State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Tracy v. Scherwitzky Gutter Company

CASE NO. 4797 CRB-1-04-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 21, 2005

ESTATE OF JAMES TRACY

CLAIMANT-APPELLANT

v.

SCHERWITZKY GUTTER COMPANY

EMPLOYER

and

AMERICAN STATES INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., American Legal Services, 212 Talcottville Road, Route 83, Vernon, CT 06066.

The respondents were represented by Joseph Passaretti, Jr., Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the March 12, 2004 Finding and Award in Part and Finding and Dismissal in Part of the Commissioner acting for the First District was heard October 22, 2004 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Charles F. Senich and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Estate of James Tracy, has appealed from the March 12, 2004 Finding and Award in Part and Dismissal in Part of the Commissioner acting for the First District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The decedent was employed by the respondent Scherwitsky Gutter Company on October 7, 1999. On that day he sustained a fall arising out of his employment which resulted in multiple fractures and a traumatic brain injury. The cause of the decedent’s fall was never clearly determined, however, there was speculation that the claimant may have suffered a seizure. Dr. James Donaldson, a board certified neurologist, examined the decedent prior to his death on April 3, 2001 at the respondents’ request. Dr. Donaldson found that the decedent had a history of seizures, some of which may have been alcohol consumption-related. Although Dr. Donaldson found the decedent had a significant preexisting history, Dr. Donaldson determined the fall of October 1999 was a substantial factor in the decedent’s disability and need for subsequent treatment.

The decedent’s nephew, Gregory Tracy and Gregory’s wife Susan Tracy testified that they provided the claimant with 24-hour care from March 28, 2000 through the decedent’s death on November 29, 2001. August 11, 2003 Transcript, pp. 22, 35, 60. There was no autopsy performed after the decedent passed away. There was disputed testimony regarding the cause of the decedent’s death. The trial commissioner ultimately credited Dr. Donaldson’s opinion that the death was most likely cardiac related.

The trial commissioner found the decedent had sustained a compensable injury on October 7, 1999 which rendered him totally disabled until his death on November 29, 2001. The respondents were ordered to pay disability benefits to the estate taking credit for amounts already paid. The respondents were ordered to pay any unpaid medical bills which related to that injury. The trial commissioner found that the decedent’s death was not caused by the compensable injury and dismissed the claim for § 31-306 C.G.S. benefits. The trier determined that the care that Gregory and Susan Tracy provided to the decedent “was not rendered by referral or under the supervision of any physician and does not rise to the level qualifying it for compensation under the Chapter 568 statutes made and provided.” Finding, ¶ 26. Additionally, the trier found that Gregory and Susan Tracy’s claims “do not qualify for benefits under Section 31-312 and as such must be DISMISSED.” Finding, ¶ E.

The claimant’s estate filed a Motion to Correct the findings dated March 25, 2004. One of the errors the estate sought to correct was the trier’s Finding, ¶ E. The estate claimed that Greg and Susan Tracy sought reimbursement under § 31-294d C.G.S. as opposed to § 31-312. On April 13, 2004 the trial commissioner denied the estate’s Motion to Correct in its entirety.

On appeal the claimant’s estate contends the trial commissioner erred by finding that the care Gregory and Susan Tracy rendered to the claimant was not compensable under Chapter 568. The estate alleges that the long term custodial care performed by Greg and Susan Tracy was reasonable medical care as a matter of law within the meaning of § 31-294d. Claimant’s August 11, 2004 Brief.

Section 31-294d has been “interpreted to authorize some compensation for a spouse or family member whose services go well beyond the normal care provided by such individuals, especially when the services are provided in lieu of professional health care.” Boiano v. Eppoliti Construction, 15 Conn. Workers’ Comp. Rev. Op. 342, 2108 CRB-4-94-7 (June 26, 1996). Every family member who cares for a convalescing claimant will not be entitled to compensation under § 31-294d. Boiano, supra. Ultimately, the determination of whether to order § 31-294d payments to a family member is a factual finding to be made by the trial commissioner. Id. The trier should consider whether the care was provided to the claimant under the direction and with the consent of a treating physician. Galway v. Doody Steel Erecting Co., 103 Conn. 431, 436 (1925), citing Honnold (Workmen’s Compensation, Vol. 1, p. 720); Boiano, supra.

The trial commissioner here found that the care Gregory and Susan Tracy provided did not qualify for compensation under the Chapter 568 statutes. Finding, ¶ 26. “Section 31-294 expressly requires the employer to pay for ‘medical and surgical aid or hospital or nursing service, including medical and rehabilitation services’ deemed reasonable or necessary by a physician.” Boiano, supra. Here, the trial commissioner found that “the care was not rendered by referral or under the supervision of any physician.” Findings, ¶ 26. Therefore, the trial commissioner found that Gregory and Susan’s care failed to meet the threshold standard that the care provided was found reasonable or necessary by a physician. The reasoning the trial commissioner used is consistent with the proper analysis under § 31-294d. For this reason, the trial commissioner’s mention of § 31-312 appears to be a harmless error.

Accordingly, we cannot say that the commissioner erred in finding that Gregory and Susan Tracy’s care did not rise to the level of care qualifying it for compensation under Chapter 568. This is a factual finding that we will not disturb unless it is found without evidence, based on unreasonable or impermissible factual inferences or contrary to the law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Setterstrom v. C.R. Klewin, Inc., 3643 CRB-2-97-7 (August 12, 1998).

For these reasons, we affirm the decision of the trial commissioner.

Commissioners Charles F. Senich and Howard H. Belkin concur.

Workers’ Compensation Commission

Page last revised: March 23, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4797crb.htm

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