CASE NO. 35-CRD-4-80Workers’ Compensation Commission
JULY 29, 1982
The Claimant-Appellee was represented by Andrew B. Bowman, Esq.
The Respondents-Appellants were represented by Edward S. Downes, Jr., Esq.
This Petition for Review from the August 12, 1980 Decision of the Commissioner for the Fourth District, was argued April 24, 1981 before a Compensation Review Division Panel consisting of Commissioners Gerald Kolinsky, Robin Waller and Rhoda Loeb.
Gerald Kolinsky, Commissioner, Robin Waller, Commissioner, Rhoda Loeb, Commissioner
FINDING AND AWARD
1. Paragraphs 1 through 11 and Paragraph 8, as corrected, of the Finding and Award dated August 12, 1980, are affirmed and incorporated into the Compensation Review Division’s Finding and Award and Conclusions of Law.
2. The Appeal of the Respondents-Employer and Insurer is hereby dismissed.
OPINION
The facts of this case disclose that the Claimant-Appellee had worked for the Employer-Appellant for over twenty-five years as a tile setter and often worked in damp conditions on his knees in cramped places, using his arms, legs and back in such work. Commencing in 1965 and thereafter, the Claimant-Appellee developed problems with his left knee, and the Employer-Appellant sent him to a doctor whenever the claimant’s pain became great. Said doctor was paid through a union-administered employer-financed group insurance plan.
The claimant ceased work in May, 1976 due to pain in back, both knees and elbows.
On May 11, 1977, a written notice of claim for compensation benefits was filed by the Claimant-Appellee with the Employer-Appellant and with the Commissioner of the Fourth District, alleging total disability “due to injury and/or occupational disease of the back, arms and legs.”
As no disclaimer was filed within twenty days thereafter, the Commissioner precluded the Employer-Appellant from contesting liability and awarded compensation benefits to the claimant, whereupon the Employer-Appellant appealed, assigning as error the Commissioner’s failure to correct the Finding in several respects as will be noted.
The first assignment of error contended that the Commissioner should have amended Paragraph 6 and found that the employer-financed union-administered group insurance was a “plan being in effect for personal and non-occupational injuries or illnesses.”
The second assignment of error contended that the Commissioner should have revised Paragraph 7 by changing the wording to indicate that the employer advised, rather than directed, the claimant to see a doctor whenever he had pain.
A perusal of the transcripts makes it abundantly clear that the Commissioner’s Findings of Fact are supported by the evidence, such as to enable him to reasonably reach the conclusions he has stated. Accordingly, this Compensation Review Division will not change the Commissioner’s Findings of Facts as regards: (1) The mode of payment of the claimant’s medical bills, and (2), the employer’s sending the claimant to see a physician. Cooke v. United Aircraft Corporation, 152 Conn. 214 (1964), Shedlock v. Cudahy Packing Company, 134 Conn. 672 (1948), Winzler v. United Aircraft Corporation, 132 Conn. 118 (1945).
The last issue remaining deals with Section 31-294 of the General Statutes. The Employer-Appellant contends that the Claimant-Appellee’s claim for benefits is barred because no written notice of claim was made within one year. The purpose of the requirement is to give the employer timely notice, DeLeon v. Jacob Brothers, Inc., 38 Conn. Sup. 331 (1982). One of the exceptions to this requirement is the providing of medical care by the employer. In cases where the employer provides medical care, the presumption arises that the employer would or should have had knowledge of the potential for a claim, Kulis v. Moll, 172 Conn. 104, 108 (1976).
In the instant case, the Claimant-Appellee’s medical expenses for the knee injury were paid by the employer-financed group insurance plan. In addition, the Employer-Appellant certainly knew of the Claimant-Appellee’s problem since he sent him to a physician for treatment. Such action has been construed by our Supreme Court to constitute the providing of medical care by the employer:
“The examination by the doctor and the giving of instructions to the plaintiff constitute `medical treatment’ as those words are used in the statute. To `furnish’ means to `provide’ or `supply.’ (Citation omitted.) 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 provision 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.” Gesmundo v. Bush, 133 Conn. 607, 612 (1947).
Based on these facts, we find as did the Commissioner below, that the Employer-Appellant furnished medical care within one year of the injury such as to meet the requirements of Section 31-294 of the General Statutes.
The last issue, although not directly raised by the Employer-Appellant, deals with the Claimant-Appellee’s contention that the Employer-Appellant should be barred from raising a defense to the claim under Section 31-297(b) of the General Statutes, since they filed no disclaimer within twenty days of the filing of a written notice of claim as found by the Commissioner below. The Employer-Appellant contends that none is required since no written notice of claim was filed within one year of the accident. However, such is not the status of the law as clearly set forth in DeLeon v. Jacob Brothers, Inc., supra:
“The fact that the employer’s interest in this case was protected under Section 31-294 without the requirement of timely written notice of claim does not compromise the employee’s right to know under Section 31-297(b) whether his employer was contesting his compensation claim. Although both statutes refer to a notice of claim, their respective purposes are different. The fact that a written notice of claim was not required to fulfill the requirements of Section 31-294 did not relieve the employer from the burdens imposed by the provisions of Section 31-297(b) after a written notice of claim was furnished,” id. at 337.
Read in the light of these words, the facts in the instant case must clearly support the findings he Commissioner below and we so find.