State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Delconte v. State of Connecticut Department of Correction

CASE NO. 4766 CRB-8-03-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 8, 2004

JOSEPH DELCONTE

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT

DEPARTMENT OF CORRECTION

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Lawrence Legenza, Esq., 785 Farmington Avenue, Kensington, CT 06037.

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

This Petition for Review from the December 9, 2003 Finding and Dismissal of the Commissioner acting for the Eighth District was heard July 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Joseph Delconte, has appealed from the December 9, 2003 Finding and Dismissal of the Commissioner acting for the Eight District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant was a correctional officer assigned to the Cheshire Correctional Facility. January 21, 2003 Transcript, p. 13. The claimant testified he was injured when he was moving fire extinguishers on May 22, 2000. Id., p. 14. There were discrepancies in the date of injury the claimant reported. The claimant alleged that through an inadvertent error he misread a calendar and used the date of May 15, 2000 in most of the reports regarding the injury, however, the actual date of injury was May 22, 2000. Id., pp. 14-15.

The claimant stated that on or about May 22, 2000 he reported the injury to Cheryl Schwink, the charge nurse at the Cheshire Correctional Facility. Id., p. 17. He testified that Ms. Schwink did not perform any medical services other than suggesting that he take Motrin to relieve the pain. Id., p. 36. The claimant stated that Ms. Schwink took a report of the incident, however, that report could not be located. Id. Ms. Schwink corroborated the claimant’s testimony that she took a report of the claimant’s alleged work-related injury on that date and submitted the report to the claimant who should have forwarded it to his supervisor. April 25, 2003 Transcript, pp. 22, 23. Ms. Schwink testified that she had a personal relationship with the claimant outside of work and the claimant had helped her with some household maintenance in the past. Id., p. 25. She testified that she did not provide the claimant with any medical care such as performing an examination or giving the claimant medication because it was not her job to administer medical care to the employees, except in emergency situations. April 25, 2003 Transcript, p. 27.

The claimant testified that on June 1, 2000 his supervisor, Captain Murphy, noticed that he was in pain. When the claimant told Captain Murphy about how he injured himself the Captain suggested the claimant seek medical attention. January 21, 2003 Transcript, p. 18. The claimant sought medical treatment for his injury with Dr. Kruger on June 1 or 2 of 2000 and at New Britain General Hospital Emergency Room on June 3, 2000. Id., p. 18; Respondent’s Exhibit 6. The claimant testified that on the following day he lost all feeling and sensation in his whole hip area and was rushed in for emergency surgery for a ruptured herniated disc which was performed by Dr. Jonathan Ballon. Id., p. 19; Respondent’s Exhibit 7.

The claimant submitted his logbook into evidence in order to document and corroborate the events that occurred, however, the logbook was written in pencil and there were erasures on the May 15, 2000 entry. Claimant’s Exhibit C; January 21, 2003 Transcript, p. 25. On the date the claimant alleged he injured his back, May 22, 2000, he worked six hours of overtime in addition to his regular shift. Id., pp. 27, 37. The respondent-employer’s records indicate the claimant was absent on May 25, 2000. The absence was recorded as “sick family.” The claimant testified that the reason recorded for the absence was incorrect and that it was he who was ill on May 25, 2000 and the following two days. Id., p. 28; Respondent’s Exhibit 2.

Dr. Kruger’s medical report dated June 2, 2000 states that about twelve days prior the claimant developed left leg pain with numbness and tingling. The report does not mention any specific injury which might have triggered these symptoms. Respondent’s Exhibit 5. Dr. Jonathan Ballon’s operative report from New Britain General Hospital states claimant had back pain for approximately two weeks after doing some yard work at home. Respondent’s Exhibit 7. The only medical report concerning this claim that mentions a work-related incident is a report from Dr. Ballon dated March 22, 2001 in which the claimant reports that he filed a Workers’ Compensation claim in regards to his disc herniation. Claimant’s Exhibit D.

Claimant filed a Form 30C Notice of Claim form with a claimed date of injury of May 22, 2000 on May 18, 2001. The respondents filed a Motion to Dismiss the claim alleging that the trial commissioner lacked subject matter jurisdiction to hear the claim on the basis that the Notice of Claim was not filed within a year of the injury under § 31-294c(a) C.G.S. The trial commissioner found that the claimant sustained an injury on May 15, 2000, not May 22, 2000. Therefore, the trial commissioner determined that the claimant had not filed a timely Form 30C within one year of the date of injury, May 15, 2000. Furthermore, the trial commissioner determined that the claimant’s visit to the respondent’s charge nurse on or about May 22, 2000 did not satisfy the medical care exception to the filing of a timely Notice of Claim, insofar as the claimant’s visit to that charge nurse did not equate to the furnishing of medical treatment as required by § 31-294c(c) and applicable case law. Based on the fact that the claimant did not file a timely Notice of Claim within one year of his injury and none of the exceptions for filing a timely Notice of Claim were met, the trial commissioner found that he lacked subject matter jurisdiction over the claimant and therefore, granted the respondent’s Motion to Dismiss.

