CARLINO v. DANBURY HOSPITAL, 25-CRD-7-80 (12-6-82)

MERCEDES CARLINO, CLAIMANT-APPELLANT vs. DANBURY HOSPITAL, EMPLOYER and LIBERTY MUTUAL INSURANCE COMPANY, INSURER, RESPONDENTS-APPELLEES

CASE NO. 25-CRD-7-80Workers’ Compensation Commission
DECEMBER 6, 1982

The Claimant-Appellant was represented by Richard L. Jacobs, Esq., and Benjamin Chapnick, Esq.

The Respondents-Appellees were represented by Kevin J. Maher, Esq.

This Petition for Review from the July 15, 1980 Decision of the Commissioner for the Seventh District was argued September 17, 1982 before a Compensation Review Division Panel consisting of Commissioners Rhoda Loeb, A. Paul Berte and Robin Waller.

/s/ Rhoda Loeb Rhoda Loeb, Commissioner

/s/ A. Paul Berte A. Paul Berte, Commissioner
/s/ Robin Waller Robin Waller, Commissioner

FINDING AND AWARD

Paragraphs 1, 2 and 3 of the Commissioner’s Amended and Consolidated Finding and Award are affirmed and adopted as paragraphs 1, 2 and 3 of the Finding and Award of this Division but rather than simply incorporate by reference, we here restate them:

1. The parties hereto were subject to the provisions of the Workers’ Compensation Act, as amended, and the employer has complied therewith by insuring its full liability with the Liberty Mutual Insurance Company.

2. At all times material hereto, claimant was employed by respondent employer as a patient care technician.

3. Between January 8, 1977, and about one week prior to January 27, 1977, between 11:00 p.m. and midnight, claimant sustained an injury to her low back while supporting a patient who had fallen out of bed. This injury arose out of and during the course of claimant’s employment.

4. At the end of her shift following said injury at about 7:00 a.m., claimant went to the office of the personnel health physician at Danbury Hospital and told Dr. Nathaniel Selleck, the Director of Personnel Health, that she had injured her back the previous night.

5. At that time, claimant told Dr. Selleck her complaints due to the claimed injury, and he told her that sometimes with a physical injury that is associated with pain, seeing a psychiatrist would help or could help. Dr. Selleck advised claimant that she needed a psychiatrist.

6. Claimant had sustained a prior injury to her neck on May 2, 1975, which injury was job related and accepted as compensable by respondent employer. A voluntary agreement covering this accidental injury of 1975 was executed by claimant and respondents on February 7, 1977, and filed in the Workers’ Compensation Commissioner’s office for the Seventh District on February 28, 1977. The injuries described in said agreement are “Strain left jaw and neck.”

7. For her May 2, 1975, injury, claimant was told by Danbury Hospital personnel to see Dr. Selleck at Personnel Health, and she did.

8. Claimant saw Dr. Selleck for medical care on May 2, 1975, and thereafter into at least July 1975.

9. Dr. Selleck had diagnosed claimant with respect to her May 2, 1975, compensable injury as evidencing emotional disturbance; and with respect to that injury, he felt that an evaluation of emotional overlay was very important to ongoing care.

10. Dr. Selleck was familiar with claimant’s emotional condition prior to her injury in January 1977, and he had counseled her and had referred her to a psychiatrist for counseling prior to said injury.

11. When claimant treated with Dr. Selleck prior to her injury in January 1977 and when she went to see him on the day after her January 1977 injury, she did so because he was the person in authority at Danbury Hospital whom she had seen and understood she was to see for treatment of job related injuries.

12. Following the said lifting incident in January 1977, the claimant began to experience increasingly severe pains in her low back and developed problems with her left leg which began to drag.

13. On January 27, 1977, claimant consulted Dr. William A. Sinton who had previously treated her in connection with a 1975 injury to her neck. He examined claimant and noted complaints of left scapular pains and pain when turning the patient.

14. On the occasion of her next visit to Dr. Sinton on March 22, 1977, claimant’s complaints were stronger with reference to back pain with left leg pain.

15. On March 22, 1977, claimant was admitted by Dr. Sinton to the Danbury Hospital because of back and bilateral leg pain. She remained there until May 5, 1977, when she was discharged.

