant felt something happen to his lower back. The claimant immediately reported his injury to his head chef, who notified the first mate. The first mate subsequently accompanied the claimant to Dorchester General Hospital by taxi cab, which cab was paid for by the respondent-employer. The respondent-insurer paid a number of medical bills in connection with the claimant’s injury, including his care at Dorchester Hospital. These payments were not made by the insurer under a workers’ compensation policy but rather under a liability policy of some sort referred to as a protection and indemnity policy.

Although the claimant did not file a written notice of claim for compensation within one year of the injury, the trial commissioner concluded that the medical care received by the claimant on October 3, 1984, at the expense of the respondent-employer or the respondent-insurer prevented the statutory time limit from depriving him of jurisdiction. The commissioner also concluded that since a workers’ compensation policy was in effect on October 3, 1984, the respondent-insurer could not disclaim its liability to the claimant based on the exclusionary language regarding injury to members of the crew. Having found that the claimant sustained a compensable low back injury on October 3, 1984 which arose out of and during the course of the claimant’s employment with the respondent-employer whose workers’ compensation liability was covered by the respondent-insurer, the commissioner found the respondents liable to the claimant for workers’ compensation benefits. This appeal followed.

The respondents first argue that the claim here is barred by the statute of non-claim. “Since the [claimant] did not give to the [employer] the written notice of [his] injury required by General Statutes Sec. 31-294 (now Sec. 31-294c) and since none of the other statutory exceptions apply, in order for the commissioner to have had jurisdiction over [his] claim it is necessary that [he] was, within the applicable period, furnished by the [employer] with medical care for [his] injury within the meaning of General Statutes Sec. 31-294 (now Sec. 31-294d).” Carlino v. Danbury Hospital, 1 Conn. App. 142, 146, cert. denied, 192 Conn. 802 (1984). This statutory exception is satisfied if the employer (1) knew of the injury and (2) provided a competent physician. Id., 148; Pagliuco v. United Illuminating Co., 5 Conn. Workers’ Comp. Rev. Op. 27, 427 CRD-4-85 (1988).

Here, the claimant sustained an injury at work which he immediately brought to the attention of his supervisor who notified the ship’s first mate. The first mate then accompanied the claimant to the hospital for medical attention. The cost of transportation to the hospital as well as the cost of medical care provided to the claimant at the hospital were paid by the respondents. Having provided the employer with the requisite knowledge of the injury under circumstances where its work connection was apparent and having thereafter been provided with medical attention by the employer, the claimant certainly brought himself within the terms of the statute. Gesmundo v. Bush , 133 Conn. 607, 611-13 (1947); Carlino v. Danbury Hospital, supra, 148-49; Barron v. East Hartford, 6 Conn. Workers’ Comp. Rev. Op. 15, 534 CRD-1-86 (1988).

The cases relied upon by the respondents are inapposite. This is not a case where the circumstances of the claimant’s injury were not sufficiently known to the employer so that, notwithstanding the fact that the employer helped the injured employee to get to the hospital, the employer had no indication of its potential workers’ compensation exposure until much later when its opportunity for investigation had passed. Compare Kulis v. Moll, 172 Conn. 104 (1976). Nor is this a case where the payment of medical costs by an insurer was too remote to meet the terms and purpose of the exception to the statutory rule. Compare Janco v. Fairfield, 39 Conn. Sup. 403 (1983); Clapps v. Waterbury Iron Works, Inc., 38 Conn. Sup. 644 (1983). Payment by an employer’s liability insurer is far different from payment by an employer’s group health insurer as far as the terms and purpose of the statute are concerned.

Accordingly, the trial commissioner properly concluded that the claim was not barred pursuant to Sec. 31-294.

The respondent-insurer also challenges the trial commissioner’s conclusion that it is liable under the workers’ compensation insurance policy it issued to the respondent-employer, notwithstanding policy language excluding coverage of bodily injury to crew members, which included persons occupying the claimant’s job classification. The trial commissioner correctly concluded that he lacked jurisdiction to interpret the contract. O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 530 CRD-3-86 (1988). In the context of a workers’ compensation proceeding, the insurer may not raise any issue as to coverage, its contract of insurance having been conclusively presumed to cover the entire liability of the insured. General Statutes Sec. 31-343. Whatever the merits of the respondent-insurer’s arguments regarding the issue of coverage and the proper interpretation and application of the language of the policy, these claims cannot be resolved in this forum.