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Culver v. Cyro Industries

CASE NO. 4444 CRB-7-01-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 21, 2003

NORMAN CULVER

CLAIMANT-APPELLANT

v.

CYRO INDUSTRIES

EMPLOYER

and

ACE USA INSURANCE CO.

INSURER

and

NATIONAL UNION FIRE INSURANCE CO.

INSURER

and

ONEBEACON INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Timothy E. Welsh, Esq., Gozzi, Paladino & Welsh, 49 Sherwood Terrace, Old Saybrook, CT 06475-2123.

The respondent employer and ACE USA were represented by David Schoolcraft, Esq., formerly of Duhamel & Schoolcraft, LLC., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

The respondent employer and National Union Fire Insurance were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer and OneBeacon Insurance were represented by Dominick Statile, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the September 28, 2001 Finding and Dismissal of the Commissioner acting for the Eighth District was heard April 26, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 28, 2001 Finding and Dismissal of the Commissioner acting for the Eighth District. On appeal before this board, he contends that the trier erred by dismissing his claim for a repetitive trauma back injury. We find no error, and affirm the trial commissioner’s decision.

The claimant worked for the respondent Cyro Industries (formerly known as American Cyanamid) from 1959 until his retirement in 1991. He alleges that the heavy nature of his work at Cyro resulted in his suffering repetitive trauma to his back. He did not file a notice of claim until June 22, 1999, long after the one-year statute of limitations had expired for filing a repetitive trauma claim under § 31-294c(a). See Discuillo v. Stone & Webster, 242 Conn. 570 (1997) (repetitive trauma injuries are subject to one-year limitation period for accident absent proof of occupational disease, and date of “accident” is deemed to be last date of exposure to work-related incidents of repetitive trauma). However, the claimant contends that Cyro furnished him with medical care for his back pain on numerous occasions throughout the term of his employment, thereby satisfying one of the exceptions in § 31-294c(c) to the general notice requirement.

From 1960 through 1983, the claimant worked at a plant that contained on-site medical facilities, which were used by Cyro employees for ailments both related and unrelated to work. The claimant made good use of these services. He had annual physicals performed at his employer’s facility from 1961 through 1983, and was treated there for sore throats, influenza, a cut finger, an incident in which he fell at home, left arm complaints, shoulder and knee complaints, and his low back pain symptoms, which recurred at varying intervals over the entire span of his employment. His first report of a back strain was on September 1, 1960, for which he was given medications and diathermy after reporting to plant medical. He was provided with diathermy and hot packs on various occasions as he continued to complain of periodic back pain symptoms between 1960 and 1983. On February 10, 1970, he mentioned to plant medical that he believed his work at the plant was causing his symptoms, and inquired as to whether Cyro would pay his chiropractic bills. At that time, he indicated that he was not alleging a specific injury. The claimant’s employer never referred him to an outside medical specialist for treatment of his back pain, and the claimant never filed a first report of injury, nor was there evidence that he was ever asked to complete an accident report.

In 1986, the claimant underwent low back surgery while in the care of Dr. Kvam, who was paid through group medical insurance. No workers’ compensation claim was made. In January 1991, Dr. Dickey performed a second procedure—a fusion on the claimant’s back—that was not attributed to a particular cause, and was also paid by group medical. The claimant acknowledges that he sustained back injuries outside of the work environment over the years and treated with his own chiropractor, though he explained to his personal physician on more than one occasion that his heavy work at Cyro was a factor in his ongoing low back pain. Following his second surgery, he was released by Dr. Dickey in March 1992 with a note stating that his neurologic exam was normal and that he was no longer complaining of any back or leg pain.

The trial commissioner stated in his conclusions that only the September 1, 1960 incident could be defined as a specific injury in place and time based upon the plant medical notes1, which injury the claimant did not recollect in his testimony. The claimant viewed his interaction with the plant medical facility as that of a general patient-physician relationship over the years that he had access to treatment there, and always used his group medical insurance for any treatment he received outside the plant. Despite having personal knowledge during the 1970’s and 1980’s that his continuing heavy work at Cyro was contributing to his low back symptoms, he chose not to notify his employer of this or to file a workers’ compensation claim. Under the totality of the circumstances, including the claimant’s tendency to treat with his plant’s medical facility for all of his ailments, the trier found that the 1970 discussion between the claimant and the plant medical staff concerning his belief that his work was factoring into his low back symptoms did not amount to medical treatment for his low back injury within the meaning of § 31-294c(c) and § 31-294d. Further, his repetitive trauma exposure ended in either 1990 or 1991, and the claimant did not file a timely claim for said cumulative exposure injury within one year of the date of his last exposure. The trier accordingly dismissed the instant claim, from which ruling the claimant has petitioned for review to this board.

