State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Spencer v. Manhattan Bagel Company

CASE NO. 5419 CRB-8-09-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 22, 2010

MELISSA SPENCER

CLAIMANT-APPELLANT

v.

MANHATTAN BAGEL COMPANY

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

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

Respondents Manhattan Bagel Company and Zurich North America were represented by Michael A. Burton, Esq., Sharp, Shields & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

This Petition for Review from the January 6, 2009 Finding and Dismissal of the Commissioner acting for the Eighth District was heard on June 19, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 6, 2009 Finding and Dismissal of the Commissioner acting for the Eighth District. We find error and reverse the decision of the Commissioner.

The trial commissioner made the following factual findings pursuant to a Stipulation of Facts entered into by the parties on January 5, 2009. The claimant sustained an injury to her right shoulder and neck on May 15, 2001 and verbally informed her employer/supervisor of same. Although the effects of the injury persisted, the claimant lost no time from work. However, on or about September 18, 2001, the claimant awoke experiencing increased severe pain in her neck. When she arrived at work that day, she reminded her supervisor of the injury which had occurred in May and let him know that she might need time off. In response, the claimant’s supervisor drove the claimant to his chiropractor who diagnosed the claimant as suffering from a neck sprain, recommended conservative treatment and referred the claimant to an orthopedist. After the appointment, the claimant’s supervisor gave the claimant a ride back to work.

The claimant did not file a written notice of claim within one year of the date of injury, and thus failed to timely fulfill the conditions of the notice requirement as articulated by § 31-294c(a) C.G.S.1 Although § 31-294c(c) C.G.S. sets out several exceptions to the notice requirement, the trial commissioner ultimately concluded that none of the conditions required to invoke an exception to the notice requirement were satisfied.2 Specifically, the record indicated that a workers’ compensation hearing was neither requested nor scheduled within one year of the date of injury and no voluntary agreement was submitted. Following a formal hearing at which the claimant testified that her employer did not pay the chiropractor’s medical bill, the trial commissioner determined that the employer did not furnish medical care to the claimant consistent with the provisions of § 31-294c(c) C.G.S. and dismissed the claim for lack of subject matter jurisdiction.

The claimant filed a Motion to Correct which was denied in its entirety, and this appeal followed. The claimant asserts that the trial commissioner’s decision to dismiss her claim resulted from an incorrect application of the law to the facts. We agree. The trial commissioner appears to have based his decision to dismiss the claim on a finding that the employer did not pay the chiropractic bill generated by the claimant’s visit on September 18, 2001. See Findings, ¶ 2. However, our review of prior case law reveals that payment by the employer for medical care rendered to the claimant is not a necessary condition to invoke the medical care exception.

We begin our analysis with a discussion of Gesmundo v. Bush, 133 Conn. 607 (1947). In Gesmundo, the claimant, who was employed as a clerk, was ordered to make a truck delivery because no one else was available. The delivery occurred on Friday, December 31, 1943, and the round trip lasted nearly seven hours in temperatures ranging from 27 to 44 degrees. The truck was unheated and the floor boards of the cab were broken. When the claimant returned from making the delivery and got out of the truck, he felt like his feet were frozen and reported same to the watchman and superintendent. On the following Monday, the claimant told his supervisor that his feet were still bothering him, and the supervisor told him to see the company doctor. The doctor diagnosed frostbite and gave the claimant instructions for treatment, but the claimant’s condition did not improve, despite additional evaluation and treatment by other physicians. Finally, following “a diagnosis of a vasomotor disturbance of the causalgic type, probably related to [the claimant“s] frostbite,” id., at 610, the claimant was advised to discontinue working.

The claimant asserted a workers’ compensation claim which the respondents contested, contending that the claimant had neither filed a written notice of claim within a year of the date of the injury nor fulfilled the requirements necessary in order to waive statutory written notice.3 However, the trial commissioner “concluded that the treatment by [the doctor] under the circumstances described dispensed with the necessity for written notice ….” id., and our Supreme Court affirmed, observing that the medical “exception 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.” Id., at 612. The court determined that “[t]he examination by the doctor and the giving of instructions to the plaintiff constituted ‘medical treatment“ as those words are used in the statute,” id., and, notably for our purposes, also remarked “[t]hat the plaintiff saw fit to pay the doctor does not alter the situation; it is the fact that the defendant, through its superintendent, made provision for medical treatment that makes unnecessary the formal notice.” Id.

The Supreme Court revisited the medical care exception in Kulis v. Moll, 172 Conn. 104 (1976) and, unlike its prior decision in Gesmundo, determined that the requirements for satisfying the medical care exception had not been met. In Kulis, the claimant, who had been employed by the defendant to clean the outside of a house, was discovered by the defendant “lying on the ground at the foot of a ladder….” Id., at 106. The defendant drove the claimant to the hospital where hospital personnel moved the claimant from the defendant’s vehicle into the facility. The defendant “gave no information to the attendants, did not see Kulis at the hospital after his removal from the automobile, and there was no evidence that [the defendant] made any payment for medical treatment rendered to Kulis.” Id. Fifteen months later, the claimant filed a workers’ compensation claim against the defendant.

