Opinion
CASE NO. 03861 CRB-07-98-07CLAIM NO. 700111405
NOVEMBER 2, 1999
The claimant was represented by Lawrence Peck, Jr.
The respondents were represented by David Kelly, Esq., Montstream May, L.L.P.
This Petition for Review from the July 9, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
OPINION
The respondents have petitioned for review from the July 9, 1998 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the trier erred by finding that the respondent Braun Moving Inc. was the claimant's employer at the time of his injury, by authorizing out-of-state medical treatment, and by basing findings on medical reports that were not properly admitted into evidence. We affirm some of the trier's conclusions, but find error with respect to the evidentiary issue, and remand for further proceedings on that matter.
The trial commissioner found that the claimant and the respondent-appellant Braun Moving, Inc. (Braun) were parties to a contract of employment on March 31, 1997. The claimant, a furniture mover, suffered an injury on that date during the course of his job duties, damaging his left shoulder and groin. He reported the injury to Braun two days later, and sought treatment at a walk-in clinic near his home in Wappingers Falls, New York. The attending physician gave him a prescription, and advised him not to do any work that required him to use his left shoulder. The claimant submitted his doctor's note to Braun when he reported his injury.
He did not report the injury or receive treatment on April 1, 1997, because of a severe snowstorm that struck the northeastern United States on that date.
The claimant's wife thereafter tried to contact office personnel at Braun for guidance as to how the claimant should obtain further treatment. After repeated attempts at contact, she was told not to call again, and was given no information about additional care for her husband. The claimant needed treatment, though, so he took it upon himself to see Dr. Chiaramonte, a Poughkeepsie, New York, orthopedic surgeon. The doctor was able to get the respondents to authorize an MRI, which was performed in December 1997. Dr. DiMarco, a shoulder specialist to whom the claimant was referred, recommended reconstructive surgery of the left shoulder, and opined that the claimant was totally disabled from work. Dr. Craig, a Danbury physician, performed an independent medical examination on March 16, 1998, and concurred with Dr. DiMarco's diagnosis.
The respondents objected at oral argument that the commissioner allowed inadmissible hearsay evidence into the record by letting the claimant's wife testify that no one at the respondent insurer Northbrook ever instructed her not to seek out-of-state treatment for her husband. See April 16, 1996 Transcript, p. 41 (respondents' objection at trial). In order for a statement to constitute hearsay, it must be an out-of-court declaration that is offered to establish the truth of the facts contained in the statement. Eisenbach v. Downey, 45 Conn. App. 165, 180 (1997). A statement — or an omission — offered solely to show its effect upon the hearer, however, is not hearsay. Id. Here, the claimant's wife was simply describing, from an external perspective, the fact that she heard no remark indicating that treatment for her husband should only be sought in Connecticut. It is apparent that the purpose of this testimony was to show the effect of those non-statements, or omissions, on the claimant; see State v. Cruz, 212 Conn. 351, 356-57 (1989) (police officer allowed to explain that his actions were a reaction to statements of witnesses); rather than to prove a disputed issue in the case by relying on the allegations of people who were not available for cross-examination. Thus, we do not believe that the trier abused his discretion by allowing this testimony. New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752 (1996); Eisenbach, supra, 179-80.
The trial commissioner concluded that the claimant was employed by Braun at the time of his compensable injury, and found that the treatment he received from out-of-state doctors was reasonable and necessary in light of the "uncooperative and callous conduct" of the respondents in refusing to communicate with the claimant. He ordered that the respondents pay all of the outstanding medical bills, the cost of surgery needed by the claimant, and a $1,800 attorney's fee. The trier also ruled that the medical reports submitted by the claimant for identification were competent evidence under § 31-298, and found that the claimant has been "either totally disabled or partially disabled" since the date of injury. However, as there was insufficient evidence to establish time frames for either or both levels of disability, the commissioner stated that additional evidence would be necessary for this purpose. The respondents have appealed this decision.
