Gesualdi v. Natkin & Company

CASE NO. 1493 CRB-6-92-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 25, 1994

FREDERICK GESUALDI

CLAIMANT-APPELLEE

v.

NATKIN & COMPANY

EMPLOYER

and

NATIONAL UNION FIRE INS.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

APPEARANCES:

The claimant was represented by William J. Bumster, Esq., 786 Silas Deane Highway, Wethersfield, CT 06109

The respondents were represented by Ralph Russo, Esq., formerly of, and David Davis, Esq., presently of McGann, Bartlett & Brown, 261 Hartford Turnpike, Vernon, CT 06066.

The Second Injury Fund was represented at oral argument by Loida John, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120. However, no brief was filed by the Second Injury Fund.

Also present at oral argument was Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06035 for the group insurer, Hartford Insurance Company. The Hartford Insurance Company was not a named party in the trier’s August 17, 1992 Finding and Award

This Petition for Review from the August 17, 1992 Finding and Award of the Commissioner for the Sixth District was heard June 11, 1993 before a Compensation Review Board panel consisting of the Commissioner Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the Commissioner of the Sixth District’s August 17, 1992 Finding and Award in which he ordered the respondents to pay all medical bills relating to the claimant’s June 30, 1990 heart attack. The pertinent facts are as follows.

The claimant was a mechanical contractor employed by the respondent Natkin & Co. The respondent, Natkin &. Co., was employed by the Hartford Steam Co., to supply welders and pipe fitters for the installation of a cooling unit in the basement of the G. Fox & Co. in downtown Hartford. On March 5, 1990, the claimant began working at the G. Fox & Co. job site as a steam fitter welder. Approximately one month later the claimant took on the additional duties as supervisor for the respondent-employer’s operation at the G. Fox & Co. job site due to the hospitalization of his supervisor. In addition to his work on the G. Fox & Co. job, the claimant was involved with several other jobs for the respondent.

In the latter part of June, 1990, the claimant began to experience stress and pressure related to the various jobs in which he was involved on behalf of the respondent. Some four days prior to June 23, 1990, the claimant began to experience chest pains. On June 22, 1990, the claimant helped to manually unload a truck load of pipes. Each pipe weighed approximately 250 pounds. Additionally, the claimant was under pressure to finish the G. Fox basement job so as to allow factory representatives to activate an air chiller. Additionally, claimant was involved in an emergency job concerning a problem on the G. Fox & Co.’s roof. On that same day the claimant suffered chest pains. On June 23, 1990 he was admitted to the Hartford Hospital at 2:00 a.m. where he was found to be suffering from a heart attack.

In the commissioner’s August 17, 1992 Finding and Award it was found that on or about June 27, 1990 the attending cardiologist, Dr. Michael Rossi, recommended that the claimant undergo an angioplasty procedure. The claimant wanted a second opinion and contacted Dr. Arthur Phinney, also a cardiologist. The claimant signed himself out of the Hartford Hospital on June 27, 1990. On Friday, June 28, 1990, the claimant received the requested second opinion which stated that the claimant should undergo the angioplasty procedure as soon as possible. The trier found that before the claimant could contact Dr. Rossi and arrange the angioplasty, he suffered a second heart attack and returned to the Hartford Hospital on Sunday, June 30, 1990. See Paragraph #10. The trier also found that the initial heart attack of June 23, 1990 was accepted by the respondent as evidenced by an approved Voluntary Agreement dated February 4, 1991.

The respondents disputed the compensability of the second heart attack which resulted in claimant’s admission to the Hartford Hospital June 30, 1990. The commissioner concluded that the second heart attack was related to the first heart attack and ordered the respondents to pay the medical bills relating to the second heart attack.

The respondents took the instant appeal. The ultimate issue presented for review is whether the trier erred in concluding that the myocardial infarction suffered by the claimant June 30, 1990 was causally related to his employment. In support of their appeal the respondents filed a Motion to Correct and a Motion to Remand. The respondents based their Motion to Remand on the trier’s failure to make any findings or conclusion as to whether the claimant refused reasonable medical treatment and thus, under Sec. 31-2941, they were not liable for the consequences flowing from the claimant’s myocardial infarction of June 30, 1994.

At the outset we note that we are troubled by the evidentiary record forwarded on appeal. The respondents have filed a Motion to Correct challenging various factual findings of the trier. In the respondents-appellants Motion to Correct and the trier’s findings, there are various references to the February 2, 1992 Deposition of Dr. Lawrence S. Cohen. It appears that the respondents’ proffered Dr. Cohen’s February 2, 1992 Deposition at the April 9, 1992 Formal Hearing and that deposition was marked as Respondent Exhibit A. See April 9, 1992 Formal Hearing Transcript at pg. 5. However, no copy of that deposition was forwarded on appeal by the time of oral argument. Given that the ultimate decision we reach herein favors a remand, and that the testimony contained in Dr. Cohen’s February 2, 1992 deposition is not controlling in our decision to remand, the respondents will have an opportunity to assure that the record is complete in any future proceedings before the commissioner. Cf. Campbell v. Manchester Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 151, 1182 CRD-5-91-2 (1992).