In resolving this appeal, we remind the parties that this board is not permitted on review to encroach upon the trial commissioner’s authority to determine the credibility of the evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). If there is evidence in the record to support the trier’s factual findings, and if no material, undisputed facts have been omitted, we must leave the trier’s findings intact. Id.; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Here, the primary issue is whether the facts as found by the trier establish that the claimant satisfied the “medical care” exception in § 31-294c(c) as a matter of law. Under the general rule of § 31-294c(a), an employee is expected to provide written notice to his employer that he has sustained an injury upon which a compensation claim may be premised, thereby allowing the employer to investigate. The relevant portion of § 31-294c(c) reads, “Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if . . . within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.” Section 31-294d, in turn, requires an employer to provide “a competent physician or surgeon” to attend to its employee, along with other reasonable and necessary medical or nursing care, as soon as it has knowledge of an injury.

The “medical care” exception of § 31-294c(c) is “no doubt, 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 such a claim.” Gesmundo v. Bush, 133 Conn. 607 (1947)(exception satisfied where claimant reported frostbite to employer’s superintendent, and was sent to a doctor who attended injured employees of the company and who examined claimant and gave him instructions).2 Our Supreme Court has studied the language of § 31-294c and § 31-294d in the context of the entire workers’ compensation statute, and has surmised that “the legislature intended to define and limit, with some degree of specificity, the acts of furnishing medical or surgical care by the employer which would relieve the employee of the statutory requirement to give written notice of his claim for compensation within one year from the date of the accident.” Kulis v. Moll, 172 Conn. 104, 108 (1976).

In Kulis, for example, the claimant had been hired to clean the outside of a house. He was discovered lying on the ground at the foot of a ladder by the homeowner, who honored the claimant’s request for a ride to the emergency room, but had no involvement thereafter in his treatment. The Court agreed with the commissioner’s finding that this did not constitute the furnishing of medical care within the meaning of § 31-294c(c) [then § 31-294]. “In the ordinary case, the employer, before furnishing medical or surgical care, has some opportunity to investigate the facts of the accident or illness. Here, there was no evidence to indicate whether the plaintiff, when found on the ground, had suffered a sudden illness, an accidental fall or even an external assault before his employer, the defendant, responding to his humane instincts, drove the plaintiff to the hospital. It was not until the receipt of the notice of claim fifteen months later that the defendant had any indication of his potential exposure . . . .” Id., 111-12. See also, Janco v. Fairfield, 39 Conn. Sup. 403 (1983)(use of town-financed medical insurance program by municipal employee to pay for coronary bypass surgery was too remote a connection to constitute employer-provided medical care under § 31-294); cf. Infante v. Mansfield Construction Co., 47 Conn. App. 530 (1998)(exception satisfied where employer was notified of claimant’s automobile accident, sent him for medical treatment, and reported injury to workers’ compensation insurer, who paid claimant total disability benefits and covered his medical bills for an extended period).

The claimant’s brief relies most heavily on Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984), a case in which the claimant had injured her back at work, and had reported her injury the next day to her employer’s personnel health physician, who (without examining her at all) told her that she needed to see a psychiatrist. Our Appellate Court drew from the implications of Kulis, supra, and established a threshold by stating that the medical care exception would be 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.’” Id., 148, quoting Kulis, supra, 108. As the claimant had reported her injury to her employer’s doctor, a full-time staff physician, the court held that these criteria were met—even though the doctor’s response to the claimant’s notice of injury may have been “unwise, cavalier or even flippant.” Id. The claimant in the instant case believes that he has likewise satisfied both prongs of the Carlino inquiry, and thus asserts that he is entitled to invoke the § 31-294c(c) medical care exception.

As stated, the claimant’s position rests on his employer’s alleged provision of medical treatment for his back on numerous occasions between 1959 and 1983. The most salient notations in the plant medical records concern possible workplace injuries dating back to 1960, 1970 and 1972. His workers’ compensation claim, meanwhile, is for a repetitive trauma injury from workplace exposure that spans a 30-year time period between 1960 and 1990 (or 1991). As noted above, repetitive trauma injuries occur over a period of time, with the date of injury for notice purposes generally being considered the last date of exposure to the trauma (often the last date of employment). Discuillo, supra; Crochiere v. Board of Education, 227 Conn. 333, 354 (1993). Unlike a claim for accidental injury, the lack of a precise date of injury in a notice for a repetitive trauma claim is not fatal. Chase v. State, 45 Conn. App. 499, 506 (1997). “[A]n employer who is investigating a claim for a repetitive trauma injury must necessarily focus its investigation not upon any one specific date, but, rather, on a period of time. Therefore, we conclude that a notice of claim for a repetitive trauma injury that provides adequate information as to the period of time over which the injury is alleged to have occurred is sufficient to allow the employer to make a timely investigation of the claim . . . .” Russell v. Mystic Seaport Museum, Inc.., 252 Conn. 596, 614-15 (2000)(internal citations omitted). For the purposes of providing sufficient information to trigger an employer’s obligation to investigate—a concept relevant to both written notice and imputed notice via the satisfaction of the “medical care” exception—the claimant’s actions must enable the employer to identify the alleged period of the repetitive trauma. Id., 617 (notice of claim identified injury as occurring “prior to 9/23/94,” which gave employer sufficient information to focus investigation on relevant time period).

