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CASE NO. 5008 CRB-8-05-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 13, 2006
STATE OF CONNECTICUT DEPARTMENT OF CORRECTION
GAB ROBINS NORTH AMERICA
The claimant appeared pro se.
The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the September 29, 2005 Finding and Dismissal of the Commissioner acting for the Eighth District was heard April 28, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal involves a retired correctional officer from the Cheshire correctional center. He claims that he is being denied benefits from the state’s benefit administrator for a 1995 work related shoulder injury. Following a formal hearing that commenced on December 22, 2004 and continued until July 28, 2005, the Commissioner acting for the Eighth District issued a Finding and Dismissal on September 29, 2005. The claimant has appealed to this board. We uphold the trial commissioner.
The trial commissioner reached the following factual findings. The claimant did report an injury on May 10, 1995, but the Form 207 filed following that event did not reference a shoulder injury. Findings, ¶¶ 3-5. The respondent submitted evidence of two different alleged dates of injury for the claimant’s right shoulder, May 10, 1995 and November 1, 1995 Findings, ¶¶ 6-7. The original benefit administrator for the state, Berkley, accepted a 1993 injury to the lower back and the left shoulder. Findings, ¶ 8. The claimant says he did not report the right shoulder injury at the time it occurred as it might impede a promotional opportunity at work. Findings, ¶ 11. He also testified that although he received back surgery in 1996 he did not receive treatment for the right shoulder due to the pain in his lower back. Findings, ¶¶ 15-16. He did not commence treating for the right shoulder until 1997. Findings, ¶ 18.
Based on this factual determination the trial commissioner concluded the claimant did not prove by a preponderance of the evidence that he sustained a right shoulder injury on May 10, 1995 or November 1, 1995. The commissioner found that the claimant failed to promptly report the injury and failed to seek treatment until 1997. Findings, ¶¶ b-d. He also found that the claimant’s recollection was “equivocal” as to the pending claim. Findings, ¶ e. He therefore dismissed the claim, Findings, ¶ h, while barring the respondent from obtaining a credit against previous payments, Findings, ¶¶ f and g.
The claimant has appealed from this decision. He has a number of complaints in regards to the decision, primarily focusing on the delays in resolving this dispute and the differing positions taken by the state’s benefit administrators. His main point is that since he had received treatment from Berkley for his right shoulder, the benefit administrator that later assumed the claim (GAB Robins) was required to accept the injury as compensable. There are a number of legal flaws in this argument, however. The record does not reflect a prior finding of fact regarding that injury; such a finding could have been reopened by the trial commissioner upon a showing that the award had been granted due to accident or mistake of fact, see Marone v. City of Waterbury, 244 Conn. 1 (1998) and most importantly, the record does not indicate the claimant satisfied our jurisdictional requirements.
The record shows that there has never been a finding of fact that the claimant’s right shoulder injury was compensable and there is no record of the respondent formally accepting the injury or executing a voluntary agreement. Instead, the trial commissioner found that the payments made by the respondent regarding the right shoulder were without prejudice and may have been attributed to the wrong body part. Findings, ¶ 21. In the absence of a voluntary agreement the respondent retained the right to pay without prejudice, see Sellers v. Sellers Garage, 4391 CRB-5-01-5 (April 26, 2002). We have held a respondent can be bound if they pay for an injury for years without contesting liability, see Infante v. Mansfield Construction Co., 47 Conn. App. 530, 537 (1998). In this case, however, the trier herein did not find that the respondent accepted the compensability of the injury through a theory of waiver or estoppel.
Even if assuming arguendo, that an award had been issued earlier for the right shoulder, the trial commissioner would have the statutory authority to open the award if the respondent could prove it had been granted due to mistake. See § 31-315 C.G.S. and Marone, supra, “this provision extends the commission’s power to open and modify judgments to cases of accident, to mistakes of fact, and to fraud” [Internal citations omitted] Id., p. 17. As noted, there was no prior award, which means the trial commissioner at this hearing was required to reach an initial finding of fact.
Prior to considering any other evidence, we must determine whether this Commission has jurisdiction over this injury. Our jurisdiction is limited under § 31-294c C.G.S. to claims wherein a formal notice of claim is filed within one year of the date of injury (§ 31-294c(a)) or where in the absence of such a claim “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 for in § 31-294d.” (§ 31-294c (c)). Since no formal notice of claim was filed for the alleged right shoulder injury, we must determine whether the medical care exception exists.
The trial commissioner determined that no medical care for the right shoulder injury had been furnished within a year of date of injury. Findings, ¶ 26. “Whether a claimant was ‘furnished medical care’ pursuant to § 31-294c(c) is a factual determination.” Distassio v. HP Hood, Inc., 4592 CRB-4-02-11 (May 5, 2004). Our role on appeal is to ascertain if this finding is “clearly erroneous.” Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665-666 (2006).
A review of the claimant’s exhibits provides no evidence the right shoulder was treated within one year of the accident; instead reflecting treatment in 1997, over one year from the date of injury. Therefore, we are bound by our holding in Teague v. Repko Roofing, 4920 CRB-7-05-2 (March 1, 2006) to uphold the dismissal. Similar to Teague, the claimant in this case, “has the burden of proving the medical care exception to the statute” and failed to convince the trial commissioner. The evidence before the trial commissioner does not support a finding that medical care was rendered for the right shoulder injury within the statutory period required to establish jurisdiction over the injury.
Since the evidence before the trial commissioner demonstrates a lack of jurisdiction over this injury, we will decline to address the additional claims of error advanced by the claimant. We do note for the record the trial commissioner did recognize the glacial pace of proceedings in the Finding and Dismissal (Findings, ¶¶ f and g) and also note that since the trial commissioner found the claimant’s own testimony “equivocal” we lack the authority as an appellate body to revisit such factual findings. Dengler v. Special Attention Health Care Services Inc., 62 Conn. App. 440 (2001); Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000).
The appeal is dismissed.
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur with this opinion.
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