The trial commissioner dismissed the claim for lack of subject matter jurisdiction “after expressly finding that the transportation of the plaintiff to the hospital by the defendant did not constitute furnishing the plaintiff with ‘medical or surgical care“ so as to qualify as an exception to the statutory requirement of giving written notice of the claim within one year of the injury.” Id., at 107. The Supreme Court affirmed. Noting that the phrase “medical or surgical care” referenced in the statute is immediately qualified by the phrase “as hereafter provided in this section,” the court observed that,

[i]t is apparent from the foregoing provisions, as well as from others disclosed by a reading of the entire statute, 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 accident.

Id., at 108.

However, the court distinguished Kulis from Gesmundo, supra, stating, “the decision in Gesmundo was based upon the narrow ground that it was not necessary for the employer to pay for the treatment furnished by a physician selected by him in order to be held to have ‘furnished“ such treatment within the meaning of the statute.” (Emphasis added.) Id., at 109. The court then pointed out that in Kulis, “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.” Id., at 111-112. Given that “[i]t was not until receipt of the notice of claim fifteen months later that the defendant had any indication of his potential exposure, at which time much of his opportunity for investigation had passed,” id., at 112, the court concluded that the defendant simply was never given legally sufficient constructive notice and affirmed the trier’s decision to dismiss the claim.

This board has also had numerous opportunities to consider the medical care exception. For instance, in Distassio v. HP Hood, Inc., 4592 CRB-4-02-11 (May 5, 2004), we affirmed the decision of the trier to apply the exception after having found that the claimant completed a First Report of Injury on the same day of the injury and was provided medical treatment for which the respondents paid. However, in Delconte v. State/Dept. of Correction, 4766 CRB-8-03-12 (December 8, 2004), we affirmed a decision by the trier to dismiss a claim for lack of jurisdiction after having found that the claimant’s visit to the employer’s charge nurse did not constitute the provision of medical care pursuant to § 31-294c(c) C.G.S. Noting that “[t]he 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,” id., we determined that based on the testimony of the parties, it was impossible to establish an evidentiary basis for reasonably inferring that the employer was ever informed about the claimant’s injury as a result of his one meeting with the company nurse. In light of this deficiency, we remarked that, “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.”4 Id.

Finally, in Teague v. Repko Roofing, 4920 CRB-7-05-2 (March 1, 2006), we dismissed on procedural grounds an appeal in which the claimant had asserted the medical care exception while seeking workers’ compensation benefits for injuries sustained in an accident with a nail gun.5 However, in dicta, we discussed the underlying merits of the appeal and indicated that even had the appeal been timely, we would have upheld the trier’s decision to dismiss given that the record demonstrated that the claimant, who sustained his injuries on July 5, 1996, did not file a notice of claim until October 2, 2002. Moreover, although the trier found that on the date of the injury the employer drove the claimant to an immediate medical care center, where the claimant obtained treatment, and then drove the claimant back to his motor vehicle, the trier also found that the claimant returned to work the following day and worked for the employer for another two and a half months, until September 20, 1996. Although the claimant received subsequent additional treatment, he did not submit medical bills to the employer until February 1999, at which time the employer provided funds to the claimant to cover some of his medical expenses. However, the record did not support a finding that the bill generated by the claimant’s visit to the immediate care center on the date of the injury was paid by the employer.

Our review of prior case law, particularly Gesmundo, supra, and Kulis, supra, suggests that the relevant line of inquiry in ascertaining whether the requirements of the medical care exception have been satisfied does not hinge upon whether an employer paid a certain medical invoice. Rather, the inquiry is global in nature, and should ideally lead to a determination as to whether the employer could reasonably expect that a workplace injury for which a claimant has received medical attention might conceivably lead to a workers’ compensation claim against the employer. To that end, “[t]he 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.” Delconte, supra. See also 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 curiam), cert. denied, 237 Conn. 930 (1996).

Thus, in light of the result reached in Gesmundo, supra, and Kulis, supra, we do not believe that the factual circumstances in Teague, supra, would have supported a finding that the requirements to invoke the medical care exception were satisfied, regardless of whether the employer paid the invoice from the original date of treatment. However, to the extent that, in dicta, we may have inadvertently created the impression that payment for medical care received by the claimant carries more weight than any of the other indicia relative to an assessment of the validity of application of the medical care exception, we now take this opportunity to correct any such misapprehension.

