CASE ARCHIVES
DECEMBER 2012 UPDATES

Hector Estrella v. Lefco Oil, (WC# 700129272,Commissioner Gregg, Sept. 14, 2012)

The claimant suffered compensable injuries to the back and right knee and claimed that narcotic pain medication taken for his orthopedic injuries caused him to develop a condition of diverticulitis. The trial commissioner, in rejecting the opinions of the treating physician, relied upon the opinions of the respondents' evaluator and even more so, the commissioner's evaluator, a gastroenterologist and found no correlation between the narcotic usage and the intestinal problems. Similarly, the commissioner denied the claim for a hernia condition alleged to have resulted from activities and physical therapy finding that there was insufficient evidence to support the claim. In dismissing the claim the commissioner denied claims of total disability and a claim of permanency to the abdomen. This case was tried by Heather K. Porto, Esq.


NOVEMBER 2012 UPDATES

Arsenault v. City of Shelton, 5679 CRB-4-11-9 (2012)

The Compensation Review Board affirmed an award for Section 31-308a benefits for wage loss post permanency. In doing so in this Heart and Hypertension claim the Board affirmed the trial commissioner's decision to not include a regular retirement pension payment as a credit against benefits due. The CRB determined that the case of Rinaldi v. Enfield, 82 Conn. App. 505 (2004), applied and that the regular pension should not be included in the calculation of benefits due since this was a separate contractual benefit and not a payment made secondary to the work injury. The Board distinguished this case from Iannarone v. State of Connecticut, 4138 CRB-7-99-10 (2001), since in that case credit was given for a disability pension due to the work injury. The bottom line: the Board seems to suggest that regular pensions are not considered in a 31-308a determination but a disability pension may be considered. Although not addressed in this case, a further issue would be whether the disability pension benefit is reduced for any workers' compensation benefits that may be due; if that is the case, then the pension payment certainly cannot be used as an offset for a 31-308a claim. If there is no such offset on the disability plan then a credit or offset by the compensation carrier should be claimed.


OCTOBER 2012 UPDATES

WCC AWW, Max Comp Rate, and COLA Memorandum - September 28, 2012


Lamar v. Boehringer Ingelheim; (AC 33838)(October 30, 2012)

This case involved a Motion to Preclude. A Form 43 denying the claim was filed before the 30C. Once the 30C was filed a second Form 43 was filed listing specific body parts noted in the 30C. The claimant argued the second Form 43 was untimely (filed more than 28 days) and lacked sufficient specificity. The Appellate Court affirmed the CRB's decision that the respondents properly denied the claim. The Appellate Court opined the claimant had properly been served via certified mail with the first Form 43 although it went unclaimed. Second, the Court opined that the respondents' language that it was defending the claim on the basis that the injury did not arise out of or in the course and scope of employment was sufficient. It was noted that the denial made it clear to the claimant that it was contesting the claim even if the date of injury listed on the Form 43 did not cover the entire repetitive trauma period. In conclusion, the Form 43 was sufficient and the respondents were not precluded.


September 2012 UPDATES

Thompson v. J&J Properties & Lawrence & Memorial Hospital; (2nd District, Commissioner Schoolcraft, September 17, 2012)

The issue in this formal is whether absent a formalized agreement can a respondent employer/carrier pay the hospital bills at the "actual cost" of the services versus the "published charges"? The Commissioner fully reviewed the history of hospital billing and regulation and ultimately decided in favor of the hospitals. Specifically, unless there is a contract in place between the parties, the employers and insurers must pay the published charges. This is a decision that could obviously have a major impact and therefore it should be noted that the insurers have appealed this decision. The Commissioner's decision leaves it up to the legislature to change the statute regarding the billing. In addition, the decision seems to contradict the Department of Public Health office of Health Care Access's ruling on the hospital's petition for declaratory ruling dated September 28, 2011.


August 2012 UPDATES

Robin Calendar v. Reflexite Corporation (Appellate Court case released August 7, 2012.)

In this case, the claimant had filed multiple Form 30C's over the years of her employment with the respondents. Some of those Form 30C's had been subject of timely disclaimers. In May 2006, the claimant filed a separate claim alleging a new and distinct injury. The respondent did not file a disclaimer nor commence payment within 28 days. The claimant then filed a Motion to Preclude.

The trial commissioner, as well as the CRB, ruled that the Motion to Preclude should be dismissed. The rationale was that the Form 30C filed in May 2006 alleged a new and distinct injury which did not exist. Rather, the trial commissioner and CRB determined that the injuries alleged in that May 2006 claim were causally related to prior injuries the claimant suffered while in the course of her employment with the respondent.

The Appellate Court reversed the decision of the CRB. They go through an excellent analysis of what a commissioner must engage in when deciding a motion to preclude. The Appellate Court determined that the new notice of claim appeared to allege a new and separate injury with the reported date of injury different from the earlier claims. Because of the fact that the respondent did not file a timely disclaimer nor commence payment within 28 days on this new claim, the Appellate Court felt the Motion to Preclude should have been granted.

This case stands for the proposition that if there are multiple Form 30C's filed, they must be examined individually. If a new and distinct claim is alleged, it would appear as though the Appellate Court is insisting that a new Form 43 disclaimer needs to be filed as well.


JULY 2012 UPDATES

William Dineen vs. Acands, Inc. (CRB case issued July 3, 2012.)

In this case, the Compensation Review Board (CRB) affirmed the trial commissioner's determination which employer and carrier is the responsible carrier under 31-299b. The claimant passed away from mesothelioma and after formal hearing, the trial commission determined that the claimant's last injurious exposure to asbestos products was while he was employed by Cerro Wire & Cable Company. Its carrier, Liberty Mutual Insurance Company, filed a motion to dismiss, which was denied by the trial commissioner.

The CRB conducted an excellent review of the standards for finding a party liable in an occupational disease case. In particular, the CRB engages in a discussion of the finding in Brooks v. Electric Boat Corporation, 585 CRB1-09-8 August 9, 2010, affirmed, 133 Conn. App. 377 2012.

In Dineen, the CRB felt there was substantial evidence supporting the trial commissioner's conclusion that the claimant sustained substantial exposure to asbestos while employed at Cerro Wire. In addition, the CRB goes on to add that the factual determination as to what constitutes "substantial exposure" is a matter for the trial commissioner to decide.


JUNE 2012 UPDATES

In Westport Dental Associates v. Jeffrey Cooper, et al, Pomeranz, Drayton & Stabnick successfully defeated the defendant's Motion to Dismiss. The case was brought against the claimant's attorney, his law firm and the claimant as they refused to pay back the workers compensation lien under 31-293. The argument they made was that the lien had been waived as Westport Dental withdrew from the claimant's case against the tortfeasor. However, Westport Dental had filed lien letters and sought to enforce its lien on that basis. In dismissing the defendant's motion to dismiss the complaint in this action, the court held that the employer can assert its lien on the employee's settlement or judgment against third party tortfeasors even if the employer initially intervened in the employee's case against the tortfeasors and subsequently withdrew its appearance before the parties reached a settlement.


Sapko v. State, 305 Conn 360 (2012)

This decision is likely to be a leading case for years to come, and often cited, regarding issues concerning causation and superseding accidents. The claimant had compensable orthopedic injuries which required him to take Oxycodone; he was also taking Seroquel for an unrelated depression. As a result of an overdose of both drugs the claimant died and his spouse sought death benefits. The Connecticut Supreme Court affirmed the dismissal of the claim finding that the decedent's death was due to a superseding cause, to wit, the overdose of both medications. The Court confirmed that the doctrine of superseding cause remains alive and well in workers' compensation claims in Connecticut. This doctrine holds that if there is an intervening act that in and of itself causes further injury then the primary accident (the compensation claim) may no longer be liable. The Court adopted the "direct and natural result" rule that states that if the injury is the natural and foreseen consequence of a work injury then the claim remains a compensable injury, but if a new unforeseen aggravation causes further injury then the causal link may be cut.

Interestingly, the Court determined that the overdose of Oxycodone, even though prescribed for a compensable injury, was a superseding act; the Court did leave open the possibility, in other cases, that addiction due to narcotic medication for a compensable injury might bring a different result. It appears from the facts that the claimant would not have died but for the Seroquel overdose for the unrelated depression.

The decision also confirmed that the standard of causation in Connecticut Workers' Compensation claims is whether the work accident is a substantial factor; the Court affirmatively used the language "materially and essentially" in addressing what language may be needed to establish causation.

The Court ultimately confirmed that the commissioner is the fact finder re proximate cause issues and that his/her decision will not be overturned unless no reasonable fact finder could have decided the proximate cause issue as the commissioner resolved it.


MAY 2012 UPDATES

Lee and Michaelson v. Empire Construction, et al CIRMA, (File numbers 200176238 (Lee) and 200176484 (Michaelson), May 7, 2012)

In a very lengthy memorandum Commissioner Schoolcraft provides an extensive overview of assigned risk cases and the application of an assigned risk policy issued in another jurisdiction for injuries sustained in Connecticut. The claimants, Lee and Michaelson both sustained serious injuries when they were performing siding work on structures across the street from the University of Connecticut Campus in Mansfield. Lee was a Rhode Island resident and Michaelson was a Connecticut resident both of which were hired by Empire Construction, a Massachusetts company. The decision includes a lengthy review of C.G.S. 31-275(9)(B)(IV) regarding Connecticut jurisdiction over out of state employees. The decision also reviews the Connecticut Supreme Court decision of Stickney v. Sunlight Construction, Inc. 248 CONN. 754 (1999) which addressed whether a Commissioner can determine the existence of workers' compensation coverage. Finally, Commissioner Schoolcraft explained why in his opinion in such a case the Workers' Compensation Commission is allowed to interpret contract language contained in a policy.

Perun v. City of Danbury, 50 CRB-7-11-5 (May 3, 2012)

In this case the Compensation Review Board addresses C.G.S. 31-349(a) regarding apportionment of permanent partial disability. The CRB affirmed the finding of the trial commissioner and concluded that the Respondents had presented inadequate evidence to establish that before the claimed injury there was permanent partial disability that was "paid or payable" due to an earlier injury. The CRB noted that the evidence did not document that the claimant had previously filed a claim under Chapter 568, that a prior claim was accepted and that any permanent partial disability was assigned to an earlier claim. It is interesting to note that the CRB noted that the doctrine of laches could have barred the claimant from attempting to claim permanent partial disability due to an injury that occurred more than 20 years ago.

Legislative News

Senate Bill 353 (Public Act No. 12-77) concerns the Second Injury Fund. The new law will provide the Fund with the ability to file liens or attachments against uninsured employers on whose behalf the Fund has made payment. The law which will become effective October 1, 2012 also makes it clear that the Second Injury Fund can settle claims in which the Second Injury Fund has exposure for cost of living adjustments under Section 31-306 and Section 31-307a. The law will also allow the Fund to settle claims under Section 31-310 in which the Fund has exposure for concurrent employment. The new law does not apparently allow the Second Injury Fund to settle claims involving no insurance in which the Fund is deemed liable under Section 31-355. The law goes into effect on October 1, 2012. The moratorium that has been imposed by the Second Injury Fund regarding settlements will be lifted.


APRIL 2012 UPDATES

Disotell v LVI Environmental Services, Inc., (200173243 Commissioner Engel 4/17/12)

In this case Pomeranz, Drayton & Stabnick was able to successfully defend a claim where the claimant was injured as a result of failing to wear a safety harness. The claimant was an OSHA 30 certified competent person who was aware that when operating a man lift he should wear a safety harness. When performing a job cutting a beam while in a man lift the claimant failed to wear a safety harness; the beam broke loose, hit the arm of the man lift and catapulted the claimant to the ground. The commissioner found that the claimant's failure to wear a safety harness was willful and serious misconduct in violation of General Statutes Section 31-284(a) and dismissed the claim.

Tutunjian v. Burns, Brooks & McNeil (5618 CRB 6-11-1) (3/21/12)

The CRB affirmed a commissioner's ruling that a claimant who was mailing a business letter at the time of the injury had a compensable claim. In this case due to inclement weather the claimant was required to work from home. He had a computer hooked up for work at home and would occasionally work there. Due to a storm the claimant stayed at home to work and was injured while mailing the letter. The CRB affirmed compensability since the claimant had no choice but to work from home that day. The board seemed to suggest that if the claimant had been working from home simply for his own convenience the decision might be different. The CRB concluded that the fact that there was a storm created "special employment circumstances" which caused this case to be compensable.

Legislative News

It appears that bill 5016 that proposed to put the Workers' Compensation Commission in with the Department of Labor is not going to be enacted. Now the discussion is that the WCC would be put under the Judicial Department; this would leave the WCC largely in place with no significant changes. As additional information is received we will provide it to you.


MARCH 2012 UPDATES

Marandino v. Prometheus Pharmacy, 5434 CRB-6-09-2 (2/22/12)

In a decision that took more than a year to decide, the CRB determined that a claimant is entitled to COLA's after five years of total disability benefits regardless if the benefits were paid consecutively or not. The board interpreted General Statutes Section 31-307a(c) to allow for COLA's if a total of five years of TT were paid regardless if the payments were sporadic and not continuous. This was a 2-1 decision with the Chairman dissenting. The board reversed Commissioner Mlynarczyk who had dismissed the COLA claim at the trial level. This case is being appealed to the Appellate Court.

Cuando v Connecticut Stucco et al, 200170365 (3rd district Barton 2/27/12)

In this case Pomeranz, Drayton and Stabnick successfully defended a claim that its client was the employer. The commissioner determined that another employer, Connecticut Stucco, had the right of control of the claimant and, in fact, had hired the claimant. The employer that was found liable was involved in a major construction project in a large apartment complex but he contended he had no employees and only used independent contractors.

Bode v. Connecticut Mason Contractors, 130 Conn. App. 672 (2011), 302 Conn. 942 (cert. denied)

The trial commissioner dismissed the claim for permanent total disability benefits under Osterlund as there was medical support for a work capacity. The CRB affirmed the trial commissioner. The Appellate Court overturned the dismissal and found that the medical evidence and vocational evidence taken together showed the claimant unemployable at least for the periods of time for which he was seeking benefits. The Appellate Court did not go so far as to say the claimant was permanently totally disabled. Part of the commissioner's finding appears to have been based on the fact that the claimant refused shoulder surgery during this time period. The Appellate Court found that refusal of reasonable and necessary medical treatment was an issue to consider under CGS Sec. 31-294c(b) rather than 31-307. The Appellate Court did not overturn the commissioner's dismissal of the claimant's psychiatric claim.

McClain v. Marketstar Corp. 5604 CRB-4-10-11

The trial commissioner awarded the claimant 65 weeks of benefits for scarring to the neck, left shoulder, wrist and arm that were sustained in a motor vehicle accident. However, the statute allows for scarring to the face, neck, head and to other body parts only if it impairs the claimant's ability to find or perform work. In this matter, the claimant testified that her scars distracted others and delayed her work. The CRB found the claimant was able to not only continue in her regular job, but received raises as well. There apparently was no testimony from those who had allegedly been distracted by her scars. The case was remanded to the trial commissioner to award scarring based only on the neck scars.

Burns v. Southbury, 5608 CRB-5-10-11

Claimant sought benefits for hip surgery which she alleged was from her compensable motor vehicle accident. Both her original treating physician and the respondent's examiner agreed the need for surgery was due to the motor vehicle accident. However, a third physician, who originally had done a medical records review although he then became that claimant's treater, opined that the need for hip surgery was due to a pre-existing personal condition that was unrelated to the motor vehicle accident. The trial commissioner agreed with the opinion of the reviewer and dismissed the claim for hip surgery. On appeal, the CRB affirmed the commissioner's discretion to select the medical opinion.

Pringle v. National Lumbar, Inc.

The trial Commissioner denied a Motion to Preclude in a case where liability was not being contested. No Form 43 was filed in response to the claimant's Form 30C. After treatment was authorized and paid for and after the claimant attended an RME, a dispute arose regarding the payment of temporary partial benefits. This prompted the filing of a Motion to Preclude seeking to stop the Respondents from denying any claim for benefits. The Commissioner, in denying the Motion, held that the claim has always been accepted and that the granting of the Motion to Preclude would be contrary to the letter and spirit of our Act.

An appeal has been filed.

Legislative News

Governor Malloy recently submitted Bill Number 5016 which proposes rolling the Workers' Compensation Commission into the Department of Labor. The Executive Committee of the Workers Compensation section of the Connecticut Bar Association voted unanimously to oppose this bill. On February 16, 2012, the president of the Workers Compensation section of the CBA testified in front of the Appropriations Committee of the State Legislature in opposition to the bill.

Pomeranz, Drayton & Stabnick will keep you informed of the status of the bill.


FEBRUARY 2012 UPDATES

A claimant pursued a Motion to Preclude against the respondents in the case of Pringler v. National Lumber, Inc. The facts in this case however confirmed that it was a fully accepted claim and had never been contested. Medical bills were paid within the 28 days and the claimant was simply trying to obtain a preclusion to circumvent the Respondents' defense that he was entitled to temporary partial benefits for a period of time where light duty was offered by the claimant refused. Thus, the trial Commissioner denied the Motion to Preclude and specifically found "the result sought by the claimant is contrary to the letter and spirit of Chapter 568, Workers' Compensation Act, Connecticut General Statutes, Section 31- 294.

Attorney Anne Zovas was the trial counsel on the file.




An old administration regulation comes to light in a preclusion case.

Monaco-Selmer v. Total Customer Service, CRB, 5622 CRB-3-10-12 (January 19, 2012)

The issue on appeal was the trial commissioner's granting of a Motion to Preclude. The facts in this case showed there was not a timely Form 43 filed. The Respondents argued that two advances of $150.00 each were made to the claimant following receipt of the Form 30C within the statutory 28 day period. The trial commissioner rejected the Respondents' position that payments commenced in accordance with Section 294c(b) and the trial commissioner also found the Respondents did not comply with Administration Regulations Section 31-296-2.

This regulation provides: In any case in which the employer or the insurer doubts the fact of accident or the causal relationship between the accident and the disability, but wishes to make payment without prejudice and without admitting liability, he shall notify both the claimant and the Commissioner by letter that payment will be made without prejudice. Such letter shall contain a statement of the average weekly wage, the compensation disability rate, the number of dependent children or stepchildren and the total weekly benefit to be paid. A formal notice of the employer's intention to contest liability (Form 43) shall accompany such letter to protect the Respondents' rights. Payments without prejudice shall be made for not more then six weeks. If, at the end of such period, the employer or insurer has completed his investigation and determines the accident is compensable, a voluntary agreement shall be offered. Otherwise, the employer shall promptly request an informal hearing.

The Respondents argued this regulation was superceded by statute Section 31-294c(b).

The CRB upheld the trial commissioner's decision. The CRB affirmed two payments did not comply with the statute or Harpaz that payments must "commence". The CRB defined the term commence as the start of or continuing course of conduct. The CRB also did not find the preclusion statute to supercede regulation Section 31-296-2 and found the trail commissioner's decision that the respondents did not comply with the regulation was correct.

