JULY 2010 UPDATES Recent Decisions: Joans v. Town of Redding, 296 CONN 352 The Respondent, Town of Redding sought to reopen a Voluntary Agreement accepting the claimant police officer’s claim under the Heart and Hypertension Act, Section 7-433C, on the ground that the Town’s police department was not a “paid municipal police department” under the terms of Section 7-433C. The Supreme Court ruled that the agreement could not be reopened, first, because the Motion to Open and Modify under Section 31-315 did not apply to the factual scenario and; secondly, because there was a mistake of law on the part of the Town who sought to modify the agreement. Interestingly, the court agreed that the claim did not qualify under Section 7-433C but still refused to permit the agreement to be reopened. Legislative Updates: The legislative session for 2010 has concluded. The session may be notable from the standpoint of workers’ compensation for those Bills which did not pass as opposed to those which did. Much attention was given to three bills. Senate Bill 61 was an act designed to improve the provision of routine examinations or treatment to injured workers. The proposal would have allowed a commissioner, without hearing, to authorize routine examination or treatment as defined within the bill. The bill also made it clear that no pre-approval was required for such care and would have employed a Form 36 procedure in order to contest treatment. The bill also established commissioner jurisdiction over utilization review in an approved medical care plan. The bill ultimately survived a close vote in the Appropriations Committee but never came to a vote in the House. Running parallel with the legislation, however, was a committee of stakeholders formed by the chairman of the commission. The committee’s goal was to establish guidelines addressing most if not all of the concerns raised by the proposed legislation. With the input of all participants on the committee, the guidelines were in fact formulated and are now available at the commission website (www.state.ct.us) and are effective July 1, 2010. The second bill which attracted a great deal of media attention was Senate Bill 168, “An Act Concerning Workers’ Compensation and a Police Officer’s Use of Deadly Force on an Animal.” This bill was precipitated by the Stamford police officer who shot and killed the now infamous chimpanzee. The bill passed the Senate but saw no action in the House. It was unclear from media accounts as to whether the officer was seeking indemnity benefits or just medical care. While the focus appeared to be on amending § 31-275 subsections 16 and 17, there appeared to be little, if any, discussion of § 31-294h. That section provides medical treatment by way of psychological or psychiatric services for officers using deadly force (without reference to person). It would seem clear that the Stamford officer was entitled to medical treatment under that section. The third bill which garnered a great deal of attention was substitute Senate Bill 334 which sought to amend § 31-293 in a manner that would reduce the employer’s lien by one-third as a matter of law. The reduction interestingly did not apply to liens pursued by the State of Connecticut or a political subdivision of the state or the Second Injury Fund. The Connecticut Conference Municipalities did raise its concerns with respect to the bill. An amendment was added by the insurance committee which allowed for reduction in the lien only if the employer did not join as a party plaintiff and the provisions relative to the State of Connecticut and Second Injury Fund were deleted. The amended bill also eliminated the language that abated the employer’s cause of action if there was a failure to join the suit. It appears that once amended, there was no longer support for passage. The new legislation signed into law therefore is as follows: P.A. 10-11 – An Act Concerning Interest, Penalties on Late Payment of Assessments to the Second Injury Fund. This law is an amendment to § 31-354(a) to make it clear that the minimum penalty for late payment of assessment is $50.00. Under the current law, it was unclear whether an employer or insurer paid 15% or the $50.00 minimum (effective from May 5, 2010). P.A. 10-12 – An Act Implementing the Recommendations of the Joint Enforcement Commission on Employee Misclassification. This law amends the penalty provision § 31-288 which concerns misclassification of employee. The penalty, rather than a single $300.00 civil penalty, creates increased exposure by providing that each day of a violation constitutes a separate offense and therefore a $300.00 per day civil penalty. Provisions of the law providing for a Class D felony and stop work orders remain in force and unaffected by the new legislation (effective October 1, 2010). P.A. 10-37 – An Act Concerning Fire Fighters, Police Officers and Workers’ Compensation Claims pertaining to Certain Diseases. This new law effective October 1, 2010 provides Chapter 568 benefits for uniformed members of paid municipal or volunteer fire departments regular members of a paid municipal police department or constable as defined in § 31-294i of the General Statutes. Also covered are volunteer ambulance service personnel. The law provides that such workers shall be eligible for benefits for any disease arising out of or in the course of employment including hepatitis, meningococcal, meningitis, tuberculosis, Kahler’s Disease, non-Hodgkin’s lymphoma and prostate or testicular cancer that results in death or temporary or permanent total or partial disability.       