The appellants' first argument is that there is no evidence in the record to support the trier's finding that Braun was the claimant's employer on the date of injury. They maintain that he was instead employed by Richard Nocella, an independent contractor who had agreed in writing to complete various jobs for Braun, and who was solely responsible for paying, controlling and insuring the employees whom he would hire to help him fulfill these contractual obligations. Such a contract is potentially germane to this issue, and was correctly made part of the body of evidence that was considered by the trier of fact. However, the key factor in establishing employee status is not the label applied by the parties in a memorialized agreement; it is the putative employer's right to control the means and methods used by the person whose status is implicated. Hanson v. Transportation General, Inc., 245 Conn. 613, 617 (1998); Carrier v. Voisine, 15 Conn. Workers' Comp. Rev. Op. 105, 107-108, 2093 CRB-3-94-7 (Jan. 11, 1996).
The April 1, 1996 contract between Braun Moving, Inc. ("Carrier"), and Richard Nocella ("Contractor") was effective on the date of the claimant's injury. It describes the carrier as a company in the business of "transporting goods, wares and merchandise upon the public highways throughout the United States," for whom the contractor was to provide services on a job-to-job basis. The agreement states in part, "The CONTRACTOR shall, without expense to the CARRIER, provide all necessary labor in the performance of activities contracted for him by the CARRIER. The CONTRACTOR shall hire, direct, pay, control and discharge all his sub-contractors or employees. The CONTRACTOR shall provide adequate workers' compensation insurance on his employees, and the contractor shall provide and maintain current insurance certificates with the CARRIER." Respondents' Exhibit C.
"Whether or not an individual is an employee is a factual question for the commissioner to decide. Keefe v. Flynn, 10 Conn. Workers' Comp. Rev. Op. 98, 99, 1169 CRD-2-91-1 (April 23, 1992), citing Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). `One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained.'Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961)." Muniz v. Koteas, 13 Conn. Workers' Comp. Rev. Op. 284, 287-88, 1720 CRB-4-93-5 (April 21, 1995). Here, despite the language of the contract between Braun and Nocella, there was also evidence presented to the commissioner that supported a finding that Braun was the claimant's employer. Where there is conflicting evidence, the trier is entitled to accept that which he finds most credible. Carrier, supra, 107.
The claimant testified that he had worked for Braun for about two months as of March 1997, and that he reported to Kurt Bush, Braun's dispatch controller, every morning for his daily instructions, including the date he was injured. April 16, 1998 Transcript, p. 9-11. He also stated that he was paid by Braun for the work he did that day, and a pay stub was offered into evidence that covered the week of March 30, 1997 to April 5, 1997. Id., p. 14-15; Claimant's Exhibit 1. Notably, the contract between Braun and Nocella stated that the latter would hire, pay and control the employees he hired in conjunction with the job-to-job services agreement. Respondent's Exhibit C.
Although Bush attempted to explain on behalf of Braun that the claimant was, at various times, either a direct employee of Braun or an employee of Nocella, and that he inadvertently punched in as a Braun employee on the date of injury even though he was actually working for Nocella on that job, the trier was not required to base his conclusions upon that explanation. See Transcript, p. 35-37. This is particularly true where neither party succeeded in procuring Nocella's appearance in the instant proceedings. In short, the claimant filed a workers' compensation claim naming Braun as his employer. The record contains evidence that, on the date of injury, Braun exercised sufficient control over the claimant's work to qualify it as an employer under § 31-275 (9). On review, we may not disturb the trier's decision to rely upon that evidence. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
The appellants' other two claims of error both concern the medical care that the claimant has received for his compensable injury. We will begin with the more general objection of the respondents: that the claimant improperly sought treatment from out-of-state practitioners without express permission from the respondents or a commissioner. According to the respondents, the claimant "did not present this Commission with any legally sufficient reason for out of state treatment," such as the unavailability of comparable care in Connecticut, or a specific referral. Brief, p. 22. They contend that, pursuant to Cummings v. Twin Mfg., Inc., 29 Conn. App. 249 (1992), authorization for out-of-state medical treatment should not have been granted here. This position completely fails to account for the trier's findings concerning Braun's "uncooperative and callous conduct" toward the claimant in refusing to communicate with him and, ergo, in failing to authorize or recommend any treatment whatsoever. Findings, ¶ C.