Thus, we will now see if this case will bring to light regulation Section 31-296-2 and if claimant's counsel begins raising arguments under this regulation.


Volta v. UPS, CRB (1/31/12)

Once again, lesson learned, no 43, no ability to raise causation argument even in a purported statute of limitations/subject matter jurisdiction defense.

This is another preclusion case but this time focused on the Respondents' argument that a statute of limitations defense bars a Motion to Preclude from being granted against the Respondents.

In this case, a Form 30C was field for a repetitive trauma claim with the date of injury listed as the claimant's last date of employment. The Respondents did not timely file a Form 43 or make any payments within 28 days. The Respondents sole defense was that the claimant's last date of injurous exposure was over three years prior to the filing of the Notice of Claim and therefore the Form 30C was untimely. Medical opinions from the treating physician and the IME were submitted to the trial commissioner. These opinions addressed the issue of causation as it pertains to the date of injury. The trial commissioner agreed with the Respondents and found their defense was jurisdictional and she denied the claimant's Motion to Preclude.

The CRB reversed the trial commissioner and agreed with the claimant that the causation defense asserted by the Respondents did not present an issue of subject matter jurisdiction. The CRB relied heavily on the Supreme Court case of Russell v. Mystic Seaport Museum, 252 Conn. 596, 606 (2000). The CRB found that the claimant in Volta sufficiently provided a date certain before which repetitive trauma accrued and the Respondents should have been able to properly investigate the claimant.

The CRB noted that the Respondents set forth valid arguments concerning causation. However, without a timely 43 the Court would not allow the Respondents the opportunity to circumvent the strictures of preclusion by utilizing a statute of limitations analysis in the face of a notice of claim which was sufficient for the Respondents to investigate.


JANUARY 2012 UPDATES

Turrene v. Town of Sterling Board of Education, et al, File #200167463, (November 29, 2011)

In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for an alleged new injury to a claimant's right knee that she claimed to have sustained during physical therapy that she was undergoing for an accepted work-related back injury. The Commissioner found no credible way to reconcile the claimant's allegations of injury with the contemporaneous records taken by her physical therapists and concluded that the claimant failed to prove that she injured her right knee during physical therapy for her accepted back condition. Accordingly, the claim for compensation as a result of an alleged right knee injury was dismissed. The Commissioner, however, did find that the Respondents were responsible for a period of disability related to the accepted back injury. Attorney Heather Porto litigated the claim for the Respondents.

Vaughan v. North Marine Group, et al, File #400060191, (October 24, 2011)

In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for temporary total disability benefits, temporary partial disability benefits and medical treatment. Having heard testimony from the claimant and the claimant's supervisor, the trial Commissioner found the supervisor's testimony to be credible and persuasive. The Commissioner further found that the claimant's testimony was of no value, as it was neither credible nor reliable. Finally, the Commissioner found the medical opinion of the Respondents' independent medical examiner to be more credible and persuasive then the medical opinions of the treating physicians. Attorney Richard L. Aiken, Jr. litigated this claim for the Respondents.

Wargo, Sr. v. Sikorsky Aircraft Corp., et al, File #400068169, (November 1, 2011)

In this case, Pomeranz, Drayton & Stabnick successfully defended a matter involving compensability and medical treatment for an alleged right knee injury. The claimant had previously injured his left knee on 2 occasions and both injuries had been accepted by the Respondents. The claimant offered testimony that following a second left knee surgery, knee that he began overcompensating with his right knee and developed right knee pain and injury.

The trial Commissioner ultimately found that the medical opinion offered by Dr. Kaplan was more persuasive then the treating physician's in that claimant's right knee condition was not due to overuse after 2 left knee surgeries, but rather to osteoarthritis that takes 10 to 20 years to develop. Accordingly, the Commissioner dismissed the claim for right knee surgery. Attorney Richard L. Aiken, Jr. litigated the claim for the Respondents.


DECEMBER 2011 UPDATES

Baron v. Genlyte Thomas Group, et al., __Conn. App.__(2012)

In this case Pomeranz, Drayton and Stabnick successfully defended a death claim based on a defense that the Connecticut Workers' Act did not have jurisdiction over this claim. The decedent was a light salesman with a territory in Westchester County, New York as well as New Jersey. His employer had a home office in New Jersey. The claimant did not have any clients in Connecticut. The claimant was injured in a motor vehicle accident in New York and later died allegedly due to injuries caused by the accident. The claimant's estate contended that Connecticut had jurisdiction over the case since he utilized his home in Ridgefield, Connecticut as an office and received business communication there and occasionally meet with clients in Connecticut. The Appellate Court held that this was a conflict of law issue and stated that the test was whether Connecticut had a significant relationship with the business relationship between the employer and the claimant. The Appellate Court determined that at most Connecticut's relationship with the work was peripheral and therefore Connecticut's Act did not apply. Attorney Jason M. Dodge defended this case for the employer.


NOVEMBER 2011 UPDATES

It should be noted that the Chairman of the Workers' Compensation Commission continues to emphasize that respondent, employers and insurers should be complying with the Payor & Medical Provider Guidelines to Improve Co-ordination of Medical Services issued July 1, 2010 and subject of a reinforcement seminar held June 29, 2011 at the Legislative Office Building.

The Chairman's office continues to monitor activities and is currently in the process of "refreshing" some of the providers on their obligations under those guidelines. Please contact us should you have any questions regarding the guidelines.

Dennis Montenegro vs. Palmieri Foods: The Commissioner issued a favorable decision on issues associated with proposed surgery in which there was surveillance contradicting the claimant's representations of pain and dysfunction. Importantly, the case stands for the proposition that Form 36, once approved, will be subject of credits and/or reimbursements as provided under §31-300. In this case, Form 36 had been pending since July 2008 and during protracted proceedings, the carrier was required to make payment pending decision of the commissioner. Accordingly, the commissioner entered a §31-300 reimbursement order.

Vincenzo Sessa vs. Hartford Hospital: In this case the employer opposed temporary partial claim under §31-308(a).

The claimant had returned to work post injury and was able to perform his usual duties within his injury induced restrictions. As the employer had provided work and the claimant's termination was due to performance issues unrelated to his compensable injury, the temporary partial claim was denied by the trial commissioner.

Arthur Armstrong vs. Country Motor II, Inc.: The Trial Commissioner agreed with the Respondents that a recommendation of surgery post-accident was in fact due to pre-existing condition. The trial commissioner found that the compensable injury of February 24, 2008 was but a temporary aggravation of pre-existing condition. Form 36 filed May 19, 2009 was approved and reimbursement of benefits paid since that date is now being negotiated.

Ana Maisonet vs. Community Renewal Team: This is a case turning on an issue of credibility. The employer's testimony for purposes of defeating claim of alleged injury during the course of employment was found credible by the trier. The case illustrates the importance of documenting comments and discussions between an employee and a supervisor relative to a pre-existing condition which is later alleged to have occurred at work. Those earlier notes were of benefit at time of trial.


OCTOBER 2011 UPDATES

Franklin v. Superior Casting, 302 Conn. 219 (2011)

In an opinion released by the Connecticut Supreme Court on August 30, 2011, the Court upheld the trial commissioner's determination that Connecticut Insurance Guaranty Association (CIGA), pursuant to an insolvent insurance company's obligation as a last insurer on the risk, is initially liable for any payments of benefits due to the claimant. The sole issue the court dealt with was whether §31-299b applies to CIGA when it assumes liability for the obligations of an insolvent workers' compensation insurer that would have been the last insurer on the risk.

CIGA had argued previously in the case of Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997), that Connecticut General Statute §31-299b does not apply to it. In Hunnihan, the Supreme Court found that if a solvent workers' compensation insurer was seeking to apportion responsibility back against prior carriers, one of which was insolvent and, therefore, covered by CIGA, §31-299b did not apply.

In this case, however, the court found that CIGA can be held responsible for payment of benefits due and owing to the claimant if an insolvent insurer is the last carrier on the risk under §31-299b.

The court went on to find that CIGA can then utilize §31-299b and obtain reimbursement from prior carriers their proportionate share.

Thomas Lamar v. Boehringer Ingelheim Corp. and Liberty Mutual

In this case, the Compensation Review Board, in an opinion dated August 25, 2011, upheld the trial commissioner's denial of a Motion to Preclude. This opinion starts out with an excellent discussion dealing with proper service of disclaimers pursuant to Connecticut General Statutes §31-321. The CRB references the statute and the fact that the disclaimer can be served by personal service or certified or registered mail, all of which are equally effective means of perfecting service.

The CRB then goes on to discuss the timeliness and substance necessary for a proper disclaimer/Form 43. The CRB notes that it can be proper for a disclaimer to be filed before the claimant files his Form 30C and that there is case law allowing this practice to be acceptable.

The CRB goes on to state that it can see no rationale for penalizing a respondent for listing a specific injury date in a disclaimer for a repetitive trauma injury when such an occurrence does not invalidate a claimant's claim for benefits. The CRB notes that if there is enough information present in the disclaimer to notify the claimant of the substantive ground for their contest, a Motion to Preclude, which is a harsh remedy, should be allowed or granted.

John Wibli v. McDonald's Restaurant and Gallagher Bassett

In a Compensation Review Board opinion released on September 8, 2011, the CRB upheld the decision of a trial commissioner to bifurcate proceedings and deal with a Motion to Preclude first, before dealing with the case on its merits.

The CRB went on to add that bifurcation of trial proceedings lies solely within the discretion of the trial court and that appellate review is limited to a determination of whether this discretion has been abused.

The CRB essentially left the decision up to the trial commissioner on whether or not to bifurcate proceedings at the time of trial.

SEPTEMBER 2011 UPDATES

Franklin v. Superior Castings, et al; (SC 18501, 8/30/11)

In Franklin v. Superior Castings, et al, SC 18501, the Supreme Court affirmed the decisions of the Workers' Compensation Review Board and the Workers' Compensation Commissioner. The court held that under § 31-299b the Connecticut Insurance Guaranty Association (association) assumes the liability of an insolvent insurer that would have been the last insurer on the risk for a repetitive trauma or occupational disease claim. During the time the claimant was employed from 1963 to 1977 he was exposed to sand dust and chemical fumes. In 2003 after having been diagnosed with silicosis, a timely occupational disease claim was filed. Liberty Mutual Insurance was on the risk from January 1963 through August 13, 1964 and American Mutual Liability Insurance Company was on the risk from August 14, 1964 through October 2007. Sometime after the claimant's employment ended and before the claim was filed American Mutual was declared insolvent. The defendant argued that the Association should not be held liable because there were other solvent insurers that were on the risk during the period of the claimed injury. The Supreme Court concluded that the exhaustion provision of § 38a-845(a) does not apply and that the Association has liability as the last insurer on the risk. The defendants argued that Hunnihan v. Mattatuck Mfg. Co., 243 CONN. 438, 705 A.2d 1012 (1997), a case in which the Supreme Court concluded that a solvent insurer which was the last insurer on the risk could not seek apportionment from the Association under § 31-299b should apply. The court paralleled Franklin to Esposito v. Simkins Industries, Inc., 286 CONN. 319, 943 A.2d 456 (2008) in which the Court found that a self-insured employer that initially was liable for workers' compensation as the last insurer on the risk was permitted to seek apportionment reimbursement from the Association.

Messner v. Dominion Resources and Gallagher Bassett Services, Second District, Commissioner Schoolcraft, 8/11/11

The trial commissioner dismissed the claimant's claim asserted under § 31-303 for 20% penalty interest. The parties entered into a Stipulation that was approved on November 10, 2010. The Stipulation provided that the $125,000.00 settlement amount, "shall become payable within twenty (20) days of approval of the Stipulation by the Workers' Compensation Commissioner." The Respondents issued payment on November 29, 2010. The payment was received by the claimant's attorney on December 2, 2010. The claimant argued that 20% interest was due and owing because the settlement payment was not received within 20 days. The commissioner concluded that the mailing of the settlement check within 20 days of the Stipulation being approved was timely payment for the purposes of § 31-303. Attorney Douglas L. Drayton of Pomeranz, Drayton & Stabnick litigated the case.


AUGUST 2011 UPDATES

Issues with respect to COLA reimbursement from the Second Injury Fund in cases where there is a Social Security Retirement offset and with respect to whether a self-insured employer should be subject to re-apportionment of its share of liability in cases of an insolvent insurer have now been decided by the commission.

In Rayhall v. Akim Co., Inc., 5571 CRB-2-10-7 (July 1, 2011), the Board affirmed the trier's decision that the employer has the full benefit of the Social Security Retirement offset. The Fund had sought to apportion or share the offset in a pro-rata fashion. The Board agreed with our position that the offset is for the benefit of the employer. Any excess offset is applied to reduce the COLA amount ultimately sought as reimbursement from the Fund.

In Lantieri v. Anaconda American Brass, 5579 CRB-5-10-7 (June 28, 2011), the CRB held that a properly self-insured employer should not see its share of liability increased due to the insolvency of its carriers, in cases of occupational disease (or by implication, repetitive trauma) . The §31-299b carrier had claimed a Konovaluk re-apportionment. Our firm argued that the Supreme Court had recognized that self-insured employers were not insurers for purposes of claims under the Guarantee Act and that the same concepts applied here. The Board recognized that the costs associated with insurer insolvency should fall on insurers and not claimants or self-insured employers particularly given that those self-insureds had paid premium for coverage by the now insolvent carrier.

Neither of these cases was further appealed and will serve as guidance to the trial commissioners.


JULY 2011 UPDATES

Recent Decisions:


Shawn St. John v. City of Hartford, First District, Commissioner Engel, 7/6/11

Pomeranz, Drayton & Stabnick successfully defended a claim by a police officer who was injured in an after hours basketball game. The claim was defended under C.G.S. § 31-275(16)(B)(i), the “recreational-social exception” to the definition of injury. The claimant argued that because the event was sponsored by a police organization as part of a convention that involved training and workshops during the day the participation in the basketball game should be deemed part of the claimant’s job duties; and that further the police department derived a benefit from the claimant’s participation in the game. The Commissioner agreed with the Respondents that the claimant’s participation was voluntary and that the game was social or recreational in nature. Attorney Anne Zovas of Pomeranz, Drayton & Stabnick litigated this claim. The claimant has filed a Petition for Review.


Lee Rogers v. Macy’s Logistics & Operations, Inc., First District, Commissioner Walker, 7/14/11

The trial commissioner dismissed a claim of multiple traumatic injuries. The claimant alleged compensable injuries as a seasonal warehouse worker for the Respondent. The claimant claimed that a rack on wheels that he was pushing was struck by another stock worker operating a motorized picker truck. The Respondents presented testimony from six co-workers to challenge the credibility of the claimant’s allegations. The Commissioner did not find the claimant to be credible but did find witnesses of the Respondent to be credible and dismissed the claim. Attorney Anne Kelly Zovas of Pomeranz, Drayton & Stabnick litigated this claim.


Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (July 19, 2011)

In this case the Appellate Court reversed a fine that had been levied by a trial commissioner against an attorney that had come late to a hearing. The fine was issued pursuant to General Statutes Section 31-288 and 31-300 for $100 for being 55 minutes late. The fine was issued without a formal hearing and the attorney appealed the fine to the CRB; the CRB remanded the case to the commissioner and order that a formal hearing needed to be held so that they could have a record to review. The attorney took an appeal to the Appellate Court from the board ruling. The Court used a sufficiency of evidence analysis to determine that the fine had to be dismissed since there was nothing in the "record" to support a finding that the attorney's tardiness was unreasonable or without good cause. Rather than remanding the case to submit evidence on the issue the Court simply dismissed the case. The moral of the story: in order for the commissioner to issue a binding decision he or she better have a record with evidence to support the finding or the decision will be reversed on appeal and not merely remanded.


John Berrelli v. Hamilton Sundstrand, First District, Commissioner Engel, 7/22/11

The Trial Commissioner dismissed this claim of credibility which was defended by Pomeranz, Drayton & Stabnick.

The claimant alleged a fall in the employer’s parking lot while leaving work had caused his knee injury. The Commissioner did not find the claimant or his wife’s testimony to be credible or persuasive and also was not persuaded by the claimant’s allegation as to the alleged defect in the parking lot.

The respondents did not obtain an independent medical examination for an opinion as to compensability, and while the treating physician had supported compensability, the treating physician’s opinion was based upon history as provided by the claimant which was rejected by the Commissioner.

This case was litigated by Attorney Anne Zovas.


JUNE 2011 UPDATES

Recently the Workers' Compensation Section of the CT Bar held their annual meeting at the CT Bar Association's 2011 Annual Convention. Chairman Mastropietro gave his "State of the Union" address regarding our Compensation Commission and left the crowd feeling somewhat dismayed. CT is currently in a budget crisis right now. Governor Malloy attempted to reach a resolution with the State Unions. The proposed resolution was put to a vote and did not pass and therefore the agreement between the State and the Unions was not ratified.

Governor Malloy's next step is to implement his "Plan B". Originally, Plan B called for the elimination of 7500 State jobs. However a recent bulletin showed a reduction of 6,466 State jobs. The Chairman advised that part of the original proposed Plan B called for the closing of 4 Workers' Compensation offices namely, Norwich, Middletown, New Haven and Stamford. (This would have meant that 45 Workers' Compensation Commission employees would have been laid off as well). However, the good news is that the recent bulletin released shows the Commissioner will only layoff 6 employees. Nothing further has been released regarding the closing of any Workers' Compensation offices. Please note, nothing has been finalized to date and the plan continues to take shape as the Legislature continues its special session and the budget is finalized. Stay tuned for further developments, we will keep you posted.

At the meeting the Chairman also advised that the Workers' Compensation Vocational Rehabilitation Program has been taken out of the Commission and now falls under the Department of Social Services Bureau of Rehab Services. The transition was to be done by July 1, 2011 but it has not been finalized yet and is still in the integration phase. The Chairman advised that Vocational Rehabilitation is funded as a pass thru funding by the Commission. Employers are assessed funds which are now passed thru to the Department of Social Services.

It should also be noted that in an effort to go green and minimize costs the Commission is now using a paperless system for all hearing notices. Soon the only way to receive hearing notices will be via email. Our office has already started receiving the emailed notices. Hopefully this transition will go smoothly.


Legislative Update

The Connecticut Legislature recently passed House Bill 6474, "An Act Concerning the Resolution of Liens in Workers' Compensation Cases." This new law is effective July 1, 2011 and amends 31-293. Our office will maintain the position that this law affects the substantive rights of the employer and as such, will apply only to dates of injury on or after July 1, 2011. Please do not assume therefore that the law applies to existing litigation with prior dates of injury as could be suggested by plaintiff's attorneys or claimant's counsel.

Under the new 31-293, liens will be reduced by one-third (1/3) in actions brought by the claimant unless the employer is the State of Connecticut, a subdivision thereof, a public agency or the Second Injury Fund. The statute provides the flexibility to agree to a lesser recovery if appropriate.

