OPINION

JOHN ARCUDI, CHAIRMAN.

Both parties have appealed the decision below. Each appeal relates to (1) reimbursement for claimants' medical expenses and (2) the proper method for calculating the weekly compensation rate.

Claimant suffered a compensable injury to his right hip, left knee and back July 7, 1978. He was only out of work three days and received no weekly indemnity benefits under Sec. 31-307, C.G.S. The employer through its insurance carrier paid his medical expenses for treatment by Dr. Joel H. Eisenberg, a Bridgeport orthopedist, at that time. Since claimant's duties as a foreman did not require great physical exertion he, though still on crutches, was then able to return to work.

However, claimant's hip continued to cause him pain and discomfort throughout the next eight years. In 1978 the claimant had also seen another Bridgeport orthopedist, Dr. J. Kevin Lynch, for his condition. He consulted Dr. Lynch again June 4, 1982 for the persistent discomfort from the leg and the right hip. After the June, 1982 doctors visit and apparently because the employee had indicated he was making a workers' compensation claim for the continuing right hip symptoms, the employer through its carrier, filed a disclaimer of liability in November, 1983 stating the following grounds: "It alleges left knee, back and right hip in 1978 per section 31-275. Not arising out of or in the course of employment. Not supported by medical evidence Statute of Limitations has run." In this period there was no work loss.

Claimant's symptoms persisted. In the meantime from a television program and from other sources he learned that Dr. Kristaps Keggi of Waterbury was an outstanding orthopedist for hip problems. Therefore he consulted that doctor in April, 1985. Dr. Keggi treated him for a year before deciding that claimant's condition required surgical intervention. On April 24, 1986 Dr. Keggi performed a right total ceramic hip replacement at Waterbury Hospital.

In his June 23, 1989 Finding and Award, the commissioner found that the condition for which Dr. Keggi operated was compensable in that it was caused by the July 7, 1978 injury. He ordered the respondents to pay temporary total benefits from April 24 to September 9, 1986 and permanent partial benefits beginning March 31, 1987 for the 35% loss of use of claimant's right leg. He ordered further that respondents "pay all medical expenses resulting from the July 7, 1978 injury excluding the bills of Dr. Keggi." Finally he concluded that claimant's weekly compensation rate for temporary total disability was $147.00 based on the maximum in effect at the time of the 1978 injury and not a claimant's earnings in 1986.

The employer's appeal contended that certain medical expenses ordered to be paid resulted from referrals by Dr. Keggi. Since the decision had found Dr. Keggi's treatment unauthorized, then the commissioner should not have ordered payment of medical expenses incurred because of those referrals.

Claimant's appeal argued the commissioner should have found Dr. Keggi to be an authorized treater. It further contended, relying on Sec. 31-307(b), C.G.S., that the weekly compensation rate should have been based on 1986 earnings as claimant's 1986 disability constituted a relapse or recurrence of the 1978 injury.

Of the nineteen paragraphs in the commissioner's June 23, 1989 Finding, only two, paragraphs #9, and #18 relate to the issue of whether Dr. Keggi was an authorized physician under Sec. 31-294. The first states that claimant "went on his own to Kristaps J. Keggi, M.D." Then Paragraph #18 concludes the doctor "was not an authorized treating doctor." Thus the commissioner based his conclusion of unauthorized treatment on the finding that claimant went to Dr. Keggi on his own. But that fact alone is not sufficient to sustain the conclusion reached. After all Connecticut since 1967 has permitted the employee rather than the employer to choose the physician. It is that initial choice by the employee which determines the authorized treater.

Even in the pre-1967 employer choice era, the employee was not totally shut out of the physician selection process Bongialatte v. Lines Co., 97 Conn. 548, 550 (1922); Thompson v. Towle; 98 Conn. 738, 740 (1923); Henderson v. Mazzotta, 113 Conn. 747, 753 (1931); Caldwell v. United States Aluminum Co., 131 Conn. 96, 99 (1944). In the Bongialatte and Thompson case the claimant sought physician's services for his injury before giving notice of the injury to his employer. The employers protested that they were only responsible for paying the expenses of physicians chosen by them. However the Supreme Court upheld the employee choice as there was no showing of prejudice to the employer and caused the employer in both instances to pay the expenses of the doctor chosen by the claimants.

