Opinion
CASE NO. 1888 CRB-1-93-11
MARCH 10, 1995
The claimant was represented by John Q. Gale, Esq., Calvocoressi Gale.
The respondents were represented by Ernie Walker, Esq., Assistant Attorney General.
This Petition for Review from the October 28, 1993 Findings of Facts and Award of the Commissioner acting for the First District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.
OPINION
The claimant has petitioned for review from the October 28, 1993 Findings of Facts and Award of the Commissioner for the First District. She claims on appeal that the commissioner improperly failed to grant her Motion to Correct and that he improperly dismissed her claim for failure to give timely notice. We affirm the trial commissioner's decision.
The claimant alleges that she suffered a compensable injury on December 22, 1988, during her employment with the Department of Agriculture. According to the claimant, she was alone in an office with her supervisor during an afternoon office party when he began to unbutton his pants in apparent anticipation of sexual contact. She screamed "No!" to which he replied "Get out . . . bitch!" as she backed slowly out of the office. She claims that he struck her with the office door while she was backing out of the room, and that she subsequently fainted as a result of the assault. Her alleged injuries included a bloody nose, a severe contusion to her left hand, and cracked upper dentures.
The commissioner found that the medical evidence indicated the claimant received hospital treatment for a wrist injury on December 23, 1988, although there was no mention of a work-related incident in the medical reports. This treatment was paid for by the claimant's health insurance. The claimant also alleges that her supervisor later apologized to her over the telephone and gave her $40 toward the replacement of her dentures. The claimant subsequently made an allegation of sexual harassment and aggravated assault to a Department of Agriculture personnel officer and the Department's Affirmative Action Program Manager. Although she provided the latter with a written statement of her injuries on January 11, 1989, she made no further written reports, nor did she otherwise cooperate with either of the aforementioned individuals.
The claimant filed a Motion to Submit Additional Evidence with this Board seeking to introduce a tape recording of her telephone conversation with her supervisor. We denied this motion on June 3, 1994, because the evidence was cumulative and did not meet the standard for admitting new evidence pursuant to Administrative Regulation § 31-301-9.
The claimant was placed on unpaid administrative leave on November 15, 1989, at which time she claims to have been suffering from post-traumatic stress disorder as a result of the assault. Soon after, she was ordered to take a medical leave and actively participate in therapy as a condition of keeping her job. She received treatment for her alleged post-traumatic stress disorder in early December 1989, which was paid for in part by the claimant and in part by her medical insurance. She claims that the disorder had completely incapacitated her by 1992. The claimant's Form 30C was received by the Workers' Compensation Commission on September 27, 1991.
The commissioner found that the claimant had failed to give notice of her claim as required by § 31-294 C.G.S. within one year of December 22, 1988, the date of the alleged injury. He further found that the medical treatment paid for by the employer's regular health insurance did not fall within any exceptions to the one-year filing requirement. The commissioner consequently dismissed the claim, from which the claimant appeals.
We first discuss the claimant's argument that the commissioner improperly dismissed her claim for failure to give timely notice. Section 31-294c(a) C.G.S. requires a claimant to file a written notice of claim for compensation within one year of the date of the accident. As the instant claimant was allegedly injured on December 22, 1988, notice of her claim would have been due by December 22, 1989. She argues, however, that § 31-294c(c) C.G.S. applies to this case. That section provides in part that "[f]ailure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if . . . within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d." We disagree with the claimant's argument.
The commissioner found that the claimant first saw a psychiatrist on December 4, 1989, through the Employee Assistance Program, and that the treatment was paid for in part by the claimant and in part by her health insurance policy. He concluded that this did not constitute the furnishing of medical care under § 31-294c(c). The claimant contests that conclusion, noting that the employer required her to take a leave of absence and obtain therapy as a condition of keeping her job, and that the therapist she saw was recommended by the employer. She relies heavily on Gesmundo v. Bush, 133 Conn. 607 (1947), in support of her argument.
In Gesmundo, the plaintiff's feet froze while he was driving his employer's truck. He informed his employer that his feet were bothering him, and the employer told him to consult a particular doctor, who diagnosed frostbite. The claimant did not file a written notice of claim within one year of his injury. The commissioner concluded that the doctor's treatment had dispensed with the need for written notice. Our Supreme Court affirmed, stating that the exception to the notice requirement was "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." Id., 612. The fact that the plaintiff paid the doctor himself did not alter the situation, as it was the employer's arrangement of medical treatment that made notice unnecessary. The Court concluded that "[t]he commissioner could properly hold that the defendant furnished such treatment within the meaning of the exception in the statute." Id., 612-13 (emphasis added).
Here, in contrast, the commissioner found that the medical treatment paid by the employer's health insurance and the psychiatric treatment ordered by the employer (and paid by the claimant and her insurance) did not satisfy the statutory exception to the notice requirement. It is settled that the payment of medical services by an employer-provided insurance policy is, by itself, insufficient to constitute the "furnishing of medical care" within the meaning of § 31-294c(c). SeeCollins v. Jiffy Auto Radiator, Inc., 9 Conn. Workers' Comp. Rev. Op. 232, 233, 993 CRD-3-90-3 (Oct. 30, 1991), citing Clapps v. Waterbury Iron Works, Inc., 38 Conn. Sup. 644, 648 (1983).
As to the employer-ordered psychiatric treatment, Gesmundo does not require a finding that formal notice is unnecessary to every employer who arranges treatment for a claimant regardless of who pays for the treatment. Rather, it gives the commissioner room to find that an employer's involvement in the treatment of the claimant's injury indicates that the employer was informed "that an injury has been suffered upon which a claim for compensation will or may be founded." Gesmundo, supra, 607.
Here, the commissioner had discretion to decide whether, under the circumstances of this case, the employer's directive to the claimant and its recommendation of a therapist should have been construed as the "furnishing of medical treatment." He was entitled to surmise from the facts surrounding the claimant's leave of absence and psychiatric treatment that the employer should not be deemed to have been aware of the potential workers' compensation claim within the meaning of Gesmundo. We cannot usurp the function of the commissioner by substituting our own factual determination for his. Crochiere v. Board of Education, 227 Conn. 333, 347 (1993); Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). We therefore uphold the commissioner's conclusion that the "medical treatment" exception is inapplicable to this case.
The claimant also contends that the commissioner improperly denied her Motion to Correct. She argues that the facts she set forth were uncontroverted and should have been accepted by the commissioner. These include the circumstances of the claimant's work injury, her symptoms of post-traumatic stress disorder, the phone conversation between the claimant and her supervisor in which he apologized for his behavior, and her supervisor's payment of $40.00 to replace her broken dentures. The commissioner prefaced his original findings regarding these matters with the phrase "the claimant alleged," indicating that he did not accept those allegations as true.
The commissioner is entitled to determine whether the testimony of a witness is believable. Phelan v. Donald Benson d/b/a Benson Construction Co., 1583 CRB-3-92-12 (decided Dec. 20, 1994). We cannot review his conclusions when they depend upon the weight of evidence or the credibility of witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). In the case at bar, it is apparent that the commissioner chose not to credit the testimony of the claimant even though no contradictory evidence was set forth by the respondents. He was in a much better position to judge the demeanor of the claimant and the reliability of her testimony than is this Board, and we must defer to his decision not to accept the claimant's unsubstantiated allegations as facts.
Commissioners Nancy A. Brouillet and Michael S. Miles concur.