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Vargas v. King-Conn Enterprises d/b/a Burger King Corporation

CASE NO. 3333 CRB-4-96-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 24, 1997

CARMEN VARGAS

CLAIMANT-APPELLEE

v.

KING-CONN ENTERPRISES d/b/a BURGER KING CORPORATION

EMPLOYER

and

NATIONWIDE MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul Ganim, Esq., 4666 Main St., Bridgeport, CT 06606.

The respondents were represented by James Powers, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the April 11, 1996 Finding and Award of the Commissioner acting for the Fourth District was heard January 10, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the April 11, 1996 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner erred by ordering them to pay certain outstanding medical bills, and by awarding temporary total disability and temporary partial disability benefits. We agree in part with those contentions, and remand this case for further proceedings.

The commissioner found that the claimant was employed by Burger King as a kitchen worker on July 14, 1993, working 25 to 33 hours per week. She testified that she slipped on a puddle of water en route to the restroom on the date in question, striking and injuring her left shoulder. The manager helped her up, and sent her to a walk-in clinic with instructions to send her medical bills to Burger King. She ended up being totally disabled for four weeks, after which she was released to light duty. Her shoulder swelled up again when she returned to school, and was again advised by her doctor to remain out of work for a few weeks. A commissioner’s examiner ultimately diagnosed a five percent permanent partial disability of the left shoulder. The respondents did not concede liability until the conclusion of the formal hearing.1

The commissioner concluded that the claimant had sustained a compensable left shoulder injury, and ordered the respondents to pay any outstanding related medical bills, including those of Dr. Coles. She also ordered that the claimant be paid temporary total disability and temporary partial disability benefits, even though the evidence had not established the exact dates. She further directed the respondents to pay the five percent permanent partial disability diagnosed by Dr. Camarda. The respondents have filed an appeal from that decision.

The first argument the respondents make on appeal is that the claimant should not be eligible for total or partial incapacity compensation because she was not out of work for more than three days pursuant to § 31-295 C.G.S.2 The respondents contend that Dr. Meldon, the Med-Now clinic doctor who treated the claimant on Wednesday, July 14, 1993, the date of her injury, released her to return to light duty for the next three work days, and then to return to full duty on July 18, 1993. This is borne out by the records in Claimant’s Exhibit A. Assuming only these facts, the claimant would have needed to be out for one more day before she could collect temporary disability benefits. However, this is not the whole story.

The commissioner found that within several days of her injury, the claimant began treating with Dr. Breyan, who disabled her for four weeks. The claimant testified, and the commissioner found, that the respondent employer consented to this treatment. This finding was reasonable given the claimant’s testimony. (December 13, 1995 Transcript, p. 14.) She also testified that Dr. Breyan kept her out of work for over a month. Id., 16. The doctor’s medical reports show that he gave the claimant “no work status” on August 3, 1993, and did not report significant improvement in her shoulder until September 15, 1993. Thus, there was evidence to support the implicit conclusion that the claimant was disabled for more than three days.

The respondents’ next argument is that the trial commissioner erred by ordering the insurer to pay any outstanding medical bills, especially one from Dr. Coles, who did not appear on any of the reports in evidence. Section 31-294d makes the employer responsible for necessary and reasonable medical care that the claimant might require. This generally means paying all unpaid medical bills. We do not read the trial commissioner’s order for the respondents “to pay any outstanding related and reasonable medical bills to Dr. Breyan, Drs. Seidman and Coles, Bridgeport MRI and Bridgeport Hospital” as a directive that they compensate the claimant for bills already covered by a group medical insurance carrier contrary to the language in Pokorny v. Getta’s Garage, 219 Conn. 439 (1991). This simply requires the respondents to pay to the medical providers the unpaid costs of their treatment, if any. The fact that the bills themselves were not introduced into evidence does not mean the respondents do not have to pay for them if they are still outstanding, or if the group carrier has perfected its statutory lien.

As for the bill of Dr. Coles, although the claimant did not introduce any of his reports into the record, she did testify that he treated her on one occasion as a replacement for Dr. Sideman, who had left his practice at the Bridgeport Hospital clinic. (Transcript, p. 45). The commissioner had no evidence to contradict this fact, and was perfectly justified in ordering that the respondents should pay any related bills that Dr. Coles might have. We find no error in the commissioner’s order that the respondents pay any outstanding related medical bills.

We agree with the respondents on their final contention of error. The trier herself noted in the findings that evidence had not been introduced to establish the exact dates of temporary total and temporary partial disability, or the claimant’s compensation rate. Without any findings regarding the amount of compensation due or the length of disability, the trier’s order to pay temporary total and partial disability benefits can have little effect. Although the findings regarding compensability, payment of medical bills and the five percent permanent partial disability rating are affirmed, this case must be remanded to the trial commissioner for a determination of the unsettled issues. Therefore, further proceedings will be necessary in this case, starting with a pretrial on the issue of benefits and the length of the claimant’s temporary disability periods.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The claimant’s attorney sought attorney’s fees based on this allegedly unreasonable contest, which the trial commissioner granted. The respondents had listed this as error in their Reasons of Appeal, but reported that the issue had been settled at the time of oral argument. BACK TO TEXT

2 Section 31-295 provides, in part: “(a) No compensation shall be payable for total or partial incapacity under the provisions of this chapter on account of any injury which does not incapacitate the injured employee for a period of more than three days from earning full wages at his customary employment. If the incapacity continues for a period of more than three days but less than seven days, compensation shall begin at the expiration of the first three days of total or partial incapacity. If the incapacity continues for a period of seven days, compensation shall begin from the date of the injury.

(b) The injured employee shall be entitled to full wages for the entire day of the injury and that day shall not be counted as a day of incapacity.” BACK TO TEXT

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Page last revised: June 13, 2005

Page URL: http://wcc.state.ct.us/crb/1997/3333crb.htm

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