The law does not contain any presumptions of any sort.     The Office of Legislative Research Comment is of interest:          The bill’s legal affect is unclear because under current law, any          disease or injury that is shown to arise out of and in the course          of an employee’s job makes the employee eligible for workers’          compensation benefits. One potential benefit of the new law is that in defining the conditions enumerated as diseases a three year Statute of Non-Claim is created. This law will also need be monitored for the introduction presumptions in the next legislative session. As always, the status of all legislation addressed by committees and/or the legislature during the last session can be checked at the state General Assembly’s website: www.cga.ct.gov. The homepage simply allows you to type in the number of the bill for instant access to its history and ultimate disposition. JUNE 2010 UPDATES Recent Decisions: Brown v.UTC/Pratt & Whitney, ___Conn.___(June 22, 2010) In this case Pomeranz, Drayton and Stabnick successfully defended a claim that an injury occurring during a lunch-time walk on the employer's premises was compensable. The Supreme Court affirmed the Appellate Court ruling that the injury occurred during recreational activity and that the case was barred by General Statutes Section 31-275(16)(B)(i). Butler v. Town of Montville, (Comm Doyle, Decond District 200165489 June 8, 2010) Pomeranz, Drayton and Stabnick represented the Town of Montville in this case in which the commissioner for the Second District dismissed the claim of the director of parks and recreation for a right knee injury. The claimant alleged a twisting injury to his knee after retrieving some paperwork from his car early in the morning. Surveillance cameras in the town hall, however, did not reveal an accident and in fact showed the claimant leave the premises in his car without any problem. The claimant's testimony at deposition was inconsistent with his formal hearing testimony and the commissioner found the claimant not credible. Marroquin v. F. Monarca Masonry, __Conn. App.__ (June 1, 2010) The Appellate Court in this case addressed issues of apportionment and causation and found that the second employer was entitled to reimbursement under Section 31-299b from an earlier employer. The case involved a hernia claim; the first employer had an accepted claim in 2001 with surgery being performed. The claimant had a further onset of symptoms at a second employer in 2004 and had further surgery. The carrier on the risk in 2004 paid the claim but denied that there was any real accident when they were on the risk and sought reimbursement under 31-299b for the benefits that they paid. The first carrier contended that the commissioner had no jurisdiction or power to order reimbursement citing the Hatt v. Burlington Coat Factory case. The Appellate Court concluded that there was no accident in 2004 and that reimbursement was due. The Court noted that an increase in symptoms at work does not necessarily constitute a new accident. The Court distinguished Hatt in that in that case there were two documented separate claims whereas in this case there was only one accident in 2001. Veilleux v. Complete Interior Systems, Inc., 263 Conn. 463 (June 1, 2010) In this case the Connecticut Supreme Court reversed the CRB dismissal of a neck injury claim and remanded the case down to the trial level for additional findings as to whether the claimant's neck injury more resembles an occupational disease or an accidental injury. The CRB had dismissed based on a statute on non-claim theory because the claimant had not filed his claim for more than one year from the date of last employment. The plaintiff successfully argued on appeal, however, that the commissioner and the board had failed to consider whether the claimant's alleged repetitive trauma neck injury was more akin to an occupational disease than an accidental injury; the plaintiff wanted the claim to be considered an occupational disease since the notice of claim requirements are more lengthy for occupational disease claims (3 years) than for accidental injuries (1 year). Citing the case of Discuillo v. Stone & Webster, 242 Conn. 570 (1997), the Supreme Court held that such an inquiry needed to be made and reversed the board's dismissal. The issue now becomes this: Can a repetitive trauma neck injury be considered to be more akin to an occupational disease than an accidental injury? We think that the occupational disease statute of non-claim should not be