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Baigert et al. & VMMC v. Fosdick Corporation et al.

CASE NO. 1784 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

DAVID E. BAIGERT

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

FOSDICK CORPORATION

EMPLOYER

and

WAUSAU INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

This Petition for Review from the July 28, 1993 Indefinite Postponement of Hearing of the Chairman acting for matters arising in the Eighth District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos, and Nancy A. Brouillet.

CASE NO. 1795 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

CARLOS FIGUEROA

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

C & S BALL BEARING

EMPLOYER

and

CBIA COMPENSATION SERVICES INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1797 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

WILLIS CUSHMAN

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

CONNECTICUT CALENDAR COMPANY

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents were not represented although someone was present from the employer at oral argument.

CASE NO. 1798 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

NEOMI ECHOLS

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

STATE OF CONNECTICUT/LONG LANE SCHOOL

EMPLOYER

SELF-INSURED

and

ALEXSIS, INC.

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1799 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

KEVIN FITZGERALD

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

STATE OF CONNECTICUT/DMR

EMPLOYER

SELF-INSURED

and

ALEXSIS, INC.

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1800 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

EDDIE FLUKER

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

FIDERIO & SONS

EMPLOYER

and

NATIONAL GRANGE MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

At the time of the request for the hearing and oral argument, respondents were not represented. Thereafter a letter indicating that the respondents were represented by Ruth A. Tower, Esq., of Howard, Kohn, Sprague & Fitzgerald, P. O. Box 260896, Hartford, CT 06126-0896 was received in the Eighth District March 31, 1994 and forwarded to the Compensation Review Board, April 7, 1994.

CASE NO. 1801 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

TIMOTHY FULMER

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

LAWN PEOPLE

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents were not represented.

CASE NO. 1802 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

EDWIN GONZALEZ

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

HOLLYWOOD’S

EMPLOYER

and

FIREMEN’S FUND

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents were not represented.

CASE NO. 1803 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

BARBARA GRAHAM

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

STATE OF CONNECTICUT/ALTOBELLO

EMPLOYER

SELF-INSURED

and

ALEXSIS, INC.

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents were not represented.

CASE NO: 1804 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

EDWARD HENDERSON

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

STATE OF CONNECTICUT/RIVERVIEW HOSPITAL

EMPLOYER

SELF-INSURED

and

ALEXSIS, INC.

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1805 CRB-8-83-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

GILBERTO HERNANDEZ

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

DAYS INN

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1806 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

THOMAS HICKS

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

NISSEN

EMPLOYER

and

LIBERTY MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1809 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

SHANNON IMPRONTO

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

AETNA LIFE & CASUALTY

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1810 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

CHARLES KIMBROUGH

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

CITY OF MERIDEN/WORKFARE PROGRAM

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents were represented by James M. Quinn, Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

Respondents did not appear at oral argument.

CASE NO. 1811 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

SUSAN CLARK

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

AMES DEPARTMENT STORE

EMPLOYER

and

GATES MACDONALD

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1812 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

GAIL KOKOSZKA

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

KENYON OIL COMPANY, INC.

EMPLOYER

and

AMERICAN INTERNATIONAL ADJUSTING CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

CASE NO. 1814 CRB-8-93-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 1995

LISA CHABOT

CLAIMANT

and

VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

McDONALD’S INC.

EMPLOYER

and

KEMPER INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant did not appear.

The medical provider was represented by Houston Putnam Lowry, Esq., and Thomas P. Malnati, Esq., Brown and Welsh, P.C., P. O. Box 183, 100 Hanover St., Meriden, CT 06450.

The respondents did not appear.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The following is a consolidated opinion regarding the Veterans Memorial Medical Center’s filing of Petitions for Review from the Chairman of the Workers’ Compensation Commission’s declaration that an informal hearing concerning the payment of medical bills be postponed indefinitely.

The Veterans Memorial Medical Center provided as its reasons for appeal; (1) that they (Veterans Memorial Medical Center) have a right to appeal the indefinite continuation of a hearing, (2) that they are entitled to a hearing to determine whether or not certain medical services are compensable even if the employee fails to make a workers’ compensation claim, (3) they are entitled to a hearing for fee approval pursuant to Sec. 31-3191 even though the employee failed to file a claim, and (4) that the instant matter involves principles of law not free from reasonable doubt and should be transferred to the Appellate Court pursuant to Sec. 31-324 C.G.S.

