Doug's WC Comp
Quarterly Fall 2012
Article


Attorney James Pomeranz
100 Years of Workers’ Compensation
ARTICLE










May 2017 UPDATES

Marciano v. Jimenez, et al, 324 Conn. 70 (2016)

The Connecticut Supreme Court recently considered the issue of whether Connecticut General Statutes 52-225a precludes a trial court from making any collateral source reduction, either in full or in part, when a subrogation right exists. Here, after a trial on the merits, a jury awarded the plaintiff $124,283.00 in economic and noneconomic damages. The defendants moved for a collateral source reduction, claiming that the plaintiff had only paid $1,900.00 toward his medical expenses, the balance of which was paid by the employers health insurance carrier. The plaintiff objected to the collateral source reduction, arguing that the employers right of subrogation existed regardless of their willingness to accept a reduced lien reimbursement. The Supreme Court held that the phrase 'no reduction' in 52-225a(a) leaves no doubt that if a right of subrogation exists, a trial court cannot order a collateral source reduction.


Denomme v. Masis Staffing, (Calmar, J.) Superior Court @ Putnam (1/8/17)

A Superior Court, Calmar, J., recently held that a third- party employer which leased the plaintiffs services from a manpower company continuously for several years, and which terminated the lease arrangement following the injured workers development of a work-rated ailment, is not excused from liability under the Workers Compensation Act pursuant to the Lent Employer Statute. It was determined that there was no exemption where the leased employee received no further assignments and never returned to work for the manpower company following the termination.

The third party employed filed a Motion to Strike Count II of the Plaintiffs Complaint, arguing that it was not the employer and therefore, could not be found liable under Connecticut General Statutes 31-290a. The Court denied the defendants Motion to Strike.


Leonetti v. MacDerAmid, (Shah, J.) (Superior Court @ Waterbury( (1/12/17)

The exclusive remedy provision of the Workers Compensation Act, which grants employer immunity from 'any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment', Connecticut General Statutes 31-284(a), is not limited to claims for personal injury but rather applies as well to a claim brought by an employee against an employer for alleged misconduct in defending an underlying workers' compensation claim. Therefore, the exclusivity portion of the Workers' Compensation Act bars a vexatious litigation action brought by an employee against his/her employer that stems from the defense of a workers' compensation claim.


April 2017 UPDATES

Balloli vs. New Haven Police Department

In this case, the claimant police officer was leaving his home and walking onto the street, while on his way to work. While walking towards his car, he dropped his keys and was injured. The Compensation Review Board affirmed the Trial Commissioners decision dismissing the case. The case was eventually appealed to the Supreme Court, which reversed the Compensation Review Board in total, holding that the claimant was acting in the course of his employment pursuant to the plain language of 31-275(1)(A)(i).


Williams vs. City of New Haven

The Compensation Review Board determined that a claimant who had filed a wrongful termination claim under 31-290a, had a rightful cause of action before the Workers Compensation Commission despite the fact that his claim had been to arbitration and dismissed by the Labor Board. The Compensation Review Board did not believe the Respondents argument of res judicata or that the Workers Compensation Commission was not the proper forum for this claim.

The Compensation Review Board found that the termination did constitute a fraud and thus, the claimant was entitled to pursue benefits under 31-290a.


John Graham v. Olson Wood Associates, et al

The Supreme Court ruled that a Workers Compensation Commissioner may reinstate an employer or insurance company as a party to proceedings who had been dismissed before the case on the merits (i.e., compensability) had been litigated.

In this claim, which involved exposure to asbestos, multiple employers and insurance companies were released by the Trial Commissioner vis-a-vis motions to dismiss, prior to the Claimant putting on his case in chief. Later, evidence developed which revealed that the dismissed employers had injurious exposures. The remaining employers sought to bring these employers back into the proceedings, and the litigation eventually made it to the Supreme Court.

The Courts decision to allow the Commissioner to reinstate the respondents effectively ends any motion practice, at least until the underlying issue of compensability is determined on the merits.