16. Claimant has been unable to work in her former occupation as a patient care technician since March 22, 1977, and has been totally incapacitated since that time.

17. Claimant testified to the effect that she had left written notice of her claim on the desk of a Mrs. Barberri at the Nursing Office of Danbury Hospital on an unspecified date following numerous oral requests to reduce her working hours. Claimant did not produce a copy of this letter, nor was it among the hospital’s records which had been produced in response to a subpoena duces tecum.

18. It is found that:

(a) Claimant did suffer an injury between January 8 and January 20, 1977, approximately, which injury arose out of and during the course of her employment.
(b) Although claimant did not give written notice to her employer as required under the Act, the advice given to her by respondent employer’s representative constitutes the furnishing of medical care for the injury with respect to which compensation is claimed as provided for under Section 31-294 of the Act.

IT IS THEREFORE ADJUDGED, DECREED AND AWARDED THAT:

(a) Respondents shall pay claimant compensation at her statutory weekly rate, including cost of living adjustments and dependency allowance, for temporary total incapacity from January 1977 until such incapacity has ceased or diminished.
(b) Respondents shall pay all claimant’s necessary and proper medical and hospital expenses.
(c) The parties may request further hearings to determine any other questions that may arise.

OPINION

This appeal originally was taken by Claimant-Appellant from the Commissioner’s Finding and Award dated July 15, 1980, in which he found that in January 1977, the claimant sustained an accidental injury to her low back arising out of and in the course of her employment while assisting an elderly patient who had fallen out of bed. The Commissioner also found that the claimant failed to give written notice of claim for compensation as required in C.G.S. Sec. 31-294, and that the claimant was not furnished, for the injury with respect to which compensation is claimed, with medical or surgical care. C.G.S. Sec. 31-294. Accordingly the Commissioner dismissed the claim for lack of jurisdiction, and this appeal was filed.

On October 14, 1981, this Compensation Review Division requested supplemental findings. Thereafter supplemental findings were issued on November 17, 1981, and were additionally remanded after hearing by this Division on February 25, 1982. On May 17, 1982, the Commissioner issued an Amended and Consolidated Finding and Award. On September 17, 1982, further hearing was held by this Division at which time appellant’s position was that since adequate findings of fact had been made by the Amended Award of May 17, 1982, this Division can now decide the appeal.

Respondents have moved that this proceeding should be dismissed for lack of jurisdiction because no appeal was taken from the Amended Award of May 17, 1982. It is argued by Respondents that an appeal must be taken from a supplemental or amended award, and that the remanding for supplemental findings of fact does not confer continuing jurisdiction on this Compensation Review Division.

There is no final determination of an appeal by the Compensation Review Division when it has remanded to a Commissioner for further findings in order that the Division can decide the appeal. Section 31-301 of the Connecticut General Statutes provides for continuing jurisdiction until final action is taken on the appeal.

Wheeler, C. J., in Cormican vs. McMahon, 102 Conn. 234, (1925), at 238, points out:

“Cases under the Workmen’s Compensation Act are upon a different basis from actions between ordinary litigants. No case under this Act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment. When this appears, the case must be returner to the Commissioner for a finding in accordance with the suggestions made by the trial court or this court, and for an award to be made upon the corrected finding.”

Here also there could be no final determination of the appeal by this Compensation Review Division within the meaning of Section 31-301, C.G.S. until the Commissioner made the necessary findings of fact in order that we could decide the appeal. This Review Division retains jurisdiction.

Cothren’s Appeal from Commissioners, 59 Conn. 545, decided in 1890 and Crane vs. Eastern Transportation Line, 50 Conn. 341, decided in 1882, cited by respondents in their brief, are not in point. Moreover, both cases were decided prior to the enactment of the Workers’ Compensation Act in 1913. Cothren’s Appeal deals with an appeal from Commissioners concerning a claim against an insolvent estate, and the Court therein said:

“The Commissioners on an insolvent estate are a legal tribunal, with certain limited equitable powers, and, on an appeal from their doings, the judgment below is vacated, and the trial in the Superior Court is entirely independent of any action of the Commissioners. It is wholly a trial de novo. The Superior Court has nothing to do with any errors of law on the part of the Commissioners. It is of no consequence what evidence was received or rejected by them. The question with the court is solely what evidence it shall itself receive or reject.” Supra, p. 548.