The new statute may no longer require intervention by an employer in order to recover the lien. Upon receipt of notice of a third party action, however, a lien letter should be filed within thirty (30) days of notice of the suit to avoid claims that the lien is lost. The best practice is to serve certified lien letters on the tortfeasor and claimant's counsel once aware of a third party suit and within thirty (30) days of notice of a suit under 31-293.

The new legislation is silent on whether the moratorium still applies if there is no intervention. We believe the existing case law will still control and that the moratorium will be allowed in any case in which proper lien letters are filed. Assuming the moratorium is in effect, the moratorium will be greater under the new statute as the reduction in lien inures solely to the benefit of the claimant. We suspect that there will be litigation over these issues.

Section 31-293 still allows for an employer to bring its own action and collect 100% of the lien rather than intervene and be limited to two-thirds (2/3) recovery. This could result in a race to the courthouse and consolidation of cases in which there was significant exposure and good liability as against a third party.

We think that judges could be somewhat frustrated by the new law in that there is a possibility that there would be no lien representative at pre-trials, trial management conferences, and trial, all points when there are likely to be settlement discussions. This could result in increased litigation of cases. We question whether mediations will be productive absent the employer's presence. Most importantly however, by not being involved in the litigation process, the employer may lose an opportunity to settle out the workers' compensation case and its future exposure.

The lack of participation in the litigation process may place the carrier or employer at the mercy of the claimant's attorney's reports as to the status of litigation. The best practice may well be to continue to move to intervene into those cases in which there is substantial exposure or in which a loss of consortium is anticipated.

Another issue yet to be addressed is discovery. If the employer is not involved in the third party litigation we anticipate that the plaintiff and defendant will be seeking information directly from the carrier or employer by way of subpoena or record-keeper depositions which will likely require the appearance of counsel to protect the carrier or employer's interest.

It should be noted that the statute does recognize that the parties can agree on a lesser percentage of recovery. The failure to intervene puts the carrier or employer at the mercy of plaintiff's counsel and his or her representations as to the strength or posture of the case. In those cases in which there is either a significant lien or a significant exposure on the claim, the best practice will be to continue to intervene so as to be able to best protect the lien and mitigate future exposure.

We look forward to any questions that you may have with respect to this important legislative change.




In addition to HB 6474 highlighted above, several other relevant pieces of legislation were passed this session:


P.A. 11-128 (House Bill 6438) - "An Act Concerning Probate Court Operations." Section two provides workers' compensation coverage to Probate Court Judges. The new law amends §31-275(9) to include these elected judges within the definition of employee. Benefits will apparently be paid by the Probate Court Administrative Fund. The law is effective July 1, 2011.


Senate Bill 911 - "An Act Concerning Homemaker Services and Homemaker-Companion Service" (No Public Act number yet assigned) amends §20-670 and requires homemaker and companion services registries to provide notice to the consumer that he or she may be an employer under law (and therefore may be liable for taxes, Social Security, unemployment and workers' compensation and any other applicable payments required by federal or state law). The notice, which must be provided within 7 days after service begins, must also identify the registry as an employer, joint employer, leasing employer, or non-employer as the case may be.

The Act defines registry as any person or entity in the business of referring or placing individuals with a consumer who are either directly compensated in whole or part by the consumer or treated, referred to, or considered by such person or entity as an independent contractor.

The notice must also contain a statement that the consumer should consult a tax professional if he or she is uncertain about these responsibilities. Enforcement is by the Consumer Protection Commissioner who will monitor the notice requirement. The new law is effective January 1, 2012. The new law could provide some evidence of intent as to the employment relationship in those cases of injury by such homemakers.


PA 11-61 (HB 6652) and PA 11-44 (SB 1240) establish and fund the new Bureau of Rehabilitative Services which is within the Department of Social Services for administrative purposes. In consolidating a number of disability based programs, §31-283a is repealed and the responsibility for vocational rehabilitation is shifted from the Chairman to the Director of the BRS. (§47) The Chairman, however, still has the duty to determine that sufficient funding is available. The costs of vocational rehabilitation will still be paid from the WC assessments (§83-85). This Act is effective July 1, 2011 but with a transition not to take place until sometime in October.


Special Act No. 11-4 - "An Act concerning coordination of the Enforcement and Investigation Responsibilities of the Labor Department" provides that the Labor Commissioner review the department's enforcement and investigative responsibilities with a goal of promoting more "timely and efficient action on statutory violations." Workers' compensation requirements and payments are to be part of the review which ultimately will seek to consolidate the Labor Department's investigators.



Recent Decisions:


Ana Maisonet v. Community Renewal Team, First Disctrict (Commissioner Delaney, May 26, 2011)

This was a case of credibility between two fact witnesses. Attorney Stabnick successfully defended the claim for the respondents. The claimant alleged an injury to her left knee while getting into a truck driven by the employer of the Housing Authority. The Housing Authority employee saw the claimant limping on the alleged date of injury and agreed to drive her to deliver mail to her clients. At the formal hearing the Housing Authority employee stated he did not observe the claimant injure her knee nor did she ever notify him of an injury getting into or out of his truck. The Commissioner found the Housing Authority's employee to be more credible than the claimant and dismissed the claim in its entirety.


Dauti v. Lighting Services, INC. 5553 CRB-5-10-5, (April 25, 2011)

In this case, the Compensation Review Board overruled the decision of the Trial Commissioner and determined that the claimant's estate and dependents filed a timely formal request for compensation under §31-294c. The respondents argued that the request for compensation should have been time barred because it was filed more than one year after the date of the accident. However, the CRB concluded the language of §31-294c is "plain and unambiguous", and it grants dependents two years from the date of death to file a claim. Since the claimant's dependent's filed their request for compensation within that two-year period the CRB found the commission had jurisdiction over the claim and remanded the matter to the Trial Commissioner to determine compensability.


John Evensen v. City of Stamford, 5541 CRB-7-10-4, (March 31, 2011)

In this case, the Compensation Review Board decided the issue of whether §31-312 allows an out of state claimant (in this case a Florida resident) to collect mileage reimbursement for travel when he visits Connecticut physicians. This case was a matter of first impression for the CRB. The respondents argued that when a claimant domiciles in a new state that s/he must treat with a physician in that state. On the other hand, the claimant argued that §31-312 entitled him to full reimbursement from the respondents, under the claimant's own terms. The CRB rejected both arguments, stating that neither would be good law or policy. Instead, the CRB held §31-312 places the obligation to provide transportation on the respondents and it is not simply a reimbursement statute. The CRB noted that since §31-312 places the obligation to provide transportation on the respondents, the claimant's position was rejected. The respondents must authorize and agree to the transportation back in Connecticut. The CRB affirmed the Trial Commissioner's orders that the respondents reimburse the claimant for his most recent trip from Florida to Connecticut upon receipt of documentation and that the claimant must use the most inexpensive travel available pursuant to §31-312. This was based on the fact that the Commissioner found the treatment in Connecticut to be reasonable and necessary. The claimant is not forced to select a new treating physician as the Respondents had argued.


Joseph Lumbrano v. Mohegan Sun Casio, 5560 CRB-2-10-6, (June 3, 2011)

The Compensation Review Board affirmed the decision of the Trial Commissioner that the Commission did not have jurisdiction over the claimant's wife's terms of settlement on the loss of consortium claim. The claimant and his wife each reached settlements in their respective third party actions. The claimant reached an agreement with the respondents on a moratorium against his claim for the amount which represented the claimant's net recovery. Subsequently, the respondents withdrew their intervening complaint and requested that the Commission determine their claim against a portion of the claimant's wife's net recovery. The CRB cited to Soracco v. Williams Scotsman, INC., 292 Conn. 86 (2009) as precedent in affirming the Trial Commissioner's decision that the Commission lacked jurisdiction. Thus, it should be noted that an intervener should not withdraw from a civil action until they have reached the agreed upon settlement of any and all claims as there is no recourse before the Commission.


Ware v. City of Hartford, File # 100174024 (June 29, 2011)

In this case Pomeranz, Drayton & Stabnick successfully defended a claim for neck, back, hip, left leg and left foot injuries. The commissioner agreed that there were inconsistencies between the claimant's allegations and the history in the record and dismissed the claim. Attorney Jason Dodge litigated this claim in behalf of the employer.


Blue v. City of Hartford, File #'s 100008712, 100008714, 100008715 (June 23. 2011)

The Commissioner dismissed claims for hypertension, psychiatric injury and low back due to the fact the claimant did not sustain his burden of proof and statute of non-claim issues. The commissioner did find that the respondent was responsible for dental treatment which occurred in the 1980's. Attorney Jason Dodge of Pomeranz, Drayton & Stabnick litigated this claim.


Lopez v. Allegheny Ludlum, File #'s 800110957, 800121770, 800138015 (June 15, 2011)

The Commissioner found that the claimant had compensable bilateral knee injuries and that permanency benefits had already been paid in the cases. The commissioner held that the claimant was capable of full duty work and that no physician was advocating total knee replacement surgery at this time. Attorney Jason Dodge of Pomeranz, Drayton & Stabnick litigated the claim for the respondents.


Maple Mack v. St. Mary's Home, File # 601059697 (May 26, 2011)

Pomeranz, Drayton & Stabnick successfully defended this claim for a left knee injury. The claimant's condition was found to be due to underlying natural degenerative conditions and not the claimed work accident. This case was litigated for the respondents by Attorney Jason Dodge.


MAY 2011 UPDATES

Recent Decisions:

Pettis v. Bayer, 300080637 (Third District, Commissioner Barton, April 14, 2011)

In this case Pomeranz, Drayton & Stabnick successfully defended a motion to preclude in a death claim. The decedent had sustained a compensable back injury on April 4, 2002 and an earlier claim on August 5, 1998. He died on January 17, 2008. A form 30C was sent by claimant's counsel to the employer but not sent to Pomeranz, Drayton & Stabnick as counsel for the respondents. It was alleged a timely disclaimer was not filed. There were alleged deficiencies in the notice including the fact that a form 30D was not used, the date of death was inconsistent in the notice, the original date of injury was not listed on the form 30C, and that respondent's counsel was not sent a copy of the notice. The commissioner concluded that since the original date of injury was not listed on the form 30C it was defective and that a preclusion could not be granted citing Duni v. United Technologies, 239 Conn 19 (1996). This case is on appeal to the Compensation Review Board. Attorney Jason Dodge defended the case for the respondents.

Waller v. Pratt & Whitney, 100176528 (First District, Commissioner Engel, April 15, 2011)

In this case Pomeranz, Drayton & Stabnick successfully defended a hernia claim. The claimant had prior hernia surgery but he alleged that he had a new accident at work on February 10, 2010 causing the need for further surgery. The respondent's contended that the claimant's description of how the injury occurred was inconsistent and that there were medical questions regarding causation. The commissioner dismissed the claim finding that the claimant's testimony was not credible and that causation had not been proven. Attorney Jason Dodge defended the case for the respondents.

WCC Correction To Weekly Benefits For DOI'S 2011
 
APRIL 2011 UPDATES

The payor-provider guidelines have been crafted by the Chairman and a committee. The goal of the Chairman and all practicing in the workers' compensation system is to utilize these guidelines without the need for an additional statutes. Specifically there is a proposed bill the Chairman would not like to see passed into law (See Senate Bill 986) some of which have already been drafted and proposed. Chairman Mastropietro pointed out all of the problems and deficiencies in having this bill become law. He vowed to continue to pursue all parties (Insurers, claimants, Attorneys and Administrators) for compliance with the guidelines in an effort to thwart further unnecessary laws.

The Chairman met with the administrators of medical offices in two sessions (over 150 in attendance). They agreed to follow the guidelines but complained that claims adjusters were either not informed or were ignoring the guidelines.

Now the Chairman will conduct one or two sessions for insurers and administrators to emphasize the guidelines and obtain assurance of compliance. We suspect he will also emphasize the possibility of penalties. Not all penalties involve payment of fines. By way of example, failure to schedule medical examinations within a timeframe may result in either a denial of permission to do so or a bar to the introduction of such medical evidence at a formal hearing.

Payor and Medical Provider Guidelines document
 

MARCH 2011 UPDATES

Douglas Drayton, James Pomeranz, Richard Stabnick, Lucas Strunk, Richard Aiken and Jason Dodge were recently named by Hartford Magazine as "Greater Hartford's Top Attorneys" in the field of workers' compensation. The list of top attorneys was based on Martindale-Hubbell's peer review rating for attorneys who have achieved an AV rating, the highest rating available.


Recent Decisions:

Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717 (2011)

In this case, the Appellate Court affirmed the dismissal of a claim and concluded that the commissioner correctly determined that the claimant was an independent contractor. Although the claimant was paid hourly this was not enough to prove that the claimant was an employee. The Appellate Court noted that factors that supported that the claimant was an independent contractor included that he used his own tools, hired workers to help him do the work, worked without direct supervision, had other side jobs doing similar roofing services, had a general liability policy and received a 1099 form from the alleged employer. The Court concluded that the subordinate facts supported the finding and dismissal. This is a great case to read regarding the factors that may be considered in determining whether a worker is an independent contractor.

Ronnie Hammer v. State of Connecticut (AC32145)

In the matter of State of Connecticut v. Ronnie Hammer, the Connecticut Appellate Court agreed with Pomeranz, Drayton & Stabnick that a superior court judge acted improperly when he rendered judgment in favor of the defendants without affording the parties a trial on the merits of the case.  The underlying case was an inter-pleader action brought by PD&S on behalf of the plaintiff to determine which party should receive the proceeds of a prior settlement of a third party tort action.  When the tort action settled in 2003, the defendant was going to execute a full and final stipulation of her pending workers' compensation claim and the plaintiff was going to allow her to keep the proceeds from the tort action and those proceeds would be disbursed to her when the workers' compensation stipulation was approved.  Defendant reneged on the stipulation and refused to endorse the check from the tort case.  The inter-pleader followed.  Since the defendant was pro se in the inter-pleader action, a series of pre-trials and status conferences were held on the record.  Trial never commenced as the superior court judge was trying to craft an acceptable settlement between the parties.  At the last status conference held, the judge abruptly changed his prior position that the tort check be held in escrow and instead ordered it to be turned over to the defendant immediately.  On appeal, PD&S argued that the judge acted improperly when he made this order as there had not been a trial on the merits of the case before him.  The Appellate Court found that the Practice Book did not permit a judge to dispose of a case at a pre-trial unless it is by settlement, stipulated judgment or withdrawal.  The case is to be remanded for a trial on the merits.

FEBRUARY 2011 UPDATES

Looking back at Superior Court cases an interesting verdict survived a Motion to Set-aside in Stamford Superior Court. Specifically, in the case of Socci v. Pasiak, Conn. Law Trib. Vol. 36 #43, P. 25 (October 25, 2010) a verdict was rendered in favor of a plaintiff who suffered only mental injuries during a robbery at her work place. The plaintiff was permitted to sue her employer and collect due to the fact that employees cannot collect benefits for mental only claims under the Workers' Compensation Act.


LEGISLATIVE UPDATE

Proposed Bill No. 387 has been introduced by the republicans to attempt to consolidate various state agencies. Specifically, merging the Commission on Human Rights and opportunities and the Workers' Compensation Commission into the Department of Administrative Services. The proposed bill's statement of purpose specifies "to find efficiency within government in order to provide better service to the citizens of the state".


Recent Decisions:

David Shanks v. Greentree Toyota, 700140255 (7th District, Commissioner Truglia), January 24, 2011

In this case, the claimant sustained a head injury as a result of a laceration from a car door when he fell. The claimant developed a condition of diplopia in his eye and was seeking payment of permanent partial disability benefits for total loss of his eye. The Commissioner after sifting through complex medical testimony concluded that the claimant's diplopia and resulting permanency was not caused by the initial May 17, 2005 injury. The Commissioner based her opinion on the Respondents' examiner and Commissioner's examiners opinions. Thus, Pomeranz, Drayton & Stabnick successfully defended the claim for $88,000.00 worth of permanent partial disability.

James Tabak v. Sikorsky Aircraft Corporation, 400066466 (4th District, Commissioner Barton), January 4, 2011

The issue at the formal hearing was whether the claimant's current and prior cervical condition were causally connected to his May 3, 2006 injury. Attorney Richard Aiken of Pomeranz, Drayton & Stabnick was able to successfully maintain the position that the claimant suffered only a temporary and self-limiting aggravation of an underlying neck and right upper extremity condition. The Commissioner did not find the claimant to be credible and he credited the opinion of the Respondents' examiner over the treater and dismissed the claim.

Rizzo v. State of Connecticut/Judicial Dept., 3522 CRB-6-10-1, (January 10, 2011)

This is the first CRB decision applying Ciarlelli v. Hamden to hold a § 5-145 a claim was timely. The CRB upheld the Commissioner's finding that a diagnosis of hypertension did not start the running of the statute of non-claim for a subsequent heart attack. The CRB also upheld the Commissioner's finding that evidence of prior heart symptoms and hypertension was not sufficient to rebut the presumption of compensability under the statute. The CRB noted that the Commissioner's decision was supported by persuasive medical testimony that a patient is not considered to have coronary artery disease until atherosclerosis progresses to the point of producing symptoms.

Kehoe v. Berman and Russo, (file number 100175662 Comm. Schoolcraft, January 14, 2011)

Pomeranz Drayton & Stabnick successfully defended this repetitive trauma claim. The claimant had previously had a claim for traumatic back injury dismissed by Commissioner Delaney (see archives and decision 10/4/09). The claimant sought to have a second bite at the apple and re-filed for an alleged "new" injury to the same back based on repetitive trauma theory. The second district commissioner granted the motion to dismiss of the employer regarding the repetitive trauma claim concluding that the claimant had the opportunity to pursue the claim previously and cannot attempt to re-litigate the same case.

St. Paul Travelers Companies, Inc. v. Sylvia Kuehl et al, __Conn.__ (SC 18387 January 5, 2011)

After a long and tortured history this workers' compensation claim has finally come to an end. The case began with a timely claim by Guenther Kuehl that he sustained a compensable motor vehicle accident on June 26, 1991; the claim was denied by Travelers as the workers' compensation carrier. Guenther died in November 1992 allegedly due to injuries sustained in the accident. Prior to his death Guenther pursued a third party claim; after his death Guenther's wife, Sylvia, was substituted for Guenther in the third party action as executrix of Guenther's estate. Although Sylvia became involved in the third party action she failed to timely file a workers' compensation widow's claim for benefits under General Statutes Section 31-306. Eventually in 1998 Sylvia did pursue a claim for widow's benefits but that claim was dismissed by the Connecticut Supreme Court in Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn 525 (2003), based on a finding that the claim was not timely filed. Thereafter, Sylvia pursued a legal malpractice claim (Kuehl v. Koskoff, JD Stamford-Norwalk, CV-99-0171076-S) against her attorneys in the third party action stating that she should have been advised that she was required to file a widow's claim in addition to the claim filed by Guenther for workers' compensation benefits. The legal malpractice claim was filed notwithstanding the fact that her attorneys had obtained $1,000,000 recovery in the third party action in Sylvia's behalf.