Bond v. Lee Manufacturing

The claimant, Mr. Wendell Bond, sought to reopen a stipulation for injuries sustained in 2002. Mr. Bond claimed that, on the day of the stipulation approval hearing, he was not feeling well and was under duress. He additionally argued that his attorney had not properly informed him of the meaning of the stipulation.

The Trial Commissioner had found that the claimant had been properly canvassed and questioned prior to the hearing and that at the hearing he had not brought up the fact that he had been ill, even if that had mattered at all.

The Compensation Review Board affirmed, stating that the claimant was essentially trying to retry his claim and that there was no evidence in the record of duress or improper explanation by his attorney.


Shymidt v. Eagle Concrete, LLC, 6018 CRB-7-15-6

In this case, the employer accepted an underlying foot claim as compensable and paid all medical and indemnity benefits associated with the same. The claimant then made complaints of an injury to his shoulder, stemming from the same date of loss, although made one year after same. The employer filed a disclaimer. The claimants argument of preclusion was denied by the Compensation Review Board, which reasoned that the disclaimer was filed within one year of the date of loss.


Staurovsky v. Milford Police Department

The Claimant, a police officer, claimed that his heart condition, which resulted in a heart attack while shoveling snow, arose out of his employment. The claimants treating doctor, while acknowledging the non-work related shoveling was a contributing factor to his disease, opined that the claimants work activities, over a period of years, also contributed to the heart attack. The Trial Commissioner awarded benefits and the CRB affirmed. The Appellate Court then reversed the CRB, and the Supreme Court affirmed. The reversal by the higher court was based upon lack of evidence in the record that the claimant developed hypertension and/or heart disease while employed. The Supreme Court found that the disease did not develop until the claimant was shoveling snow, despite the opinion of the treating doctor. Furthermore, the claimant was retired when the heart attacked occurred while shoveling and thus the Claimant did not prove disability during his time as a police officer.





June 2016 UPDATES

William Hart v. Federal Express Corporation, et al. (SC 19523) (Released April 19, 2016.)

The Supreme Court in this case upheld both the trial commissioners decision and that of the Compensation Review Board in finding that the claimants physical and psychological injuries were compensable. The Court goes through an excellent analysis of the evidence presented and why they believed the trial commissioner and Compensation Review Boards decisions were clearly based on sound evidence.

The Court noted that the trial commissioner found the claimants work with the employer generated stress, which ultimately led him to the emergency room with a fluttering sensation in his chest. He was diagnosed with arrhythmia, then atrial fibrillation and hypertension. The trial commissioner felt all of these physical injuries were clearly related to the claimants employment.

Over the span of three years, the claimant was seen by approximately seven health care professionals for symptoms and/or conditions relating to his claim. The claimant was found by his treating physician and that of an independent medical examiner to suffer from anxiety and depression, again related to his physical injuries; namely, arrhythmia and atrial fibrillation.

The trial commissioner concluded, based upon his review of all of the evidence, and the Court upheld that decision, that the claimant had sustained physical and psychological injuries arising out of and in the course of his employment.

The Court also goes through an analysis regarding the awarding of temporary total disability benefits and finds the evidence sufficient and the Commissioners finding reasonable.

The Trial Commissioner had found that the claimants psychological condition clearly was related both to his physical injuries and the stress associated with his work. The Court upheld this finding.

Claimants and their attorneys may attempt to utilize this case in expanding claims for psychiatric and psychological conditions in the future. However, there still appears to be the requirement that a physical component needs to be present first before any psychiatric or psychological condition can be traced to the claimants employment and/or work-related injury.

Janice McCullough vs. Swan Engraving, Inc., et al. (SC 19480) (Released February 2, 2016.)