In Henderson the claimant's previous disability period had ended four or five months before recurring symptoms caused him to seek medical attention with a different doctor. The court declared:

At that time the services of Dr. Yergason must be assumed to have terminated, and the claimant was thus without a physician. He was at liberty under the provisions of the statute to consult another physician in case of need if none was then provided by the respondents, and if such were the subordinate facts, the order for the payment for the services at the expense of the respondents, might have been proper. Henderson v. Mazzotta, supra, 753-754.

Then, as the commissioner's finding was silent as to the subordinate facts, the court remanded the matter for further findings.

Caldwell involves a different fact situation. Claimant, a New York city resident employed by a Bridgeport employer, was injured. He was treated by the employer's first aid department and was there told to consult his New York doctor. After some treatment in New York, he was sent back to Bridgeport and was treated by a Connecticut physician at Bridgeport and was treated by a Connecticut physician at Bridgeport Hospital. That doctor sent him home after the treatment as ready to go back to work. When he tried to return to the job two days later, he was unable to as the disabling condition persisted. He therefore again went to his New York physician. That doctor notified the employer August 18 and requested that he be authorized to care for the claimant again. The employer on September 23 sent a letter to the New York doctor saying he was not authorized and disclaiming liability for the medical bill. "Under these circumstances," the court held, "the commissioner could properly consider that under the statute the employee was entitled to get treatment from his own doctor at the employer's expense." Caldwell v. United States Aluminum, supra, 99.

In reaching that decision the Caldwell court relied on the Pre-1967 employer statute:

General Statutes, Sec. 5232, the applicable portion of which provides as follows: "The employer, as soon as he shall have 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 service as such physician or surgeon shall deem reasonable or necessary. In the event of the failure of the employer promptly to provide such . . . service, the injured employee may provide such . . . service at the expense of the employer." Id, 99.

This is the same statute on which Bongialatte, Thompson and Henderson relied. The identical language was retained in the post-1967 employee choice statute, Sec. 31-294, C.G.S. That new law also retained the following portion of the old statute." The commissioner may, without hearing, at the request . . . of 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." Without question the case law and the legislative history indicate that the 1967 legislature wished to give the employee a greater freedom of choice than was permitted before. For these reasons, as Caldwell and Henderson indicated, the commissioner must make a more extensive inquiry into the circumstances surrounding the choice of physician. This needed to be done before concluding that Dr. Keggi was unauthorized simply because the claimant went to him on his own.

Here, the claimant consulted Dr. Eisenberg once in 1978 at the employer's expense. He consulted Dr. Lynch in 1978 and 1982. It isn't clear from the finding who paid Dr. Lynch. Did the claimant in fact ever ratify the choice of either of those doctors with whom he had such a brief contact? Moreover were not their services considered terminated in 1985 three years after the last contact with Dr. Lynch when claimant's symptoms became more acute than they had been during the previous seven years? This was the rationale of the court both in Henderson and Caldwell.

Our examination of the district file does not reveal whether the employer's carrier ever filed the 1983 disclaimer of liability with the Fourth District so the commissioner may have been unaware that such a disclaimer was sent to the claimant. But whether or not that disclaimer was filed in the district, doesn't the fact of its being sent to the claimant mean that the employer failed to furnish necessary medical services for a job related injury? If that be so, who can fault the claimant for consulting one of the most respected hip specialists in all the New England states? Employer or employee choice or even commissioner choice are not ends in themselves under our statute. Our law "recognizes the legislative idea that the employer as well as society benefit by the early restoration to health or the injured employee." Carney v. Plimpton Mfg. Co., 111 Conn. 401, 405 (1930). Given our analysis the matter must be remanded for further findings to determine if Dr. Keggi should be authorized.

As to the second reason of appeal, if there were in fact no Sec. 31-307 temporary total disability benefits paid at the time of the original 1978 injury, the commissioner was correct if, ruling that Sec. 31-307b did not apply. The latter statute makes payment of Sec. 31-307 benefits a condition precedent to its operation.

For all the reasons cited above we remand to the Fourth District for further proceedings consistent with, the opinion.

Commissioners Andrew Denuzze and George Waldron concur.