Opinion
CASE NO. 20-CRD-5-80
FEBRUARY 19, 1982
The appellee-claimant was represented by Gerard S. Spiegel, Esq.
The appellant-respondents were represented by Robert G. Montstream, Esq.
The Second Injury and Compensation Assurance Fund was represented by Ralph Russo, Esq., Assistant General.
This Petition for Review from the Finding and Award of August 8, 1980 and the Corrected Finding and Award of October 16, 1980, by the Commissioner for the Fourth District, acting for the Fifth District, was argued on January 23, 1981, before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, Robin W. Waller and Darius Spain.
FINDING AND AWARD
1. Paragraphs 1 through 36 and 38 through 46 and 48 through 58, and Paragraphs A and C of the Finding and Award are affirmed and incorporated into the Compensation Review Division's Finding and Award and Conclusions of Law.
2. Paragraphs 37, 47, B and D of the Commissioner's said Finding and Award are hereby remanded to the Commissioner for further proceedings in accordance with the Opinion hereto annexed and made a part hereof.
3. The appeal of the claimant from the Commissioner's Finding and Award is hereby sustained.
4. The appeal of the respondent-employer and insurer is hereby dismissed.
5. The appeal of the respondent Second Injury Fund is sustained.
OPINION
There appears to be no substantial dispute over the facts in this case. The claimant was a 58 year old iron worker who, after heavy exertion on the job, on March 28, 1974, felt chest pains, was rushed to the hospital by a co-worker, and was admitted and diagnosed as suffering from an acute myocardial infarction. During the time of hospitalization he received medical care, the expense of which was paid by his group medical insurance. The cost of the premium for the group medical insurance carrier was borne by the employer and administered by trustees appointed by representatives of the association to which the employer belonged and by the claimant's union.
The facts also reveal that the claimant did not file a written notice of claim for compensation within the one year requirement set forth in Section 31-294 C.G.S. A claim for workers' compensation was transmitted orally to the cognizant Commissioner on January 31, 1977.
The claim was subsequently contested by the respondents who asserted that the claim had not been filed within one year as required by Section 31-294 C.G.S. A letter of demand was sent to the Second Injury Fund on June 16, 1978, by the respondent-insurer.
The first issue in this case deals with the question of whether or not payment of the claimant's medical expenses by his group insurance carrier, the premiums of which had been paid by his employer, constitutes the furnishing of medical treatment as found by the Commissioner below in Paragraph 57 of his Finding and Award.
Section 31-294 C.G.S. requires that "the employer . . . shall provide a competent physician or surgeon to attend the injured employee, and in addition, shall furnish such medical and surgical aid or hospital service. . ." There is no denial on the part of the respondents that the employer did, in fact, provide medical and hospital care, albeit that care was paid for through payments from a group insurance policy rather than a workers' compensation insurance policy; Section 31-294 C.G.S. does not restrict the providing of such benefits to a workers' compensation insurance company, but it does impose primary liability for the providing of medical and hospital services upon the employer. In addition, that section speaks solely of the employer's, not the insurer's, responsibility. In the final analysis, it is the providing of medical care by the employer, not who pays for it, which has been deemed to be the significant criteria by our Supreme Court, Kulis vs. Mol, 172 Conn. (1976) and Gesmundo vs. Bush, 133 Conn. 607 (1947).
In the instant case, the Commissioner below found specifically in Paragraphs 53-57, the employer had knowledge of the claimant's heart attack that it might be job-related. The purpose of the Statute of Limitations, Section 31-294, is to protect the employer in these instances by requiring timely notice of injuries so that the employer may investigate the case, DeLeon vs. Jacob Brothers, Inc., 37 Conn. Sup. 742(1981), 43 C.L.J. 18(1981). course, there is an exception to the one year statute, where the employer has provided medical care. The presumption in these cases is that the employer would, or should, have had knowledge of the potential for a claim, Kulis vs. Mol, 172 Conn. 104, 108(1976).
"The purpose of the notice is to inform the employer that an injury has been suffered upon which a claim for compensation will or may be founded. . . . The exception is, no doubt, 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 such a claim", Gesmundo vs. Bush, 133 Conn. 607, 612 (1947).
Limited to the facts of this case, as found by the Commissioner, it is clear that the respondent-employer had actual knowledge of the claimant injury, we find that the payment of the claimant's medical expenses by the group insurance company, the premiums of which were paid by the respondent-employer, constitutes the providing of medical care as delineated in Section 31-294 C.G.S.
The second issue is whether or not the respondent-insurer gave timely notice to the Second Injury Fund. The issue is governed by the recent decision of the Appellate Division of the Superior Court in Kramer vs. General Electric Company, Doc. No. A.S. 1065, April Term, 1981, 37 Conn. Sup. 742 (1981), which provides that the condition precedent to the imposition of liability upon the Second Injury Fund is written notice to the Fund 90 days prior to the expiration of 104 weeks. Such written notice was not provided to the Second Injury Fund within the required time period as set forth by Kramer and the appeal of the respondent Second Injury Fund, is therefore affirmed.
The third issue deals with the Commissioner's findings in Paragraph 37, 47 and B. Counsel stipulated that the introduction of Dr. Oscar Roth's report was for the purpose other than the rating of current disability. Nevertheless, the Commissioner utilized Dr. Roth's report for the purpose of assessing a permanent partial disability for the claimant and we, therefore, find that the Commissioner exceeded his authority in finding as he did in the above mentioned paragraphs, and the matter is hereby remanded to the Commissioner for further proceedings consistent with the views expressed herein.