Infante v. Mansfield Const. Co., 16770

• Decision Date: 27 January 1998
• Docket Number: No. 16770,16770
• Citation: 706 A.2d 984,47 Conn.App. 530
• Court: Connecticut Court of Appeals
• Parties: Michael INFANTE v. MANSFIELD CONSTRUCTION COMPANY et al.

Page 984

706 A.2d 984

47 Conn.App. 530

Michael INFANTE v. MANSFIELD CONSTRUCTION COMPANY et al.

No. 16770.

Appellate Court of Connecticut.

Argued Sept. 23, 1997.

Decided Jan. 27, 1998.

Kevin J. Maher, with whom, on the brief, was James D. Moran, Jr., Fairfield, for appellants (defendants).

Janine M. Becker, with whom, on the brief, was Daniel Shepro, Bridgeport, for appellee (plaintiff).

Before FOTI, SCHALLER and FRANCIS X. HENNESSY, JJ.

FOTI, Judge.

The named defendant, Mansfield Construction Company (Mansfield), and the defendant insurance carrier, Zurich-American Insurance Group (Zurich), appeal from a decision rendered by the workers' compensation review board (board) affirming the commissioner's decision denying the defendants' motion to modify, ¹ filed pursuant to General Statutes § 31-315. ² An examination of the board's record discloses the following. In 1986, the plaintiff was employed part-time by Mansfield, which insured its employees through Zurich. On November 19, 1986, the plaintiff, pursuant to instructions from his employer, drove to a parcel of land owned by Mansfield, performed an inspection and while returning home was injured in an automobile accident. Mansfield reported the injury to Zurich and thereafter sent a twenty-six week wage statement indicating that the plaintiff had worked for two weeks before the accident and had earned $500. Zurich computed the plaintiff's compensation rate to be $166.67 per week and began making temporary total disability payments in February, 1987. These payments continued for six and one-half years even though a voluntary agreement had never been completed. On June 26, 1993, Zurich ceased making payments; however, a form 43 notice of contest was never filed. Zurich also failed to pay for certain improvements to the plaintiff's home to accommodate his incapacity, although it had agreed to do so. Payments to the nursing and physical therapy services that were used by the plaintiff at the direction of his physicians were also discontinued, along with payments for the plaintiff's prescriptions and medical bills. The defendants filed a "motion to modify the agreement" and, as an alternative, sought to modify the rate of compensation.

The commissioner found all paid and unpaid charges to be reasonable. He concluded that no credible evidence had been presented to establish that the plaintiff was not in the course of his employment at the time of injury, and he found that the claim had been accepted years earlier and that no credible evidence had been presented to show that there had been a mutual mistake in computing the rate of compensation. The commissioner, therefore, denied the defendants' motion, concluding that the injury was compensable. Thereafter, he ordered payments of $166.67 per week as temporary total disability benefits payable from June 27, 1993, plus cost of living adjustments, to continue until a notice of intention to discontinue or reduce payments, form 36, is approved by a commissioner. He also ordered that all outstanding medical bills were to be paid and that the plaintiff was to be reimbursed for the cost of the improvements to his home, pursuant to the parties' previous agreement. He also awarded statutory interest and attorney's fees ³ pursuant to General Statutes § 31-300.

The defendants claim that the board improperly affirmed (1) the finding of compensability, (2) the award of home modification, (3) the finding of no mutual mistake of fact, and (4) the denial of the motion to modify. We affirm the board's decision.

As a preliminary matter, we note that we ordered the parties to file supplemental briefs addressing the jurisdiction of the workers' compensation commissioner to act in this matter. ⁴ Under the Workers' Compensation Act, the filing of a written notice of claim is a prerequisite to the subject matter jurisdiction of the commission; General Statutes § 31-294c (a) (formerly § 31-294); ⁵ or one of the statutory jurisdictional alternatives must be satisfied. General Statutes § 31-294c (c) formerly § 31-294); ⁶ Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996). The parties agree that while no notice of claim was ever filed, timely or otherwise, the commission had jurisdiction pursuant to one of the jurisdictional alternatives, i.e., the furnishing of medical care for the injury to the employee within one year from the date of the accident. The parties further claim, and we agree, that the commissioner's findings as contained in the record are sufficient to establish that the employer, through Zurich, furnished such care.

