State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cruz v. State of Connecticut/Department of Corrections

CASE NO. 4168 CRB-1-00-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 2001

JOSE CRUZ

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTIONS

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Anthony Feit, Esq., 1001 Farmington Avenue, West Hartford, CT 06107.

The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 30, 1999 Finding of Facts and Dismissal of the Commissioner acting for the First District, together with the Petition for Review from the February 18, 2000 denial of the claimant’s Motion to Reopen, was heard September 15, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 30, 1999 Finding of Facts and Dismissal of the Commissioner acting for the First District. In that decision, the trial commissioner dismissed the claimant’s claim for a neck injury which allegedly occurred on December 9, 1993. In support of his appeal, the claimant argues that the trier erred by ruling that he failed to satisfy the “medical care” exception of § 31-294c(c). Specifically, the claimant argues that the respondent provided medical care for the claimant’s neck injuries from April 22, 1994 through October 28, 1994. We find no error.

The trier found that the claimant alleged that he injured his neck during Aikido practice at work on December 9, 1993. The claimant testified that during Aikido practice on December 9, 1993, he felt a pinch in his neck while in a chokehold. The trial commissioner did not find this testimony to be credible. The claimant admitted that he did not report this alleged neck injury and did not file a Notice of Claim within one year of the alleged injury. The trial commissioner took administrative notice that no hearings were held or requested within one year of December 9, 1993. The claimant first complained of left shoulder and neck pain to his family physician on March 25, 1994, at which time he advised his doctor that he first felt the pain when he lifted a heavy book bag the night before, which was not work-connected. The claimant further reported to his doctor that he was unaware of any other incident causing the injury, and that he had not had a problem like this before. After the book bag incident, the claimant experienced persistent shoulder and neck pain, and sought medical care from Dr. Hoch along with physical therapy, which was all paid for under the claimant’s group health insurance.

Subsequently, the claimant sustained an injury while lifting a washing machine at work on April 22, 1994. The claimant reported to the respondent that he sustained injuries to his back and shoulder, but did not report a neck injury. The respondent accepted the April 22, 1994 back and left shoulder injuries, and paid medical bills for said injuries between April 22, 1994 and October of 1994. The claimant’s condition improved with a short course of physical therapy, and he returned to work on May 9, 1994.

In mid July of 1994, the claimant’s disc herniation became symptomatic, and the claimant was referred to Dr. Kruger, an orthopedic surgeon, who performed surgeries in July and November of 1994. These medical bills were submitted to the claimant’s group health insurance, and were not paid by the respondent. Alison Palshaw, a representative of the respondent’s workers’ compensation administrator, scheduled an independent medical examination, but cancelled it after being informed by Dr. Kruger’s office that the surgeries were not work related. The trial commissioner further found that Dr. Kruger attributed none of the claimant’s significant neck problems to the April 22, 1994 compensable incident. Similarly, Dr. Selden opined with reasonable medical certainty that any incident in April of 1994 was not significant, and did not contribute to the need for surgery in July or November of 1994.

In support of his appeal, the claimant reiterates his contention made during the formal hearing that the medical bills paid by the respondent between April 22, 1994 and October of 1994 satisfy the § 31-294c(c) exception to the one-year notice period for his alleged neck injury of December 9, 1993. Section 31-294c(c) allows a claimant to proceed “if within the applicable period [he] has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.”1 The trial commissioner specifically rejected this contention, and in his appeal the claimant is seeking to retry the facts of this case, which this board may not do. Moreover, we remind the claimant that the trial commissioner made a specific finding that the claimant’s testimony regarding the alleged December 9, 1993 injury was not credible.

The existence of the “medical care” exception to § 31-294c is “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 [a workers’ compensation] claim.” Gesmundo v. Bush, 133 Conn. 607, 612 (1947) (emphasis added). Section 31-294c specifies that such medical care must have been provided “for the injury with respect to which compensation is claimed.” The Appellate Court in Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984) explained that “the statute is satisfied if the following two elements are established: (1) the employer knows of the injury; and (2) the employer provides a competent physician, who may be a full-time staff physician, ‘to furnish immediate initial treatment.” Carlino, supra, at 148, citing Kulis v. Moll, 172 Conn. 104, 108 (1976).

