Salerno v. Mount Sinai Hospital

CASE NO. 4518 CRB-1-02-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 9, 2003

DANIEL M. SALERNO

CLAIMANT-APPELLANT

v.

MOUNT SINAI HOSPITAL

EMPLOYER

and

EBI COMPANIES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert J. McKay, Esq., Davila & Dilzer, 1232 Corbin Avenue, New Britain, CT 06053.

The respondents were represented by Karen A. Wright, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the March 27, 2002 Finding and Dismissal of the Commissioner acting for the First District was heard October 18, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the March 27, 2002 Finding and Dismissal of the Commissioner acting for the First District. The claimant alleges that he sustained an injury to his mouth on or about November 8, 1987 while in the employ of the respondent-employer. The claimant contends that while supervising some children as part of his employment he was struck in the mouth by a pool ball. As a result of that injury the claimant contends that he injured four of his upper teeth.

The pertinent facts as found by the trial commissioner reflect that the claimant alleged that he received medical treatment at the employer’s emergency room. No written notice of claim was filed. In testimony before the trial commissioner, the claimant’s supervisor, Maria Wanat could not recall whether she directed the claimant to seek treatment at the employer’s emergency room. The trier noted that the claimant was unable to produce any medical records from Dr. Robert Villanova the dentist whom the claimant contended performed extensive dental work following the alleged injury.

The trial commissioner dismissed the claimant’s claim on the basis that the claim did not satisfy the statutory time requirements of § 31-294c(a) nor did the claimant prove that the employer furnished medical care and thus pursuant to § 31-294c(c) the lack of a written notice of claim was not fatal to his claim. The issue on appeal is whether the trial commissioner erred in concluding that the claimant was not furnished with medical care by the respondent employer and thus, the constructive notice provision of § 31-294c(c) was not satisfied.

Section 31-294c(c) provides in pertinent part:

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 . . . em class="ul">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.

As this tribunal noted in Cruz v. State/Department of Correction, 4168 CRB-1-00-1 (February 9, 2001), “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) (emphasis added).”

The claimant essentially asks us to reassess the evidence presented before the trial commissioner and conclude that the claimant was provided with medical care sufficient to satisfy § 31-294c(c) and thus a written notice of claim was not necessary. At the outset we note whether a claimant was furnished medical care sufficient to obviate the need for a written notice of claim is a determination that is factually dependent and thus falls within the trial commissioner’s purview. Roman v. Eyelets for Industry, Inc., 48 Conn. App. 357 (1998), Horn v. State/Dept. of Correction, 3727 CRB-3-97-11 (December 16, 1998).

In his appeal the claimant repeatedly refers to his own testimony as supporting the findings and conclusions he prefers to those made by the trial commissioner. However, the predicate findings and ultimate conclusion of the trier are dependent upon the weight and credibility assigned to the evidence. The trier can credit all, none or only parts of a witness’s testimony. Morneault v. D M & M Restaurants, 4389 CRB-3-01-5 (March 27, 2002).

In the instant matter the trier determined that the claimant did not carry his burden of proof and thus did not establish that he was furnished medical care at the time of the alleged injury such that the employer would be aware that a claim may be made. Unless the trier’s determination is unsupported by the evidence, contrary to law or based on unreasonable or impermissible factual inferences it will not be disturbed. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Our review of the record in this matter reflects that the trier violated none of these tenets.

We therefore affirm the March 27, 2002 Finding and Dismissal of the Commissioner acting for the First District.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.