Consistent with the foregoing analysis, then, we find that the trial commissioner’s decision to dismiss the instant matter on the basis of a determination that the employer never paid the claimant’s chiropractic bill constituted error. It does not appear that the standard set forth in Gesmundo and Kulis was correctly applied to the facts of the claim. In Gesmundo, the court stated that “[t]he injury … was reported to the defendant’s superintendant, and he sent the plaintiff to a doctor who attended injured employees of the defendant.” Gesmundo, supra, at 612. The court made it quite clear that the mechanism of payment was irrelevant; “it is the fact that the defendant, through its superintendent, made provision for medical treatment that makes unnecessary the formal notice.” Id. In the instant matter, the parties stipulated that on or about May 15, 2001, the claimant sustained an injury to her right shoulder and neck and reported same to her employer. See Stipulation of Facts, ¶¶ 3,4. The parties also stipulated that on September 18, 2001, the claimant’s pain symptoms had worsened such that “[w]hen she arrived at work, she reminded [her employer] of her work injury and advised she may need time off.” Id., at ¶ 6. As a result, the employer drove the claimant to his chiropractor, and then picked her up after the appointment and drove her back to work. Id., at ¶¶ 7, 8. At trial, the claimant testified that in addition to having driven her to the chiropractor’s office, the employer even offered to pay the chiropractor’s bill, January 5, 2009 Transcript, pp. 7-8.6

As such, we find it may be reasonably inferred from the foregoing factual recitation that the employer could have expected that the workplace injury reported by the claimant on May 15, 2001 for which she subsequently received medical care four months later at the behest of her employer might have lead to a workers’ compensation claim being filed against the employer.7 Moreover, the facts of the instant matter are easily distinguished from Kulis, supra, in which it appears that the defendant simply drove the claimant to the hospital after having discovered him lying at the foot of a ladder and was given virtually no warning that a workers’ compensation claim was pending until the claimant filed a notice some fifteen months later. Thus, in light of the Gesmundo court’s clear proscription against relying on the mechanism of medical bill payment to determine whether to apply the medical care exception, and the similar circumstances under which both the Gesmundo claimant and the instant claimant obtained medical care, we hereby reverse the decision of the trial commissioner to dismiss the claim for lack of subject matter jurisdiction. Having determined that the trial commissioner erred, and that jurisdiction lies with this commission, the claimant is left to her proof on the issue of causation. Thus additional proceedings are necessary so that the claimant may be given an opportunity to provide evidence on this issue.

As noted previously herein, the claimant filed a Motion to Correct in which she sought to have paragraph two of the trier’s Finding and Dismissal corrected to reflect the claimant’s testimony that the employer offered to pay the medical bill. To the extent that the trial commissioner’s denial of this correction was predicated on the assumption that payment of the medical bill by the employer constituted necessary grounds for invoking the medical care exception, the denial of the proposed correction also constituted error.

Having found error, the Finding and Dismissal of the Commissioner acting for the Eighth District Award is accordingly reversed.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 Section 31-294c(a) C.G.S. (Rev. to 2001) states that “[n]o proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease…. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed…. BACK TO TEXT

2 Section 31-294c(c) C.G.S. (Rev. to 2001), states the following: “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, or if a voluntary agreement has been submitted within the applicable period, 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. No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice. BACK TO TEXT

3 The Gesmundo court noted that even though the claimant was employed as a clerk and was responsible for filing reports of compensable accidents, he did not file a notice of claim because he initially “did not believe his injury to be serious and that the later diagnosis of a possible Buerger’s disease created a doubt that he had a compensable injury.” Gesmundo v. Bush, 133 Conn. 607, 610 (1947). BACK TO TEXT

4 We note that the testimony of the charge nurse strongly supported the inference that “the nurse was simply available to document symptoms and the claimant had no expectation that the nurse would provide him with any medical care.” Delconte v. State/Dept. of Correction, 4766 CRB-8-03-12 (December 8, 2004). As such, we distinguished the medical visit in Delconte “from a situation where an employee visits a respondent’s medical staff for the purpose of obtaining medical assistance or diagnosis.” Id. BACK TO TEXT

5 The claim was dismissed pursuant to § 31-301(a) C.G.S. for an untimely appeal and Practice Book § 85-1 for failure to prosecute with due diligence. BACK TO TEXT

6 Under cross-examination, the claimant testified that ultimately, her group health insurance carrier paid for the chiropractic visit. June 5, 2009 Transcript, p. 8. BACK TO TEXT

7 Respondents also argue that “the ‘nexus’ between the injury and work was not apparent,” Appellees’ Brief, p. 6, noting “the Trial Commissioner made specific reference to a four (4) month and three (3) day gap in time between the date of injury and the claimant’s discussion with the employer in which she first sought medical treatment.” Id. We would point out that the statutory time limit imposed pursuant to § 31-294c C.G.S. for filing a notice of claim is either one year from the date of accident or three years from the date of the first manifestation of a symptom of an occupational disease. It may be presumed that these time frames were derived from anecdotal evidence that the full medical extent and legal significance of a workplace incident do not always manifest themselves on the actual date of injury. Second, the parties stipulated that the claimant verbally informed her employer of the injury both on the date it occurred and four months later when she first obtained medical treatment. As such, we decline to ascribe much evidentiary weight to the four-month gap between the date of injury and date medical care was first rendered to the claimant. BACK TO TEXT

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