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CASE NO. 3796 CRB-01-98-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 21, 1999
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTIONS
The claimant was represented by Lawrence Brick, Esq., 433 South Main Street, Suite 102, West Hartford, CT 06107.
The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 27, 1998 Memorandum on Respondent’s Motion to Dismiss Dated April 18, 1997 of the Commissioner acting for the First District was heard November 6, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the March 27, 1998 Memorandum on Respondent’s Motion to Dismiss Dated April 18, 1997 of the Commissioner acting for the First District. It argues on appeal that the trier erred by ruling that the claimant had satisfied the “medical care” exception of § 31-294c(c). We agree that the facts do not adequately establish that such care was provided, and remand this matter to the trial commissioner for additional findings.
The trier found that the claimant sustained physical injuries on October 31, 1991, when she was attacked by a prisoner during the course of her employment as a guard at a Hartford jail. She submitted an incident report concerning these injuries and the circumstances surrounding their occurrence, but did not file a Form 30C within one year of the date of her injury as required by § 31-294c(a). More than five years passed before the claimant filed a Form 30C alleging that post-traumatic stress disorder (PTSD) had evolved from the 1991 incident. In order to surmount the statutory hurdle of untimely notice, she sought to prove that she had satisfied the § 31-294c(c) exception to the one-year notice period that allows a claimant to proceed “if within the applicable period [she] has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.”1
The claimant testified, and the trier found, that she was examined at the Morgan Street Jail by James Saucier, a paramedic—but not a licensed physician—who is employed by the respondent Department of Corrections. There was no doctor on duty at the jail when the claimant was injured. The claimant’s medical expenses were paid by her group health insurance carrier rather than by the respondent. She also testified that she attended a “critical response team” meeting at the Department of Corrections in early November 1991. The director of said team, John O’Neil, testified that the program provided peer counseling to employees involved in inmate-related incidents, but offered neither individual counseling nor psychotherapy. The trier found that the claimant’s treatment by James Saucier and her involvement in the team counseling meeting constituted employer-furnished medical care within the meaning of § 31-294c(c), and concluded that her claim was cognizable under the Workers’ Compensation Act. The respondent has appealed that decision, along with the denial of its Motion to Correct.
The existence of the “medical care” exception to § 31-294c is “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 [a workers’ compensation] claim.” Gesmundo v. Bush, 133 Conn. 607, 612 (1947). Section 31-294c concomitantly specifies that such medical care must have been provided “for the injury with respect to which compensation is claimed.” The Form 30C filed by the claimant on April 28, 1997 describes the alleged injury as follows: “While at work on 10/31/91 claimant was ass[au]lted and taken hostage by inmates. Claimant received physical injuries to Left Ribs, Left Knee, and lower lip. On or about June 13, 1996, claimant began suffering from the first ‘known’ manifestation and ‘onset’ of ‘Post Traumatic Stress’ related to the 10/31/91 ass[au]lt.” Although she mentions the 1991 physical injuries in her May 4, 1997 notice of claim, the claimant seeks compensation for disability due to PTSD.
In the past, this board has held that a claimant who properly gives her employer written notice of a compensable accidental injury need not file a separate Form 30C to recover for a later disability that arises because of the accepted injury. See Khazzaka v. Torrington Co., 3508 CRB-5-96-12 (May 26, 1998); Landrette v. City of Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRB-6-91-8 (Aug. 19, 1993). However, in this case, the claimant did not provide any written notice of her original physical injuries, and they have not expressly been accepted as compensable by her employer. Thus, not only must the claimant demonstrate that she received medical care within the meaning of 31-294c; also, if said medical care was for her initial physical injuries rather than her symptoms of emotional stress, she must establish a causal link between her PTSD and those initial injuries in order to circumvent the notice defect via the Landrette principle.
Courts, including this board, have almost exclusively applied the “medical care” exception to cases where a physician, or a nurse working under a doctor’s supervision, has provided treatment subsequent to the injury. See, e.g., Infante v. Mansfield Construction Co., 47 Conn. App. 530 (1998) (insurer had been paying medical bills for treatment and prescriptions directed by physician); Pagliuco v. United Illuminating Co., 5 Conn. Workers’ Comp. Rev. Op. 27, 427 CRD-4-85 (March 29, 1998) (registered nurse working under physician’s aegis provided medical care). This line of cases originates with Kulis v. Moll, 172 Conn. 104 (1976), and Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984), two higher-court opinions that postulated a limit to the scope of the “medical care” exception based on the presence of the § 31-294c(c) phrase “as hereinafter provided in this section.”
The Kulis court first identified the existence of a boundary to the breadth of the term “medical care” as used in § 31-294c(c). “It is apparent . . . 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 of the accident.” Kulis, supra, 108. The Court stated that, to meet the notice exception, medical or surgical care “as is specifically outlined and described in the statute itself” must have been provided. Id., 107. Several years later, the Appellate Court in Carlino fashioned the implications of Kulis into a specific “medical care” threshold. “[T]he statute is satisfied if the following two elements are established: (1) the employer knows of the injury; and (2) the employer provides a competent physician, who may be a full-time staff physician, ‘to furnish immediate initial treatment.’ Kulis v. Moll, supra, 108.” Carlino, supra, 148. Carlino was a case with unusual facts, though: the plaintiff had reported a back injury to a full-time staff physician who, rather than examining her, told her that she ought to see a psychiatrist. It is telling that the Appellate Court also stated, “[t]he fact that [the physician’s] response to the plaintiff’s notice of her injury may have been unwise, cavalier or even flippant, is of no moment. It is of moment, however, that he was a ‘competent physician [provided] to attend’ the plaintiff, . . . and that his response was cast in medical terms and thus must be considered as the furnishing of immediate initial treatment.” Id.
