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Gonzalez v. Coca-Cola Bottling Co. of New York

CASE NO. 4284 CRB-8-00-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 13, 2001

HECTOR GONZALEZ

CLAIMANT-APPELLEE

v.

COCA-COLA BOTTLING CO. OF NEW YORK

EMPLOYER

and

RSKCO

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Nicholas T. Kocian, Esq., 182 Collins Street, Hartford, CT 06105.

The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the August 9, 2000 Finding and Award of the Commissioner acting for the Eighth District was heard April 27, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the August 9, 2000 Finding and Award of the Commissioner acting for the Eighth District. They contend on appeal that the trier’s award is erroneous insofar as it ordered the payment of medical expenses for treatment that should have been declared unauthorized. We disagree, and affirm the trial commissioner’s decision.

The claimant, a truck driver for the respondent Coca-Cola Bottling, finished his daily delivery route on Friday, July 23, 1999, and returned the company’s truck to its premises. While checking inventory, he was pulling down one of the truck doors when he claims to have felt pain in his neck and right arm. He ignored the discomfort, and finished his shift without filling out an injury report or notifying a supervisor. The pain increased over the weekend. The claimant contends that he left a telephone message on his employer’s answering machine early in the morning on Monday, July 26, 1999. He then went to the company-recommended Industrial Health Care (IHC) for medical treatment. The IHC nurse/secretary called the claimant’s supervisor, Mr. Perez, to confirm the injury and obtain authorization for treatment. Perez accepted the call, but denied both the claimant’s reporting of an injury and IHC’s request to authorize treatment. The claimant then proceeded to obtain treatment on his own with a chiropractor, Dr. Costanzo, whom he saw that same day. For the next two weeks, the claimant was totally disabled as per the doctor’s orders.

The claimant never filed a written accident report with his employer, even though he returned to its office on July 29, 1999 to pick up his paycheck. Dr. Costanzo released him to light duty on August 9, 1999. The claimant knew that his employer supplied light duty work, but did not request it, nor did he actively job search. Subsequently, Dr. Costanzo referred the claimant to a neurosurgeon, Dr. Mushaweh, who confirmed that he had a herniated cervical disc and recommended surgery. After hesitating for two months, the claimant eventually underwent the recommended cervical fusion on November 5, 1999, and was placed on total disability again through February 7, 2000, when he was released for light restricted work.

At the formal hearing, the respondent maintained that the claimant’s initial telephone call reporting his injury was received while he was waiting for treatment at IHC. His supervisor stated that he knew nothing of the Monday morning message that the claimant had purportedly left on the company’s answering machine. Perez had been on vacation the prior week, including the day on which the claimant was allegedly injured. However, other supervisors were on the company premises during the evening of July 23, 1999, and the claimant acknowledged that he did not pursue the reporting of his injury that evening.

In his findings, the trial commissioner described the claimant’s handling of his injury claim as “lackadaisical,” but found that the claimant had sustained a cervical injury at the end of his work shift on July 23, 1999. He accepted Dr. Mushaweh’s medical opinion relating the claimant’s disc herniation to that work incident, and ordered that the claimant receive total disability benefits for the two time periods noted above, though the claimant did not succeed in establishing a temporary partial disability claim. The trier also found that the claimant had chosen his own chiropractor after being refused evaluation by his employer’s doctor. Both Dr. Costanzo’s treatment and Dr. Mushaweh’s treatment were declared reasonable and necessary, and the trier ordered the respondents to cover the claimant’s medical bills. That portion of his decision has prompted the respondents to appeal.

The appellants contend that the claimant’s failure to file a written accident report in accordance with his employer’s policy leads inexorably to the conclusion that the trier should have authorized neither his treatment with Dr. Costanzo nor the two-week period of total disability that, according to the doctor, immediately followed his injury. As Dr. Costanzo was not a member physician in Coca-Cola Bottling’s medical care plan, the respondents maintain that the claimant was required to accept responsibility for seeking treatment outside the plan. “In fact, this is one of the most classic cases where [§ 31-279(c) C.G.S.] should be applied, in that the claimant testified that he was completely aware of the policy of reporting compensable accidents, yet disregarded that policy.” Respondents Brief, p. 6. The claimant counters that the respondents’ internal injury-reporting protocol cannot be absolute given the employer’s statutory obligation to provide competent medical care as soon as it has knowledge of an injury. It goes on to argue that, “As a matter of public policy, not to mention fundamental fairness, employers should not on the one hand be able to deny medical treatment to an injured worker, in violation of C.G.S. § 31-294d, and then on the other hand later seek to exalt form over substance by claiming that the employee treated ‘outside of the plan.’” Claimant’s Brief, p. 4.