applied but, if it is, then this may weaken statute of non-claim defenses of respondents in these types of cases. Lopa v. Brinker International, Inc., 296 Conn. 426 (May 25, 2010) The Connecticut Supreme Court concludes that federal postal workers are not entitled to concurrent income based on postal wages if they are injured in a second job in Connecticut. The Court held that the United States Postal Service is not an employer as defined by General Statutes Section 31-275(10) and therefore concurrent wages per General Statutes Section 31-310 could not be claimed by moonlighting postal worker. MAY 2010 UPDATES Recent Decisions: Roy v. Bachmann, 121 Conn. App. 220 (2010) In this case, the plaintiff was injured on premises owned by the defendant while in the course of her employment. After collecting workers' compensation benefits under 31-275, et. seq., she then commenced a third party suit against the owners of the property. The defendants moved for summary judgment on the theory that since they, as individuals, were the majority stockholders and officers of the employer corporation, they should receive the benefit of the exclusivity provision of the workers compensation act and be immune from a civil suit. The trial court agreed and granted the summary judgment. On appeal, the Appellate Court reversed the trial court, finding that the trial court misconstrued the facts. It was clear to the Appellate Court that the employer corporation and the individual defendants were 2 different legal entities and the individuals were not permitted to raise the exclusivity provision of the workers' compensation act as a defense to the tort claim against them as land owners. News: Has your staff had its Connecticut procedure and law update? PD&S attorneys are continuing their in-house training and new adjuster training. Please contact Lucas Strunk, Esq. or Jason Dodge, Esq. at (860) 657-8000 for details. APRIL 2010 UPDATES Recent Decisions: Partlow v. Petroleum Heat & Power Company, 5432 CRB-7-09-2 (2010) This case may change the date we determine average weekly wages (AWW) and compensation rates (CR). The CRB reversed a ruling of the trial commissioner and determined that the AWW and CR should be based not on the wages as of the date of accident but rather based on the wages as of the date of incapacity. In this case the claimant had a November 2000 date of accident but did not become disabled until he underwent surgery for the injury eight years later iin March 2008. While the CRB acknowledged that the statutory language would seem to indicate that the AWW should be based on the date of accident the Board concluded that case law said otherwise and decided to apply the AWW as of the first date of disability citing Mulligan v. F.S. Electric, 231 Conn 529 (1994) and Moxon v. Board of Trustees of Regional Community colleges, 37 Conn. App. 648 (1995). We think that this is not the last that you will hear of this issue. Morey v. Electric Boat, Second District 200164603 (Doyle 3/23/2010) In this trial decision regarding hearing loss, tinnitus and permanent impairment award the trial commissioner found that the AMA guidelines applied and not the ASHA/NIOSH standards. The AMA guidelines do not include in a permanency rating any loss over 3000Hz while the ASHA/NIOSH does; the commissioner adopted the AMA guidelines partly due to expert testimony that the ASHA/NIOSH standard may tend to overcompensate some individuals (elderly and those with genetic predisposition to hearing loss). This decision provides valuable insight into hearing loss cases and should be read by those who handle these types of claims. Derrane v. Hartford, 295 Conn. 35 (2010) In this case the Connecticut Supreme Court determined that the City of Hartford was responsible for workers' compensation benefits that were paid to a City of Hartford firefighter injured while fighting a fire in West Hartford. The firefighter was fighting the fire pursuant to a mutual aid agreement between the municipalities. The City of Hartford contended that West Hartford should reimburse it for the benefits that were paid in accordance with General Statutes Section 7-433d; the Court determined that 7-433d did not apply to this situation where there was a mutual aid agreement. As the loaning employer, the City of Hartford was found to be liable under the principles of General Statutes Section 31-292 and 7-310 notwithstanding that the fire was in West Hartford and that municipality benefited from the firefighters services. Narvaez v. Target Corporation, 100160363 (First District, Commissioner Engel, 3/12/2010) In this case Pomeranz, Drayton and Stabnick successfully defended a claim for surgery; the trial commissioner found in accordance with the commissioner’s examiner and the IME that surgery was not appropriate. Also, a claim for permanency of 17% of the back was reduced to 10%. FEBRUARY 2010 UPDATES Recent Decisions: Bode v. Connecticut Mason,   Case No. 5423CRB-3-09-2 (3/13/10) In this appeal by the claimant, Pomeranz, Drayton & Stabnick was successful in convincing the CRB to affirm the trial