As we have alluded, we now conclude that the trier’s failure to make any factual findings and conclusion as to whether the claimant’s conduct and actions following his June 23, 1990 hospital admission and subsequent discharge constituted the “refusal of reasonable medical treatment” under Sec. 31-294, requires a remand for that determination. Clearly, this issue was squarely posed to the commissioner. See April 9, 1992 Formal Hearing Transcript at 20. Therefore, the commissioner must make that determination and if necessary conduct additional proceedings. “No case under this Act should be finally determined when . . . this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.” Cormican v. McMahon, 102 Conn. 234, 238 (1925). See also, Scrivano v. UTC/Pratt & Whitney, 1501 CRB-1-92-9 (decided February 14, 1994); Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (1991).

However, as the trier will be considering what conduct constitutes “refusal of reasonable medical treatment” a review of our courts’ prior rulings seems in order. Our Appellate Court most recently considered this issue in Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154 (1989). The Pagliarulo court relied on the Supreme Court’s opinion in Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684 (1953). The Pagliarulo court held that Sec. 31-294 is not concerned,

with the reasonableness of the plaintiff’s refusal to accept treatment, but with the reasonableness of the “medical, surgical or hospital or nursing service” available to the plaintiff. Whether a proposed surgical procedure is reasonable under the terms of the statute is a question of fact for the commissioner to resolve . . . . On remand, the . . . commissioner will be required to consider whether the proposed medical treatment is reasonable. This question is not necessarily a medical matter only, on which expert testimony would be necessary, but may also be affected by a consideration of the surrounding circumstances as the trier of fact finds them. Such circumstances may include the plaintiff’s age, medical history, previous course of treatment and its success or failure, and whether the proposed medical procedure “involves real danger and suffering without fair assurance of effecting an improvement or restoration of health.” Acquarulo, supra at 690 (Baldwin, J., concurring.) (emphasis ours) (citation omitted).

Pagliarulo, supra at 158-59. See also, Camp v. White Oak Corp., 1443 CRB-6-92-6 (decided February 28, 1994). Cf. Hurley v. Carolina Freight, 1406 CRB-6-92-4 (decided January 26, 1994). On remand in the instant matter the trier may wish to take evidence as to the medical experts’ belief of the feasibility of a “second opinion” in cases like the claimant’s where that “second opinion” affects the assessment of the proposed medical procedures’ potential for “real danger and suffering without fair assurance of . . . improvement . . . of health.” Acquarulo, supra. That is, if the claimant is not given a fair opportunity to assess the attendant risks of a surgical procedure, how can he be said to have refused reasonable medical treatment when he was not fairly apprised of its reasonability? Certainly, it would seem that a second opinion sought within a reasonable time period would serve to communicate the reasonability of a proposed medical treatment to the claimant.

We also think that the trier may wish to examine if the claimant’s conduct constituted a “refusal”. “Refusal” is defined in Black’s Law Dictionary 1152 (5th ed. 1979) as:

The act of one who has, by law, a right and power of having or doing something of advantage, and declines it. Also, the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey. In the latter sense, the word is often complied with “neglect” as if a party shall “neglect or refuse” to pay a tax, file an official bond, obey an order of court, etc. But “neglect” signifies a mere omission of a duty, which may happen through inattention, dilatoriness, mistake, or inability to perform, while “refusal” implies the positive denial of an application or command, or at least a mental determination not to comply. A rejection, a denial of what is asked. (citations omitted).

See also, State ex rel. Hamel v. Archambault, 22 Conn. Sup. 124, 129 (1960).

We think that the claimant can hardly be held to have “refused” if he has not been made fully aware of the risks associated with the procedure and had an opportunity to evaluate those risks. It would seem that a second medical opinion would play an important role in that assessment.

We therefore remand the instant matter for further proceedings consistent with this opinion.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 Sec. 31-294 C.G.S. (Rev. 1989) provided in pertinent part: The employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service, as such physician or surgeon deems reasonable or necessary. Such physician or surgeon shall be selected by the employee from an approved list of physicians and surgeons prepared by the commissioners, but, if such employee is unable to make the selection, the employer shall do so, subject to ratification by the employee or his next of kin, provided, however, where the employer has a full-time staff physician or a physician is available on call, the initial treatment required immediately following the injury may be rendered by such physician, but the employee may thereafter select his own physician as provided by this chapter for any. . . . further treatment without prior approval of the commissioner. In the event of the failure of the employer promptly to provide such . . . . physician or surgeon or such medical, surgical or hospital or nursing service, the injured employee may provide such physician or surgeon, selected from the approved list prepared by the commissioners, or such medical, surgical or hospital or nursing service at the expense of the employer; or, at his option, the injured employee may refuse the medical, surgical and hospital or nursing service provided by his employer and provide the same at his own expense. It it appears to the commissioner that an injured employee has refused to accept and failed to provide such reasonable medical, surgical or hospital or nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure. BACK TO TEXT