State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Distassio v. HP Hood, Incorporated

CASE NO. 4592 CRB-4-02-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 5, 2004

ANTHONY DISTASSIO

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

HP HOOD, INCORPORATED

EMPLOYER

and

SENTRY INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Albert Desrosiers, Esq., Cousins & Desrosiers, P.C., 2563 Main Street, Stratford, CT 06615-5844.

The respondents were represented by James C. Delaney, Esq., Murphy & Barrett, 1062 Barnes Road, Suite 105, Wallingford, CT 06492.

This Petition for Review from the November 19, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard November 21, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Anthony Distassio, has appealed from the November 19, 2002 Finding and Award of the Commissioner acting for the Fourth District. The respondents, H.P. Hood, Incorporated and Sentry Insurance Company, have also appealed the November 19, 2002 Finding and Award. We affirm the decision of the trial commissioner in part, and remand in part.

The pertinent facts are as follows. The claimant fell at work on October 12, 1998. At the time of the incident the claimant was unloading milk from a truck when he fell in the trailer on spilled milk. October 31, 2001 Transcript, p. 9. The claimant alleged that all the crates of milk fell on top of him and his left knee became extremely swollen. Id. However, the claimant did not file a written notice of claim within one year of the date of the injury.

The respondents sought dismissal of the claim on the basis that it was untimely. The claimant contended he was furnished with medical care and thus the constructive notice provisions set out in § 31-294c(c) were met. Following proceedings before the trial commissioner, the trier found claimant was provided with medical treatment at Bridgeport Hospital, and completed a First Report of Injury all on the date of the alleged injury. Additionally the trial commissioner found the respondent employer paid the charges associated with the hospital care. The trial commissioner then concluded the claimant satisfied the constructive notice provision set out in § 31-294c(c). The respondents filed this appeal from the commissioner’s November 19, 2002 Finding and Award. The claimant also filed an appeal. However, as the respondents appeal implicates the threshold issue of the timeliness of the claim, we begin our review with consideration of that issue.

Section 31-294c(c) contains a provision in which a claimant’s failure to provide a written notice of claim is obviated if the claimant has been furnished with medical care. Specifically, § 31-294c(c) provides in pertinent part:

Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident . . . or 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.

In proceedings before the trial commissioner the claimant argued that the respondent’s payment of the medical bill for treatment on the day of the incident, along with the first report of injury completed that same day, constituted the furnishing of medical care. Relying upon the Supreme Court’s holding in Gesmundo v. Bush, 133 Conn. 607, 612 (1947) this tribunal has noted that in order to fall within the medical care exception requiring a written notice of claim, the employer must provide medical treatment for an injury that it knows may be the basis of a Workers’ Compensation claim. See e.g., Salerno v. Mount Sinai Hospital, 4518 CRB-1-02-4 (April 9, 2003); Cruz v. State/Dept. of Correction, 4168 CRB-1-00-1 (February 9, 2001); Horn v. State/Dept. of Correction, 3727 CRB-3-97-11 (December 16, 1998). See also, Kulis v. Moll, 172 Conn. 104 (1976). Whether a claimant was “furnished medical care” pursuant to § 31-294(c) is a factual determination. As such it falls within the province of the trial commissioner and will not be disturbed unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Salerno, supra.

The respondents contend that there was no evidence supporting the trial commissioner’s conclusion that the claimant was furnished medical care. We disagree. In their appeal, the respondents argue that it was error for the trial commissioner to conclude as he did, as it is their contention payment for the medical treatment was made “without prejudice.” What weight to assign the evidence presented is for the trier to determine and generally will not be disturbed. Sullivan v. H.W. Sandora & Sons, Inc., 4603 CRB-3-02-12 (December 29, 2003). We think the claimant’s medical treatment and the claimant’s completion of a First Report of Injury on the same day of the injury, along with the respondent’s subsequent payment for claimant’s medical treatment, supports the trial commissioner’s legal conclusion the claimant was furnished with medical care.

Having affirmed the trial commissioner’s determination as to the application of § 31-294c(c)’s constructive notice provision, we next consider the issue presented by the claimant’s appeal. The claimant’s appeal presents the issue of whether the trial commissioner erred by failing to address the issue of the causal relationship of the claimed hip injury of October 12, 1998. Our review of the record reflects the issue of the compensability of the right hip injury was clearly raised throughout these proceedings. The May 9, 2000 Form 30C listed the right hip injury. The May 22, 2000 Form 43 disputed the compensability of all of the injuries and specifically delineated the right hip injury.

In the proceedings before the trial commissioner, the claimant testified that within ten days of his fall at work his right hip started to bother him, but he did not relate it to the fall because he had a prior right hip replacement in 1995. October 31, 2001 Transcript, p. 14. Evidence presented also reflected that in September 1999 the claimant sought medical treatment with Dr. Patrick Carolan due to the progression of pain the claimant was experiencing in his right hip. At the time of the claimant’s visit with Dr. Carolan, the claimant did not mention his fall at work nearly a year earlier. Id., p. 45 and p. 47. In November 1999 Dr. Carolan performed a second total hip replacement due to the earlier prosthesis deterioration. Based on the condition of the hip Dr. Carolan found during the November 1999 surgery, Dr. Carolan asked whether the claimant had fallen. The claimant informed Dr. Carolan of his October 1998 fall, and the doctor then suggested the fall was related to the hip problem. Id., pp.17, 18, 58.

In the proceedings below the claimant and the respondents both submitted medical evidence regarding the compensability of the right hip injury. Claimant’s Exhibit E; Claimant’s Exhibit F; Respondent’s Exhibit 5. The determination of whether the hip injury was causally related to the October 12, 1998 accident is a factual determination within the purview of the fact finder. As this issue was not addressed in the Finding and Award, a remand is appropriate. Milliot v. Yale University, 4527 CRB-3-02-5 (May 14, 2003); Spatafore v. Yale University, 3969 CRB-3-99-1 (May 29, 2001). Therefore, this matter will be remanded for a factual finding on the issue of the compensability of the claimant’s right hip injury.1

Therefore, we affirm the November 19, 2002 Finding and Award of the Commissioner acting for the Fourth District in part, and remand the case to the Fourth District for further proceedings consistent with this opinion. We affirm the trial commissioner’s conclusion the respondents furnished medical care and thus, the claim was not time barred under § 31-294c(c). However, we remand the matter for further proceedings as to compensability of claimant’s right hip injury.

Commissioners Ernie R. Walker and Howard H. Belkin concur.

1 At oral argument on the appeal of this case, the parties’ counsels were amenable to a paper review of the issue, should the case be remanded. span class="back">BACK TO TEXT

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