"The exception is, no doubt, 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 [for compensation]." Gesmundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947). In the event that a representative or agent of the employer, authorized to send the employee to a physician, does so, that constitutes furnishing medical treatment for purposes of the exception. Id. It is clear that the defendants were not ignorant of the injury, and do not claim to be prejudiced in any way. Even if the employer did not pay for the medical treatment furnished by a physician selected by him, he has "furnished" such treatment within the meaning of the statute if he has sent the claimant for medical treatment, thereby authorizing it. See Kulis v. Moll, 172 Conn. 104, 109, 374 A.2d 133 (1976).

Our review of the record discloses that Mansfield is owned by the plaintiff's son, and, although no specific finding was made that the plaintiff's son sent the plaintiff for medical treatment or actually directed him to receive such, Mansfield acknowledges that it did furnish such treatment and that the defendants actually knew, shortly after the accident, that the plaintiff had suffered an injury that at least may have been the basis for a claim for compensation. "Every presumption which favors the jurisdiction of the court should be indulged." Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973).

"When jurisdiction is possible, and the court has taken jurisdiction over a cause, every presumption supports the judgment which it renders.... This presumption is strengthened by the fact that the parties [did not contest] the jurisdiction of the commissioner." (Citations omitted.) Cuccuro v. West Haven, 6 Conn.App. 265, 268, 505 A.2d 1, cert. denied, 199 Conn. 805, 508 A.2d 32 (1986). "For the presumption of jurisdiction to apply, jurisdiction must be within the possible ambit of the record, and not excluded from it. Stone v. Hawkins, 56 Conn. 111, 115, 14 A. 297 (1888)." Id., at 270, 505 A.2d 1 (Bieluch, J., dissenting).

The Workers' Compensation Act is liberally construed in favor of the employee and is to be interpreted with sufficient liberality to carry into effect its beneficial purpose and to prevent the defeat of this purpose by narrow and technical definition. Bahre v. Hogbloom, 162 Conn. 549, 558, 295 A.2d 547 (1972). Zurich's payment of medical bills for an extended period, under the particular facts and circumstances of this case, constitutes the furnishing of medical treatment. We conclude, therefore, that the commission had jurisdiction over this claim pursuant to the medical treatment exception to § 31-294c (c).

We next set forth our standard of review. The conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Green v. General Dynamics Corp., 44 Conn.App. 112, 115, 687 A.2d 550, cert. granted on other grounds, 240 Conn. 916, 692 A.2d 813 (1997).

The defendants cannot prevail on their first claim that the board improperly affirmed the commissioner's finding that the defendants accepted the compensability of the claim. The board, in affirming the finding of compensability, noted that "Admin. Reg. § 31-296-n2 allows an employer or insurer who doubts the causal connection between employment and injury to make payment without prejudice, so long as both the claimant and commissioner are notified as such, a formal notice of intent to contest liability (Form 43) accompanies such notice, and the payments without prejudice extend not more than six weeks. [No] Form 43 was ever filed in this case. Moreover, [Zurich] stopped noting in February of 1987 that the claimant's payments were being made without prejudice and continued to make such payments for many years afterward. [The commissioner's finding that Zurich had accepted the compensability of the claim] is clearly borne out by the record, and by the commissioner's findings as to the length of time between the injury and the attempt to contest liability."

Our review of the record discloses that, under the facts as found by the commissioner and the circumstances existing in this matter as noted by him, ample evidence existed to support the conclusion that Zurich had accepted the compensability of the claim, thereby waiving its right to contest liability. "Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding.... Intention to relinquish must appear, but acts and conduct inconsistent with intention to [relinquish] ... are sufficient.... Waiver is a question of fact for the trier." (Citations omitted; internal quotation marks omitted.) Soares v. Max Services, Inc., 42 Conn. App. 147, 175, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Because the commissioner's finding that Zurich accepted the compensability of the claim was not clearly erroneous, the board properly sustained the commissioner's decision.

The defendants cannot prevail on their second claim. They argue that they cannot be ordered to pay the bills for certain services furnished the plaintiff and for the cost of improvements to ...