Essentially, the appellant argues that it is entitled to a hearing before the workers’ compensation commission because the appellant alleges it rendered hospital services to employees for alleged work-related injuries. Only one case heard at the time of oral argument alleged that the injured employee asserted a claim for compensation under the Workers’ Compensation Act at the time the hearings were requested by the appellant. That claim is Cookson v. G.R. Cummings Co., 1796 CRB-8-93-7 (Decided January 20, 1995) and is considered in a separate opinion. In the claims considered in this consolidated opinion, the assertions in the appellant’s brief and reasons for appeal concede that no claims were filed by the employees under the Workers’ Compensation Act. See appellant’s Reasons For Appeal dated July 28, 1993 and received August 2, 1993, Brief In Support Of Grant Of Request For Hearing As Submitted By Medical Provider dated and received November 15, 1993, pp. 1, 3. Thus, we conclude that we lack jurisdiction over the res as no claim was asserted by the alleged employees of their right to Chapter 568 benefits.

We understand appellant’s contention that this tribunal has held in previous decisions that a hospital has standing before the workers’ compensation commission. See, Gonzalez v. Electric Transport, 1729 CRB-1-93-5 (Decided October 13, 1994). See also, Derman v. City of Norwalk, 8 Conn. Workers’ Comp. Rev. Op. 100, 860 CRD-7-89-5 (1990), Tanner v. Walgren Tree Experts, 8 Conn. Workers’ Comp. Rev. Op. 16, 748 CRD-8-88-7 (1990). However, in each of the cases where we concluded and/or affirmed that a medical provider has standing before this commission, there was no question that an underlying compensation claim was asserted by the injured employee. We do not think that a medical provider has standing before this commission in the absence of a claim by an injured employee or his dependent(s) for benefits under Chapter 568. Without, at the very least, an underlying assertion by a claimant to an entitlement of workers’ compensation benefits, there is no basis upon which a commissioner would inquire as to the medical services provided. Furthermore, lacking any claim of connection to a compensable injury, we believe that the threshold requirements of subject matter jurisdiction are unsatisfied and the claims should be dismissed. See Castro v. Viera, 207 Conn. 420 (1988).

Finally, because one of the reasons for appeal suggested that the instant claims be reserved for consideration by the Appellate Court pursuant to Sec. 31-324, we feel further comment is necessary. Recently, this majority were members of a panel which exercised its discretionary power to reserve a particular question to the Appellate Court pursuant to Sec. 31-324. See Dixon v. United Illuminating, 36 Conn. App. 150 (1994) (matter reserved for the opinion of the Supreme Court).2 However, in that case, unlike the instant claims, there was no question that a claim was asserted by the claimant and thus, the specific tenets of subject matter jurisdiction unasserted in these claims, was present in that case. While jurisdiction is arguably an important part of the question presently reserved in the case now pending before the Supreme Court, i.e., Dixon, the question(s) posed are more narrowly focused on the appellate authority of the Compensation Review Board pursuant to Sec. 31-301(a) and not the broader aspects of subject matter jurisdiction raised by the instant appeals.

We therefore dismiss the instant appeal.

Commissioner Nancy A. Brouillet concurs.

JOHN A. ARCUDI, COMMISSIONER, Dissenting. I dissent. In each of the cases considered, the Veterans Memorial Medical Center sought a hearing in the Eighth District. The district proceeded to schedule informal hearings. However, the commission chairman, apparently relying on Secs. 31-280(b) (6), (14) and (16)3 issued an order indefinitely postponing informal hearings in each case.

The statute § 31-327(a)4 recognizes a medical provider’s right to a hearing on a claim for payment when services are rendered to a workers’ compensation injured employee. Of course, without the testimony of the injured employee, it would be difficult for the medical provider to prove its claim at such a hearing. The CRB’s recent ruling in Gonzalez and Center for Physical Therapy v. Electric Transport (PENSKE), 1729 CRB-1-93-5 (Decided October 13, 1994) held, “the medical provider stands in the shoes of the claimant. It has the same right to a hearing and award as does the claimant”. See also, Derman v. City of Norwalk, 8 Conn. Workers’ Comp. Rev. Op. 100, 860 CRB-7-89-5 (1990) and Tanner v. Walgren Tree Experts, 8 Conn. Workers’ Comp. Rev. Op. 16, 748 CRD-8-88-7 (1990).

Gonzalez decided that a medical provider was entitled to an evidentiary hearing on the issue of whether a Stipulation executed between the claimant and the respondents should be opened where the sums owed the provider for medical services were not considered in reaching the Stipulation. I believe the Gonzalez reasoning and conclusion is equally applicable here. Gonzalez involved the refusal to grant a formal evidentiary hearing. These matters involve the indefinite postponement of hearings. The “indefinite postponement” effectively deprives the Medical Center of any right to a hearing. Such an order violates due process rights to a determination of its claim. Ordinarily, an informal hearing in a matter is held to air disputed issues in an effort to resolve them. If disputed issues are not so resolved, then a formal evidentiary hearing is held. There can be no formal hearing unless an informal first occurs. Without a formal hearing and an evidentiary record there can be no adequate appellate review. See Levasseur v. General Dynamics, 11 Conn. Workers’ Comp. Rev. Op. 34, 1244 CRD-2-91-6 (1993), Nevers v. Environmental Waste Removal, 10 Conn. Workers’ Comp. Rev. Op. 96, 1166 CRD-5-91-1(1992).