In the legal malpractice claim the defendant law firm at the pretrial stage stated that it could convince the legislature to pass a statute that would allow Sylvia to proceed with the workers' compensation widow claim despite the prior dismissal by the Supreme Court; by doing so it was hoped by the defendant firm that the malpractice claim would then be moot. Incredibly, the law firm was able to get the statute passed that allowed a widow's claim to be re-filed if you had an injury in June 1991 and a subsequent death in November 1992 and your claim had been dismissed by a final judgment. General Statutes 31-294c(d). A new claim was then made by Sylvia pursuant to this statute and Travelers denied liability for the claim arguing that the statute was unconstitutional as a public emolument (statute designed to benefit one person without a public purpose) in violation of article first, section 1, of the constitution of Connecticut. Travelers also contended that the statute was unconstitutional since it applied substantive law retroactively and was a violation of the separation of powers doctrine. Travelers filed a declaratory judgment action in Superior Court and Judge Wagner found the statute unconstitutional as a public emolument. An appeal was taken to the Supreme Court where the defendant argued that the Superior Court judge should not have issued his decision since the claim was not ripe and Travelers had no standing to pursue the declaratory judgment action. The Supreme Court determined that this claim "is one of the rare instances in which an exception to the exhaustion [of administrative remedies] requirement is justified." Accordingly, the Supreme Court upheld the finding that the statute was unconstitutional effectively dismissing (for the second time) the claim of Sylvia Kuehl. This case was pursued in behalf of St. Paul Travelers Companies by Jason M. Dodge and Courtney Stabnick of Pomeranz, Drayton & Stabnick. A video of oral argument of this case can be seen at the CT-N Network at http://www.ctn.state.ct.us/ondemand.asp and inputting the keyword Kuehl.

JANUARY 2011 UPDATES

Recent Decisions:

Francis Churchville, Jr. v. Bruce Daly Mechanical Contractor, Conn. Supreme Court (12/14/10)

In this case the Connecticut Supreme Court upheld a CRB and Commissioner's decision awarding a surviving spouse permanent partial disability benefits subsequent to the claimant's death. The claimant suffered injuries to his right shoulder and lumbar spine and began receiving total disability benefits. He continued to receive total disability benefits until he passed away from unrelated causes on February 28, 2008.

Prior to that date, the claimant had been rated by the treating physician with a 32% permanent partial impairment of the lumbar spine. Another treating physician assigned a 10% permanent partial impairment of the right shoulder. Both physicians indicated that the claimant had reached maximum medical improvement but did not possess a work capacity.

There was an independent medical examination and Commissioner's examination both indicating that the claimant had reached maximum medical improvement with respect to those body parts and had a sedentary work capacity.

The Respondents filed a Form 36 attempting to have the claimant begin to receive permanent partial disability benefits based upon these various ratings. The Form 36 was never acted upon prior to the claimant's death.

It was only after the claimant's passing that the Form 36 was in fact approved. The Commissioner found the dependent widow was entitled to the permanent partial disability benefits.

The Supreme Court found that the claimant was not required to make any affirmative request of permanent partial disability benefits in order for his entitlement to these benefits to vest. The Court concluded that no affirmative request was required and that the right to permanent partial disability benefits vest once a claimant reaches maximum medical improvement.

The Court discussed its opinion in light of the prior decision in McCurdy v. State, 227 CONN 261, 630 A. 2d 64 (1993). In McCurdy the Supreme Court found that if a claimant had requested payment of permanent partial disability benefits prior to his death those benefits would be due and owing. The Court in Churchville indicated that in their interpretation of the McCurdy decision, there was never a suggestion made that an employee's entitlement to disability benefits vest only upon the employee's request for such benefits. Rather, Churchville goes one step further and holds that no affirmative request is necessary and all that is required is an actual rating of permanent partial impairment and the conclusion by a physician that the claimant had reached maximum medical improvement.

This case will certainly have far reaching implications in terms of the claimant's now requesting permanency ratings from physicians even while maintaining that they are permanently and totally disabled from all forms of employment. Under the Churchville scenario, if in fact the rating is assigned by a physician, and the claimant passes away while receiving total disability, the dependent widow would have a right to claim entitlement to those permanent partial disability benefits.

Ciarlelli v. Town of Hamden, 299 Conn. 265 (December 21, 2010)

In this much anticipated case that had been argued in January 2009 and defended by Pomeranz, Drayton & Stabnick, the Connecticut Supreme Court established a new test to be applied in determining when the statute of non-claim begins to run in a "Heart and Hypertension" case pursued under General Statutes Section 7-433c. Firstly, the Court determined that a one year statute applies and not a three year statute as had been argued by the claimant. Secondly, the Court found that the one year statute of non-claim begins to run "only when an employee is informed by a medical professional that he or she has been diagnosed with hypertension." Based on earlier Appellate Court and Compensation Review Board rulings, respondents had won many decisions where the claimant had elevated blood pressure readings and had failed to file a claim at that point; the Ciarlelli decision provides a less strict test regarding application of the statute on non-claim and determines that merely having elevated blood pressure readings on a number of occasions is not sufficient to require an employee to file a notice of claim for compensation under 7-433c. Under the Ciarlelli ruling a physician must tell the employee that he has hypertension in order to start the time running to file a notice of claim. There is one caviat to the above rule found in footnote 18 of the decision; there the Court states that if the claimant were prescribed medication only for hypertension and knew or should have known of the diagnosis of hypertension then that would be sufficient to start the running of the statute of non-claim even if the doctor did not specifically communicate the diagnosis of hypertension to the claimant.

Macon v.Colt's Manufacturing, file # 100130383 (Delaney 11/2/10)

In this case Pomeranz, Drayton & Stabnick successfully defended a wrongful termination/discrimination claim under General Statutes Section 31-290a. The claimant alleged that his termination in 1986 was wrongful and discriminatory but he failed to assert that claim until 2004. The trial commissioner dismissed the claim on the merits and also concluded that the claim was not timely filed. A subsequent appeal to the Appellate Court was dismissed. This case was a companion file to the Compensation Review Board decision in Macon v. Colt's Manufacturing, 55085 CRB-1-09-10 (2010), in which the claimant sought to reopen a stipulation that he had entered into with the Second Injury Fund; that motion to reopen was denied by the trial commissioner and it was affirmed by the Board.

December 2010 Updates:


On November 10, 2010 at the Executive Committee meeting of the Workers' Compensation Section of the Connecticut Bar Association Attorney Richard L. Aiken, Jr. presented contributions of $5,065.00 to both Connecticut Food Bank and Food Share. The donations were the proceeds from the 12th Annual Verrilli-Belkin Connecticut Bar Association Workers' Compensation Charity Golf Event that was held in September of 2010 at Shuttle Meadow Country Club in Kensington. For the past 12 years members of the Workers' Compensation Section of the Connection Bar Association and others that are involved in the Connecticut workers' compensation system participate in the golf outing which is followed by a reception and dinner. Attorney Aiken has been the Chairman of the event since its inception and Attorney Heather Porto is also a member of the event committee.


Decision by a Commissioner:

Jaroslaw Kasprzyk v. Sikorsky Aircraft, 4000024513 & 400024978 (Fourth District, Commissioner Barton, 11/16/2010)

In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for permanent partial disability to the lumbar spine and claim for chiropractic treatment; the trial commissioner found the opinions and testimony of the IME physician to be more credible than the testimony and opinions of the claimant and treating physician. The Commissioner concluded that further chiropractic treatment was palliative and did not constitute reasonable and necessary medical treatment. The Commissioner further found that the claimed permanent partial disability was not causally related to the claimed injuries that the claimant sustained while employed by the respondent-employer.




November 2010 Updates:


Recent Decisions:

Healey v. Hawkeye Construction , 124 Conn. App. 215 (2010)

The Appellate Court reversed a dismissal of this claim on jurisdictional grounds; the Court found that an employment contract was established in Connecticut when the claimant accepted a job offer on the telephone in Connecticut from a New York-based employer. The claimant was a Connecticut resident who accepted the job offer over the telephone in Connecticut to work in another state; the claimant traveled to New York to complete the paperwork for his employment after accepting the job offer. The claimant thereafter was sent to Florida to work where he was injured. Despite never having worked a day in Connecticut, the Court determined that since the employment contract was established in Connecticut that there was jurisdiction to consider the workers' compensation claim here.


PRESS RELEASE:

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Douglas L. Drayton as the "Hartford Area Best Lawyers Workers' Compensation Lawyer of the Year" for 2011.

After more than a quarter of a century in publication, Best Lawyers is designating "Lawyers of the Year" in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the "Lawyer of the Year."

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 17th edition of The Best Lawyers in America (2011) is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.

The lawyers being honored as "Lawyers of the Year" have received particularly high ratings in our surveys by earning a high level of respect among their peers for their abilities, professionalism and integrity.

Steven Naifeh, President of Best Lawyers, says, "We continue to believe - as we have believed for more than 25 years - that recognition by one's peers is the most meaningful form of praise in the legal profession. We would like to congratulate Douglas L. Drayton on being selected as the "Hartford Area Best Lawyers Workers' Compensation Lawyer of the Year" for 2011.




October 2010 Updates:


OCTOBER 1, 2010 ADJUSTMENTS/NEW RATES:

The wages of all workers in Connecticut did not increase and in fact decreased for the second straight year. The new maximum rate under Section 31-309 is therefore $1,134.00 for injuries on or after July 1, 1993. There is no COLA therefore due under Section 31-307a.

On the other hand, however, please note that the average production wage did increase and therefore the new maximum for PPD or TP under Section 31-308 for injuries after July 1, 1993 will be $959.00.

For injuries occurring October 1, 1987 through June 30, 1993 (rate controlled by the average production wage) there will be significant COLA increases. The new maximum for those injuries is $1,438.00 and for those injuries there is a 7.8% COLA. For injuries prior to September 30, 1987 the COLA will be 7.7%.

For a complete list of all rates see the Commission memorandum no. 2010-05.





September 2010 Updates:


Recent Decisions:

Baron v. Genlyte Thomas Group, LLC, 5481 CRB-7-09-7 (8/11/10)

In this case, Pomeranz, Drayton and Stabnick successfully defended a claim for workers' compensation benefits based on a jurisdictional defense. The claimant was injured in a motor vehicle accident while going to a business meeting; the accident occurred in New York and the meeting was to take place in New Jersey. The claimant alleged Connecticut had concurrent jurisdiction in that the claimant alleged that he had a "home office" in Connecticut. The CRB agreed with the commissioner that Connecticut did not have a sufficiently significant relationship or interest with the business to have jurisdiction over the claim.

Jones v. Town of Redding, 296 Conn. 352 (2010)

The Connecticut Supreme Court recently considered whether a workers' compensation commissioner had the authority to modify an otherwise final workers' compensation settlement under C.G.S. 31-315, after it was determined that a mistake of law had been made regarding the claimant police officer's eligibility for benefits under C.G.S. 7-433c, for hypertension. The respondent town and the claimant police officer executed voluntary agreements under C.G.S. 7-433c. It was later determined that the Redding Police Department did not comply with the requirements of C.G.S. 7-433c, and as a consequence the trial commissioner modified the agreement under C.G.S. 31-315, allowing the claimant to maintain benefits under the provisions of C.G.S. Chapter 568, rather than C.G.S. 7-433c. The respondents appealed the decision to the CRB, arguing that the trial commissioner lacked subject matter jurisdiction to modify the original voluntary agreement. The CRB agreed and the matter was reviewed by the Connecticut Supreme Court, which ruled that the party's misclassification of the claimant represented a mistake of law, which did not provide the commissioner with the authority to modify the voluntary agreement under C.G.S. 31-315.

Bassetti v. City of Stamford, et al., 123 Conn. App. 372 (2010)

The Connecticut Appellate Court recently considered an appeal from the CRB, affirming the decision of the trial commissioner dismissing the claimant's claim for benefits for alleged post-traumatic stress disorder. The claimant police officer sustained physical injuries during a high speed car chase and resultant gun battle. After receiving benefits for those physical injuries, the claimant was diagnosed with post-traumatic stress disorder, but was denied benefits for the same. The CRB upheld the trial commissioner's determination that, in order to be compensable pursuant to C.G.S. 31-275(16)(B)(ii), the claimant's post-traumatic stress disorder had to arise from some physical injury suffered during the compensable event, which the claimant failed to prove. The Appellate Court noted that both it and our Supreme Court have interpreted the term "arises from"� in 31-275 (16)(B)(ii) to require a causal relationship between a physical injury or occupational disease and a claimed mental impairment in order for the mental impairment to be compensable under the act. The claimant's argument that he need only show that the mental impairment was "accompanied by" a physical injury, is contrary to both the plain meaning of "arises from"� and prior judicial interpretations of C.G.S. 31-275 (16)(B)(ii) to require a causal relationship between the plaintiff's injury and his disorder.

Russell-Patnaude v. Regional School District #14, 500145113 (Fifth District, Commissioner Salerno, 8/23/10)

In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for surgery; the trial commissioner found in accordance with the IME and the commissioner's examiner that the alleged work injury was not a substantial contributing factor in the claimant's need for the proposed surgery.




August 2010 Updates:


Recent Decisions:

Thomas v. Department of Developmental Services, et al., ____Conn.____ (July 13, 2010)

In this case, the Connecticut Supreme Court took up the issue of whether there is a distinction between and employer's lien under 31-293 and an employer's claim under 31-293. Specifically, the question presented was whether the statutory lien provision entitles the employer to a a credit for future unknown workers compensation benefits (what we commonly call a moratorium). The underlying facts of the case were that the claimant sustained her injury at work, but under circumstances in which a third party might be found legally liable. She did not bring suit against the third party, but, rather, she brought a claim against the third party. That claim was settled before suit. The claimant was on notice of the employer's lien and repaid the amount to date. She then went for further benefits under the Workers Compensation Act. The employer refused, claiming that its lien entitled it to a credit or moratorium to the extent of her net recovery in the third party case. The matter went to a formal hearing in which the Commissioner found in favor of the claimant. The Respondent then appealed to the Compensation Review Board, which reversed the decision of the trial Commissioner, concluding that the lien of the employer encompassed the claimant's net proceeds from the third party settlement. The claimant appealed to the Appellate Court and the Supreme Court transferred the case to itself.

The Supreme Court conducts a very thorough analysis of the statute and prior case law regarding 31-293, notably Enquist v. General Datacom, 218 Conn. 19 (1991), in which it found that the 1951 amendment to the statute allowed for a moratorium against future benefits to the extent of the claimant's net recovery. The Court also takes into account that the legislature has not made any change to that interpretation even though the legislature has made other changes to that statute since the 1991 decision in Enquist. Thus, the court opines, the legislature has concurred with the Court's interpretation. The Court also quotes from the legislative debate on the 1993 changes to the Act for support. The Court goes on to explain that their holding is necessary to preserve the established public policy against double compensation for the same injury and to keep the spiraling costs of workers compensation insurance down. The following quote sums up the essence of their decision:

"Our interpretation of the lien provision as providing coextensive rights of recovery with those provided by the vehicles of intervention and direct action, reduces costs and promotes efficiency by ensuring that an employer will not have to file its own action-and thereby incur unnecessary costs and burden to the judicial system-in order to protect its rights to recover unknown, future benefits." At this point, it remains to be seen whether the legislative will take action to change the Supreme Court's interpretation of 31-293. Until that time, we recommend that intervention still be pursued. However, in those cases where there has been no suit or the time to intervene is gone, there is support for enforcing an employer's lien rights, including the right to a moratorium.




July 2010 Updates:


Recent Decisions:

Joans v. Town of Redding, 296 CONN 352

The Respondent, Town of Redding sought to reopen a Voluntary Agreement accepting the claimant police officer's claim under the Heart and Hypertension Act, Section 7-433C, on the ground that the Town's police department was not a "paid municipal police department"� under the terms of Section 7-433C. The Supreme Court ruled that the agreement could not be reopened, first, because the Motion to Open and Modify under Section 31-315 did not apply to the factual scenario and; secondly, because there was a mistake of law on the part of the Town who sought to modify the agreement. Interestingly, the court agreed that the claim did not qualify under Section 7-433C but still refused to permit the agreement to be reopened.


Legislative Updates:

The legislative session for 2010 has concluded. The session may be notable from the standpoint of workers' compensation for those Bills which did not pass as opposed to those which did.

Much attention was given to three bills. Senate Bill 61 was an act designed to improve the provision of routine examinations or treatment to injured workers. The proposal would have allowed a commissioner, without hearing, to authorize routine examination or treatment as defined within the bill. The bill also made it clear that no pre-approval was required for such care and would have employed a Form 36 procedure in order to contest treatment. The bill also established commissioner jurisdiction over utilization review in an approved medical care plan. The bill ultimately survived a close vote in the Appropriations Committee but never came to a vote in the House.

Running parallel with the legislation, however, was a committee of stakeholders formed by the chairman of the commission. The committee's goal was to establish guidelines addressing most if not all of the concerns raised by the proposed legislation. With the input of all participants on the committee, the guidelines were in fact formulated and are now available at the commission website (www.state.ct.us) and are effective July 1, 2010.

The second bill which attracted a great deal of media attention was Senate Bill 168, "An Act Concerning Workers' Compensation and a Police Officer's Use of Deadly Force on an Animal."� This bill was precipitated by the Stamford police officer who shot and killed the now infamous chimpanzee. The bill passed the Senate but saw no action in the House. It was unclear from media accounts as to whether the officer was seeking indemnity benefits or just medical care. While the focus appeared to be on amending 31-275 subsections 16 and 17, there appeared to be little, if any, discussion of 31-294h. That section provides medical treatment by way of psychological or psychiatric services for officers using deadly force (without reference to person). It would seem clear that the Stamford officer was entitled to medical treatment under that section.

The third bill which garnered a great deal of attention was substitute Senate Bill 334 which sought to amend 31-293 in a manner that would reduce the employer's lien by one-third as a matter of law. The reduction interestingly did not apply to liens pursued by the State of Connecticut or a political subdivision of the state or the Second Injury Fund. The Connecticut Conference Municipalities did raise its concerns with respect to the bill. An amendment was added by the insurance committee which allowed for reduction in the lien only if the employer did not join as a party plaintiff and the provisions relative to the State of Connecticut and Second Injury Fund were deleted. The amended bill also eliminated the language that abated the employer's cause of action if there was a failure to join the suit. It appears that once amended, there was no longer support for passage.


The new legislation signed into law therefore is as follows:

P.A. 10-11 An Act Concerning Interest, Penalties on Late Payment of Assessments to the Second Injury Fund.

This law is an amendment to 31-354(a) to make it clear that the minimum penalty for late payment of assessment is $50.00. Under the current law, it was unclear whether an employer or insurer paid 15% or the $50.00 minimum (effective from May 5, 2010).

P.A. 10-12 An Act Implementing the Recommendations of the Joint Enforcement Commission on Employee Misclassification.

This law amends the penalty provision 31-288 which concerns misclassification of employee. The penalty, rather than a single $300.00 civil penalty, creates increased exposure by providing that each day of a violation constitutes a separate offense and therefore a $300.00 per day civil penalty.