In this case, the Supreme Court reversed the Compensation Review Board, which had reversed the decision of the Workers Compensation Commissioner, who had awarded the plaintiff survivor benefits. The Court found that the decedent-widow was not required to file a separate Notice of Claim for survivors benefits because the timely filing of any claim for benefits under the Act satisfies the limitation period for all potential claims under the Act. The Court agreed with the claimants attorney, who argued that the timely filing of the decedents Notice of Claim satisfied the requirements of that statute and there is no requirement that the claimant-widow file a separate claim.

The Court found there is no language in 31-294c creating a statute of limitations for a claim for survivors benefits or language requiring that a dependent file a separate claim for survivor benefits if the employee filed a timely claim for benefits during his or her lifetime.

The Court therefore concluded that whether a survivor should be denied benefits on the grounds that he or she failed to file a separate Notice of Claim under the Act is for the legislature to decide, not the courts.

The case law now is clear that if the claimant, during his or her lifetime, has filed a Notice of Claim and subsequently passes away from that condition, the dependent-widow is not required to file a separate and distinct Notice of Claim in order to be entitled to survivor benefits.


March 2016 UPDATES

Callahan v. Car Parts International, LLC, et al, 5992 CBR-1-15-3

The claimant appealed from a Finding and Order wherein the trial commissioner determined that the Respondents were entitled to a moratorium in the amount of $22,020.67 from the claimants settlement of a lawsuit against a third party tort feasor, which figure represents the employers statutory lien reduction. The claimant argued that the trial commissioners ruling rendered Public Act 11-205 illusory because the moratorium effectively takes back the amount given by the one-third reduction.

The CRB did not agree, finding that the claimant reaps the immediate tangible benefit by having much of the Respondents lien. This occurs because one-third of the net settlement inures to the claimant even if, due to a lien for prior expenses, the Respondents were still owed money. The effect of Public Act 11-205 is to place the claimant in the same position for settling a case for less than the Respondents lien than he would have been had there been in a settlement or verdict, prior to the effective date of the Act, in excess of the Respondents lien. The lien for prior advances has been satisfied and the claimant has some net recovery, which may be subject to a moratorium. The reasonable interpretation of Public Act 11-205 works to create a situation where a large workers compensation lien does not present an obstacle to setting tort lawsuits and the trial commissioners Finding wass consistent with that approach. The Finding and Award was therefore, upheld.

Hadden v. CREC, et al; (AC 36913) (March 22, 2016)

Richard Stabnick of Pomeranz, Drayton & Stabnick, successfully argued the recent appeal in this matter wherein the Respondents sought to reduce the claimants award for total disability benefits in proportion to the percentage of disability caused by the natural progression of the claimants underlying condition. On appeal, CREC conceded that the plaintiffs work injury caused her total disability, entitling her to benefits and challenged only the trial commissioner and CRBs denial of apportionment pursuant to 31-275(1)(D).

This office successfully argued that the Appellate Court is bound by a Supreme Courts prior holding in Cashman v. McTernan School, Inc., 130 Conn. 401, 34 A.2d 874 (1943), wherein the Court expressly forbids apportionment if the pre-existing condition was non-occupational in nature, as was the claimants condition here. Therefore, the Appellate Court affirmed the decision of the CRB.


February 2016 UPDATES

Patricia Geraldino v. Oxford Academy of Hair Design - 5968 CRB-5-14-10

In a case litigated by Attorney Richard Stabnick of this office, the Compensation Review Board concluded that the trial commissioner did not sufficiently identify the factual basis in the record for various findings he reached in the Finding and Orders. The Board also found that the Claimant's interpretation of the Respondent's rights under section 31-294c(b) was in error. The ruling is important because the Board places limits on the 'harsh remedy' that preclusion inflicts on a Respondent who fails to properly contest a claim within the time and method set forth in section 31-294c(b). Specifically, the Board ruled that being precluded from contesting the claim at a formal hearing, does not prevent a Respondent from claiming legal error on appeal. While the Donahue and Harpaz decisions bar a precluded Respondent from presenting evidence at a formal hearing, this decision makes clear that a Respondent is not barred from challenging an application of law on appeal. In this case the trial commissioner's decision that the Claimant had no right to file a post-trial brief and motion to correct were error