The Crane case was an action to recover for the loss of a cargo of grain in 1882, and the Supreme Court found that the plaintiffs had proven a prima facie case for recovery, and that the burden of proof was on the defendants to rebut negligence by the introduction of evidence which they failed to do in the trial court. The Court stressed that no finding could have been made because no evidence at all on negligence was introduced and,

“There was nothing for the Court to find and nothing upon which to base a finding of fact.” Supra, p. 334.

In this case it is clear this Review Division did not err in remanding to the Commissioner to make the critical findings of fact on the evidence that was submitted. Having done so, we now turn to the facts as found. Paragraph 4a of the May 17, 1982, Amended and Consolidated Award states:

“It is found that the statement to the effect that claimant needed a psychiatrist did not constitute the furnishing, for the injury with respect to which compensation is claimed, with medical care, being one of exceptions to the written notice requirement of Section 31-294, Connecticut General Statutes.”

Inasmuch as it is found that the employer’s Director of Personnel Health made that statement to claimant on the following morning after she was injured when she told him that she had hurt her back on the job, we disagree with the Commissioner’s legal conclusion and hereby find that the facts stated do constitute the furnishing of medical care, Gesmundo vs. Bush, 133 Conn. 607, 612, (1947).

Written notice of claimed injury is necessary to give the Commissioner jurisdiction to hear the claim unless the claim falls within one of the exceptions stated in C.G.S. Sec. 31-294. No written notice was given in this case, and the claimant claims under the exception which reads:

“. . . if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereinafter provided in this section, no want of such notice shall be a bar to maintenance of proceedings . . .”[1]

The Connecticut Supreme Court has consistently interpreted the terms of the notice provisions strictly. Vegliante vs. New Haven Clock Co., 143 Conn. 571 (1956); Simmons vs. Holcomb, 98 Conn. 770 (1923). Even when the employer has actual notice of the injury, e.g., paying the injured employee on account of the injury, unless the statutory requirements are met, the claim will be barred. Walsh vs. Waldron Sons, 112 Conn. 579, 585 (1931).

The Supreme Court has also made it clear that the essence of the written notice of claim requirement is that:

“. . . the written notice intended is one which will reasonably inform the employer that the employee is claiming or proposes to claim compensation under the Act.”
Rehtarchik vs. Hoyt-Messinger Corporation, 118 Conn. 315
(1934).

The Legislature’s intent that the written notice must reasonably inform the employer that the employee is claiming or intends to claim compensation in order for the notice to be legally sufficient also applies to the exceptions stated in Sec. 31-294. Gesmundo vs. Bush, supra.

In Gesmundo the claimant reported his injury to the employer’s superintendent who referred him to a physician who treated injured employees of the employer. The Court stated at p. 612:

“The examination by the doctor and the giving of instructions to the plaintiff constituted `medical treatment’ as those words are used in the statute. To `furnish’ means to `Provide’ or `supply.’ Webster’s New International Dictionary (2d Ed.). That the plaintiff saw fit to pay the doctor does not alter the situation; it is the fact that the defendant, through its superintendent, made provisions for medical treatment that makes unnecessary the formal notice. The Commissioner could properly hold that the defendant furnished such treatment within the meaning of the exception in the statute.”

Concerning written notice, Sec. 31-294 also provides:

“. . . in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice . . .”

which expresses clearly the Legislature’s intent that once there is written notice, issues as to its legal sufficiency are to be determined in the employee’s favor unless the employer shows ignorance of the facts of the claimed injury or prejudice by the defect or inaccuracy of the notice.

In the instant case there is no question that the employer through its personnel health director had actual notice and early knowledge of the facts concerning the claimed injury. Where the employer has actual notice of the claimed injury, the rule to be applied is that the furnishing of any medical care is sufficient to satisfy the statute. Whether or not the doctor’s medical advice to seek the services of a psychiatrist was correct or good advice is not of consequence here. What is relevant is that under the factual circumstances in this case such medical advice was legally sufficient to constitute the furnishing of medical care under the Act.