There is no question that the 1991 amendments, P.A. 91-339, greatly expanded the chairman’s administrative powers, but adjudicatory powers in any specific case were left undisturbed in each individual commissioner acting in each individual case. Ordering an indefinite postponement of hearings in eighteen cases is not the exercise of administrative powers relating to the calendaring of cases under Sec. 31-280(b) (14) and (16). It is an adjudicatory act because it deprives the provider of its right to present evidence before a commissioner on the basis of which the commissioner may adjudicate its claim. The distinction between “indefinite postponement” and “denial” of a hearing is merely a semantic one. The order denied hearings and therefore denied due process.

The majority opinion holds the threshold requirements of subject matter jurisdiction are unsatisfied without an assertion by a claimant that there is a compensable injury.

Even assuming arguendo that the only method for establishing the existence of a compensable injury is through the claim or the evidence of the claimant, how can an appellate panel with no record to review, as no evidentiary hearing has been held, make the blanket assertion that there is present or there is lacking sufficient evidence to sustain subject matter jurisdiction? If a hearing were held, what would prevent the claimant hospital from subpoenaing the allegedly injured employee in order to supply evidence to prove jurisdiction?

Finally, the identical 1991 amendment which gave such added administrative powers deprived that same chairman of any nisi prius adjudicatory jurisdiction. That legislation, P. A. 91-339, added the following sentences to § 31-280 (a): “The chairman may not hear any matter arising under this chapter, except appeals brought before the Compensation Review Board.” This provision was amended in 1993, P. A. 93-228, when § 31-280(b)(14) was amended by adding language as follows: “And if necessary, [the chairman may] preside over informal hearings in regard to compensation under provisions of this chapter.” Thus, the legislative intent was made abundantly clear, the chairman could not preside at formal hearings. And formal hearings are the only instrumentality employed by the commission to hear recorded evidence on the basis of which disputed issues may be resolved at the trial level.

If, as the majority opinion implies, although that is hardly clear from the device utilized, the chairman’s indefinite postponement of hearings was really a ruling that there existed no subject matter jurisdiction, there was no statutory power in the chairman to make that ruling. Such rulings can only be made by a commissioner at the trial level after a formal hearing is held and an opportunity is given for evidence to be presented pursuant to § 31-327.

I would therefore remand these matters for further proceedings.

1 While the appellant cites Sec. 31-319 C.G.S. as, in pertinent part, the basis for its contention to entitlement and given the various dates of the medical services for which payment is claimed it should be noted that the provisions regarding fee approval are now contained in Sec. 31-327(b) and were formerly contained in Sec. 31-319. Sec. 31-319 was repealed by Public Act 91-32. Sec. 31-327 provides:

(a) Whenever any fees or expenses are, under the provisions of this chapter, to be paid by the employer or insurer and not by the employee, the commissioner may make an award directly in favor of the person entitled to the fees or expenses, which award shall be filed in court, shall be subject to appeal and shall be enforceable by execution as in other cases. The award may be combined with an award for compensation in favor of or against the injured employee or the dependent or dependents of a deceased employee or may be the subject of an award covering only the fees and expenses.

(b) All fees of attorneys, physicians, podiatrists or other persons for services under this chapter shall be subject to the approval of the commissioner. BACK TO TEXT

2 Supreme Court Docket No. 15127. BACK TO TEXT

3 Sec. 31-280. Chairman of the workers’ compensation commission. Powers and duties. Budget. Report of expenses.

Sec. 31-280(b) (6) Allocate the resources of the commission to carry out the purposes of this chapter.

Sec. 31-280(b) (14) Control the hearing calendars of the compensation commissioners in order to facilitate the timely and efficient processing of cases.

Sec. 31-280(b) (16) Direct and supervise all administrative affairs of the commission. BACK TO TEXT

4 Sec. 31-327 Award of fees and expenses. (a) Whenever any fees or expenses are, under the provisions of this chapter, to be paid by the employer or insurer and not by the employee, the commissioner may make an award directly in favor of the person entitled to the fees or expenses, which award shall be filed in court, shall be subject to appeal and shall be enforceable by execution as in other cases. The award may be combined with an award for compensation in favor of or against the injured employee or the dependent or dependents of a deceased employee or may be the subject of an award covering only the fees and expenses. BACK TO TEXT

CRB OPINIONS AND ANNOTATIONS

ARE STILL LOCATED AT THIS SITE WHILE IN THE
PROCESS OF BEING MIGRATED TO OUR NEW SITE.

Click to read CRB OPINIONS and CRB ANNOTATIONS.