The controlling question for the trier in this case, therefore, was whether the claimant’s repeated visits to Cyro’s medical facility were sufficient to place it on constructive notice that he had suffered the long-term repetitive trauma injury herein alleged, and that it might lead to a compensation claim. See Gesmundo, supra. In reviewing the record to ensure that the trier did not draw unreasonable inferences from the evidence, we must ask ourselves whether it was reasonable for him to conclude that the employer did not provide the claimant with medical treatment for the claimed repetitive trauma injury. Again, we contrast such an injury with a single-event accidental injury, or several separate injuries, neither of which were claimed here.

It is clear that the claimant was treated many times over for recurrent back pain. However, it does not seem from the plant medical notes that the likelihood of a relationship between his back pain and his job duties was discussed with his employer beyond the early 1970’s. Much of the repetitive trauma alleged in this case would have taken place beyond that date, and for that, no medical treatment appears to have been provided by the employer in a context that would suggest that the claimant had sustained said trauma at his workplace, as the claimant was using his employer’s medical facilities as a general health care provider through 1983, regardless of the origin of his ailments. The trial commissioner did not err in taking these circumstances into account in making his findings, given our Supreme Court’s holding in Kulis, supra. It was reasonable for him to conclude that the test articulated in Carlino, supra, was not satisfied, and that the claimant was not entitled to the benefit of the exception in § 31-294c(c). The nature of the injury claimed here spans a time period significantly greater than that in which medical care was knowingly provided by the employer for a work-related, or allegedly work-related, back problem.

Accordingly, we affirm the decision of the trial commissioner.

Commissioner Donald H. Doyle, Jr. concurs.

MICHAEL S. MILES, COMMISSIONER, DISSENTING. Though I understand the majority’s position, their reasoning overlooks the fact that § 31-294c(c) contains no requirement that the employer be aware of the continuing degenerative progress of an injury and its evolution into a long-term repetitive trauma claim once medical care has initially been provided. There are numerous instances in this case where it is clear from the trier’s findings and Claimant’s Exhibit A that the claimant reported a back injury to the plant medical department at Cyro, and received treatment from qualified medical professionals. On at least three of those occasions (1960, 1970 and 1972), the claimant attributed his symptoms to the arduous nature of his work duties, and discussed the matter with the Cyro on-site medical staff. Though I do not dismiss the relevance of the 1960 injury, which is discussed in Footnote 1 of the majority opinion, the treatments provided for the later injuries are particularly enlightening, as the claimant broached the subject of his back pain being employment-related with the plant doctors.

The notes in Claimant’s Exhibit A show that the claimant felt a sudden pain in his back on January 29, 1970, and went to the plant medical department the next day complaining of stiffness and pain radiating downward into his thigh. He thereupon received diathermy, and was told to take Maolate (a brand-name muscle relaxant) every four hours. On February 2, 1970, the claimant returned to request more Maolate tablets, as his condition had not improved. On February 10, 1970, a member of the medical staff noted, “Wanted to know about payment of bills for chiropractic treatment for back pains of 1/30. Feels that this is due to heavy work he does but says there was no specific injury. Discussed.” Of course, no workers’ compensation claim was formally filed. Two years later, the claimant was out of work for four days from February 7-10, 1972, due to low back pain that was described as a recurrence of a lower lumbar backache that had been bothering the claimant for some time. The March 7, 1972 plant medical notes state in part, “Question of above being comp. case or not . . . not considered workmen’s comp. case from our records.” Exhibit A, supra. Again, the claimant did not formally file a workers’ compensation claim, despite his inquiry into the matter.

