CASE NO. 505 CRD-7-87
JUNE 12, 1987
The claimant was represented by William F. Askinazi, Esq., Cohen and Wolf, P.C.
The respondent was represented by Joseph R. Carvalko, Esq., Dice, Miniter Carvalko, P.C.
This Petition for Review from the Commissioner of the Seventh District's February 10, 1987 Finding and Award was heard April 24, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Frank Verrilli.
FINDING AND AWARD
The Finding and Award of the Seventh District Commissioner is affirmed and adopted as the Finding and Award of this tribunal.
Claimant filed a written Notice of Claim for Compensation (Form 30-C) February 21, 1986 alleging a "Spine/Disc/Injury" which occurred on December 2, 1985.1 The Form 30-C was sent by certified mail and was received by the respondent. No written Notice of Intent to Contest Liability was filed by the employer within the twenty (20) day period required under Sec. 31-297(b) C.G.S. Therefore, the Seventh District Commissioner granted claimant's Motion to Preclude. As part of his February 10, 1987 Finding and Award, he noted that all of claimant's medical and hospital bills were paid by the claimant's major medical insurer with one exception Claimant's appeal asserts that he was entitled to an order for payment of $8,653.75 in medical bills paid by his major medical insurance carrier; the employer's appeal claims error in granting the Motion to Preclude.
A bill in the amount of $447.00 from West Cedar Neurological Scanning P.C., 74 West Cedar St., Poughkeepsie, N.Y. 12601.
The respondent-employer argues he should not be precluded from contesting liability for failure to file a Notice of Intent to Disclaim Liability (Form 43) within twenty days as there was fraud in the making of the claim; consequently, the respondent should not be foreclosed by the conclusive presumption of Sec. 31-297(b). To prevail on that argument, counsel must prove the factual allegations of fraud. The trial Commissioner's Finding and Award contains no such finding. Hence, the evidence presented by the respondent was not sufficient to persuade the Commissioner.
"COMMISSIONER: Let's bring this into focus and if I'm wrong I'll stand corrected. There is a Motion to Preclude that has been granted. We are way beyond that now and we seem to be in a very touchy situation of fraud in the making of claim." September 24, 1986, p. 169; see also TR. October 28, 1986, p. 3.
The evidence below was in conflict. We will not substitute our findings for those of the trial Commissioner when the finding depends on the weight and credibility of the witnesses, Adzima v. UAC/Norden Division, 177 Conn. 107, 118, (1979). We, therefore, affirm the trial Commissioner's order the Motion to Preclude. This is not to hold that Sec. 31-297(b) presumption will lie if the evidence proffered sustains allegation of fraud.
With respect to claimant's appeal, it is clear that our statute does not permit the employer or his carrier to benefit from other insurance available to pay claimant's medical bills. Therefore, we remand to the Commissioner to order the employer to pay all medical expenses resulting from the injury.
The appeal of the employer is dismissed, and that of the claimant is sustained. The matter is remanded for further proceedings in conformity with this opinion.
Commissioners Robin Waller and Frank Verrilli concur.