Metaphorically speaking, the respondents’ analysis of this situation not only places the cart before the horse; it concerns an entirely different animal. The employer’s internal protocol directing employees to file written reports of injury may reflect a common practice, but it is a practice not required by the law, and it cannot be made a condition precedent to the procurement of medical care for an injured worker. Section 31-294d(a) unequivocally instructs the employer to provide a competent physician or surgeon to attend the injured employee as soon as it has knowledge of an injury. This “knowledge” need not equate to personal, written attestation by the injured party; it may be obtained by less formal means.

Here, as soon as the claimant told the employer over the telephone that he had been injured, the employer effectively had knowledge of the injury. At that moment, it became obligated to provide care. Its rejection of IHC’s request for permission to treat the claimant because he had not yet filled out a written injury report was thus inappropriate. With regard to an employee’s failure to immediately report an injury to his employer, § 31-294b states that the commissioner may reduce a compensation award “proportionately to any prejudice” that the employer has sustained by virtue of this omission. This is the prescribed remedy for such an occurrence, and it does not authorize the employer to refuse care altogether. Indeed, the only statutory obligation concerning the filing of first reports of injury is the employer’s obligation pursuant to § 31-316. The claimant’s entitlement to benefits is not implicated by this or any similar filing requirement, save the basic notice of claim provisions in § 31-294c. Therefore, the trier was entitled to find that Coca-Cola Bottling’s refusal of medical care justified the claimant’s action in seeking his own medical aid pursuant to § 31-294d(e).

Moreover, an employer who initially denies the compensability of a reported injury cannot also insist that a claimant seek treatment only from doctors within its medical care plan, in the event that the case is later determined to be compensable. Preferred provider organizations authorized pursuant to § 31-279(c) begin to play a role in a claimant’s choice of treaters only after the subscribing employer has accepted responsibility for providing initial treatment. Until that point, the applicability of the Workers’ Compensation Act to the pending injury has not been confirmed. The opposite result would in essence require an injured person to ignore the demands of his own personal health insurance policy, which might insist upon a conflicting referral process, or treatment by different doctors than those in the employer’s plan.

Under the respondents’ proposed system, an injured worker would have to hope that his injuries eventually prove to be compensable so that his medical bills would be paid by his employer. Meanwhile, the employer would reap the benefits of managed care regardless of the outcome of a disputed case. If the injury were deemed compensable, less expensive treatment would still have been obtained because of the claimant’s adherence to the cost-effective medical care plan, thereby lessening the employer’s medical bills. If the injury were found not to be compensable, then the employer would be “off the hook” completely, while the claimant would be left to face the specter of potential financial ruin if his medical bills were significant, and his private health insurer did not cover said costs due to discrepancies between its health care plan and that of the claimant’s employer. The remedial and humanitarian purpose of this statute would be confounded by such a claimant-unfriendly system, and we decline to implement one here. Gil v. Courthouse One, 239 Conn. 676, 682 (1997).

Finally, we note that § 31-279(c)1 grants a trial commissioner the authority to authorize the payment of compensation to a claimant who has treated outside an employer’s medical plan. Notwithstanding our prior analysis of the law, this provision independently provided the trier with sufficient authority to award the claimant compensation for Dr. Costanzo’s medical treatment and the two weeks of temporary total disability that he ascribed. The facts of this case would clearly support such a result, in light of the employer’s initial denial of medical care and the trier’s general factfinding authority to ascertain the nature of an injury. See, e.g., Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board is not in a position to reverse such a result on review, as it depends heavily on the commissioner’s assessments of credibility and his exercise of statutorily-prescribed discretion.

Accordingly, the trial commissioner’s decision is affirmed. Insofar as benefits due the claimant may have remained unpaid pending the outcome of this appeal, interest is awarded pursuant to § 31-301c(b).

Commissioners George A. Waldron and Ernie R. Walker concur.

1 Section 31-279(c) provides, “On or after January 1, 1992, any employer or any insurer acting on behalf of an employer, may establish a plan, subject to the approval of the chairman of the Workers’ Compensation Commission under subsection (d) of this section, for the provision of medical care which the employer provides for treatment of any injury or illness under this chapter. Each plan shall contain such information as the chairman shall require, including, but not limited to: (1) A listing of all persons who will provide services under the plan, along with appropriate evidence that each person listed has met any licensing, certification or registration requirement necessary for the person to legally provide the service in this state; (2) a designation of the times, places and manners in which the services will be provided; (3) a description of how the quality and quantity of medical care will be managed; and (4) such other provisions as the employer and the employees may agree to, subject to the approval of the chairman. The election by an employee covered by a plan established under this subsection to obtain medical care and treatment from a provider of medical services who is not listed in the plan shall suspend his right to compensation, subject to the order of the commissioner.” The specifications and requirements for the establishment and operation of a medical care plan are set forth more elaborately in Admin. Reg. § 31-279-10. BACK TO TEXT

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