Standing alone, these notes (especially those from 1970) would seem to reflect the provision of “medical treatment” under Gesmundo v. Bush, 133 Conn. 607 (1947), and Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984). The claimant’s attempts to relate his symptoms to his grueling work duties would readily distinguish the character of this treatment from the “unknown cause” fact pattern in Kulis v. Moll, 172 Conn. 104, 108 (1976). It appears to me that, if the claimant were before us arguing that he had sustained three specific back injuries in 1960, 1970 and 1972, at least some of those claims would be deemed preserved due to the treatment provided by his employer. I am troubled by the implication that the quality of this treatment may have been sufficient to satisfy the “medical care” exception for a single accidental injury, but due to the passage of time since that care was provided, the claimant’s continuing exposure to repetitive trauma now prevents his claim from being recognized. In my view, once the medical care exception has been met for a particular injury, the claim is thereafter preserved, just as the filing of a Form 30C would preserve a claimant’s entitlement to pursue his workers’ compensation claim at some later date. Our ability to reach the merits of this case should not depend on when the medical care was given: whether it be after the first ten or eleven years of exposure to repetitive trauma, or toward the end of the exposure period.

When one reviews the trial commissioner’s conclusions, one encounters the following finding: “[T]he general treatment provided at the plant medical facility which treated the claimant’s overall complaints was not sufficient in the totality of the circumstances to qualify as employer provided medical for treatment of a low back injury(s) under Section 31-294c(c).” Findings, ¶ O. He then goes on to state, “Merely making available a plant medical facility, doctors and/or nurses, who provide muscle relaxants and diathermy on occasion for general complaints does not rise to the level of providing medical treatment for a work injury (unclaimed and unnoticed), thereby qualifying as an exception under § 31-294c(c).” Findings, ¶ R. He repeatedly cites the “totality of circumstances” as being part of the legal equation, such as the claimant’s admitted awareness of the role his work played in causing his back symptoms, and the claimant’s use of the plant medical department doctors as his own personal physicians over the years of his employment at the Cyro facility. In reviewing these findings, I am unable to separate the role that these factors played in the trier’s ultimate decision from the role played by the specific events surrounding the claimant’s visits to his plant medical department, when he complained of back symptoms and suggested that they were caused by his taxing physical duties at work.

It is my belief that we do not determine whether a particular instance of treatment satisfies the “medical care” exception of § 31-294c(c) by looking at the claimant’s long-term state of mind regarding suspected causes of his back symptoms, or by focusing on the number of times that the claimant used the plant medical facility as his personal health clinic, or by reminding ourselves that a Form 30C was never filed over a 30-year span of time. Instead, the trier should restrict his focus to the nature of the complaint made by the claimant on the date in question, whether treatment was obtained from the employer for that complaint, and whether the claimant stated that his complaint was caused by an injury arising out of and in the course of his employment. The medical evidence in this case certainly establishes that the claimant performed heavy work while at Cyro, and that said work was a substantial factor in causing his back condition. The trier does not suggest that said condition is unrelated to the symptoms complained of by the claimant in 1960, 1970 and 1972. This would then appear to be a case of some factual merit. Because the trier’s adoption of the “totality of circumstances” approach leaves important questions unanswered in my mind, I would remand this case to the trial commissioner for further articulation of his decision.

1 The plant medical notes contain scores of entries spanning 23 years. Claimant’s Exhibit A. The very first of those entries is dated September 1, 1960, and it states, “While lifting 75-100 lb. pack, felt sharp pain in lower back. Has difficulty in bending at present. Hot pack x 20 min., checked by Dr. Wright. To have diathermy bid x 20 tomorrow. Soma qid x 4 days.” The claimant attempted to add a finding in his Motion to Correct that elaborated upon nine of the alleged 18 entries in the plant medical notes that concerned complaints of and treatment for back pain, but the trier did not rule on that motion. We have held that a Motion to Correct that is not ruled upon by a trier is presumed to be denied. Davis v. Edward J. Corrigan, 4024 CRB-2-99-3 n.1 (July 20, 2000). BACK TO TEXT

2 Though the Act contemplates that an employer will provide an injured claimant with a competent physician, there have been cases in which the “medical care” exception was met via care provided to a laundry worker by a registered nurse; Chaney v. Riverside Health Care Center, 4270 CRB-1-00-7 (Dec. 17, 2001)(claimant felt snap in her back, reported incident to supervisor, and was given back brace under aegis of another nurse/supervisor); or by transportation of a firefighter to a hospital for tests following symptoms of dizziness and nausea. Pernacchio v. New Haven, 63 Conn. App. 570 (2001)(court did not need to decide whether transportation to hospital by firehouse paramedics itself qualified as medical service, as tests at hospital were clearly medical services). On the other hand, a prison guard who was examined by a paramedic and who attended a peer support group meeting following her assault by an inmate did not sufficiently demonstrate the receipt of medical care under § 31-294d because there was no evidence that either the paramedic or the counseling session was overseen by a doctor. Ouellet v. State/Department of Correction, 3796 CRB-1-98-4 (June 21, 1999). The record here clearly reflects that the respondent Cyro’s on-site medical facility was staffed by qualified physicians, so we need not inquire into the sufficiency of this treatment vis-à-vis § 31-294d. BACK TO TEXT

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