Here, the trial commissioner specifically found that the respondent was not aware of the alleged December 9, 1993 injury. It was within the discretion of the trial commissioner, as the trier of fact, to determine the weight to be accorded the evidence presented by both parties, and the credibility of the testimony offered by lay and expert witnesses. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). This board does not retry the facts, and will not disturb the legal conclusions that the trier has drawn from them unless they represent an incorrect application of the law to the facts or an inference illegally or unreasonably drawn from them. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539-41 (1988). In the instant case, the trier’s determination that the respondent was not aware of the alleged December 9, 1993 injury is fully supported by the record. Moreover, the claimant did not file a Motion to Correct the findings, which prevents our review of the evidence supporting the facts found by the commissioner. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). As the trier’s legal conclusions are not inconsistent with the factual findings, we must affirm his decision. Fair, supra; Pallotto, supra.2

Finally, we will review the trial commissioner’s denial of the claimant’s Motion to Reopen. In that motion, the claimant contended that the trier erred in admitting a computerized print-out of notes regarding the handling of the claimant’s claim from the respondent’s workers’ compensation administrator. (Respondent’s Exhibit No. 13). Specifically, the claimant contends in his Motion to Reopen that Alison Palshaw neither spoke with Dr. Kruger’s office nor documented said conversation in the computer system. To the contrary, the trial commissioner found credible the testimony of Alison Palshaw that she had scheduled an independent medical examination of the claimant, but subsequently cancelled it after being informed by Dr. Kruger’s office that the surgeries were not work related. Alison Palshaw testified that she entered the notes into the computer contemporaneously with the events documented in said notes. (See 5/20/99 TR. at 40 and 49).

At the formal hearing, and again in his Motion to Reopen, the claimant contended that Alison Palshaw was not the individual who spoke with Dr. Kruger’s office, and further contended that the computer print-out regarding said conversation should not be admitted into evidence. It was within the discretion of the trial commissioner to find Alison Palshaw’s testimony to be credible. During the formal hearing, the claimant was provided with an extensive opportunity to address his objection to this exhibit. Indeed, a large portion of the May 20, 1999 formal hearing was devoted to this issue. (5/20/99 TR. at 30-77). We find no error in the trial commissioner’s admission into evidence of the above described exhibit. Section 31-298 C.G.S. specifically states that a trier is not bound by the ordinary common-law or statutory rules of evidence, but instead shall make inquiry in a manner best calculated to ascertain the substantial rights of the parties and carry out the intent of the Workers’ Compensation Act. We thus find no error in the trial commissioner’s denial of the claimant’s Motion to Reopen.

The trial commissioner’s decision is affirmed.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 Section 31-294d provides, in relevant part: “(a) The employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.

(b) The employee shall select the physician or surgeon from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission. . . . If the employer has a full-time staff physician or if a physician is available on call, the initial treatment required immediately following the injury may be rendered by that physician, but the employee may thereafter select his own physician as provided by this chapter . . . .” BACK TO TEXT

2 We note that the claimant filed a Motion to Subpoena in which he requests to subpoena several documents. The documents listed in this motion were all available at the time of the formal hearing, and the claimant has not set forth any reason for his failure to obtain them prior to the close of the formal hearing. Thus, the claimant has not met the requirements of submitting additional evidence pursuant to § 31-301-9. See Perry v. Carewell Rest Home, 3713 CRB-3-97-10 (Dec. 29, 1998). We further note that the claimant has filed a Motion Alleging Respondent Bad Faith/Attorney’s Fees, in which he requests attorney’s fees based upon allegations that the respondent’s agents interfered with the claimant’s return to work in 1997. The claimant cites no statute as the basis for this request, and as none exists, we deny the claimant’s motion. BACK TO TEXT

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