5419 CRB-8-09-1 (2010). Spencer v. Manhattan Bagel Company.

• Court: Connecticut

Connecticut Workers Compensation 2010. 5419 CRB-8-09-1 (2010). Spencer v. Manhattan Bagel Company CASE NO. 5419 CRB-8-09-1COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONJANUARY 22, 2010MELISSA SPENCER CLAIMANT-APPELLANT v. MANHATTAN BAGEL COMPANY EMPLOYER and ZURICH NORTH AMERICA INSURER RESPONDENTS-APPELLEES APPEARANCES: The claimant was represented by Timothy E. Welsh, Esq., Gozzi, Paladino and Welsh, 49 Sherwood Terrace, Old Saybrook, CT 06475. Respondents Manhattan Bagel Company and Zurich North America were represented by Michael A. Burton, Esq., Sharp, Shields and Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067. This Petition for Review from the January 6, 2009 Finding and Dismissal of the Commissioner acting for the Eighth District was heard on June 19, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 6, 2009 Finding and Dismissal of the Commissioner acting for the Eighth District. We find error and reverse the decision of the Commissioner. The trial commissioner made the following factual findings pursuant to a Stipulation of Facts entered into by the parties on January 5, 2009. The claimant sustained an injury to her right shoulder and neck on May 15, 2001 and verbally informed her employer/supervisor of same. Although the effects of the injury persisted, the claimant lost no time from work. However, on or about September 18, 2001, the claimant awoke experiencing increased severe pain in her neck. When she arrived at work that day, she reminded her supervisor of the injury which had occurred in May and let him know that she might need time off. In response, the claimant's supervisor drove the claimant to his chiropractor who diagnosed the claimant as suffering from a neck sprain, recommended conservative treatment and referred the claimant to an orthopedist. After the appointment, the claimant's supervisor gave the claimant a ride back to work. The claimant did not file a written notice of claim within one year of the date of injury, and thus failed to timely fulfill the conditions of the notice requirement as articulated by § 31-294c(a) C.G.S.(fn1) Although § 31-294c(c) C.G.S. sets out several exceptions to the notice requirement, the trial commissioner ultimately concluded that none of the conditions required to invoke an exception to the notice requirement were satisfied.(fn2) Specifically, the record indicated that a workers' compensation hearing was neither requested nor scheduled within one year of the date of injury and no voluntary agreement was submitted. Following a formal hearing at which the claimant testified that her employer did not pay the chiropractor's medical bill, the trial commissioner determined that the employer did not furnish medical care to the claimant consistent with the provisions of § 31-294c(c) C.G.S. and dismissed the claim for lack of subject matter jurisdiction. The claimant filed a Motion to Correct which was denied in its entirety, and this appeal followed. The claimant asserts that the trial commissioner's decision to dismiss her claim resulted from an incorrect application of the law to the facts. We agree. The trial commissioner appears to have based his decision to dismiss the claim on a finding that the employer did not pay the chiropractic bill generated by the claimant's visit on September 18, 2001. See Findings, ¶ 2. However, our review of prior case law reveals that payment by the employer for medical care rendered to the claimant is not a necessary condition to invoke the medical care exception. We begin our analysis with a discussion of Gesmundo v. Bush, 133 Conn. 607 (1947). In Gesmundo, the claimant, who was employed as a clerk, was ordered to make a truck delivery because no one else was available. The delivery occurred on Friday, December 31, 1943, and the round trip lasted nearly seven hours in temperatures ranging from 27 to 44 degrees. The truck was unheated and the floor boards of the cab were broken. When the claimant returned from making the delivery and got out of the truck, he felt like his feet were frozen and reported same to the watchman and superintendent. On the following Monday, the claimant told his supervisor that his feet were still bothering him, and the supervisor told him to see the...