McCullough v. Swan Engraving, Inc., Et. Al., (SC19480)

The Connecticut Supreme Court recently considered the issue of whether a claimant/dependent was required to file a separate timely notice of claim of survivor's benefits under the Workers' Compensation Act, where her husband (decedent), had filed a timely claim for disability benefits during his lifetime with the Respondent employer. The case came before the Supreme Court on the plaintiff's appeal from a decision of the CRB reversing the Workers' Compensation Commissioner's award of survivor's benefits. On appeal, the plaintiff argued that she was not required to file a separate notice of claim for survivor's benefits because the timely filing of any claim for benefits under the Act satisfies the limitation period for all potential claims under the Act. The Supreme Court agreed with the plaintiff, reserving the judgment of the CRB.


January 2016 UPDATES

Callaghan v. Car Parts International, LLC; (WC#100189553, 2/20/15)

In Callaghan, a trial commissioner recently found that the Respondents are entitled to a moratorium in the amount of $22,020.67, which sum represents the amount retained by the Claimant out of a third party settlement. The trial commissioner found that C.G.S. Section 31-293(a), as amended by Public Act 11-205, does not eliminate a Respondents' moratorium for the amount a Claimant realizes from a third party claim. Although there are some statements in the legislative history to Public Act 11-205 that the amendment to the statute provides incentives to employees to bring third party claims, there is no discussion of the moratorium. The prior Supreme Court opinions of Enquist v. General Datacom, 218 Conn. 19 (1991), Love v. J.P. Stevens, 218 Conn. 46 (1991) mandate a moratorium in the amount of funds retained by the claimant in a third party claim.

Gill v. Brescome Barton, Inc., 316 Conn. 33 (2015)

The Supreme Court recently considered, on a certified appeal, whether under unique factual circumstances, a workers' compensation commissioner had the authority to require one insurance carrier to reimburse another insurance carrier for benefits, given that the commissioner was authorized to impose the full amount of such payments upon either insurance carrier. The Supreme Court held that Liberty Mutual could not prevail on its claim that the commissioner lacked authority to order Liberty Mutual to reimburse Chubb for one half of the claimant's temporary total disability payments, where the Court concluded that the claimant's bilateral knee replacement surgery presented the commissioner with a highly unusual dilemma arising under G.G.S. Section 31-307(b), which he resolved in a reasonable manner. Here, surgery on either knee would have independently rendered the claimant temporarily totally disabled, and pursuant to C.G.S. Section 31-307(b), the commissioner was authorized to impose the full disability upon either carrier. Instead, the commissioner offered a necessary and reasonable interim compromise, subject to possible later modification.

Pothitay v. Assembly and Automation Technology, et al; Superior Court, Judicial District of New Britain, Docket No. CV-14-6025888-S (April 27, 2015)

A recent Superior Court decision held that a personal injury claim brought by an employee against an employer under the 'intentional tort' exception to the exclusive remedy provision of the Workers' Compensation Act requires proof that the employer was subjectively aware that the injury was substantially certain to occur; whereas proof of an objective or 'reasonable man' awareness is not sufficient. Furthermore, the subjective standard requires proof of affirmative conduct by an employer such as directing the removal of machine guards over the objection of an employee, whereas an employer's failure to take remedial steps, such as adding guards or enforcing safety rules, is not sufficient to establish a claim under the 'intentional conduct' exception.

Bean v. Cowan Systems, LLC, (Superior Court, Judicial District of Hartford, Docket No. CV-14-6049833-S (January 21, 2015)

The Superior Court found that the provision of the Workers' Compensation Act that creates a private cause of action in favor of an employee who 'in any manner' has been discriminated against by an employer for exercising rights under the Act, C.G.S. Section 31-290a, applies to a former employee who is denied re-employment for exercising his/her rights under the Act during an earlier term of employment. Here, the defendant unsuccessfully argued that the provision applies only to current employees.


