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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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
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.
Rodriguez v. E.D. Construction,
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
Ronnie Hammer v. State of
the matter of State of Connecticut v.
Ronnie Hammer, the Connecticut Appellate Court agreed with
Drayton & Stabnick that a superior court judge acted improperly
rendered judgment in favor of the defendants without affording the
trial on the merits of the case. The underlying case was an
action brought by PD&S on behalf of the plaintiff to determine
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'
and the plaintiff was going to allow her to keep the proceeds from the
action and those proceeds would be disbursed to her when the workers'
compensation stipulation was approved. Defendant reneged on
and refused to endorse the check from the tort case. The
followed. Since the defendant was pro se in the inter-pleader
series of pre-trials and status conferences were held on the
Trial never commenced as the superior court judge was trying to craft
acceptable settlement between the parties. At the last status
held, the judge abruptly changed his prior position that the tort check
in escrow and instead ordered it to be turned over to the defendant
immediately. On appeal, PD&S argued that the judge
when he made this order as there had not been a trial on the merits of
before him. The Appellate Court found that the Practice Book
permit a judge to dispose of a case at a pre-trial unless it is by
stipulated judgment or withdrawal. The case is to be remanded
for a trial
on the merits.
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.
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
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
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
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
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.
Francis Churchville, Jr. v.
Bruce Daly Mechanical Contractor, Conn. Supreme
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
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
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.
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
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.
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.
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
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
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 1, 2010
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
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
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.
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
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.
Thomas v. Department of
Developmental Services, et al., ____Conn.____ (July
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
"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
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.
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
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
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
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:
bill's legal affect is unclear because under current law, any
or injury that is shown to arise out of and in the course
an employee's job makes the employee eligible for workers'
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.
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
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
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
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.
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
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.
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%.
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
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.
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.
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.
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
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
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.
Morneault v. Hamilton Sundstrand ,
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
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
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
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
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.
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.
Magee v. Sikorsky Aircraft
Corporation, 400009995 (Commissioner Goldberg,
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.
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
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.
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.
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
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.
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
Chappell v. Pfizer, Inc. ET AL;
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.
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.
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.
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.
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:
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.
- 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
- 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
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
- 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.
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
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.
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.
- The governor's proposal includes the
- 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)
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
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'
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."
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.
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
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
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.
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
Charles Dellarocco v. Town of Old
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.
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.
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.
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
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.
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.
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
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.
Mleczko v. Haynes Construction Co.
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 Â§ 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 Â§ 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
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
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
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
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
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
*The case was taken by the Supreme Court. Oral argument was completed
in January, 2009. We are currently awaiting the Supreme Court's
||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 fiancĂ©e 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
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
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.
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
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.
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
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
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
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
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.
This Act amends Â§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.
are Proposed to our Workers' Compensation Law?
Bill No. 57 "An Act Requiring Employers
to Provide Injured Employees the Forms Necessary for Filing a Claim for
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'
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
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
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.