Since Carlino, there has been one case in which, despite no direct involvement by a physician in the claimant’s immediate post-injury treatment, the claimant was held to have satisfied the “medical care” exception in § 31-294c(c). That case is Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op. 163, 972 CRD-3-90-1 (June 28, 1991), where the employer’s nurse performed an electrocardiogram test on the claimant’s heart following his complaint of severe chest pains, and then drove him to the hospital for further medical attention. Even though no finding was made that the nurse was supervised by a physician, this board still affirmed the trier’s ruling that medical care had been furnished, citing Pagliuco, supra. The combination of the nurse’s care and her facilitation of hospital service to the claimant persuaded this board that Kulis was inapposite, and that the circumstances constituted constructive notice to the employer of the claimant’s potential claim. Tomkus, supra, 164-65.
Conversely, this board affirmed the dismissal of a recent case in which, after the claimant was struck by a steel beam, a co-worker had cleaned a cut on his forehead and applied a bandage to the laceration. Reynolds v. Architectural Steel, 3434 CRB-3-96-9 (Feb. 18, 1998). Such rudimentary first aid by a co-worker was held insufficient to satisfy the “medical care” exception. The qualitative difference between the treatment provided in Tomkus and that in Reynolds is readily apparent, of course, as is the likelihood that such treatment would put an employer on notice that a compensable injury had occurred. Though Tomkus did not feature a finding of care by a physician or surgeon, the claimant’s assumed receipt of treatment by the attending physicians at the hospital would be consistent with the employer’s duty to provide medical care under § 31-294d. We thus have no basis upon which to doubt the continued indispensability of a doctor’s involvement in § 31-294c(c) medical care under our case law.
Here, the trier found that there was no physician on duty at the jail at the time the claimant was injured. Notably, the transcript reveals that Mr. Saucier, the medic, was not directly asked whether he normally worked under the supervision or with the consultation of a physician. The respondent’s counsel simply asked him if there was “a licensed doctor on staff on Morgan Street on the night of October 31, 1991, who was overseeing . . . your performance at the time you saw Miss Ouellet?” Saucier answered that question in the negative, with no elaboration. (October 29, 1997 Transcript, p. 14). There is some ambiguity to this question, as it could be construed as either an inquiry about the presence of a physician on that night, or a query on whether the medic was affiliated with a doctor in general. However, this excerpt of testimony, combined with the remarks of D.O.C. personnel officer Robert Munroe regarding correctional medical attendants and their duties (Id., 49-93,), does provide a basis for the inference that a doctor was not closely associated with the medic’s daily routine. We must assume that the trier found as such, for it was the claimant’s burden to prove that she met the requirements of the “medical care” exception in this case.
Similarly, the trier did not find that the claimant’s participation in the group counseling session was overseen by a doctor. It is evident that the respondent had notice of her assault, and that a representative of the employer offered the claimant information concerning the “critical stress incident” program. May 7, 1997 Transcript, p. 26-31. Amidst the exchanges of objections by counsel, however, it remained unclear as to whether this peer counseling program is supervised by or otherwise affiliated with a medical doctor. The witness on the stand was unfamiliar with the medical background of the “team leader” for “Critical Incident Stress debriefings,” and the trier did not allow the respondent to ask whether the claimant had requested from her employer a referral for psychiatric care. October 29, 1997 Transcript, p. 17-32.
The trier suggests in ¶ H of his decision, and in some of his comments on the record, that he found relevant the claimant’s testimony that she subjectively believed that she had received medical treatment. Though such considerations would appear to be material if one were guided solely by the humanitarian purpose of the Workers’ Compensation Act, in fact, our Supreme Court has said that, despite the Act’s remedial policy, the exception in § 31-294c(c) must be construed in light of § 31-294d. Kulis, supra, 109-111. The claimant’s opinion as to the nature of her treatment cannot outweigh the fact that § 31-294d itself defines what medical treatment is for the purposes of the Workers’ Compensation Act. The claimant needed to demonstrate that either phase of the care that she received bore a closer relationship to the type of medical care required by § 31-294d before the respondents’ motion to dismiss could be denied.
Because the trier may have presumed that certain additional testimony was unnecessary for him to make his decision, and because he may have refrained from making significant findings regarding the involvement of a physician in the claimant’s treatment, we remand this case for elaboration on the Motion to Dismiss. The trial commissioner, at his discretion, may conduct further proceedings and accept evidence before articulating his decision.
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.
1 Section 31-294d provides, in relevant part: “(a) The employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.
(b) The employee shall select the physician or surgeon from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission. . . . If the employer has a full-time staff physician or if a physician is available on call, the initial treatment required immediately following the injury may be rendered by that physician, but the employee may thereafter select his own physician as provided by this chapter . . . .” BACK TO TEXT