March 2015 UPDATES

Caraballo v. Electric Boat, SC 19182 (March 17, 2015)

The Supreme Court recently issued its decision in Caraballo v. Electric Boat wherein it decided the issue of what rate Employers and Insurers must pay Hospitals. The Court held that the Hospitals are to receive their published charges, not, as the employers/insurers argued, actual costs. This decision effects all disputes and claims occurring on or before April 1, 2015. Any dispute occurring after April 1, 2015 is subjected to the Chairman's new regulations which can be found here http://wcc.state.ct.us/memos/2014/2014-06.htm. Both the decision from the Court and new law effective 4/1/15 make it clear that it is not the duty of the Commissioner to determine the rates or payments between employers/insurers and providers.

The Court was not persuaded by the argument from the insurers/employers that the Workers' Compensation Act controlled over the general Hospital payor statute. What this means for employers/insurers with dates of loss prior to 4/1/15 is that they must pay what any other payor in the system would pay to the Hospital; also known as published charges. There is, of course, exception to this new law if the employer/insurer and Hospital had previously negotiated payment options. Thus, the respondents should check to confirm whether or not there is a contract in place with the hospital. The new law, effective 4/1/15, also encourages negotiation between the parties.

Argonaut v. Town of Berlin, Superior Court, Judicial District of New Britain @ New Britain, Docket No. CV126017084 (December 1, 2014, Swienton, J.)

This Superior Court case emanates from an underlying workers compensation case. In that case, the Town failed to timely provide the 30C to Argonaut, their compensation carrier. Thus, a Form 43 was not timely filed and both the employer and carrier were precluded from contesting compensability. Argonaut then filed a declaratory judgment action in Superior Court and argued that they were prejudiced by the preclusion. The basis for their argument was that the Town did not cooperate with the terms and conditions of its insurance policy. Argonaut further argued that not providing timely notice to the carrier of the claim was essentially a breach of said contract. The court granted summary judgment in the Carrier's favor however the case has been appealed. If the Appellate Court affirms the Superior Court's decision, then it opens employers up to direct liability for compensation claims when it failed to forward notice in a timely manner. In some cases, it may implicate the Second Injury Fund if the employers are unable to pay the claim. We will await the Appellate Court's decision.


February 2015 UPDATES

Stauovsky v. City of Milford-Police Department (Case No. 5906 CRB-4-14-1) - January 30, 2015)

In this case, the issue before the CRB was whether a claimant's right to obtain benefits, pursuant to Section 7-433c, terminates on the date that he/she leaves the employment of a police or fire department. In Stauovsky, the claimant voluntarily left his employment with the respondent's police department and a few weeks after his departure, filed a claim under Section 7-433c. The trial commissioner concluded that the claimant had filed a timely claim under Section 7-433c. On appeal, the respondents argued that Section 7-433c limits benefits to claimants who are injured while employed. The CRB affirmed the trial commissioner's award of benefits to the claimant. The CRB reasoned that the trial commissioner relied upon proper evidence, which showed that the claimant's underlying heart disease developed during the course of his employment with the respondents.

Graham v. Olson Wood Associates (Case No. 5911 CRB-4-14-2) - January 29, 201

This claim involved multiple respondents, under Section 31-299b, in a claim which involved alleged exposure to asbestos while the claimant worked for several different employers. One of the respondents, CIGA, filed a motion to dismiss during the proceedings, which was eventually granted at a formal hearing. At subsequent pre-formal hearings, additional co-respondents sought to cite CIGA back into the proceedings. The merits of the underlying claim for compensation had not yet been decided by formal hearing. CIGA was ultimately cited back into the proceedings and this appeal followed. The CRB upheld the trial commissioner's decision to grant the other respondents' motion to cite CIGA back into the case. The CRB reasoned that the provisions of 31-299b allow for apportionment to occur only after the underlying claim has been tried on the merits. Thus, CIGA's motion to dismiss was premature and, as a practical effect, motions to dismiss filed in apportionment claims, are not effective until the underlying claim is decided.