Provisions of the law providing for a Class D felony and stop work orders remain in force and unaffected by the new legislation (effective October 1, 2010).

P.A. 10-37 An Act Concerning Fire Fighters, Police Officers and Workers' Compensation Claims pertaining to Certain Diseases.

This new law effective October 1, 2010 provides Chapter 568 benefits for uniformed members of paid municipal or volunteer fire departments regular members of a paid municipal police department or constable as defined in 31-294i of the General Statutes. Also covered are volunteer ambulance service personnel. The law provides that such workers shall be eligible for benefits for any disease arising out of or in the course of employment including hepatitis, meningococcal, meningitis, tuberculosis, Kahler's Disease, non-Hodgkin's lymphoma and prostate or testicular cancer that results in death or temporary or permanent total or partial disability.

      The law does not contain any presumptions of any sort.

    The Office of Legislative Research Comment is of interest:

         The bill's legal affect is unclear because under current law, any
         disease or injury that is shown to arise out of and in the course
         of an employee's job makes the employee eligible for workers'
         compensation benefits.

One potential benefit of the new law is that in defining the conditions enumerated as diseases a three year Statute of Non-Claim is created. This law will also need be monitored for the introduction presumptions in the next legislative session.

As always, the status of all legislation addressed by committees and/or the legislature during the last session can be checked at the state General Assembly's website: www.cga.ct.gov. The homepage simply allows you to type in the number of the bill for instant access to its history and ultimate disposition.




June 2010 Updates:


Recent Decisions:

Brown v.UTC/Pratt & Whitney, ___Conn.___(June 22, 2010)

In this case Pomeranz, Drayton and Stabnick successfully defended a claim that an injury occurring during a lunch-time walk on the employer's premises was compensable. The Supreme Court affirmed the Appellate Court ruling that the injury occurred during recreational activity and that the case was barred by General Statutes Section 31-275(16)(B)(i).


Butler v. Town of Montville, (Comm Doyle, Decond District 200165489 June 8, 2010)

Pomeranz, Drayton and Stabnick represented the Town of Montville in this case in which the commissioner for the Second District dismissed the claim of the director of parks and recreation for a right knee injury. The claimant alleged a twisting injury to his knee after retrieving some paperwork from his car early in the morning. Surveillance cameras in the town hall, however, did not reveal an accident and in fact showed the claimant leave the premises in his car without any problem. The claimant's testimony at deposition was inconsistent with his formal hearing testimony and the commissioner found the claimant not credible.


Marroquin v. F. Monarca Masonry, __Conn. App.__ (June 1, 2010)

The Appellate Court in this case addressed issues of apportionment and causation and found that the second employer was entitled to reimbursement under Section 31-299b from an earlier employer. The case involved a hernia claim; the first employer had an accepted claim in 2001 with surgery being performed. The claimant had a further onset of symptoms at a second employer in 2004 and had further surgery. The carrier on the risk in 2004 paid the claim but denied that there was any real accident when they were on the risk and sought reimbursement under 31-299b for the benefits that they paid. The first carrier contended that the commissioner had no jurisdiction or power to order reimbursement citing the Hatt v. Burlington Coat Factory case. The Appellate Court concluded that there was no accident in 2004 and that reimbursement was due. The Court noted that an increase in symptoms at work does not necessarily constitute a new accident. The Court distinguished Hatt in that in that case there were two documented separate claims whereas in this case there was only one accident in 2001.


Veilleux v. Complete Interior Systems, Inc., 263 Conn. 463 (June 1, 2010)

In this case the Connecticut Supreme Court reversed the CRB dismissal of a neck injury claim and remanded the case down to the trial level for additional findings as to whether the claimant's neck injury more resembles an occupational disease or an accidental injury. The CRB had dismissed based on a statute on non-claim theory because the claimant had not filed his claim for more than one year from the date of last employment. The plaintiff successfully argued on appeal, however, that the commissioner and the board had failed to consider whether the claimant's alleged repetitive trauma neck injury was more akin to an occupational disease than an accidental injury; the plaintiff wanted the claim to be considered an occupational disease since the notice of claim requirements are more lengthy for occupational disease claims (3 years) than for accidental injuries (1 year). Citing the case of Discuillo v. Stone & Webster, 242 Conn. 570 (1997), the Supreme Court held that such an inquiry needed to be made and reversed the board's dismissal. The issue now becomes this: Can a repetitive trauma neck injury be considered to be more akin to an occupational disease than an accidental injury? We think that the occupational disease statute of non-claim should not be applied but, if it is, then this may weaken statute of non-claim defenses of respondents in these types of cases.


Lopa v. Brinker International, Inc., 296 Conn. 426 (May 25, 2010)

The Connecticut Supreme Court concludes that federal postal workers are not entitled to concurrent income based on postal wages if they are injured in a second job in Connecticut. The Court held that the United States Postal Service is not an employer as defined by General Statutes Section 31-275(10) and therefore concurrent wages per General Statutes Section 31-310 could not be claimed by moonlighting postal worker.




May 2010 Updates:


Recent Decisions:

Roy v. Bachmann, 121 Conn. App. 220 (2010)

In this case, the plaintiff was injured on premises owned by the defendant while in the course of her employment. After collecting workers' compensation benefits under 31-275, et. seq., she then commenced a third party suit against the owners of the property. The defendants moved for summary judgment on the theory that since they, as individuals, were the majority stockholders and officers of the employer corporation, they should receive the benefit of the exclusivity provision of the workers compensation act and be immune from a civil suit. The trial court agreed and granted the summary judgment. On appeal, the Appellate Court reversed the trial court, finding that the trial court misconstrued the facts. It was clear to the Appellate Court that the employer corporation and the individual defendants were 2 different legal entities and the individuals were not permitted to raise the exclusivity provision of the workers' compensation act as a defense to the tort claim against them as land owners.


News:

Has your staff had its Connecticut procedure and law update? PD&S attorneys are continuing their in-house training and new adjuster training. Please contact Lucas Strunk, Esq. or Jason Dodge, Esq. at (860) 657-8000 for details.




April 2010 Updates:


Recent Decisions:

Partlow v. Petroleum Heat & Power Company, 5432 CRB-7-09-2 (2010)

This case may change the date we determine average weekly wages (AWW) and compensation rates (CR). The CRB reversed a ruling of the trial commissioner and determined that the AWW and CR should be based not on the wages as of the date of accident but rather based on the wages as of the date of incapacity. In this case the claimant had a November 2000 date of accident but did not become disabled until he underwent surgery for the injury eight years later iin March 2008. While the CRB acknowledged that the statutory language would seem to indicate that the AWW should be based on the date of accident the Board concluded that case law said otherwise and decided to apply the AWW as of the first date of disability citing Mulligan v. F.S. Electric, 231 Conn 529 (1994) and Moxon v. Board of Trustees of Regional Community colleges, 37 Conn. App. 648 (1995). We think that this is not the last that you will hear of this issue.

Morey v. Electric Boat, Second District 200164603 (Doyle 3/23/2010)

In this trial decision regarding hearing loss, tinnitus and permanent impairment award the trial commissioner found that the AMA guidelines applied and not the ASHA/NIOSH standards. The AMA guidelines do not include in a permanency rating any loss over 3000Hz while the ASHA/NIOSH does; the commissioner adopted the AMA guidelines partly due to expert testimony that the ASHA/NIOSH standard may tend to overcompensate some individuals (elderly and those with genetic predisposition to hearing loss). This decision provides valuable insight into hearing loss cases and should be read by those who handle these types of claims.

Derrane v. Hartford, 295 Conn. 35 (2010)

In this case the Connecticut Supreme Court determined that the City of Hartford was responsible for workers' compensation benefits that were paid to a City of Hartford firefighter injured while fighting a fire in West Hartford. The firefighter was fighting the fire pursuant to a mutual aid agreement between the municipalities. The City of Hartford contended that West Hartford should reimburse it for the benefits that were paid in accordance with General Statutes Section 7-433d; the Court determined that 7-433d did not apply to this situation where there was a mutual aid agreement. As the loaning employer, the City of Hartford was found to be liable under the principles of General Statutes Section 31-292 and 7-310 notwithstanding that the fire was in West Hartford and that municipality benefited from the firefighters services.

Narvaez v. Target Corporation, 100160363 (First District, Commissioner Engel, 3/12/2010)

In this case Pomeranz, Drayton and Stabnick successfully defended a claim for surgery; the trial commissioner found in accordance with the commissioner's examiner and the IME that surgery was not appropriate. Also, a claim for permanency of 17% of the back was reduced to 10%.




February 2010 Updates:


Recent Decisions:

Bode v. Connecticut Mason,   Case No. 5423CRB-3-09-2 (3/13/10)

In this appeal by the claimant, Pomeranz, Drayton & Stabnick was successful in convincing the CRB to affirm the trial commissioner's decision. The issues at trial were whether the claimant could prove he had a valid Osterlund claim, and whether he was improperly refusing medical treatment and whether he had a valid psychiatric injury.

The CRB affirmed the trial commissioner's decision that the claimant was not totally disabled. There was no medical evidence from any of the treaters or IME physician that the claimant was totally disabled and the CRB credited the commissioner's decision to accept the Respondents' vocational expert's opinion that the claimant was employable. The CRB also affirmed the trier's decision that the claimant had demonstrated an unwillingness to proceed with the recommended total shoulder replacement. The CRB agreed there was competent and persuasive medical evidence to confirm the claimant is limiting his recovery by not having surgery. Finally, the CRB affirmed the trier's decision to dismiss the psychiatric claim based on lack of medical evidence.

Crespo v. Bagl, LLC;  CV09-5021661S, J.D. of Fairfield at Bridgeport (Tobin, J.) (12/15/09)

In this civil case, the claimant was an employee of a temporary employment agency but was working on a loading dock controlled by a tenant, Prime Resources. The tenant filed a Motion for Summary judgment against the plaintiff's complaint and argued they were the plaintiff's employer on the date of injury. The plaintiff objected arguing his only employer was the temporary agency. The trial court recognized the dual employment doctrine and found that the tenant served as the plaintiff's employer. Under Section 31-284(a) the tenant/employer was entitled to immunity and the Motion for Summary judgment was granted. This is a case of 1st impressions for the court. Interestingly, the plaintiff did not appeal this decision.

Morneault v. Hamilton Sundstrand,   WC File number 100155605 (Commissioner Engel, 1/26/10)

In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for pain management treatment. The claimant had compensable bilateral elbow and carpal tunnel injuries and had been paid permanency. The Commissioner adopted the opinion of two hand specialists that the ongoing pain management treatment was not reasonable and necessary.


Legislative Updates:

Senate Bill 61

Senate bill #61 is a bill that should be watched closely. The full bill can be found at www.cga.ct.gov.

The basic tenant of the bill is that it proposed that a Form 36 would need to be used to discontinue "routine examination or treatment" which is defined, but not limited to, prescriptions, diagnostics, physical therapy or evaluations. The bill is trying to end the pre-approval process. The Commissioner's are given the power to authorize such treatment if needed at a hearing or without a hearing. It should also be noted there is a section giving "plenany" authority to review medical decisions within approved PPO plans. This has the potential to overrule the established utilization review process. A public hearing to address this bill has not been scheduled by the labor committee.

Senate Bill 334

The intervener reduction bill under Section 31-293 is being resurrected again. Senate bill #334 can be found at www.cga.ct.gov. Essentially, this bill seeks to have the employers right to reimbursement under Section 31-293 automatically reduced by one-third, if the action against the third party has been filed by the employee. The one-third reduction would not apply if reimbursement is sought by the State or Second Injury Fund. This proposal failed last time but is being pushed through again and is obviously supported by the Connecticut Trial lawyers.

SECTION 31-294h (shooting animals v. person)

The brutal chimp attack which occurred in Stamford last year is back in the spotlight. This time having to do with the officer who shot & killed "Travis" the chimp. The officer is suffering from post traumatic stress disorder and made a claim for workers' compensation benefits. His claim is denied by the City under the argument that the current statute, Section 31-294h, does not allow a claim when an officer shoots an animal, it only applies to a person. In order to determine that the statute only applies to deadly force by a person you need to look at Section 31-275(16)(B)(Cii).

Office Chiafari testified at the Labor & Public Employees Committee hearing at the Capital in Hartford on February 25, 2010. His testimony was in support of an amendment to make officers eligible for benefits related to police shootings of an animal threatening serious injury or death. The Labor Committee and the Public Safety and Security Committee passed the bill unanimously. It is expected the bill will be amended in the Senate to limit its use.


Recent Decisions:

Zhuljeta Xhuti v. Timken Company and St. Paul/Travelers Insurance Company ; 500139902 Commissioner Truglia;.

In this case, Pomeranz Drayton & Stabnick successfully defended and the Commissioner found that while the claimant may have suffered a compensable injury involving her cervical spine, she did not sustain her burden of proof that she had suffered any temporary total disability benefits to which she was entitled to indemnity benefits. Furthermore, the claimant was not found to have any permanent impairment and the respondents were only found responsible for future medical care subject to a determination that said medical care was reasonable and necessary. Updated discussions have been recently held and hearings have recently been assigned to discuss the respondents' obligation to disclose video surveillance. While the Connecticut Practice Book outlines the requirements for production of video surveillance, the Connecticut compensation system is designed as an informal and flexible adjudicative system and most, if not all, practitioners do not welcome or accept the adoption of any formal rules or proceedings.

It is a commonly held practice that counsel should not be required to identify or produce the existence of video surveillance prior to its use for several reasons. The first and most obvious reason is that the respondents may choose not to use their surveillance. The second is because the use of the surveillance is part of the respondents' investigation, identification or production of the names of defense witnesses and investigatory material is only applicable if the material deals with "medical documents". The third obvious reason why the video should not be disclosed is because of its use for impeachment purposes. It has been generally held that video surveillance should only be required to be produced after the claimant or the person captured on the video has had his or her testimony memorialized. That seems to be the practice followed among the Commission with the deposing party afforded the opportunity to challenge the validity of the video including its accuracy if and when the video is used for impeachment purposes.


Pleasant v. New Haven Partitions, Inc. , 5th District, 700143265 (Commissioner Mlynarczyk, 1/8/10)

Pomeranz, Drayton & Stabnick successfully defended a claim for a lumbar spine injury resulting in two surgeries. The claimant alleged an unwitnessed accident while working and lifting heavy materials as a union carpenter. The claimant's medical records were void of any mention of a traumatic injury at work. The Respondents submitted evidence that the claimant would not have been doing the work he allegedly performed alone on the date of injury. The Commissioner concluded the claimant's testimony was not credible or persuasive and therefore dismissed the claim in its entirety.




January 2010 Updates:


Recent Decisions:

Morneault v. Hamilton Sundstrand , 100155605 (1/26/10)

Pomeranz, Drayton and Stabnick successfully defended at the trial level a claim for pain management in a carpal tunnel and elbow workers' compensation claim. The trial commissioner found that the proposed treatment was not reasonable and necessary.


Cruz v. Montanez , 294 Conn. 357 (2009)

In Cruz v. Montanez, 294 Conn. 357 (2009), the Connecticut Supreme Court decided the issue of whether the lien under 31-293 was payable to the employer where only non-economic damages were awarded by the jury. Mr. Cruz was working as a landscaper for his employer when he was involved in a motor vehicle accident. His employer, through its insurer, paid indemnity and medical benefits in accordance with the Act. He subsequently brought a third party action and PDS intervened on behalf of the employer. The matter went to trial and the plaintiff did not put in any evidence of economic damages, such as lost time or medical bills. The jury thus awarded the plaintiff only non-economic damages, sometimes referred to as "pain and suffering." The plaintiff then refused to honor the lien, claiming that the employer was only entitled to be repaid its lien from economic damages. In post trial motions, the trial judge disagreed and ordered the plaintiff to reimburse his employer the full lien. Plaintiff appealed to the Appellate Court and the Supreme Court transferred the case. In a well reasoned decision, the Supreme Court noted that there was no distinction in the statute, 31-293, between economic and non-economic damges and held that the employer was entitled to its full lien even if the jury had awarded just non-economic damages.


Marandino v. Prometheus Pharmacy , ___Conn___, (January 26, 2010)

In this case that was defended by Pomeranz, Drayton and Stabnick, the Connecticut Supreme Court upheld a decision awarding total incapacity benefits notwithstanding the fact that the claimant had voluntarily gone on permanent partial benefits previously. The defendants argued that since there was no change in status from the date that permanency began that the claimant could not revert back to total disability. The defendants also noted that the claimant had failed to file a motion to reopen the voluntary agreement for permanency. The Court held that the claimant was entitled to the temporary total benefits since the disability following permanency was "distinct from and due to a condition that is not normal and immediate incident of the loss for which she received permanent partial disability." The Court found that evidence of complex regional pain syndrome, possible additional surgery, a vocational expert stating that the claimant could not work all, showed that the claimant's disability was distinct from what normally would be expected form the injury and therefore the claimant could receive total disability. The Court determined that a motion to reopen was not necessary given the remedial intent of the statute. A concurring opinion stated that the claimant only needed to show that there was a changed disability status in order to make the claim and that the claimant did not have to prove (as the majority found) that her condition was not a normal result of her injury.

The decision also reversed a decision of the Appellate Court which found that a knee injury that had occurred while at home was not due to the accepted elbow injury. The Supreme Court determined that there was sufficient expert testimony/reports in evidence to establish causation. The claimant successfully asserted that a knee injury which had occurred at home while going up stairs was due to the elbow injury since she twisted and was not able to grab the handrail with her injured arm.


Smith v. Federal Express Corp. , 5405 CRB-7-08-112, Dec. 1, 2009

The Compensation Review Board, in this case directed the trial commissioner to utilize the actual date of a Form 36 as the date in which temporary total disability benefits are discontinued. The respondents had attempted to have the Form 36 approved effective date of the medical report itself. The trial commissioner originally agreed with the respondents, but the Compensation Review Board overturned.

The date of the respondents' medical examination was December 6, 2005 and the Form 36 was not filed until January 30, 2007. The Compensation Review Board upheld the decision of Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8, Feb. 5, 1997, which indicates that the earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed.


Jordan v. Reindeau & Sons Logging, LLC , 5388 CRB-2-08-10

The Compensation Review Board in this case upheld a trial commissioner's finding and dismissal. The trial commissioner found that the claimant was an independent contractor and utilized the "totality of the factors" test. The trial commissioner found that under Hansen v. Transportation General, Inc., 245 Conn. 613 (1988), applying the totality of the factors test and finding that the respondent had offered a more persuasive argument led to a conclusion that there was not an employer/employee relationship established.

The trial commissioner found that the claimant was experienced in the line of work he was performing, was capable of doing unsupervised work, that he set his own hours and could come and go as he pleased. The trial commissioner found that the claimant was paid on an hourly basis with no deductions, had his own tools and that the respondent did not have the right to control the means and methods in which the claimant worked.

The Compensation Review Board in this case goes through an excellent analysis of the issues involved in establishing an employer/employee relationship and how it relates to independent contractors.




December 2009 Updates:


Recent Decisions:

Voronuk v. Electric Boat Corporation, et al.

