Riccio v. Town of Windsor

The claimant was represented by Albert McGrail, Esq., McEleney & McGrail, 363 Main St., Hartford, CT 06106.

The respondents were represented by Vincent Oswecki, Esq., O’Malley, Deneen, Messina & Oswecki, 20 Maple Ave., Windsor, CT 06095.

This Petition for Review from the November 30, 1994 Findings and Dismissal of the Commissioner acting for the First District was heard October 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 30, 1994 Finding and Dismissal of the Commissioner for the First District. The commissioner found that the claimant failed to give notice of his claim as required by § 31-294c C.G.S. within three years of the date of the alleged injury, and therefore dismissed the claim. The commissioner specifically found that the employer provided routine medical examination, along with a referral for an echocardiogram, did not constitute the furnishing of medical treatment so as to obviate the need for filing a proper notice of claim. The claimant contends on appeal that the trial commissioner improperly dismissed his claim for failure to give timely notice. We affirm the trial commissioner’s decision.

The commissioner made the following findings of fact. The claimant was employed as a police officer for the respondent employer on or about April 1, 1982, at which time he was required to undergo periodic physical examinations. On April 1, 1982, the claimant had a periodic physical examination which was conducted by Dr. Patillo. Dr. Patillo wrote a medical report1 and referred the claimant for an echocardiogram, which was performed on April 15, 1982. Dr. Patillo also advised the claimant, who was forty-two years old, to take an aspirin daily. The claimant testified that he was not disabled between April 1, 1982 and the date of his retirement on December 16, 1988. The commissioner concluded that this did not constitute the furnishing of medical care under § 31-294c(c).

Section 31-294c(a) C.G.S. requires a claimant to file a written notice of claim for compensation “within one year of the date of the accident or within three years from the first manifestation of a symptom of the occupational disease....” The Appellate Court has recently held that a § 7-433c hypertension claim is not presumed to be an occupational disease. Zaleta v. Fairfield, 38 Conn. App. 1, 7 (1995). Specifically, the Appellate Court stated: “Without evidence establishing that the claimant’s injury is a result of an occupational disease, the one year statute of limitations applies.” Id. at 6. In the instant case, there was no evidence presented at the formal hearing which would indicate whether the claimant’s hypertension constituted an occupational disease. However, it is not necessary for the purposes of this decision to determine whether the claimant’s alleged condition constitutes an occupational disease because the claimant contends that the medical care was furnished within one year of the manifestation of the heart disease. The claimant contends that § 31-294c(c) C.G.S. applies to this case. That section provides in part that “[f]ailure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings 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.” The claimant cites Gesmundo v. Bush, 133 Conn. 607 (1947). This Board has stated that “ Gesmundo does not require a finding that formal notice is unnecessary to every employer who arranges treatment for a claimant regardless of who pays for the treatment. Rather, it gives the commissioner room to find that an employer’s involvement in the treatment of the claimant’s injury indicates that the employer was informed ‘that an injury has been suffered upon which a claim for compensation will or may be founded.’” Griffith-Patton v. Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 177, 180, 1888 CRB-1-93-11 (March 10, 1995) (citing Gesmundo, supra, 607). The Supreme Court has explained that the furnishing of medical care 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.” Kulis v. Moll, 172 Conn. 104, 109 (1976) (citing Gesmundo, supra, 612) (emphasis added).

Here, the commissioner found that the employer provided an annual physical examination by Dr. Patillo and his referral of the claimant for an echocardiogram did not satisfy the statutory exception to the notice requirement. “It is settled that the payment of medical services by an employer-provided insurance policy is, by itself, insufficient to constitute the “furnishing of medical care” within the meaning of § 31-294c(c).” Griffith-Patton, supra, at 180 (citing Collins v. Jiffy Auto Radiator, Inc., 9 Conn. Workers’ Comp. Rev. Op. 232, 233, 993 CRD-3-90-3 (Oct. 30, 1991), citing Clapps v. Waterbury Iron Works, Inc., 30 Conn. Sup. 644, 648 (1983)).

In the instant case, the commissioner was entitled to conclude from the facts as found by him that the employer was not aware of a potential workers’ compensation claim within the meaning of Gesmundo, and thus that the furnishing of medical care exception was not met. Although the claimant contends on appeal that the claimant testified that he gave a copy of the medical reports from Dr. Patillo to the Chief of Police, the trial commissioner as the trier of fact could choose not to credit that testimony. We cannot review a trial commissioner’s conclusions when they depend upon the weight of evidence or the credibility of witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979), see also Crochiere v. Board of Education, 227 Conn. 333, 347 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 The medical report indicates “auscultation of heart reveals a mid-systolic click and diastolic blowing murmur to the left of the sternal border.” BACK TO TEXT