January 2015 UPDATES

Margaret Czyrko v. State of Connecticut, (5901 CRB-6-13-12, December 4, 2014)

The Compensation Review Board in this case upheld the trial commissioner's finding that when calculating a compensation rate for permanent partial disability benefits, that rate should be calculated on a "date of injury basis". The CRB found that the compensation rate for permanent partial disability benefits must be calculated based on the 52 weeks of wages ending on the date of injury and not the date of the first date of disability.

The claimant had argued both to the trial commissioner and the CRB that permanent partial disability benefits should be calculated similarly to temporary total disability benefits and should be based upon the date of incapacity.

The respondent argued that under Connecticut General Statutes 31-310, the compensation rate should be based on the claimant's wages during the 52 weeks immediately prior to the date of injury.

The CRB found that the claimant had not presented any precedent which applied the precedent in Mulligan to an award of specific benefits for permanent partial disability.

Michael Johnson v. Hartland Express, 5861-CRB-2-13-7 (December 22, 2014)

In this case, the Compensation Review Board affirmed the decision of the trial commissioner indicating that Connecticut had a significant relationship to the claimant's employment with the respondent and the claimant qualified for benefits under the Connecticut Workers' Compensation Act. The CRB found the existence of this significant relationship made the claimant's out-of-state injury compensable under the Act.

The claimant was a resident of Ledyard, CT and sustained a back injury while employed as a truck driver for the respondents in New Jersey. The respondents denied that Connecticut had jurisdiction over the claimant's work injury.

The CRB then went through the commissioner's finding of facts regarding the claimant's relationship with his employer, as well as his contacts with the State of Connecticut. The commissioner noted that approximately 30% of the claimant's work performed for the respondent was directly connected to assignments in the State of Connecticut and that there was a significant relationship between the State of Connecticut and the employment relationship between the claimant and the respondent-employer.

The respondents appealed to the CRB, arguing that the claimant's work activities in the State of Connecticut were inadequate to confer jurisdiction on the commission for an injury sustained in New Jersey.

The CRB then goes through an excellent analysis addressing the appropriate standard under Connecticut law to ascertain when Connecticut has jurisdiction. The CRB looks at both Jaiguay v. Vasquez, 287 Conn. 323 (2008) and Cleveland v. U.S. Printing, Inc., 218 Conn. 181 (1981). In this case, the trial commissioner accepted the claimant's arguments that Connecticut had a significant relationship over the employment relationship to confer jurisdiction over the claim. The CRB agreed with the commissioner's analysis and finding.

The CRB found that it is within the trial commissioner's discretion to determine whether the claimant established a significant relationship between his employment and the State of Connecticut.

There was also a concurring opinion issued by the CRB, maintaining that this case involves a choice of law or conflicts of law question, as opposed to a jurisdictional one. In the end, the concurring commissioner found there was in fact a significant employment relationship with Connecticut present.

Timothy Conway v. City of Stamford, 5900 CRB-7-13-12 (November 24, 2014)

The Compensation Review Board in this case upheld the decision of the trial commissioner. The trial commissioner had determined and found that the claimant had never been diagnosed with hypertension by his primary care physician until January 6, 2012. The respondents had argued that the claimant's Notice of Claim was filed late, due to the fact that he had been diagnosed with borderline hypertension prior to January 6, 2012, and thus the statute commenced running at that time. The trial commissioner and the CRB did not agree.

The CRB again goes through an analysis in dealing with prior decisions of the Appellate Court concerning heart & hypertension and Statute of Non-Claim issues.

Ultimately, the CRB found that the trial commissioner was correct and that the evidence clearly demonstrated that prior to January 2012, the claimant's primary care physician nor any other physician had ever rendered to the claimant a formal diagnosis of hypertension, as contemplated by the cases Ciarlelli v. Hamden, 299 Conn. 265, 299 (2010).