Opinion
CASE NO. 534 CRD-1-86
SEPTEMBER 13, 1988
The claimant was represented by Gerald F. Stevens, Esq., Stevens, Moran, Carroll Carveth.
The respondents were represented by Marjorie Howes Drake, Esq., Naab Danforth.
This Petition for Review from the November 14, 1986 Finding and Award of the Commissioner at Large acting for the First District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission John Arcudi, and Commissioners Robin and A. Thomas White, Jr.
FINDING AND AWARD
The Commissioner at Large's Finding and Award of November 14, 1986 as affirmed and adopted as the Finding and Award of this decision.
OPINION
Claimant, corporation counsel of respondent-municipality, reported to work May 3, 1984 at the Town Hall and complained to Dr. John Gallivan, a licensed physician and Town Director of Health, of not feeling well. Dr. Gallivan took a history, performed a cardiogram and other tests and immediately referred the claimant to his treating cardiologist. Claimant filed a Notice of Claim July 15, 1985. The Commissioner at Large in his November 14, 1986 Finding and Award held that the Notice of Claim was not time-barred under Sec. 31-294, C.G.S. as the May 3, 1984 treatment by Dr. Gallivan constituted furnishing medical care. The only issue on appeal is whether the actions of Dr. Gallivan constituted "furnishing medical care" so that a written notice of claim within a year was not necessary under Sec. 31-294.
We agree with the trial Commissioner that Dr. Gallivan furnished medical care, Gesmundo v. Bush, 133 Conn. 607 Carlino v. Danbury Hospital, 1 Workers' Comp. Rev. Op. 219, 25 CRD-7-80 (1982), no error, 1 Conn. App. 142 (1984), cert. denied, 192 Conn. 802 (1984).
In Gesmundo, supra, the employer's superintendent sent the claimant to a doctor who normally attended the injured employees of the employer. Although Gesmundo himself paid the doctor, the superintendent's act in sending the employee constituted furnishing medical care by the employer. In Carlino, supra, the claimant reported at 7:00 a.m. to the hospital's personnel health physician that she had hurt her back the day before. That doctor told her she needed a psychiatrist. The court found that to be the furnishing of medical care. In both cases the requirements of Sec. 31-294 were met.
Sec. 31-294 provides in part: "No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of accident . . . . [i]f . . . an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care . . . no want of such notice. . .shall be a bar to the maintenance of proceedings".
Respondents argue that Gesmundo and Carlino are distinguishable because Dr. Gallivan was the Town Director of Health and as such was not an agent of the town for treating town employees. The argument is reminiscent of that raised by the plaintiff in Panaro v. Electrolux, 208 Conn. 589 (1988), where the employer's nurse was alleged to be acting in an independent contractor status rather than as an employee in her treatment of plaintiff. Here, Dr. Gallivan was a town employee. The trial Commissioner found that on a previous occasion he had treated the claimant. Under the principles of respondeat superior his activities in treating claimant on May 3, 1984 were those of an agent; the knowledge of the agent must be imputed to the principal. At that point therefore the town knew or should have known that claimant suffered from a cardiac condition developing during working hours. Given that knowledge, the holding in Kulis v. Moll, 172 Conn. 104 (1976) does not apply. Clapps v. Waterbury Iron Works, Inc., 38 Conn. Sup. 644 (1983) and Janco v. Fairfield, 39 Conn. Sup. 403 (1983) are also inapposite. Here, the treatment by a town employee cannot be considered too remote from the employer as was the group health plan treatment in those two cases.
The trial Commissioner heard the evidence. He found that Dr. Gallivan as a town employee treated the claimant for his cardiac problem. He found such treatment to be the furnishing of medical care. Those findings had substantial roots in the evidence and were not forbidden by law. Fair v. People's Savings Bank, 207 Conn. 535, 541 (1988) citing Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78 (1947) holds that we as an appellate tribunal have no power to substitute our findings of fact or conclusions of law.
We affirm the decision below and dismiss the appeal.
Commissioners Robin Waller and A. Thomas White, Jr. concur.