Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc.

CASE NO. 5082 CRB-1-06-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 3, 2007

NORMA CARABALLO

CLAIMANT-APPELLANT

v.

SPECIALTY FOODS GROUP, INC./MOSEY’S INC.

EMPLOYER

and

ZURICH NORTH AMERICA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Sydney T. Schulman, Esq., Schulman & Associates, 10 Grand Street, Hartford, CT 06106.

The respondents were represented by Joseph O. Cogguillo, III, Esq., D’Attelo, Shields, La Bella & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

This Petition for Review1 from the April 11, 2006 Finding and Dismissal by the Commissioner acting for the First District was heard December 15, 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The appeal concerns the application of the “medical care exception” to filing a Notice of Claim as outlined in § 31-294c(c) C.G.S. The claimant admits that she did not file a timely Notice of Claim for the injury she alleges she suffered at work, but was treated by the respondent’s physician at a Preferred Provider Organization (PPO) approved by the Commission pursuant to § 31-279(c) C.G.S. She claims that the employer furnished medical care for her injury and thus had notice. The trial commissioner dismissed this claim, determining the Commission lacked jurisdiction. Upon review, we conclude the record presented was insufficient for the trial commissioner to reach this conclusion regarding jurisdiction, and remand this matter for a new hearing on whether the Commission has jurisdiction.

Following a formal hearing on October 27, 2005 the trial commissioner issued his Finding and Dismissal on April 11, 2006. He found just five subordinate facts:

1. The Claimant claims that she was injured on May 22, 2002 while working for the Respondent-Employer.
2. The Claimant began treating with the Respondent--Employer’s PPO provider Concentra Medical Centers in Windsor, Connecticut on May 22, 2002.
3. A Form 30C was filed by the Claimant’s attorney and received by the First District Workers’ Compensation Commission on February 14, 2005. (Administrative notice taken of said Form 30C)
4. The Form 30C indicates that the Claimant suffered a neck, left shoulder, left wrist and right wrist injury and described the injury as carpal tunnel syndrome. Said Form 30C did not indicate that the claim was being made for repetitive trauma. (Administrative notice of Form 30C)
5. A Form 43, Notice to Compensation Commissioner and Employee of Intention To Contest Employee’s Right To Compensation Benefits was received by the First District Workers’ Compensation Commission on February 7, 20005. (Administrative notice of Form 43)

Based on those subordinate facts, the trial commissioner determined the single issue was whether the commission had jurisdiction. He reached the following conclusions:

• The trial Commissioner does not have jurisdiction to consider this matter since the date of injury was May 22, 2002 and a Form 30C was not filed until February 14, 2005.
• The Claimant had argued that her case falls within the exception found in subsection (c) of 31-294c of the Connecticut General Statutes and, therefore, is not barred for failure to file a Form 30C within the one-year provided under the Statute. The Claimant’s argument was based upon the fact that the Claimant began treating with the Respondent-Employer’s PPO Concentra Medical Center on the date of the alleged injury May 22, 2002. The mere fact that the Claimant began treating with the PPO provider of the Respondent-Employer does not create an exception to the statute Section 31-294c.
• The Claimant presented no evidence that the fact that the Claimant went to the PPO provider creates a situation where the employee has been furnished medical care as provided in Section 31-294d of the Connecticut General Statutes. No evidence was presented by the Claimant that the Respondent-Employer paid for this medical treatment as a workers’ compensation payment rather than a Group health payment.
• Therefore, the Claimant’s claim is time barred by the provisions of Section 31-294c and the trial Commissioner has no jurisdiction to consider the Claimant’s claim.
• Therefore, the Claimant’s claim is DISMISSED.

The claimant filed a Motion to Correct these findings asserting that the trial commissioner failed to include material facts. The trial commissioner denied these corrections and the claimant has appealed. In her appeal, she asserts that the trial commissioner also failed to include uncontroverted facts which had been presented in her Proposed Findings of Fact that would have established legal jurisdiction under § 31-294c(c) C.G.S.

In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.

While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. “The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). Id.

