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August 2009 Updates:
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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. |
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July 2009 Updates:
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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. |
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June 2009 Updates:
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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:
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.
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.
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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. |
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May 2009 Updates:
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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. |
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April 2009 Updates:
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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. |
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March 2009 Updates:
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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. |
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February 2009 Updates:
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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. |
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January 2009 Updates:
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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. |
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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. |
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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. |
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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. |
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| 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. |
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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. |
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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. | ||
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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| 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 |
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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. |
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| 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. |
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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. |
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Legislative Archives |
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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. |
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