commissioner’s decision. The issues at trial were whether the claimant could prove he had a valid Osterlund claim, and whether he was improperly refusing medical treatment and whether he had a valid psychiatric injury. The CRB affirmed the trial commissioner’s decision that the claimant was not totally disabled. There was no medical evidence from any of the treaters or IME physician that the claimant was totally disabled and the CRB credited the commissioner’s decision to accept the Respondents’ vocational expert’s opinion that the claimant was employable. The CRB also affirmed the trier’s decision that the claimant had demonstrated an unwillingness to proceed with the recommended total shoulder replacement. The CRB agreed there was competent and persuasive medical evidence to confirm the claimant is limiting his recovery by not having surgery. Finally, the CRB affirmed the trier’s decision to dismiss the psychiatric claim based on lack of medical evidence. Crespo v. Bagl, LLC;  CV09-5021661S, J.D. of Fairfield at Bridgeport (Tobin, J.) (12/15/09) In this civil case, the claimant was an employee of a temporary employment agency but was working on a loading dock controlled by a tenant, Prime Resources. The tenant filed a Motion for Summary judgment against the plaintiff’s complaint and argued they were the plaintiff’s employer on the date of injury. The plaintiff objected arguing his only employer was the temporary agency. The trial court recognized the dual employment doctrine and found that the tenant served as the plaintiff’s employer. Under Section 31-284(a) the tenant/employer was entitled to immunity and the Motion for Summary judgment was granted. This is a case of 1st impressions for the court. Interestingly, the plaintiff did not appeal this decision. Morneault v. Hamilton Sundstrand,   WC File number 100155605 (Commissioner Engel, 1/26/10) In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for pain management treatment. The claimant had compensable bilateral elbow and carpal tunnel injuries and had been paid permanency. The Commissioner adopted the opinion of two hand specialists that the ongoing pain management treatment was not reasonable and necessary. Legislative Updates: Senate Bill 61 Senate bill #61 is a bill that should be watched closely. The full bill can be found at www.cga.ct.gov. The basic tenant of the bill is that it proposed that a Form 36 would need to be used to discontinue “routine examination or treatment” which is defined, but not limited to, prescriptions, diagnostics, physical therapy or evaluations. The bill is trying to end the pre-approval process. The Commissioner’s are given the power to authorize such treatment if needed at a hearing or without a hearing. It should also be noted there is a section giving “plenany” authority to review medical decisions within approved PPO plans. This has the potential to overrule the established utilization review process. A public hearing to address this bill has not been scheduled by the labor committee. Senate Bill 334 The intervener reduction bill under Section 31-293 is being resurrected again. Senate bill #334 can be found at www.cga.ct.gov. Essentially, this bill seeks to have the employers right to reimbursement under Section 31-293 automatically reduced by one-third, if the action against the third party has been filed by the employee. The one-third reduction would not apply if reimbursement is sought by the State or Second Injury Fund. This proposal failed last time but is being pushed through again and is obviously supported by the Connecticut Trial lawyers. SECTION 31-294h (shooting animals v. person) The brutal chimp attack which occurred in Stamford last year is back in the spotlight. This time having to do with the officer who shot & killed “Travis” the chimp. The officer is suffering from post traumatic stress disorder and made a claim for workers' compensation benefits. His claim is denied by the City under the argument that the current statute, Section 31-294h, does not allow a claim when an officer shoots an animal, it only applies to a person. In order to determine that the statute only applies to deadly force by a person you need to look at Section 31-275(16)(B)(Cii). Office Chiafari testified at the Labor & Public Employees Committee hearing at the Capital in Hartford on February 25, 2010. His testimony was in support of an amendment to make officers eligible for benefits related to police shootings of an animal threatening serious injury or death. The Labor Committee and the Public Safety and Security Committee passed the bill unanimously. It is expected the bill will be amended in the Senate to limit its use. Recent Decisions: Zhuljeta Xhuti v. Timken Company and St. Paul/Travelers Insurance Company ; 500139902 Commissioner Truglia;. In this case, Pomeranz Drayton & Stabnick successfully defended and the Commissioner found that while the claimant may have suffered a compensable injury involving her cervical spine, she did not sustain her burden of proof that she had suffered any temporary total disability benefits to