The Connecticut Appellate Court, in the case of Voronuk v. Electric Boat Corporation, et al., confirmed the Workers' Compensation Commissioner and Compensation Review Board dismissal of the claimant's claim for survivors' benefits pursuant to 31-306. Attorney Michael McAuliffe of Pomeranz, Drayton & Stabnick was one of the respondents' counsel that successfully defended the case. In Voronuk the Court concluded that the trial commissioner properly applied the substantial contributing factor test. The decedent was diagnosed with asbestosis in 1986. He died in October 1995. The medical evidence presented on behalf of the claimant-widow at trial was that the decedent's underlying restrictive lung disease associated with asbestos exposure was a contributory factor to his death. The trial commissioner, the Compensation Review Board and the Appellate Court all noted that no physician or medical report opined that the claimed asbestos exposure at Electric Boat and the resulting asbestosis were substantial and/or significant contributing factors in causing the decedent's death. The Court noted that something merely being a contributing factor is not enough to support compensability. The decision contains an extensive review of the "substantial factor" test of causation, which was analyzed in the 2008 Supreme Court decision of Birnie v. Electric Boat.


Magee v. Sikorsky Aircraft Corporation, 400009995 (Commissioner Goldberg, 11/30/09)

Pomeranz, Drayton & Stabnick successfully defended claim for 20% penalty interest asserted pursuant to 31-303. The payment in dispute was issued 13 days after the stipulation approval. It was sent by the respondent to claimant's counsel by Fed-Ex two-day express. Fed-Ex did not complete the delivery until the 21st day after the stipulation was approved. Commissioner Goldberg relied upon the Compensation Review Board Garcia v. Middletown Nissan 2006 decision, as well the agreed-upon language contained in the stipulation, which indicated that the settlement proceeds shall become payable within 20 days.




November 2009 Updates:


Cases of Interest:

The Supreme Court affirmed the Appellate Court's reversal of the trial commissioner in Dinuzzo v. Dan Perkins Chevrolet Geo, Inc., et al released November 10, 2009. The case should serve as a strong statement that the claimant must establish all underlying facts necessary to support a medical opinion on causation of injury. A doctor's conclusionary opinion will not suffice.

In Dinuzzo the claimant was alleged to have died due to a heart attack brought on by inactivity following a back injury. The evidentiary record failed to reveal a diagnosis of atherosclerotic heart disease or witnesses to describe heart attack symptoms. To further confound the expert there was evidence that the claimant's symptoms could have been consistent with interferon usage. There was no evidence that the inability to exercise was as a result of the back injury.

The Court noted that no proper inference of a causal relationship could be drawn from the facts produced and that the claimant therefore had failed to meet his burden of proof.


Recent Decisions:

Kehone v. Berman & Russo, 100167547 (Commissioner Delaney, 10/14/09)

In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for a back injury that was made by a paralegal in a law firm. The paralegal alleged that the injury occurred while carrying a file but the initial medical reports did not document the claim. The Commissioner dismissed the claim based on failure of the claimant to sustain her burden of proof.


Case Law Update:

In the case of Van Hoesen v. Cianbro, jurisdiction under the longshore and Harbor Workers' Compensation Act was successfully challenged. The Administrative Law Judge concluded that the claimant, an ironworker renovating a drawbridge, had failed to establish that the river spanned by the bridge was subject of commercial vessel traffic and that he had failed to establish that covered duties (i.e. Longshore status) had contributed to his bilateral hand condition. The claimant has withdrawn his appeal.




October 2009 Updates:


Recent Decisions:

Brinkley v. Pratt & Whitney, 8th District, file number 800153188 (Comm. Dilzer, October 8, 2009)

Pomeranz, Drayton and Stabnick were able to successfully defend a claim for cervical spine injury based on repetitive trauma theory. In this case the commissioner's examiner, Dr. Murray, initially commented that claimant's condition was due to alleged repetitive trauma at work, however, subsequently Pomeranz, Drayton and Stabnick was able to show that the claimant's work was not repetitive in nature and that the claimant had not provided a complete history to the commissioner's examiner in regard to past non-occupational cervical spine injuries. Dr. Murray changed his opinion regarding causation when he was presented with accurate history of prior non-occupational injuries.


Neville v. Baran Institute of Technology, 5383 CRB-8-08-10  (9/24/09)

This case includes an excellent analysis of how to apply the decision of Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) and C.G.S. Sec 31-349 concerning 2 injuries and 2 carriers. In Neville, the claimant sustained injuries to his cervical spine while working for employer C in 9/94 and 1/99. He underwent surgery to his cervical spine 12/94, 9/02, 11/03, 11/04 and 6/05. He ceased working for C when the company was sold in 2006.

On 3/9/07, he sustained a new injury while at employer B when a panel dropped, bounced off his hard hat and struck his hand. While the carrier for employer B accepted the hand injury, it denied the neck as being causally related to the 3/9/07 incident.

The carrier for C argued that since there were neck complaints following the 3/9/07 injury, their responsibility for the neck was cut off by the new injury. While the dispute between the carriers was pending, the carrier for C paid the medical bills without prejudice and the carrier for B paid indemnity without prejudice.

The claimant's treater testified at a deposition that the 3/07 incident was only a temporary aggravation of a pre-existing condition to the cervical spine and that he returned to baseline within a year of 3/07. Carrier B's IME also agreed that 3/07 was a temporary aggravation of the pre-existing cervical condition.

After a formal hearing, the Commissioner ordered the carrier for employer B to pay all benefits under the Hatt case.

The appeal by employer B followed. The main argument was that the second carrier cannot be saddled with the burden of the second injury when the claimant only suffers from a temporary aggravation of his symptoms. The CRB agreed and reversed the trial commissioner's decision, adding that the trial commissioner cannot rely upon the claimant's subjective testimony as to the condition of his neck, but only upon expert testimony (a doctor) that the second injury created additional permanent disability. In the words of 31-349: apportionment is only proper when the claimant has sustained a disability "which is materially and substantially greater than the disability that would have resulted from the second injury alone."


Sierra v. C&S Wholesale Grocers, Inc., 5370 CRB-1-08-8  (9/23/09)

In this case, the claimant sustained an injury to his lumbar spine and abdomen. He originally was assigned an 8% permanent partial disability rating to his lumbar spine, which was accepted by the respondent and paid. He then sought to include a rating on his abdominal wall, an unscheduled body part. The treating physician for the abdomen assigned a 50% rating and indicated it should be to the lumber spine. However, in his deposition, this doctor testified that he was not qualified to make an assessment to the lumbar spine for an abdominal injury. The CRB affirmed the trial commissioner's holding that the evidence before him was not credible to assign permanency for injuries to the abdominal wall. The decision also discusses his permanent total claim for which there was not enough evidence either.


Rosario v. City of Hartford, First District, (9/3/09)

In this trial commissioner's ruling, Pomeranz, Drayton and Stabnick successfully defended a claim for a knee injury. The claim was dismissed based on credibility issues.


Nicotera v. City of Hartford, 5381 CRB-1-08-9  (9/2/09)

In this case, Pomeranz, Drayton and Stabnick successfully defended a claim for indemnity benefits for a low back injury. The CRB affirmed the Commissioner's ruling that the claim was not well-documented; also, the Commissioner found that an intervening motor vehicle accident was a substantial factor in causing the claimant's disability. This case is now on appeal to the Appellate Court.




September 2009 Updates:


Case Updates:

A technical error by the appellee affords the Appellate Court the chance to reverse the CRB's decision and remand the case when the companion case also decided by the Appellate Court on the same day and involved the same issues was affirmed.

The Appellate Court recently decided two cases involving essentially the same issue with slightly different facts. Both cases involved an appeal by the Second Injury Fund. The essential issue on appeal was an issue of first impression for the Appellate Court. Specifically, the Court needed to decide in both cases the time limitation for an appeal from a decision by the trial commissioner to the Compensation Review Board by the Second Injury Fund pursuant to Section 31-301. In Dechio v. Raymark Industries, Inc., 114 Conn. App. 58 (2009), the Second Injury Fund appealed a trial commissioner's subsequent order and the appellee filed a timely Motion to Dismiss. Since the Motion to Dismiss was timely the Appellate Court affirmed the CRB's decision and the Fund's appeal remains dismissed. However, in Stec v. Raymark Industries, 114 Conn. App. 81 (2009), the appellee did not file a timely motion to dismiss the Fund's appeal and the Appellate Court reversed and remanded the CRB's decision.

The facts in both cases are that the commissioner issued an original operative finding and award against the employer. The employer did not pay the award and a subsequent finding and award was entered against the Second Injury Fund. In both cases, the Fund did appeal within twenty days from the subsequent order but not within twenty days from the operative finding. The Appellate Court held that such an appeal is not timely in light of the fact that the Fund was a party that participated fully in the underlying proceedings that resulted in the issuance of the finding and award and the commissioner's subsequent finding was merely a ministerial act. The key difference in the cases was that in Stec there was not a timely motion to dismiss filed and therefore the Court needed to construe whether 31-301 would allow the Board to hear a late appeal. The Appellate court held that Section 31-301 does not preclude the Board from hearing late appeals, meaning the Board has subject matter jurisdiction to do so when there has not been a timely motion to dismiss filed.

Since Stec was remanded we will wait and see what further decisions may be rendered.


Kernaghan v. Sikorsky Aircraft, (4th District, Commissioner Goldberg) (8/19/09)
The Respondents (through lead counsel Day Pitney and assisted by Pomeranz, Drayton & Stabnick) successfully defended a death claim. The issue was whether the claimant's death due to T-Cell Leukemia (T-PLL) was caused by exposure to benzene and trichloroethylene during the course of his employment. Both parties presented expert witnesses in support of their position. The Trial Commissioner determined that the claimant's expert's theory of how the decedent contracted T-PLL was not credible. The Trial Commissioner found the Respondents' experts to be more credible as well as the testimony of Sikorsky employees regarding the fact that there was no evidence of exposure to the claimed chemicals in the workplace. The Commissioner concluded the claimant failed to prove the decedent was exposed to benzene or trichloroethylene at Sikorsky and failed to prove exposure was the cause of the claimant's death. The case was dismissed.




August 2009 Updates:


Recent Decisions:

Chappell v. Pfizer, Inc. ET AL; AC29442 (7/21/09)
The Claimant-Appellee in this matter worked for a fermentation of years as a chemical operator in the defendant's fermentation department and alleged that he suffered a compensable asthma condition diagnosed on January 31, 2002. The claimant had retired in 1992. The Respondents, while acknowledging that the claimant's asthma was caused by his exposure to airborne organic materials during his employment defended the claim on the basis that the three year statute of limitations for occupational disease claims did not apply and that the claimant was subject to the one year statute of limitations on the basis of a repetitive trauma claim. The Appellate Court, focusing on the causal connection between the claimant's duties of employment and the disease, found that the claimant's employment duties were not common occurrences in most of the working world and were distinctively associated with the claimant's occupation as a chemical operator; and that further, the claimant's specific duties within the manufacturing plant were more likely to cause his disease than other kinds of work within the same facility. The Court concludes, relying upon the case of Estate of Doe v. Department of Correction, 268 Conn, 763 (May 2004). The claimant's particular employment was more likely to cause his asthmatic disease "than with other kinds of employment carried on under the same conditions". Id. Compare Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003) (claim of coronary artery disease was deemed not to be an occupational disease and therefore subject to the one year statute of limitation for repetitive trauma claims. In Malchik, the court found there was no credible evidence supporting that coronary artery disease was related to the claimant's work).


Melillo v. Bayer Corp. (Third District Decision File # 300069011) (7/23/09)
Pomeranz, Drayton and Stabnick successfully defended a claim for late payment of a stipulation and penalty under Section 31-303. Commissioner Cohen found that payment was not late in that the check was issued on the 20th day after receipt of the stipulation; since the stipulation language required that the settlement be "payable" within 20 days of approval the commissioner found the issuance of payment timely even though the claimant did not receive the check until after the 20th day from date of approval of the agreement.


Baron v. Lightolier, (Seventh District Case Commissioner Truglia) (July 10, 2009)
Pomeranz, Drayton & Stabnick successfully defended a death claim based on a jurisdictional defense. The claimant was a salesman for a light company with a sales area in upper New Jersey and Westchester County in New York. The claimant alleges to have worked out of his home in Connecticut where he contended that he had a fax machine, copier and computer. The claimant asserted that he had a "home office" in Connecticut and that at the time that he was traveling to the employer's main office in New Jersey the "going and coming" rule did not apply since he had left from his home office to travel to another business site. The Seventh District Commissioner rejected this argument and found that the claimant failed to show a significant relationship between Connecticut and either the employment contract or employment relationship, citing Burse v. American International Airways, Inc. 262 Conn. 31 (2002). This case probably will be appealed to the Compensation Review Board.




July 2009 Updates:


Recent Decisions:

Hummel v. Marten Transport, Ltd., 114 Conn. App. 822 (June 9, 2009)
This appeal involves a claim that seems to have been litigated forever. The case was previously the subject of a ruling in the Supreme Court in Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007), where the Court remanded the claim for further proceedings for lack of a final judgment. The claim involves the death of a truck driver and whether his widow proved that the employee's work was a substantial factor in causing his death. In the recent ruling the Appellate Court held that the survivor's burden of proof was sustained and that the death was compensable. Additionally, the Appellate Court held that since the defendant had not paid the case while the claim was pending appeal pursuant to General Statutes Section 31-301(f) that the CRB was correct in awarding penalty for 20% of the award pursuant to General Statutes Section 31-303. The defendant's claim that the dependant's award under General Statutes Section 31-306 should be offset by the Social Security offset of General Statues Section 31-37(e) was also denied.




June 2009 Updates:


Recent Decisions:

St. Paul Travelers v. Kuehl, HDD - CV06-4025559-S (Judge Wagner 5/27/09), appeal pending, __ Conn. __.
In a decision rendered by the Honorable Wagner J., JTR, it was held that P.A. No. 05-230 was unconstitutional on the grounds that it creates a public emolument designed solely for the benefit of one individual. Pomeranz Drayton & Stabnick, on behalf of the St. Paul Travelers Companies, filed a declaratory judgment action against the defendant, claiming that P.A. No. 05-236, which allowed a widow to apply for Workers' Compensation benefits retroactively, was unconstitutional as a public emolumenet. The plaintiff further alleged that said Act was unconstitutional in that it impaired the parties contractual rights because it is retroactive in application; and that said Act violates the Separation of Powers Doctrine because it retroactively annulled a prior final judgment of the Supreme Court in violation of the Connecticut Constitution, Art. 2.

The Court found that the St. Paul Travelers Companies was able to set forth sufficient evidence in support of its assertion that the Public Act, in this case, was so narrowly drawn and passed so as to provide a benefit to only one single person, the widow, even though it does not mention her by name. An appeal has been taken by the intervening defendant, Koskoff, Koskoff & Bieder.


Joseph Soracco, et. al. v. Williams Scotsman, Inc. et. al.
In a decision rendered by the Connecticut Supreme Court, it was held that the trial court lacked subject matter jurisdiction to determine whether the allocation of private settlement proceeds was reasonable. On appeal, the intervening plaintiff challenged the trial court's order regarding the allocation of proceeds of a settlement reached between the plaintiff, Joseph Soracco, his wife and the defendant.

The plaintiffs brought a negligence action against the defendant for injuries Mr. Soracco sustained as a result of a fall on October 16, 2001. Mr. Soracco's claim was filed pursuant to C.G.S. 31-293 and his wife's claim, for loss of consortium, was derivative thereof. The Plaintiff was an employee of Manafort Brothers, Inc. (Manafort), who intervened in the plaintiffs' action pursuant to 31-293(a), seeking to recover workers' compensation benefits that it had paid and had become obligated to pay, to Soracco.

Following an unsuccessful mediation attempt with the court, the plaintiffs and defendant reported back to J. Holzberg that a settlement had been reached. The substance of the settlement agreement was that, in exchange for a withdrawal and release, the defendant would pay the plaintiffs $750,000. Plaintiffs' counsel further informed the court that each plaintiff would receive one half of that amount in satisfaction of their individual claims. The intervening plaintiff requested a hearing challenging the reasonableness of the equal division of the settlement proceeds. Judge Holzerg acquiesced and rendered an order that the equal division was reasonable.

The Supreme Court found that Manafort lacked standing to contest the allocation of the settlement proceeds and thus, the trial court lacked jurisdiction to enter its order. The Court concluded that C.G.S. 31-293(a) does not confer standing upon an employer seeking to challenge the allocation of the proceeds of a settlement reached between its injured employee and the tortfeasor. The statute protects employers from such agreements by preserving their rights in the face of such a settlement and providing that they cannot be bound by it without their consent. In other words, if the employee chooses to settle his or her personal injury claim against the tortfeasor, the employer's right to recover its lien and pursue an independent action against the tortfeasor to recover any deficiency on the lien is unaffected. C.G.S. 31-293 does not, however, allow employers to interfere with a settlement reached between its employee and the tortfeasor, nor does it provide courts with the authority to determine the appropriateness of said settlement terms.



Legislative Update:

The regular session of the 2009 Legislature ended 6/3/09. Several bills survived and became law. None of the legislative changes had any effect on benefits. The new Public Acts are as follows:
  • Public Act 09-1 (effective on passage) - An Act Concerning Deficit Mitigation for the FY Ending 6-30-09

    • Section 18 of the bill transferred 4 million dollars from the Workers' Compensation Administration Fund to the General Fund.

  • Public Act 09-2 (effective 4-1-09) - An Act Concerning Deficit Mitigation Measures for the FY Ending 6-30-09

    • Section 12 (j) transferred 3 million dollars from the Workers' Compensation Fund to the General Fund.

  • Public Act 09-76 (effective 10-1-09) (attached) - An Act Concerning Exposure to Infectious Diseases and Emergency Responders

    • This new law requires hospitals to verbally report any diagnosis of infectious pulmonary tuberculosis to the applicable emergency services organization within 48 hours of the diagnosis and in writing within 72 hours after diagnosis. (Includes those who attended, treated, assisted, handled, or transported the patient).

      Any member of an emergency services organization who believes they are exposed to an infectious disease (defined in statute) can report to a designated officer who investigates and if it is reasonable to believe exposure occurred can submit written request for test results to determine presence of infectious disease.

  • Public Act 09-69 (effective on passage) - An Act Concerning Appeals by the Workers' Compensation Commissioners of Decisions of the Judicial Review Council

    • Amends 51-51r to include compensation commissioner (previously judges and magistrates) as one who can appeal decision of the Judicial Review Council to the Supreme Court.

  • Public Act 09-104 (effective from passage) (attached) - An Act Concerning Evidence of Workers' Compensation Insurance for Contractors on Public Works Projects

    • Amends 31-286a by expanding the definition of "sufficient evidence" in the case of renewal licenses or permits issued by the Department of Consumer Protection to include in lieu of presentation of certificate of insurance, the entrance on the renewal form of the name of the insurer, policy number, date of coverage, and a certification that same is true and accurate.