An employer is required to provide a competent physician to attend an injured employee pursuant to § 31-294d(a). Leiner v. Newmark Lewis, 15 Conn. Workers' Comp. Rev. Op. 147, 149, 2202 CRB-8-94-10 (Jan. 18, 1996). The employer here refused to perform that duty. Needing treatment, the claimant predictably and justifiably visited an orthopedic surgeon in Poughkeepsie, New York, a city near his home. The decision of our Appellate Court in Cummings, supra, and the recent decision of this board in Melendez v. Home Depot, 3835 CRB-4-98-6 (July 13, 1999), contain no reasoning that would call into question the trier's retroactive authorization of the treatment here. The humanitarian purpose of the Workers' Compensation Act would be hindered by penalizing this claimant, who obtained out-of-state treatment only after his employer declined to offer the guidance and assistance required by § 31-294 (d)a. The trier's ruling that the claimant's out-of-state treatment was "responsible and necessary" is appropriate in light of these circumstances. Id.
The respondents' other argument concerning the medical care provided in this case specifically concerns the doctors' reports themselves. They contend that the trier relied in part upon documents that were not officially admitted into evidence or otherwise made part of the formal record, which was erroneous, even considering the relaxed evidentiary standards that govern workers' compensation proceedings under § 31-298. With this argument, we agree. When the claimant's counsel attempted to introduce a photocopy of a report from the walk-in clinic into evidence, the respondents' counsel objected on the ground that § 52-174 requires a party to present signed originals of medical reports. April 16, 1998 Transcript, p. 43. Though the trier eventually admitted this item into evidence (Claimant's Exhibit H), the claimant's attorney noted that several other reports that he had earmarked for submission into evidence were photocopies, and suggested that they all be marked for identification "subject to acquisition of initialed or signed originals so that they can go in as full exhibits." Id., 45-47. These items include the reports of Dr. Chiaramonte and Dr. DiMarco. See Claimant's Exhibits 10-12.
The claimant correctly observes that the common-law rules of evidentiary procedure are not rigidly applied to workers' compensation proceedings. We also note that § 52-174 does not, in fact, prohibit the introduction of unsigned reports or copies into evidence; it merely grants a presumption of reliability and authenticity to signed originals, and specifically authorizes their admissibility under the business records exception to the hearsay rule. See Diogostine v. Somers Thin Strip, 3 Conn. Workers' Comp. Rev. Op. 139, 282 CRD-5-83 (Jan. 22, 1987). Other records may also be introduced into evidence, at least in workers' compensation proceedings, provided that they are reasonably reliable, and an opportunity for cross-examination exists. Id. Still, in order for a trial commissioner to consider the contents of a particular medical report in his decision, that report must be fully admitted as an exhibit in the record, and not simply marked for identification. Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers' Comp. Rev. Op. 341, 343, 1542 CRB-1-92-10 (July 11, 1994), affirmed, 40 Conn. App. 36 (1996). That procedural step was not completed here.
As a result, the trial commissioner should not have relied upon the contents of the reports marked as Claimant's Exhibits 10, 11 and 12 in his factual findings. Id. Specifically, the contents of findings 13-18 must be vacated, and this matter remanded to the trial commissioner so that this evidentiary oversight may be corrected in some manner. We note that this defect does not implicate the trier's ruling that the claimant's out-of-state medical treatment was authorized, as that finding was based upon evidence extraneous to the contents of the medical reports in question. Also, the trier's finding that the claimant has been either totally or partially disabled since the date of injury should be vacated, and additional evidence taken to ascertain the exact dates of those two types of disability. Indeed, the trier himself correctly anticipated the necessity of this step in ¶ B of his Finding and Award.
The trial commissioner's decision is affirmed in part, and reversed in part, with additional proceedings to be held on remand in accordance with this opinion.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.