which she was entitled to indemnity benefits. Furthermore, the claimant was not found to have any permanent impairment and the respondents were only found responsible for future medical care subject to a determination that said medical care was reasonable and necessary. Updated discussions have been recently held and hearings have recently been assigned to discuss the respondents’ obligation to disclose video surveillance. While the Connecticut Practice Book outlines the requirements for production of video surveillance, the Connecticut compensation system is designed as an informal and flexible adjudicative system and most, if not all, practitioners do not welcome or accept the adoption of any formal rules or proceedings. It is a commonly held practice that counsel should not be required to identify or produce the existence of video surveillance prior to its use for several reasons. The first and most obvious reason is that the respondents may choose not to use their surveillance. The second is because the use of the surveillance is part of the respondents’ investigation, identification or production of the names of defense witnesses and investigatory material is only applicable if the material deals with “medical documents”. The third obvious reason why the video should not be disclosed is because of its use for impeachment purposes. It has been generally held that video surveillance should only be required to be produced after the claimant or the person captured on the video has had his or her testimony memorialized. That seems to be the practice followed among the Commission with the deposing party afforded the opportunity to challenge the validity of the video including its accuracy if and when the video is used for impeachment purposes. Pleasant v. New Haven Partitions, Inc. , 5th District, 700143265 (Commissioner Mlynarczyk, 1/8/10) Pomeranz, Drayton & Stabnick successfully defended a claim for a lumbar spine injury resulting in two surgeries. The claimant alleged an unwitnessed accident while working and lifting heavy materials as a union carpenter. The claimant’s medical records were void of any mention of a traumatic injury at work. The Respondents submitted evidence that the claimant would not have been doing the work he allegedly performed alone on the date of injury. The Commissioner concluded the claimant’s testimony was not credible or persuasive and therefore dismissed the claim in its entirety. JANUARY 2010 UPDATES Recent Decisions: Morneault v. Hamilton Sundstrand , 100155605 (1/26/10) Pomeranz, Drayton and Stabnick successfully defended at the trial level a claim for pain management in a carpal tunnel and elbow workers' compensation claim. The trial commissioner found that the proposed treatment was not reasonable and necessary. Cruz v. Montanez , 294 Conn. 357 (2009) In Cruz v. Montanez, 294 Conn. 357 (2009), the Connecticut Supreme Court decided the issue of whether the lien under 31-293 was payable to the employer where only non-economic damages were awarded by the jury. Mr. Cruz was working as a landscaper for his employer when he was involved in a motor vehicle accident. His employer, through its insurer, paid indemnity and medical benefits in accordance with the Act. He subsequently brought a third party action and PDS intervened on behalf of the employer. The matter went to trial and the plaintiff did not put in any evidence of economic damages, such as lost time or medical bills. The jury thus awarded the plaintiff only non-economic damages, sometimes referred to as "pain and suffering." The plaintiff then refused to honor the lien, claiming that the employer was only entitled to be repaid its lien from economic damages. In post trial motions, the trial judge disagreed and ordered the plaintiff to reimburse his employer the full lien. Plaintiff appealed to the Appellate Court and the Supreme Court transferred the case. In a well reasoned decision, the Supreme Court noted that there was no distinction in the statute, 31-293, between economic and non-economic damges and held that the employer was entitled to its full lien even if the jury had awarded just non-economic damages. Marandino v. Prometheus Pharmacy , ___Conn___, (January 26, 2010) In this case that was defended by Pomeranz, Drayton and Stabnick, the Connecticut Supreme Court upheld a decision awarding total incapacity benefits notwithstanding the fact that the claimant had voluntarily gone on permanent partial benefits previously. The defendants argued that since there was no change in status from the date that permanency began that the claimant could not revert back to total disability. The defendants also noted that the claimant had failed to file a motion to reopen the voluntary agreement for permanency. The Court held that the claimant was entitled to the temporary total benefits since the disability following permanency was "distinct from and due to a condition that is not normal and immediate incident of the loss for which she received permanent partial disability." The Court found that evidence of complex regional pain