  • Public Act 09-88 (effective from passage) - An Act Concerning Workers' Compensation Premiums and Volunteer Ambulance Companies

    • This new law calls for calculating workers' compensation premiums for volunteer staff based on ambulance usage rather than ambulances owned by municipal or volunteer ambulance services. Usage to be determined by the estimated number of calls responded to annually. New method is to apply to policies issued or renewed on or after 10-1-09.

  • Public Act 09-70 (effective from passage) - An Act Concerning Updates to the Family Medical Leave Act

    • The focus of this act amends 31-51ll to provide relief for families taking care of a member of the U.S. armed forces, National Guard, or reservist. The act, however, also removes the exception that allowed supervisors to view FMLA records and it also specifies that leave taken from private sector work does not run concurrently with a transfer to "light duty" work under the Workers' Compensation Act.
Still alive, but not yet assigned a Public Act number or signed by the governor, is our section's attempt to allow appeals absent a final judgment. Senate Bill 1099- An Act Concerning Certain Appeal Procedures amends 31-301b to allow an aggrieved party to appeal a CRB decision to the Appellate Court whether or not the decision is final within the meaning of 4-183 or 52-263.

You will note that two bills that gained much attention did not become law in this session. House Bill 5249 which created penalties for an employer's "delay of necessary treatment" died in the House. House Bill 6683 which sought to reduce the employer's lien on third party actions by one third was amended so as not to apply to liens of the state, political subdivisions thereof, of the Second Injury Fund. It passed in that form in the House and then died in the Senate.

The legislature of course has scheduled a special session to begin June 4. The expressed purpose is to finish the budget process. The budget proposals both on the democratic side and by the governor should be of note to you as a workers' compensation practitioner. As you know, the eighth district office is slated to be closed and that appears as a cut in both budget proposals. The closing of the eighth district therefore appears to be a given.

The governor's "no tax budget" has been described by her as eliminating some state agencies and consolidating others. She has explained that her budget proposal seeks to provide municipal aid and take into account business and industries' inability to pay more taxes. The governor has also noted that this budget is an opportunity to reshape government and to put our state in a position to thrive when the economy rebounds. She has noted that as neighboring states continue to raise taxes, we have a chance to seize an opportunity to make our businesses and employers more attractive. The governor's proposal seeks to eliminate ten state offices, 70 boards and commissions. At the same time it consolidates ten boards and commissions with other agencies.

As you might anticipate, this reshaping of government and the cutbacks associated therewith have implications for the workers' compensation commission. A democratic proposal, later adopted by the governor, moves all five off-budget agencies into the general fund, which would officially blend our carrier/employer-funded system with those funded by the taxpayers.

As noted above, some $7 million was removed from the workers' compensation system to assist with the balancing of the budget. That appropriation will be made up in the next assessment issued by the treasurer's office. The governor's budget proposal, however, suggests an additional $2 million appropriation in each of the next fiscal years and a $3.6 million reduction in the workers' compensation commission's operating budget in each year.
  • The governor's proposal includes the following:
    • Closing two additional workers' compensation offices (beyond the eighth district)
    • Eliminating vocational rehabilitation
    • Eliminating court reporters
    • Operating expense reduction of $600,000 in each fiscal year 2010 and 2011
    • Suspend funding for pain management protocol study ($75,000)
At present the above are proposals only. Given our economics times, however, one can anticipate that these changes will be subject of serious discussion over the next weeks and perhaps months. The chairman will undoubtedly have the significant task of restructuring the commission to provide services at a level which has greatly improved in recent years. Even with his skillful reallocations, I anticipate that a good number of attorneys will be driving further to get to hearings and that commission staffs in the remaining offices might be more harried resulting in some processing delays.

To the extent that you as a practitioner wish to voice your opinion on any of the proposals you should probably contact your state senator or congressman.

*    *    *    *    *

A postscript on last year's report relative to Public Act 08-61 which created benefits for firemen and policemen hired after 7/1/96. That Act provided benefits under the provisions of Chapter 568 and is effective July 1, 2009. The legislative history and bill analysis suggested that the result of the bill, which created a rebuttable presumption in the case of a cardiac arrest or myocardial infarction during training or attendance at a fire, would be increased claims under Section 7-433C. I reported, therefore, that the assumption was that this would be codified as part of or near 7-433C in the statutes.

In reality, the law was codified at 31-294i and the practitioner should appreciate the implications of placing the legislation in the Workers' Compensation Act.




May 2009 Updates:


Recent Decisions:

Donahue v. Veridiem, (SC 18237) (5/19/09)
The central issue in this case involved whether an employer who is conclusively presumed precluded is also precluded from challenging the claimant's proof through cross examination and submission of a written argument. The Supreme Court while noting that preclusion did not relieve claimants of their obligations to prove their claim by competent evidence went on to opine once a Motion to Preclude is granted the only role an employer can take is to decide whether to stipulate to the compensation claimed. If the employer does not stipulate, the case proceeds subject only to examination by the commissioner. The employer is not permitted to test the claimant's evidence by way of question or argument. The court citing Connecticut General Statutes Section 31-298 noted the legislature vested broad powers to the commissioners and has allowed them to exercise such powers "in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter."


Update:

The Commissioner is to assess and consider attorney's fees on Medicare Set Aside Trust. At a recent meeting of the Workers' Compensation Commissioners, discussions were held concerning whether a Commissioner should consider attorney's fees on Medicare Set Aside Trusts. Some Commissioners feel that a claimant's attorney should not be entitled to receive attorney's fees when a Medicare Set Aside Trust is necessary since the issue is one determined by the Commission on Medicaid and Medicare Services and does not involve any direct benefit to the claimant and is not the result of any work effort or negotiation on the part of claimant's counsel. As anticipated, claimant's counsel are unified in their belief that they should be entitled to fees since they view part of the negotiation process as encompassing the monies which are necessary to fund the Set Aside Trust including potential social security disability ramifications.

A decision was made by the Commission that each case will be treated on an individual basis and the Commissioner may and shall inquire as to what activities or services were provided by claimant's counsel before ruling on the attorney's fees. One of the questions which was raised was whether the fees should be allowed when the Medicare Set Aside Trust is determined or results from the activities paid for by respondents and/or insurance carriers through outside vendors.


Recent Decisions:

McCoy v. Willow Convalescent Home and the Guaranty Fund Management Services. In a decision rendered by the Compensation Commissioner for the Fifth District Office, it was held that the Guaranty Fund Management Service should be required to reimburse Anthem Blue Cross/Blue Shield and other private medical insurers for benefits paid on behalf of a claimant pursuant to 31-299a. The claimant in this case suffered a compensable injury and the insurance company for the employer was deemed insolvent so that Guaranty Fund Management Services took over the administration of the case on behalf of the insolvent insurer.

Anthem Blue Cross/Blue Shield paid medical benefits amounting to $5,068.84. The Guaranty Fund took the position that since it is a non-profit association existing pursuant to CGS 38a-836 and provides a limited form of protection in the event of the insurer insolvency, the Fund's responsibility or exposure is limited to "covered claims" as defined under the Act subject to limitations and exceptions.

CIGA argued that Anthem's reimbursement claim was barred since it is an insurer and therefore not subject to reimbursement under the Act. Anthem claimed that as a health administrator, it was not an insurer-reinsurer since it does not contribute to the Guaranty Fund and the claim is directed against the employer and not the Guaranty Fund as the insurer. The case represents an extension of the Supreme Court decisions in Doucette v. Pomes et al, 247 Conn. 442 and Esposito v. Simken Industries, Inc., 286 Conn. 319.

The Guaranty Fund has taken an appeal and the case will be heard by the Appellate Court and will in all likelihood continue up through the Supreme Court.




April 2009 Updates:


CMS TO BEGIN INDEPENDENT PRICING OF PRESCRIPTION MEDICATIONS

CMS posted a memo on April 3, 2009 announcing that they would begin independently pricing prescription medications for any file received on or after June 1, 2009. CMS stated that "The CMS will not use or recognize any other pricing, discounting or calculation methods when determining the adequacy of prescription drug medications in WCMSA proposals."According to the CMS memo, money for prescriptions will be required "where the WC related injury warrants the need of prescription drugs for the ongoing treatment of the WC related injury." CMS has not provided any details as to how a determination would be made, whether a particular injury warrants the inclusion of money for prescriptions or how CMS would determine which drugs would be required absent a current prescription for the same.

In cases which involve potentially high medication exposure, CMS approval should be obtained prior to the final settlement.


Recent Decisions:

Ernest Abrahamson v. State of Connecticut Department of Public Works

In a Compensation Review Board decision released February 26, 2009, the CRB upheld the trial commissioner regarding payment of interest for of a finding and award. The CRB specifically found that the trial commissioner has discretion when awarding interest pursuant to either C.G.S. 31-295c and C.G.S. 31-300. The CRB goes through an excellent analysis of the distinction between the two statutes and clearly notes that C.G.S. 31-300 is specifically reserved for payment of interest where there has been undue delay and/or neglect on the part of the respondent.

Charles Dellarocco v. Town of Old Saybrook

The Compensation Review Board, in a decision released January 16, 2009, dealt with an issue under C.G.S. 31-312. The claimant was receiving permanent partial disability benefits by way of voluntary agreement and sought further indemnity benefits for visits to a physician for medical treatment and prescriptions. The respondents argued that reimbursements were barred to the claimant during the same periods he was receiving weekly compensation under the voluntary agreement. The trial commissioner found that a claimant receiving weekly permanent partial disability payments remained eligible for indemnity payments and reimbursement under C.G.S. 31-312(a). The trial commissioner further denied the claimant's bid to have appointments with an unauthorized physician and trips to obtain medication reimbursed.

The Compensation Review Board conducted a review of the issue and found that the statute does not permit reimbursement for time spent at medical appointments during a period in which the claimant is receiving weekly compensation. The CRB noted that there is a longstanding precedent that a claimant may not receive two forms of compensation for the same time period. The CRB, therefore, reversed the commissioner's decision with respect to that issue.

The CRB also dealt with the issue of whether the claimant can receive additional indemnity for visits to an unauthorized treater and to have prescriptions filled by that physician. The CRB upheld the commissioner's denial of benefits with respect to that claim.



March 2009 Updates:


Recent Decisions:

Cherloute v. Avis Rent-A-Car, WCC#11165809, 5th District, January 22, 2009

Attorney Richard Stabnick successfully defended a claim for injuries to the claimant's legs, neck and back. The claimant testified that he was run over by a vehicle. The trial Commissioner found that the claimant was not at all credible in the description of the incident. The Commissioner Ruled that the claimant was unable to describe a mechanism of injury that was at all physically possible and he dismissed the entire claim.



February 2009 Updates:


Recent Decisions:

BROWN v. UNITED TECHNOLOGIES CORP., 112 Conn. App. 492 (2/10/09)

Pomeranz, Drayton and Stabnick successfully defended a claim for a lunch-time injury which occurred while the claimant "power-walked" on the employer's campus. The case is Brown v. United Technologies Corp., 112 Conn. App. 492 (2/10/09). The Appellate Court concluded that such activity was exercise and fell within the so-called "social and recreational" exception of General Statutes Section 31-275(16)(B)(i), which bars claims from being compensable if the major purpose of the activity is social and recreational reasons. The statute specifically bars claims which occur at athletic events, parties and picnics but states that other types of recreational activity may be barred as well. The claimant has now requested that the Connecticut Supreme Court hear the case on appeal.



January 2009 Updates:


MEDICARE

We all now have had experience dealing with Medicare when it comes time to settle a case.  We have recently noticed that Medicare is approving zero allocation set-asides in completely denied cases.  The key is to provide CMS (Center for Medicare Services) with a proper history of the claim, including the medical records and documentation which proves no benefits have been paid on the claim.



December 2008 Updates:


HEART and HYPERTENSION

2008 was a year in which several denials of heart and hypertension claims were litigated. A number went on to the Compensation Review Board (CRB) and a group of them has been appealed to the Appellate Court. One however, Ciarlelli v. Town of Hamden has been accepted by the Supreme Court and will be argued in January of 2009. In Ciarlelli, the claimant's physician had found his blood pressure to be borderline hypertensive on multiple occasions between December of 2000 and March of 2003. The Form 30C was filed May 20, 2004. The Commissioner found his notice of claim for compensation late and the CRB upheld the decision. Stay tuned.

SUBROGATION

Another area in which challenges are being made is in the subrogation of the workers' compensation lien. It has long been understood that a lien letter simply puts a third party and the claimant's attorney on notice of the Respondents statutory right. However, there have been some challenges. Recently Pomeranz, Drayton & Stabnick handled a case in which the claimant's attorney was willing to repay the $6,000.00 lien noted in the first lien letter, but not the $80,000.00 the lien had grown to before the third party case settled. The issue resolved on a compromised basis and was stipped without protracted litigation. Another matter challenged by the Second Injury Fund, Thomas v. State of Connecticut, resulted in a CRB decision that upholds this long standing practice. In other words, the Respondent is not limited to the amount specified in the first lien letter. As a corollary, new lien letters are not required every time an additional payment is made.

ECONOMY

As the economy dips down, we can expect more claims and more creative claims. For instance, there has been an increase in the number of companies trying to claim "principal employer" status in third party cases. These usually arise in situations where temporary labor is utilized and the temporary employee is injured. The workers' compensation payments are made through the temporary agency's workers' compensation policy. If the temporary employee brings a third party action against the company where he/she was working as a temp, that company is seeking the protection afforded a principal employer. While existing statute and case law makes clear that the principal employer must have paid the workers' compensation benefits in order to claim the protection, some defense lawyers are trying to make inroads into that, arguing that the money they pay goes to pay workers' compensation premiums and thus coverage should be afforded to them as well.

Another expected result of the declining economy will be the closing of companies. In some cases, Form 30Cs may go to a company that closed within the year a claimant has to give notice. Extra vigilance will be needed to ensure all injuries are known, reported and investigated.

Lastly, requests for full and final Stipulations will likely be up as people are laid off and are seeking additional funds. This may present a good opportunity for Respondents to minimize their exposures.

The legislature has been very quiet. Let's see what they will take up when the new season gets underway.


2008 Cases:


Mleczko v. Haynes Construction Co. (AC29049) (12/23/08)

Attorney Richard Aiken of Pomeranz, Drayton & Stabnick successfully defended this case up to the Appellate Court. The plaintiff, who was severely injured when he was struck by a car crossing the street, had appealed the CRB's decision affirming the Trial Commissioner's finding that his injuries were not compensable. The Appellate Court held that the finding of facts made by the Commissioner and affirmed by the CRB reasonably supports the factual decision that the claimant's injuries did not arise out of or in the course of employment. The Appellate Court found that the Commissioner was free to credit the defendant's defense that the plaintiff was engaged in a social venture and was not engaged in any activity benefitting the employer.
 

Tufts v. Cary/New England Building, 5297 CRB-7-07-11 (11/5/08)

The issue in this appeal was whether the Second Injury Fund is responsible for apportionment pursuant to 31-299b for periods of no insurance in light of Public Act 05-199 § 1. The CRB reversed the trial Commissioner's decision and found that the Second Injury Fund is not responsible for apportionment for periods of no insurance. The CRB held that the legislature's intent was clear in enacting Public Act 05-199 § 1 as it placed a clear prohibition against the practice of securing reimbursement pursuant to 31-299b from the Second Injury Fund for a proportionate share of an uninsured employer's liability.

 
Nicotera v. City Of Hartford, (9/11/08, Comm. Mlynarczyk, 1st district, 100159460)

Pomeranz, Drayton & Stabnick successfully defended total disability claim and claim for medical treatment for an injury that previously had been accepted. This claim is on appeal to the CRB.

John Blass v. Ingersoll-Rand Company  (7/16/08, Comm. Cohen, 5th District)

Another matter, John Blass v. Ingersoll-Rand Company was an accepted workers' compensation claim for a 1997 injury. However the claimant was seeking temporary total benefits from August of 2004 to date and continuing. The Commissioner did not find the testimony of the claimant or his treating physician credible. Instead, the Commissioner agreed with the Functional Capacity Evaluation report done at the request of the Respondents and dismissed the claim for temporary total benefits. Prior to concluding the formal hearings, claimant's counsel had made a demand to settle his case on a full and final basis for $150,000.00. While the case does remain open, the value is severely diminished by the dismissal of the temporary total claim.



Birnie v. Electric Boat Corp., 288 Conn. 392 (August 19, 2008)

Attorney Lucas Strunk of Pomeranz, Drayton, and Stabnick successfully defended a death claim in this decision which reversed a finding of compensability at the trial and CRB level. The employee had died due to a myocardial infarction allegedly due to lung disease which had developed due to exposures at this Groton shipyard. Under the federal Longshore and Harbor Workers' Compensation Act the death claim was found to be compensable. The widow thereafter came to the Connecticut forum seeking compensation under the state act which provided more generous benefits. The trial commissioner and the board found that the doctrine of collateral estoppel applied and that the widow was due benefits under the state act in view of the prior Longshore finding of compensability citing Lafayette v. General Dynamics, 255 Conn. 762, (2001). The Supreme Court in Birnie, however, considered the question whether the Longshore judge had applied the "substantial factor" analysis required in the state forum for a finding of compensability or some lesser standard. The Court determined that the federal administrative law judge had not articulated clearly the standard for causation that he had applied and therefore concluded that there was no basis to apply the doctrine of collateral estoppel in the state forum. The case was remanded for further trial at which the employer will be able to present evidence regarding causation.
 
Schleidt v. Eldridge Carpentry,(8/14/08, Comm. Goldberg, 8th district, 800152465)

Pomeranz, Drayton & Stabnick successfully assisted defense of claim that worker was an employee. The claimant worked as a carpenter regularly for the alleged employer but filed taxes claiming he was self-employed. Claimant also had obtained liability coverage for his carpentry work and reported to hospital that he was self-employed. The Commissioner found that the claimant was not an employee and dismissed the case. PD&S involved defending claim that their employer was liable under Section 31-291 as principle employer. This case is on appeal to the CRB.



Anderson v. R & K Spero Company, AC 28625 (May 13, 2008)

In this case, the Appellate Court upheld the Compensation Review Board and Trial Commissioner's decision, which found that the claimant's chiropractic treatments were not medically reasonable and necessary. The claimant, in this case, had a compensable back injury and was treated for a period of time. He reached maximum medical improvement but sought further treatment, including chiropractic. An independent medical examination found that the claimant's current back pain was not related to the compensable injury. A Commissioner's examination also was conducted and found that the claimant had, in fact, achieved maximum medical improvement. The claimant continued to treat with a chiropractor after that examination and sought payment of those bills, which totaled some $9,000. The Appellate Court provides an excellent analysis as to the power and duty to determine facts is within the discretion of the Commissioner. Further, the Appellate Court found that the discretion clearly allows the Commissioner to deal with expert medical testimony and that it is the Commissioner's province to accept the evidence, which impresses him as being most credible and more weighty. The Commissioner found that based upon the Commissioner's examination, the claimant had reached maximum medical improvement and denied that the respondent was responsible for payment of those bills. The CRB and Appellate Court upheld that decision.


