State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dengler v. Special Attention Home Care Services

CASE NO. 3780 CRB-03-98-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 15, 1999

MARY DENGLER

CLAIMANT-APPELLEE

v.

SPECIAL ATTENTION HOME CARE SERVICES

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ivan Katz, Esq., 57 Trumbull Street, Third Floor, New Haven, CT 06510-1004.

The respondent employer was not represented at oral argument. Notice sent to John Durante, C.F.O., Special Attention Home Care Services, 665 Foxon Road, East Haven, CT 06513.

The respondent insurer was represented by John Letizia, Esq., and Kristin Sotnik-Falls, Esq., Letizia, Ambrose & Cohen, P.C. One Church Street, New Haven, CT 06510.

The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the February 18, 1998 Finding and Award of the Commissioner acting for the Third District was heard October 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent insurer CHAWCT has petitioned for review from the February 18, 1998 Finding and Award of the Commissioner acting for the Third District. It argues on appeal that the trier erred by finding that (a) CHAWCT was subject to the insurance cancellation requirements of § 31-348 C.G.S., and (b) the claimant suffered a compensable injury to her knee. We affirm the trial commissioner’s decision in part, and reverse in part.

The trial commissioner found that the claimant sustained a compensable injury to her lumbar spine during her employment as a certified nurses’ assistant on August 19, 1996. She has been diagnosed with degenerative disc disease, a lumbar strain, and spondylosis. Her back injury totally disabled her from August 19, 1996 through February 16, 1997. On that date, she experienced instability in her lumbar spine that caused her to fall to her knees in her kitchen, and to collapse while descending some stairs in her home. She sustained a fracture of her right tibia/fibula because of the latter incident. The commissioner found that the claimant’s instability of February 16, 1997 was causally related to her August 19, 1996 back injury, and that she has been totally disabled from the original injury to the present. He ordered payment of disability benefits and all authorized medical bills pursuant to § 31-294d.

The trier also considered CHAWCT’s contention that it had canceled its policy with the respondent employer, Special Attention, as of August 19, 1996. CHAWCT had sent the employer a letter on July 18, 1996 stating that the policy would be canceled in 30 days if payment of past due premiums was not made. As of August 16, 1996, the premiums had not been paid, and CHAWCT sent another letter to the employer stating that the policy would be canceled effective the next day (August 17, 1996). Copies of both letters were sent to this Commission. The trier ruled that the July 16, 1996 correspondence was only a warning that the policy would be canceled, and held that, under § 31-348, coverage remains in effect until 15 days after a cancellation. Thus, the cancellation did not take effect until August 31, 1996, and the employer had coverage on the date of the injury. The respondent insurer has appealed these findings.

First, we address CHAWCT’s argument that its July 18, 1996 letter to Special Attention—a copy of which was also sent to this Commission—constituted a notice of cancellation pursuant to § 31-348.1 CHAWCT contends that the terms of its Delinquent Payment Policy make termination automatic upon receipt of notice of delinquency unless a separate action is completed, i.e., payment in full of all delinquent premiums. However, we cannot agree that the July 18, 1996 letter should have been construed by this Commission as a notice of cancellation under the statute.

The notice sent by CHAWCT to Special Attention is not identical in meaning to the notice referenced in O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 530 CRD-3-86 (Oct. 6, 1988), as it did not unequivocally state that coverage would terminate on a specific date. Instead, CHAWCT’s notice stated that coverage would terminate unless Special Attention’s account was made current. From that document, this Commission would be unable to tell whether it should regard the policy as canceled. We do not treat overdue payment notices as notices of cancellation under § 31-348, nor would it be advisable for us to adopt such a relaxed approach to § 31-348 given the importance of § 31-284’s mandate that employers maintain workers’ compensation insurance. Labeling such a document a “Notice of Cancellation” does not change the fact that it is merely a warning that cancellation might occur. The trial commissioner correctly ruled that the policy remained effective until 15 days after the unequivocal August 16, 1996 notice of cancellation was sent. See, e.g., Benefit Life Ins. Co. v. Office of the Commissioner of Insurance, 419 N.W.2d 265, 269-70 (Wis. App. 1987) (notice of cancellation must be unambiguous and unequivocal to be effective).

Next, we examine the appellant’s contention that the claimant did not offer any medical evidence to support the trier’s finding of a causal connection between her compensable back injury and her right leg injury. This board may not substitute its own inferences for those drawn by the trier from the evidence, and cannot disturb his findings unless they are without any support in the record. Keenan, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Still, “[i]t is well settled in workers’ compensation cases that the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but also that such proof must be established by competent evidence.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 282 (1998), citing Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972).

Here, where the claimant suffered a broken leg allegedly falling down the stairs at home, and claims that her mishap was caused by instability in her lumbar spine residual to an earlier compensable injury, it is impossible to ascertain causation without the benefit of expert medical opinion. See Murchison, supra, 151-52. The trier’s factual finding, which was based solely on the statements of the claimant and an eyewitness, thus fails to surmount the level of speculation and surmise. Id., 152. There is no medical opinion in the record that even briefly discusses this causal relationship. Indeed, the most specific reference to the cause of the claimant’s injury, based on the history she provided at the time of her hospitalization, states that she “was chasing dogs outside in the yard when she fell into a hole, [caught] her [right] foot and twisted her [right] leg.” Claimant’s Exhibit E. The testimony of two lay witnesses as to the circumstances of this injury, without any medical evidence to underpin the claim, is inadequate to establish that the injury was caused by the claimant’s back condition. Thus, we must reverse the trier’s conclusion that her broken leg was attributable to her 1996 compensable injury.

In light of that conclusion, we must also reverse the commissioner’s finding that the claimant was totally disabled through the date of the Finding and Award. There is no medical evidence to support a finding that the claimant’s back condition played any part in her disability after February 16, 1997, the date she broke her leg.

The trial commissioner’s award is thus affirmed in part, and reversed in part.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 Section 31-348 provides that “Every insurance company writing compensation insurance or its duly appointed agent shall report in writing or by other means to the chairman of the Workers’ Compensation Commission, in accordance with rules prescribed by the chairman, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within fifteen days from the date of the policy. The cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollars for each offense.” BACK TO TEXT

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