syndrome, possible additional surgery, a vocational expert stating that the claimant could not work all, showed that the claimant's disability was distinct from what normally would be expected form the injury and therefore the claimant could receive total disability. The Court determined that a motion to reopen was not necessary given the remedial intent of the statute. A concurring opinion stated that the claimant only needed to show that there was a changed disability status in order to make the claim and that the claimant did not have to prove (as the majority found) that her condition was not a normal result of her injury. The decision also reversed a decision of the Appellate Court which found that a knee injury that had occurred while at home was not due to the accepted elbow injury. The Supreme Court determined that there was sufficient expert testimony/reports in evidence to establish causation. The claimant successfully asserted that a knee injury which had occurred at home while going up stairs was due to the elbow injury since she twisted and was not able to grab the handrail with her injured arm. Smith v. Federal Express Corp. , 5405 CRB-7-08-112, Dec. 1, 2009 The Compensation Review Board, in this case directed the trial commissioner to utilize the actual date of a Form 36 as the date in which temporary total disability benefits are discontinued. The respondents had attempted to have the Form 36 approved effective date of the medical report itself. The trial commissioner originally agreed with the respondents, but the Compensation Review Board overturned. The date of the respondents’ medical examination was December 6, 2005 and the Form 36 was not filed until January 30, 2007. The Compensation Review Board upheld the decision of Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8, Feb. 5, 1997, which indicates that the earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Jordan v. Reindeau & Sons Logging, LLC , 5388 CRB-2-08-10 The Compensation Review Board in this case upheld a trial commissioner’s finding and dismissal. The trial commissioner found that the claimant was an independent contractor and utilized the “totality of the factors” test. The trial commissioner found that under Hansen v. Transportation General, Inc., 245 Conn. 613 (1988), applying the totality of the factors test and finding that the respondent had offered a more persuasive argument led to a conclusion that there was not an employer/employee relationship established. The trial commissioner found that the claimant was experienced in the line of work he was performing, was capable of doing unsupervised work, that he set his own hours and could come and go as he pleased. The trial commissioner found that the claimant was paid on an hourly basis with no deductions, had his own tools and that the respondent did not have the right to control the means and methods in which the claimant worked. The Compensation Review Board in this case goes through an excellent analysis of the issues involved in establishing an employer/employee relationship and how it relates to independent contractors. DECEMBER 2009 UPDATES Recent Decisions: Voronuk v. Electric Boat Corporation, et al. The Connecticut Appellate Court, in the case of Voronuk v. Electric Boat Corporation, et al., confirmed the Workers’ Compensation Commissioner and Compensation Review Board dismissal of the claimant’s claim for survivors’ benefits pursuant to §31-306. Attorney Michael McAuliffe of Pomeranz, Drayton & Stabnick was one of the respondents' counsel that successfully defended the case. In Voronuk the Court concluded that the trial commissioner properly applied the substantial contributing factor test. The decedent was diagnosed with asbestosis in 1986. He died in October 1995. The medical evidence presented on behalf of the claimant-widow at trial was that the decedent’s underlying restrictive lung disease associated with asbestos exposure was a contributory factor to his death. The trial commissioner, the Compensation Review Board and the Appellate Court all noted that no physician or medical report opined that the claimed asbestos exposure at Electric Boat and the resulting asbestosis were substantial and/or significant contributing factors in causing the decedent’s death. The Court noted that something merely being a contributing factor is not enough to support compensability. The decision contains an extensive review of the “substantial factor” test of causation, which was analyzed in the 2008 Supreme Court decision of Birnie v. Electric Boat. Magee v. Sikorsky Aircraft Corporation, 400009995 (Commissioner Goldberg, 11/30/09) Pomeranz, Drayton & Stabnick successfully defended claim for 20% penalty interest asserted pursuant to §31-303. The payment in dispute was issued 13 days after the stipulation approval. It was sent by the respondent to claimant’s counsel by Fed-Ex two-day express. Fed-Ex did not complete the delivery until the 21st day after the stipulation was approved. Commissioner Goldberg relied upon the Compensation Review Board Garcia v. Middletown Nissan 2006 