The Appellees have cited Kulis vs. Moll, 172 Conn. 104 (1976) in support of their position. In Kulis the employer had no notice — written or actual — within one year from the date of injury for which compensation was claimed, and the only thing the employer did was to provide claimant transportation to the hospital. Kulis is distinguishable on the facts alone from Gesmundo and the instant case.

Therefore, for the above reasons the decision of the Seventh District Commissioner is reversed, and the Appellant’s claim for compensation benefits is granted. This case is remanded to the Commissioner to effect the award of this division in conformity with this decision.

[1] Sec. 31-294. Notice of injury and of claim for compensation. Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing him, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer. No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. Such notice may be given to the employer or the commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or from the first manifestation of a symptom of the occupational disease as defined herein, as the case may be, or if a voluntary agreement has been submitted within said period of one year, or if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice. Upon satisfactory showing of such ignorance and prejudice the employer shall receive allowance to the extent of such prejudice. Within one week after receipt by an employer of such notice of claim for compensation, he shall report the substantial facts of such notice to the commissioner. For the purposes of this section, “manifestation of a symptom” means its manifestation to the employee claiming compensation, or to some other person standing in such relation to him that the knowledge of such a person would be imputed to him, in such manner as is or ought to be recognized by him as symptomatic of the occupational disease for which compensation is claimed. The employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service as such physician or surgeon deems reasonable or necessary. Such physician or surgeon shall be selected by the employee from an approved list of physicians and surgeons prepared by the commissioners, but, if such employee is unable to make up the selection, the employer shall do so, subject to ratification by the employee or his next of kin, provided, however, where the employer has a full-time staff physician or a physician is available on call, the initial treatment required immediately following the injury may be rendered by such physician, but the employee may thereafter select his own physician as provided by this chapter for any further treatment without prior approval of the commissioner. In the event of the failure of the employer promptly to provide such physician or surgeon or medical, surgical or hospital of nursing service, the injured employee may provide such physician or surgeon, selected from the approved list prepared by the commissioners, or medical, surgical and hospital or nursing service provided by his employer and provide the same at his own expense. The commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of such physician or surgeon or such hospital or nursing service. If it appears to the commissioner that an injured employee has refused to accept and failed to provide such reasonable medical, surgical or hospital or nursing service, all right of compensation under the provisions of this chapter shall be suspended during such refusal and failure. The pecuniary liability of the employer for the medical and surgical service herein required shall be limited to such charges as prevail in the same community or similar communities for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured persons; but the liability of the employer for hospital service shall be the amount it actually costs the hospital to render the service, such amount to be determined by the commissioner, except in the case of state humane institutions, in which case the liability of the employer shall be the per capita cost as determined by the comptroller under the provisions of section 17-295. In the case of a seaman employed upon any enrolled vessel of the United States and entitled, by the provisions of any law of the United States, to medical or surgical aid or hospital or nursing service without charge, such medical or surgical aid or hospital or nursing service may be substituted for that provided for in this section so far as it may answer the requirements of the provisions of this section, but nothing herein shall excuse the employer in such cases from giving emergency treatment when required; and any employer desiring to take advantage of this provision shall ascertain that such services as are provided for by the laws of the United States are rendered. All medical reports concerning any injury of an employee sustained in the course of his employment shall be furnished by the employer or employee or his attorney at the request of such employer, employee or attorney. If, after knowledge that an employee has suffered injury arising out of and in the course of his employment, and employer has failed to provide medical care promptly and the injured employee has provided such medical care, the employer shall not compel the employee to change his physician, surgeon, nurse or hospital, except upon the order or approval of the commissioner. “Nursing” as used herein, means the practice of nursing as defined in subsection (a) of section 20-87, and “nurse” means a person engaged in such practice. “Medical and surgical aid or hospital and nursing service,” for the purpose of this chapter, shall, when so requested by the injured employee and approved by the commissioner, include treatment by prayer or spiritual means through the application or use of the principles, tenets or teachings of any established church without the use of any drug or material remedy, provided sanitary and quarantine regulations are complied with, and provided all those ministering to the injured employee are bona fide members of such church. Such employee shall submit to all physical examinations as required by this chapter.