 

Casimiro v. Town of Westport, 5099 CRB-4-06-6 (April 25, 2008)

The Compensation Review Board in this case upheld a Trial Commissioner's finding that the claimant had filed a timely request for benefits under 7-433c. The Compensation Review Board went through an analysis to determine that the Commissioner's finding the claimant credible was reasonable and that he was, in fact, entitled to benefits under 7-433c. The Trial Commissioner found the claimant's testimony that he had been first told that he had hypertension on June 11, 2001 to be credible. A Form 30C was filed on May 10, 2002 claiming benefits under 7-433c. Further, the CRB noted that the Trial Commissioner had found the respondent had not proven that the claimant was diagnosed or knew or had reasonable basis to know that he had hypertension prior to June, 2001. Finally, the CRB determined that the evidence found supported the Trial Commissioner's factual finding that the claimant did not know, nor should he have known, that he had symptoms of hypertension prior to June, 2001. Thus, the statute under 31-294c did not begin running until June 21, 2001, which made the Form 30C filed in May, 2002 timely.

Roohr v. Town of Cromwell, 5122 CRB-8-06-8 (April 23, 2008)

The Compensation Review Board upheld the Trial Commissioner's denial of compensability in this claim filed under Connecticut General Statutes Section 7-433c. The Trial Commissioner determined that the claimant was advised of high blood pressure on April 29, 2002. A claim for benefits was not filed under 7-433c until March 22, 2004. The CRB in Roohr references Arborio v. Windham Police Dept., 103 Conn. App. 172 (2007) and Hunt v. Naugatuck, 273 Conn. 97, 105, where it appears settled that disability need not exist before the claimant has a duty to file a Notice of Claim under Section 7-433c. The Commissioner in Roohr found that the claimant had several high blood pressure readings well before March, 2004 and further that the claimant's general practitioner had indicated as early as April 29, 2002 that he had high blood pressure. The Trial Commissioner found that that date was what triggered the running of the statute of limitations under Section 31-294c.

Brymer v. Town of Clinton, 5135 CRB-3-06-9 (April 23, 2008)

In yet another case decided by the Compensation Review Board with respect to Connecticut General Statutes Section 7-433c, the Board once again affirmed the Trial Commissioner's denial of compensability. In this case, both the Trial Commissioner and the CRB found that the claimant, who was a certified emergency medical technician as well as a member of the Town of Clinton Police Department, had learned about the significance of blood pressure readings previously. The Trial Commissioner found that the claim was late because the claimant had been diagnosed with hypertension on June 20, 2000 and discussed the condition with his primary care physician. The claimant filed a Notice of Claim for benefits of under Section 7-433c on August 29, 2003. In Brymer, the CRB referenced its recent decision in Ciarlelli v. Hamden, 5098 CRB-3-06-6 (April 1, 2008). In that case, the Board held that a 7-433c claimant is required to notify his or her employer of a potential claim for benefits by filing a Notice of Claim when (1)the medical evidence shows that he or she developed symptoms of hypertension and (2)he or she knows, or should know, that he or she has symptoms of hypertension that may require lifestyle changes and/or treatment (whether or not disability yet exists). The CRB in Brymer applied the same analysis utilized in Ciarlelli. The CRB found that the immergence of a hypertensive condition combined with a claimant's knowledge of the condition, constitutes the accidental injury that triggers the duty to file.

Gladstone v. City of Stamford, 5124 CRB-7-06-8 (April 23, 2008)

A third decision released by the Compensation Review Board on April 23, 2008 dealt with timeliness of a claim under Section 7-433. In Gladstone, the CRB reversed the Trial Commissioner's denial of the claimant's claim and remanded the case for further proceedings. The Compensation Review Board found that there had been a request for informal hearing filed on April 7, 2003 noting a diagnosis of hypertension by the claimant's cardiologist on March 6, 2003. The Commissioner's dismissal of the claim did not mention that an informal hearing had been on June 2, 2003 and the CRB felt further proceedings were necessary to address that issue.

Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008)

The Compensation Review Board upheld a Trial Commissioner's decision, which found that the claimant's accepted injury was not a substantial factor in his need for surgery. The CRB found that the Trial Commissioner acted within his discretion in dismissing the claim to make the claimant's surgery compensable. In this case, the claimant sustained an injury to his right shoulder, which was found compensable. He had severe degenerative disease of the right shoulder and was seeking authorization for a surgical procedure. The treating physician supported compensability, but the independent medical examiner found a minimal relationship between the compensable incident and the need for surgery. The Commissioner's examination also opined that the claimant's diagnosis was not causally related to the compensable injury. Nonetheless, the claimant sought a formal hearing on the need for surgery. The Trial Commissioner found that the claimant suffered a temporary self-limiting aggravation at work and denied the authorization for surgery. The claimant appealed the matter, maintaining that the Trial Commissioner had failed to properly apply the substantial factor test in denying the claimant's bid for shoulder surgery. The CRB found that whether or not a factor behind the need for surgery is "substantial" is a matter left to the discretion of the Trial Commissioner as it is the Trial Commissioner's function to assess the weight and credibility of medical reports and testimony. The CRB concluded that the Trial Commissioner's determination was a reasonable exercise of his discretion.

Esposito v. Simkins Industries, Inc., 286 Conn. 319 (April 1, 2008)

The Connecticut Supreme Court upheld the decisions of the Workers' Compensation Commissioner and the Compensation Review Board which concluded that pursuant to Section 31-299b, the Connecticut Insurance Guaranty Association was responsible to reimburse a self-insured employer for that portion of an occupational disease claim that the employer would have been entitled to recover from its workers' compensation insurer that had become insolvent. The Supreme Court rejected the Guaranty Fund's contention that the self-insured employer's claim for reimbursement was not a covered claim as defined by the relevant statutory Section 31a-838(5) provision of the Guaranty Act. The court explained that a self-insured employer is not considered to be an insurer for the purposes of the Guaranty Act because an employer that self-insures for workers' compensation purposes retains its own risk and does not assume the risk of another.

Ciarlelli v. Town of Hamden, 5098 CRB-3-06-6 (April 1, 2008)

The Compensation Review Board affirmed the finding of the Trial Commissioner that the claimant's claim for hypertension filed pursuant to Section 7-433c was untimely. The claimant was a police officer for the respondent from 1982 through August 2004 and passed a pre-employment physical examination prior to being hired. The claimant's treating physician testified that May 11, 2004 was the point when the claimant was medically deemed to have hypertension. The claimant filed a Form 30C for Section 7-433c hypertension benefits on May 20, 2004. The respondents' expert cardiologist testified that the claimant had documented high blood pressure readings dating back to December 2000 which would be considered a diagnosis of hypertension. The respondents' expert further testified that the claimant had multiple hypertension blood pressure readings between December 2000 and March 2003.

The Compensation Review Board opinion reflects that the question to be decided was when the claimant knew or should have known under the circumstances that he was experiencing symptoms of hypertension, initiating his responsibility to notify his employer of a potential claim for hypertension benefits under Section 7-433c. Looking at the evidence, the Compensation Review Board concluded that it was reasonable for the Trial Commissioner to find that under the circumstances, the claimant was given enough information to know that he had symptoms of hypertension more than one year prior to May 20, 2004, whereupon he should have notified the respondent-employer of his condition.

The opinion of the CRB was written by Commissioner Salerno. Chairman Mastropietro provided a concurring opinion, and Commissioner Doyle wrote a dissenting opinion. This decision has been appealed by the claimant.

*The case was taken by the Supreme Court. Oral argument was completed in January, 2009. We are currently awaiting the Supreme Court's decision.


 

Marino v. City of New Haven, (WC 300076134) March 27, 2008

The Workers' Compensation Commissioner for the Third District found that the shoulder injury that the claimant sustained when she slipped and fell on a public sidewalk adjacent to her vehicle that was parked on Church Street which was located near her office at New Haven City Hall did not arise out of and in the course of her employment. The claimant had gone to her car after leaving a meeting at 200 Orange Street in New Haven before returning to her office at 165 Church Street. The Commissioner concluded that the claimant was not going to her vehicle to retrieve any work-related items and that the claimant presented no evidence that her reason for going to her vehicle in any way had an affect on her job performance. The Commissioner further concluded that at the time of the accident, the claimant was on a personal errand and had deviated from her normal course of travel to her workplace after the meeting. Also, the Commissioner found that the claimant had not parked her car on a public street in accordance with any employer-authorized parking agreement.

Abbotts v. Pace Motor Lines, Inc. ET AL, 106 Conn. App. 436 (March 18, 2008)

The Connecticut Appellate Court affirmed the decision of the Workers' Compensation trial Commissioner and the Compensation Review Board on a back claim pursued based on a specific claimed injury and also pursued based on repetitive trauma. It was the claimant's contention that he injured his back stacking boxes or in the alternative that his back condition which resulted in the need for surgeries was all the result of his long-standing truck driving occupation. The Workers' Compensation Commissioner found that the claimant failed to provide sufficient credible evidence that his back injury was compensable.

The report of the claimant's primary care physician did not reference a specific injury at work. A report of the treating neurosurgeon attributed the claimant's back condition to his truck driving occupation and further reflected that the alleged specific injury was a substantial contributing factor to the need for surgery. The respondents presented contrary evidence, including numerous witnesses who testified that the claimant had stated that he injured his back when he slipped and fell on ice at home. The respondents also documented that the claimant's fiancée was a secretary in the treating neurosurgeon's office. The evidence presented by the respondents cast doubt on the reliability of the doctor's opinions and report.

The Appellate Court concluded that the claimant failed to meet his burden of showing that his claimed back injury arose out of and in the course of his employment. The Appellate Court further concluded that there was no basis to the claimant's argument that the Trial Commissioner would not allow him to pursue the claim based on repetitive trauma.


 


2007 Cases:


Coppola v. Logistec Connecticut, Inc., (July 3, 2007)

Connecticut Supreme Court reversed CRB and concludes that the Connecticut Workers' Compensation Act does have jurisdiction over injury occurring while claimant descending into ship's holds over navigable waters. Issue had been raised by employer that Federal Longshore Act had exclusive jurisdiction over claim. Court concluded that applying state Act to the claim would not "undermine the integrity of the Federal Maritime Law." Note: Strong dissent written by Justice Zarella

 

Hummel v. Martin Transport, 282 Conn. 477 (May 22, 2007)

The Connecticut Supreme Court determines in a contested death claim that a final judgment is required pursuant to General Statutes Section 31-301b before an appeal can be taken Beyond the Compensation Review Board. The fact that the issue of benefits due had been remanded to the trial commissioner for determination barred appeal to Appellate Court for lack of a final judgment. In Hummel there is an interesting discussion by the Supreme Court regarding application of General Statutes Section 1-2Z, the "plain meaning" statute; the court determined that Section 1-2Z does not overrule prior case law requiring a final judgment.


 


2006 Cases:


Stone v. Sikorsky Aircraft Corp. (Fourth District, June 30, 2006)

Dismissal of bilateral carpal tunnel syndrome which the claimant alleged was caused by either an accidental injury or repetitive trauma while working as a firefighter/EMT. Through both medical evidence and testimony as well as lay testimony, Pomeranz, Drayton & Stabnick successfully convinced the Commissioner that the claimant's carpal tunnel condition did not arise out of and in the course of his employment.
 

Mleczko v. Haynes Construction   (Seventh District, June 21, 2006)

Finding and Dismissal of claims for multiple serious injuries sustained by the claimant when he was struck by a motor vehicle while crossing a public crosswalk. During numerous lengthy formal hearings, Pomeranz, Drayton & Stabnick presented extensive factual evidence as well as expert testimony to establish that the accident did not arise out of and in the course of the claimant's employment.


 



Legislative Archives



This year's legislative regular session ended June 6, 2007. When the dust had settled, five pieces of legislation relevant to the Workers Compensation Act or 7-433b had passed and have now become law. Despite the concerted effort of the CTLA, several legislators, and a group of practitioners, however, two significant bills, one addressing scarring (SB-153) and one amending 31 - 308a (SB-847) failed during the legislative process. A proposed act that would have established rebuttable presumptions for firefighters and policemen in the case of heart and hypertension as well as other diseases also failed.

Given the effort and resources expended on SB-153 and SB-847, a bit of the history of those bills is appropriate. The scarring bill would have expanded our law to cover disfigurement on any body part and eliminated the two year limitation in which to pursue such a claim. In a most interesting Appropriations Committee hearing, the bill failed on a 20-20 vote. The hearing can be seen on the CT-N website.

SB-847 was subject of a skillful amendment at the Senate session level. Rather than a potential 520 week duration of 31-308a benefits, an amendment proposing that the length of a 31-308a potential award mirror the schedule for the body part in question, i.e. 117 weeks for a neck, 374 weeks for a back etc. This bill passed in the Senate. The bill never came to a vote in the House.

The new Public Acts in two or three instances do provide some limited additional benefit to the injured worker. The new legislation is as follows:

P.A. 07-80 - An Act Concerning Notification to Injured Employees of the Discontinuation or Reduction of Workers' Compensation Benefits. (effective 10-1-07)

This Act amends 31-296 so as to allow the employee to contest a form 36 by requesting a hearing not later than 15 days after receipt of the 36. The form 36 will also now identify the employee's treating physician and direct the employee to call the district worker's compensation office to request a hearing. The new form 36 will also advise the employee to be prepared to provide medical or other documentation to support the objection. The Commission will be issuing a new form 36 effective 10/1/07 and it will be available on their website.

The Act, however also amends 31-288(b) addressing the fault or neglect of an employer or insurer in the adjustment or payment of compensation unduly delayed by increasing the penalty to $1000 for each case of such delay to be paid to the claimant.

P.A. 07-161 - An Act Concerning Survivor Benefits. (effective 10-1-07)

This Act amends 7-433b (heart and hypertension) relative to the pension side of the combined survivor benefit such that the pension benefit shall not terminate upon remarriage.

The Act also adjusts the calculation of the 100% cap such that the total compensation paid now shall not exceed that paid to the members of such department at the maximum rate in the same position.

P.A. 01-31 - And Act Concerning the WOrkers' Compensation Medical Practitioners' Fee Schedule and Time for Filling A Workers' Compensation Appeal. (effective 10-1-07)

This Act rewrites Section 31-280(b)(11) so as to allow the Chairman to implement and update the medical practitioners' fee schedule based on the formula provided by the Medicare Resource based relative value scale and to implement coding guidelines in conformance with the coding usde by Medicare. This does not mean that Medicare rates will be used. The intent is not to significantly decrease or increase current provider payments. The Act also makes it clear that the Chairman may make necessary adjustments to the fee schedule for services where there is no established Medicare value.

This change is much welcomed by the chairman and will improve the methodology of publishing the schedule which had become more and more difficult under the old 74% of the "usual and customary" charges.

The Act also rewrites 31-301 such that in the event a post Finding and Award, order, or decision motion is filed, the 20 day period for filing an appeal shall commence on the date of the decision on such motion. The Chairman will be issuing a memo on the Appellate procedures after meeting with the commissioner and legal advisory committee.

Those on the executive committee who commented on this proposal were unanimously in favor of it. The original proposal addressed motions to correct. The Act, however, extends the appeal period for any (presumably timely filed) motion.

P.A. 07-89 - An Act Concerning Penalties for Concealing Employment or Other Information Related to Workers' Compensation Premiums. (effective 10-1-07)

This act amends 31-288 and the procedural Labor Department statutes associated therewith by empowering the Labor Commissioner to issue stop work orders to employers who fail to properly insure their liability under the act; misrepresent employees as independent contractors; or who knowingly provide false or misleading information as to the number of employees for purpose of lower premium.

The Act provides for a $1000 per day civil penalty for each day such stop work order is violated.

P.A. 07-29 - An Act Concerning the Interim Appointment of Workers' Compensation Commissioners. (effective 7-1-07)

This Act amends §31-276(d) by extending from 10 to 45 days the period the judiciary committee has to hold a meeting to vote on a proposed vacancy appointee. It also allows the committee to extend the investigation period an additional 15 days upon proper notice to the Governor. As in the past, failure to act within the time period is deemed an approval.




PROPOSED LEGISLATIVE CHANGES


What Changes are Proposed to our Workers' Compensation Law?

Senate Bill No. 57 "An Act Requiring Employers to Provide Injured Employees the Forms Necessary for Filing a Claim for Workers' Compensation"

Section 31-294b would be amended so as to require an employer to provide the employee with a Form 30C within two business days of receipt of a report of injury either in person or by mail sent to the employee's current address.

Senate Bill No 63 "An Act Concerning Post-Traumatic Stress Disorder and the Workers' Compensation Act."

31-275 would be amended at section (16)(B)(ii) to allow for compensability of post-traumatic stress disorder if it is determined by a board certified mental health professional if the condition arises from the employee's duties and is not subject to any other exclusions outlined in the statute. (Please note that substitute language to Senate Bill 63 was not available at the time this report was prepared.)

Senate Bill No. 64 "An Act Concerning Scarring Awards Under the Workers' Compensation Act"

Sub-section (c) of 31-308 would be amended so that scarring could be awarded on any area of the body subject to the current limitations that would require the award be made not earlier than one year from date of injury and not later than two years from date of injury or surgery date. The bill also deletes the former exceptions to scarring for hernias and amputations or spinal surgery.

Senate Bill No. 255 "An Act Concerning Additional Benefits for Wage Loss Under the Workers' Compensation Act"

Would amend Section 31-308a to allow for discretionary benefits equal to the maximum number of weeks of compensation allowed that body part in sub-section(b) of Section 31-308. The proposal would also require that the Commissioner articulate the basis for any such award taking into account the nature and extent of the injury, the training education experience of the employee; and the availability of work for persons with such physical condition at the employee's age.

House Bill No. 5116 "An Act Providing Portal to Portal Workers' Compensation Coverage for Police Officers and Conservation Officers Employed by the State of Connecticut"

Section 31-275 would be amended at Section1(A) to include conservation officers and DEP employees as those covered and in the course of employment from departure from place of abode through return to it after duty. Subsection (19) would be amended so that "police officer would have the same meaning as provided in Section 7-294a."

Proposed Substitute House Bill No. 5626 An Act Clarifying the Handling of Workers' Compensation Claims.

This bill amends 31-294 to make it clear that the exclusive remedy provisions do not apply to protect an insurer, third party administrator or self-insured employer from civil suit "for breach of covenant of good faith and fair dealing in the handling of claims, " or for violation of Chapter 704 or Section 32a-815.

House Bill No. 5627 "An Act Concerning Changing the Name of Workers' Compensation Commissioners"

This bill would re-title workers' Compensation Commissioner as "Administrative Law Judge."

House Bill No. 5679 "An Act Clarifying the Standards for Appeal of Decisions of the Compensation Review Board"

Section 31-301b would be amended so as to specifically state that an appeal from the Compensation Review Board could be taken whether or not the decision is final within the meaning of Section 4-183 or Section 52-263.

A report on the final status of all proposed legislation will be placed on this site in June. In the interim, the status of any bill can be viewed at the legislative website: www.cga.ct.gov.