On January 23, 2004 the claimant filed a Motion to Open Judgment of Dismissal. In that motion the claimant alleges that on January 5, 2004 Captain Peters retrieved the shift commander’s logbook from secured storage and copied certain pages from that logbook which the claimant attached to the Motion to Open Judgment of Dismissal. The claimant alleges that the proceedings should be re-opened due to the newly discovered evidence because prior to the formal hearing he had attempted to subpoena this information from the respondent. The claimant alleged he served subpoenas on Captain Murphy and to Martha Lord, respondent-employer’s Personnel Officer, that should have produced this log. Captain Murphy acknowledged that the shift commander’s logbook would be the best evidence of what happened on a given time and date. April 25, 2003, Transcript, p. 41. On January 27, 2004 the trial commissioner denied the claimant’s Motion to Open Judgment of Dismissal.

On March 8, 2004 the claimant filed a Motion to Submit Additional Evidence or Testimony with this board. The claimant appended copies of pages from the shift commander’s log book that he deemed relevant to his case. Initially, we will address this Motion to Submit Additional Evidence. Administrative Regulation § 31-301-9 governs the admissibility of additional evidence to this board. The regulation states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must have been undiscoverable with due diligence and unobtainable at the time of the formal hearing. Donlin v. Cytec Industries, Inc., 4415 CRB-7-00-7 (June 5, 2002), aff’d, 77 Conn. App. 903 (2003)(per curiam); Rodrigues v. American National Can, 4329 CRB-7-00-12 (January 2, 2002).

The evidence in question, portions of the shift commander’s log book, was in existence prior to the formal hearing. We know that the claimant knew that the log book existed because he stated that when he would call in sick the supervisor in the commander’s office would make a notation regarding his absence in that log book. January 31, 2003 Transcript, p. 28. Captain Murphy indicated that the logbook, which was kept in the captain’s area/shift commander’s office, contained information about staff attendance and injuries. April 15, 2003 Transcript, p. 40.

We find that the claimant did not use due diligence to obtain the shift commander’s logbook during the proceedings below. We initially note that the claimant has not provided this board with a copy of either subpoena he served for our review.1 Therefore, our review of this issue is based on the language of the subpoenas which the claimant provided to us. The claimant alleged that he served Captain Murphy a subpoena duces tecum that commanded the Captain to produce “all employment records for Joseph DelConte, including but not limited to . . . any and all diaries, calendars, scheduling notices, memorandum of work activities, for you and Joseph Delconte on 5/15/00 and 5/22/00.” Claimant’s March 8, 2004 Motion to Submit Additional Evidence or Testimony. The claimant alleged that he served a subpoena duces tecum on Martha Lord that directed her to produce “all employment records for Joseph DelConte.” Id.

Furthermore, claimant’s subpoenas were addressed to two people who were not likely to be in possession of the shift commander’s logbook. Although Captain Murphy was subpoenaed to produce all diaries, calendars, scheduling notices, memorandum of work activities, for himself and the claimant, Captain Murphy was retired and no longer had access to work records such as a shift commander’s logbook. April 25, 2003 Transcript, p. 27. Furthermore, Ms. Lord was only subpoenaed to present “employment records.” The shift commander’s logbook would not necessarily fit into this category because it is a logbook used to keep track of all of the employees’ activities during the shift. Id., p. 40. For these reasons we deny the claimant’s Motion to Submit Additional Evidence or Testimony and affirm the trial commissioner’s denial of the claimant’s Motion to Open Judgment of Dismissal.

The claimant also argues that since the respondent did not produce any evidence to refute that the injury took place on May 22, 2000 it was error for the trial commissioner to conclude that the injury occurred May 15, 2000. It is the trial commissioner’s task to evaluate and weigh the evidence in order to make those findings. The trial commissioner is allowed to reject evidence that is not contradicted. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36 (1996); Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 1608 CRB-1-92-12 (February 6, 1995). On appeal it is our task to determine whether there was any evidence in the record below to support the trial commissioner’s ultimate findings and conclusions. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Here there was evidence to support a finding that the injury occurred on May 15, 2000 rather than May 22, 2000. All of the respondent-employer’s paperwork regarding the incident lists the date of injury as May 15, 2000, including the incident report and related documents that the claimant signed himself. Respondent’s Exhibit 1. Although the claimant testified that the May 15, 2000 date was written in error, the trial commissioner did not find the claimant’s testimony in that regard to be credible. Findings, ¶ a. We find the trial commissioner’s determination that the injury occurred on May 15, 2000 supported by evidence in the record below and we will not overturn that determination on appeal.