We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003). We are concerned that the conclusion reached in this case lacks the sufficient foundation of subordinate facts to properly apply the law.

In the present case, the critical issue is reached in Finding ¶ C that “No evidence was presented by the Claimant that the Respondent-Employer paid for this medical treatment as a workers’ compensation payment rather than a Group health payment.” This finding is unsupported by any subordinate fact found by the trial commissioner. While appellate review requires we extend “every reasonable presumption in favor of the action” Testone v. C.R. Gibson Company, 5045 CRB-5-06-1 (May 30, 2007), our search of the record indicates that a rather short formal hearing occurred in this matter in which no exhibits were presented for consideration by either party, and no witnesses testified. At the conclusion of the hearing the commissioner directed the parties “that both of you submit a legal brief with regard to whether or not I have jurisdiction over this case or whether the injury is time-barred.” October 27, 2005 Transcript, p. 11.

Therefore we have a divergence between Finding, ¶ C of the Finding and Dismissal and the hearing record. The trial commissioner found the claimant produced no evidence on jurisdiction. The claimant had been directed not to produce evidence, but to produce legal arguments. The obvious difficulty herein is that jurisdiction under our statute requires the establishment of jurisdictional facts. Kuehl v. Z-Loda Systems Engineering, 265 Conn. 525, 533-534 (2003).2 A stipulation of facts was not presented to the trial commissioner; hence we must conclude there was an ongoing factual dispute as to the nature of the medical care proffered to the claimant prior to the filing of the Form 30C. Our precedent also holds that both parties should be given an opportunity to cross-examine material evidence central to a commissioner’s ultimate factual findings, Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974); this did not occur in this proceeding.

The respondents argue that the facts herein are indistinguishable from our decision in Culver v. Cyro Industries, 4444 CRB-7-01-10 (February 21, 2003) where we concluded that a claimant who had treated frequently at an employer run health clinic failed to establish he qualified for the “medical care exception” as defined in Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984) when the claimant filed his Form 30C years after he retired from his employer. We disagree. Our decision in Culver, supra, is very well documented with specific instances where it was found the claimant had failed to seek workers’ compensation benefits from back injuries he suffered during the period he was employed by the respondent. As the trial commissioner concluded “the claimant was using his employer’s medical facilities as a general health care provider through 1983, regardless of the origin of his ailments,” we had sufficient grounds to hold “[i]t was reasonable for him to conclude that the test articulated in Carlino, supra, was not satisfied.” Id.3

Such specific grounds for the trial commissioner’s finding are simply not present herein. Therefore, we must conclude this case is similar to Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006) where the findings by the trial commissioner regarding disability omitted requisite facts and we decided “[w]hile this board is obligated to defer to facts found by the trial commissioner the record herein is simply inadequate to make such an inference regarding this issue on appeal.” Id. See also Garcia v. Middletown Nissan, 5035 CRB-8-05-12 (December 20, 2006) “[t]he circumstances herein are similar to other recent cases where a Finding and Award was remanded due to the absence of necessary subordinate facts to legally sustain the Commission’s action” and Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) (matter remanded for articulation when grounds for commissioner’s findings were vague).

For the reasons outlined herein, we remand this matter for a new evidentiary hearing on the issue of whether the claimant was “furnished medical care” by the respondents for a compensable injury when she treated at Concentra Medical Centers on May 22, 2002.

Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 In Byrd v. Bechtel/Fusco, 4656 CRB-2-03-4 (July 14, 2004) we held, “[i]n order to properly resolve a jurisdictional question, it is not always necessary for a claimant to present detailed evidence regarding the totality of the underlying facts before an answer can be reached.” In this instance we believe it was necessary and the trial commissioner should have obtained this evidence prior to issuing a ruling. BACK TO TEXT

3 A similar dispute over whether the respondent paid for the claimant’s medical care occurred in Teague v. Repko Roofing, 4920 CRB-7-05-2 (March 1, 2006). In Teague we upheld a trial commissioner who concluded the medical care exception for formal notice had not been satisfied after taking testimony from the parties and reaching specific factual findings. BACK TO TEXT