decision, as well the agreed-upon language contained in the stipulation, which indicated that the settlement proceeds shall become payable within 20 days. NOVEMBER 2009 UPDATES Cases of Interest: The Supreme Court affirmed the Appellate Court’s reversal of the trial commissioner in Dinuzzo v. Dan Perkins Chevrolet Geo, Inc., et al released November 10, 2009. The case should serve as a strong statement that the claimant must establish all underlying facts necessary to support a medical opinion on causation of injury. A doctor’s conclusionary opinion will not suffice. In Dinuzzo the claimant was alleged to have died due to a heart attack brought on by inactivity following a back injury. The evidentiary record failed to reveal a diagnosis of atherosclerotic heart disease or witnesses to describe heart attack symptoms. To further confound the expert there was evidence that the claimant’s symptoms could have been consistent with interferon usage. There was no evidence that the inability to exercise was as a result of the back injury. The Court noted that no proper inference of a causal relationship could be drawn from the facts produced and that the claimant therefore had failed to meet his burden of proof. Recent Decisions: Kehone v. Berman & Russo, 100167547 (Commissioner Delaney, 10/14/09) In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for a back injury that was made by a paralegal in a law firm. The paralegal alleged that the injury occurred while carrying a file but the initial medical reports did not document the claim. The Commissioner dismissed the claim based on failure of the claimant to sustain her burden of proof. Case Law Update: In the case of Van Hoesen v. Cianbro, jurisdiction under the longshore and Harbor Workers’ Compensation Act was successfully challenged. The Administrative Law Judge concluded that the claimant, an ironworker renovating a drawbridge, had failed to establish that the river spanned by the bridge was subject of commercial vessel traffic and that he had failed to establish that covered duties (i.e. Longshore status) had contributed to his bilateral hand condition. The claimant has withdrawn his appeal. OCTOBER 2009 UPDATES Recent Decisions: Brinkley v. Pratt & Whitney, 8th District, file number 800153188 (Comm. Dilzer, October 8, 2009) Pomeranz, Drayton and Stabnick were able to successfully defend a claim for cervical spine injury based on repetitive trauma theory. In this case the commissioner’s examiner, Dr. Murray, initially commented that claimant’s condition was due to alleged repetitive trauma at work, however, subsequently Pomeranz, Drayton and Stabnick was able to show that the claimant’s work was not repetitive in nature and that the claimant had not provided a complete history to the commissioner’s examiner in regard to past non-occupational cervical spine injuries. Dr. Murray changed his opinion regarding causation when he was presented with accurate history of prior non-occupational injuries. Neville v. Baran Institute of Technology, 5383 CRB-8-08-10  (9/24/09) This case includes an excellent analysis of how to apply the decision of Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) and C.G.S. Sec 31-349 concerning 2 injuries and 2 carriers. In Neville, the claimant sustained injuries to his cervical spine while working for employer C in 9/94 and 1/99. He underwent surgery to his cervical spine 12/94, 9/02, 11/03, 11/04 and 6/05. He ceased working for C when the company was sold in 2006. On 3/9/07, he sustained a new injury while at employer B when a panel dropped, bounced off his hard hat and struck his hand. While the carrier for employer B accepted the hand injury, it denied the neck as being causally related to the 3/9/07 incident. The carrier for C argued that since there were neck complaints following the 3/9/07 injury, their responsibility for the neck was cut off by the new injury. While the dispute between the carriers was pending, the carrier for C paid the medical bills without prejudice and the carrier for B paid indemnity without prejudice. The claimant's treater testified at a deposition that the 3/07 incident was only a temporary aggravation of a pre-existing condition to the cervical spine and that he returned to baseline within a year of 3/07. Carrier B's IME also agreed that 3/07 was a temporary aggravation of the pre-existing cervical condition. After a formal hearing, the Commissioner ordered the carrier for employer B to pay all benefits under the Hatt case. The appeal by employer B followed. The main argument was that the second carrier cannot be saddled with the burden of the second injury when the claimant only suffers from a temporary aggravation of his symptoms. The CRB agreed and reversed the trial commissioner's decision, adding that the trial commissioner cannot rely upon the claimant's subjective testimony as to the condition of his neck, but only upon expert testimony (a doctor) that the second injury created additional permanent disability. In the words of 31-349: apportionment is only proper when the claimant has sustained a disability "which is materially and substantially greater than the disability that would have resulted from the second injury alone." Sierra v. C&S Wholesale Grocers, Inc., 5370 CRB-1-08-8  (9/23/09) In this case, the claimant sustained an injury to his lumbar spine and abdomen. He originally was assigned an 8% permanent partial disability rating to his lumbar spine, which was accepted by the respondent and paid. He then sought to include a rating on his abdominal wall, an unscheduled body part. The treating physician for the abdomen assigned a 50% rating and indicated it should be to the lumber spine. However, in his deposition, this doctor testified that he was not qualified to make an assessment to the lumbar spine for an abdominal injury. The CRB affirmed the trial commissioner's holding that the evidence before him was not credible to assign permanency for injuries to the abdominal wall. The decision also discusses his permanent total claim for which there was not enough evidence either. Rosario v. City of Hartford, First District, (9/3/09) In this trial commissioner’s ruling, Pomeranz, Drayton and Stabnick successfully defended a claim for a knee injury. The claim was dismissed based on credibility issues. Nicotera v. City of Hartford, 5381 CRB-1-08-9  (9/2/09) In this case, Pomeranz, Drayton and Stabnick successfully defended a claim for indemnity benefits for a low back injury. The CRB affirmed the Commissioner's ruling that the claim was not well-documented; also, the Commissioner found that an intervening motor vehicle accident was a substantial factor in causing the claimant's disability. This case is now on appeal to the Appellate Court. SEPTEMBER 2009 UPDATES Case Updates: A technical error by the appellee affords the Appellate Court the chance to reverse the CRB’s decision and remand the case when the companion case also decided by the Appellate Court on the same day and involved the same issues was affirmed. The Appellate Court recently decided two cases involving essentially the same issue with slightly different facts. Both cases involved an appeal by the Second Injury Fund. The essential issue on appeal was an issue of first impression for the Appellate Court. Specifically, the Court needed to decide in both cases the time limitation for an appeal from a decision by the trial commissioner to the Compensation Review Board by the Second Injury Fund pursuant to Section 31-301. In Dechio v. Raymark Industries, Inc., 114 Conn. App. 58 (2009), the Second Injury Fund appealed a trial commissioner’s subsequent order and the appellee filed a timely Motion to Dismiss. Since the Motion to Dismiss was timely the Appellate Court affirmed the CRB’s decision and the Fund’s appeal remains dismissed. However, in Stec v. Raymark Industries, 114 Conn. App. 81 (2009), the appellee did not file a timely motion to dismiss the Fund’s appeal and the Appellate Court reversed and remanded the CRB’s decision. The facts in both cases are that the commissioner issued an original operative finding and award against the employer. The employer did not pay the award and a subsequent finding and award was entered against the Second Injury Fund. In both cases, the Fund did appeal within twenty days from the subsequent order but not within twenty days from the operative finding. The Appellate Court held that such an appeal is not timely in light of the fact that the Fund was a party that participated fully in the underlying proceedings that resulted in the issuance of the finding and award and the commissioner’s subsequent finding was merely a ministerial act. The key difference in the cases was that in Stec there was not a timely motion to dismiss filed and therefore the Court needed to construe whether 31-301 would allow the Board to hear a late appeal. The Appellate court held that Section 31-301 does not preclude the Board from hearing late appeals, meaning the Board has subject matter jurisdiction to do so when there has not been a timely motion to dismiss filed. Since Stec was remanded we will wait and see what further decisions may be rendered. Kernaghan v. Sikorsky Aircraft, (4th District, Commissioner Goldberg) (8/19/09) The Respondents (through lead counsel Day Pitney and assisted by Pomeranz, Drayton & Stabnick) successfully defended a death claim. The issue was whether the claimant’s death due to T-Cell Leukemia (T-PLL) was caused by exposure to benzene and trichloroethylene during the course of his employment. Both parties presented expert witnesses in support of their position. The Trial Commissioner determined that the claimant’s expert’s theory of how the decedent contracted T-PLL was not credible. The Trial Commissioner found the Respondents’ experts to be more credible as well as the testimony of Sikorsky employees regarding the fact that there was no evidence of exposure to the claimed chemicals in the workplace. The Commissioner concluded the claimant failed to prove the decedent was exposed to benzene or trichloroethylene at Sikorsky and failed to prove exposure was the cause of the claimant’s death. The case was dismissed.