The claimant also alleges that even if the Notice of Claim was filed late, the employer was aware of his injury and sent him for medical care, therefore, the medical care exception articulated in § 31-294c(c) was satisfied. Section 31-294c(c) states in relevant 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 within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, . . . for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.

The trial commissioner has a certain amount of discretion to make the determination of whether activities the employer engaged in constituted medical care as to meet the medical care exception within the meaning of the statute. Horn v. State/Dept. of Correction, 3727 CRB-3-97-11 (December 16, 1998); Griffith-Patton v. State /Dept. of Agriculture, 13 Conn. Workers’ Comp. Rev. Op., 177, 1888 CRB-1-93-11 (March 10, 1995), aff’d, 41 Conn. App. 911 (1996) (per curium), cert. denied, 237 Conn. 930 (1996). Here the trial commissioner found that based on the evidence in the case the medical care exception to the notice of claim statute was not met. Finding, ¶ f. We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The justification for the medical care exception to the notice of claim statute is that an employer who has provided medical care presumably knows that the alleged work-related injury took place. Gesmundo v. Bush, 133 Conn. 607, 612 (1947); Pernacchio v. New Haven, 3911 CRB-3-98-10 (September 27, 1999), aff’d, 63 Conn. App. 570 (2001); Horn, supra. This tribunal recently considered application of the exception to a written notice of claim set out in § 31-294c(c) and noted:

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).

Distassio v. HP Hood, Incorporated, 4592 CRB-4-02-11 (May 5, 2004).

Furthermore, “[w]hether 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.” (citations omitted). Id. We cannot say that the trier abused his discretion in concluding that the furnishing of medical care was not present in this matter. The circumstances as presented to the trier support an inference that the medical attention provided was such that the employer was not aware that the injury “may be the basis of a Workers’ Compensation claim.” Id.

Here, according to the charge nurse’s testimony the claimant should have forwarded the injury report to his superior, however, the report could not be located as of the date of the final hearing. April 25, 2003 Transcript, pp. 22, 23. The nurse stated that under the respondent’s rules the employee’s supervisor was supposed to be the recipient of the official injury report. Id., p. 27. There is no evidence that the employer was ever made aware of the injury based on the time the nurse met with the claimant. Therefore, one could logically conclude that the requisite requirement that the employer must have knowledge that the claimant’s injury may be the basis of a Workers’ Compensation claim in order to meet the medical care exception to the notice of claim statute is not present here.

The claimant alleged that the company nurse, Ms. Schwink, “furnished” him with medical care within the meaning of § 31-294c(c) by meeting with him in the medical department, listening to his complaint regarding his injury, preparing a medical report per company policy, and/or recommending that he see an outside doctor. We have previously held that care provided by a non-physician may meet the medical care requirement of § 31-294c(c), see Chaney v. Riverside Health Care Center, 4270 CRB-1-00-7 (December 17, 2001). In Horn, supra, this board affirmed a trial commissioner’s determination that the medical care exception was met where the company nurse examined the claimant, checked his vital signs, checked his heart and directed that he be taken to the emergency room after he complained of chest pain and numbness in his arm.

However, in this case one could reasonably surmise that the tasks the respondent’s nurse performed for the claimant did not constitute medical care under the meaning of the statute. The nurse testified that she was not allowed to examine the claimant or arrange for him to see a physician. She stated that her only duty was to write the injury report. Transcript, April 25, 2003, pp. 26, 27. The claimant himself testified that “correctional health care will not allow the staff [referring to the health care staff such as the nurse] to do anything really significant unless it’s life threatening.” Transcript, January 31, 2003, p. 37. He testified that her job was to take the report of injury. Id., p. 36. The nurse testified that the claimant came to her complaining of back pain so that she could write a medical incident report. Transcript, April 25, 2003, p. 22. In this context the nurse was simply available to document symptoms and the claimant had no expectation that the nurse would provide him with any medical care. This would differ from a situation where an employee visits a respondent’s medical staff for the purpose of obtaining medical assistance or diagnosis.

For these reasons, we find that the trial commissioner’s factual finding that the medical care exception to the notice of claim statute was not met was reasonable and we will not reverse this finding on appeal.

Therefore, we affirm the December 9, 2003 Finding and Dismissal of the Commissioner acting for the Eight District.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 Nor did the claimant provide copies of the subpoenas to the trial commissioner when he filed his Motion to Open Judgment of Dismissal either. BACK TO TEXT

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