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| FEBRUARY 2010 UPDATES | ||
Recent Decisions: Zhuljeta Xhuti v. Timken Company and St. Paul/Travelers Insurance Company ; 500139902 Commissioner Truglia;. In this case, Pomeranz Drayton & Stabnick successfully defended and the Commissioner found that while the claimant may have suffered a compensable injury involving her cervical spine, she did not sustain her burden of proof that she had suffered any temporary total disability benefits to which she was entitled to indemnity benefits. Furthermore, the claimant was not found to have any permanent impairment and the respondents were only found responsible for future medical care subject to a determination that said medical care was reasonable and necessary. Updated discussions have been recently held and hearings have recently been assigned to discuss the respondents’ obligation to disclose video surveillance. While the Connecticut Practice Book outlines the requirements for production of video surveillance, the Connecticut compensation system is designed as an informal and flexible adjudicative system and most, if not all, practitioners do not welcome or accept the adoption of any formal rules or proceedings. It is a commonly held practice that counsel should not be required to identify or produce the existence of video surveillance prior to its use for several reasons. The first and most obvious reason is that the respondents may choose not to use their surveillance. The second is because the use of the surveillance is part of the respondents’ investigation, identification or production of the names of defense witnesses and investigatory material is only applicable if the material deals with “medical documents”. The third obvious reason why the video should not be disclosed is because of its use for impeachment purposes. It has been generally held that video surveillance should only be required to be produced after the claimant or the person captured on the video has had his or her testimony memorialized. That seems to be the practice followed among the Commission with the deposing party afforded the opportunity to challenge the validity of the video including its accuracy if and when the video is used for impeachment purposes. Pleasant v. New Haven Partitions, Inc. , 5th District, 700143265 (Commissioner Mlynarczyk, 1/8/10) Pomeranz, Drayton & Stabnick successfully defended a claim for a lumbar spine injury resulting in two surgeries. The claimant alleged an unwitnessed accident while working and lifting heavy materials as a union carpenter. The claimant’s medical records were void of any mention of a traumatic injury at work. The Respondents submitted evidence that the claimant would not have been doing the work he allegedly performed alone on the date of injury. The Commissioner concluded the claimant’s testimony was not credible or persuasive and therefore dismissed the claim in its entirety. | ||
| JANUARY 2010 UPDATES | ||
Recent Decisions: Morneault v. Hamilton Sundstrand , 100155605 (1/26/10) Pomeranz, Drayton and Stabnick successfully defended at the trial level a claim for pain management in a carpal tunnel and elbow workers' compensation claim. The trial commissioner found that the proposed treatment was not reasonable and necessary. Cruz v. Montanez , 294 Conn. 357 (2009) In Cruz v. Montanez, 294 Conn. 357 (2009), the Connecticut Supreme Court decided the issue of whether the lien under 31-293 was payable to the employer where only non-economic damages were awarded by the jury. Mr. Cruz was working as a landscaper for his employer when he was involved in a motor vehicle accident. His employer, through its insurer, paid indemnity and medical benefits in accordance with the Act. He subsequently brought a third party action and PDS intervened on behalf of the employer. The matter went to trial and the plaintiff did not put in any evidence of economic damages, such as lost time or medical bills. The jury thus awarded the plaintiff only non-economic damages, sometimes referred to as "pain and suffering." The plaintiff then refused to honor the lien, claiming that the employer was only entitled to be repaid its lien from economic damages. In post trial motions, the trial judge disagreed and ordered the plaintiff to reimburse his employer the full lien. Plaintiff appealed to the Appellate Court and the Supreme Court transferred the case. In a well reasoned decision, the Supreme Court noted that there was no distinction in the statute, 31-293, between economic and non-economic damges and held that the employer was entitled to its full lien even if the jury had awarded just non-economic damages. Marandino v. Prometheus Pharmacy , ___Conn___, (January 26, 2010) In this case that was defended by Pomeranz, Drayton and Stabnick, the Connecticut Supreme Court upheld a decision awarding total incapacity benefits notwithstanding the fact that the claimant had voluntarily gone on permanent partial benefits previously. The defendants argued that since there was no change in status from the date that permanency began that the claimant could not revert back to total disability. The defendants also noted that the claimant had failed to file a motion to reopen the voluntary agreement for permanency. The Court held that the claimant was entitled to the temporary total benefits since the disability following permanency was "distinct from and due to a condition that is not normal and immediate incident of the loss for which she received permanent partial disability." The Court found that evidence of complex regional pain syndrome, possible additional surgery, a vocational expert stating that the claimant could not work all, showed that the claimant's disability was distinct from what normally would be expected form the injury and therefore the claimant could receive total disability. The Court determined that a motion to reopen was not necessary given the remedial intent of the statute. A concurring opinion stated that the claimant only needed to show that there was a changed disability status in order to make the claim and that the claimant did not have to prove (as the majority found) that her condition was not a normal result of her injury. The decision also reversed a decision of the Appellate Court which found that a knee injury that had occurred while at home was not due to the accepted elbow injury. The Supreme Court determined that there was sufficient expert testimony/reports in evidence to establish causation. The claimant successfully asserted that a knee injury which had occurred at home while going up stairs was due to the elbow injury since she twisted and was not able to grab the handrail with her injured arm. Smith v. Federal Express Corp. , 5405 CRB-7-08-112, Dec. 1, 2009 The Compensation Review Board, in this case directed the trial commissioner to utilize the actual date of a Form 36 as the date in which temporary total disability benefits are discontinued. The respondents had attempted to have the Form 36 approved effective date of the medical report itself. The trial commissioner originally agreed with the respondents, but the Compensation Review Board overturned. The date of the respondents’ medical examination was December 6, 2005 and the Form 36 was not filed until January 30, 2007. The Compensation Review Board upheld the decision of Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8, Feb. 5, 1997, which indicates that the earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Jordan v. Reindeau & Sons Logging, LLC , 5388 CRB-2-08-10 The Compensation Review Board in this case upheld a trial commissioner’s finding and dismissal. The trial commissioner found that the claimant was an independent contractor and utilized the “totality of the factors” test. The trial commissioner found that under Hansen v. Transportation General, Inc., 245 Conn. 613 (1988), applying the totality of the factors test and finding that the respondent had offered a more persuasive argument led to a conclusion that there was not an employer/employee relationship established. The trial commissioner found that the claimant was experienced in the line of work he was performing, was capable of doing unsupervised work, that he set his own hours and could come and go as he pleased. The trial commissioner found that the claimant was paid on an hourly basis with no deductions, had his own tools and that the respondent did not have the right to control the means and methods in which the claimant worked. The Compensation Review Board in this case goes through an excellent analysis of the issues involved in establishing an employer/employee relationship and how it relates to independent contractors. | ||
| DECEMBER 2009 UPDATES | ||
Recent Decisions: Voronuk v. Electric Boat Corporation, et al. The Connecticut Appellate Court, in the case of Voronuk v. Electric Boat Corporation, et al., confirmed the Workers’ Compensation Commissioner and Compensation Review Board dismissal of the claimant’s claim for survivors’ benefits pursuant to §31-306. Attorney Michael McAuliffe of Pomeranz, Drayton & Stabnick was one of the respondents' counsel that successfully defended the case. In Voronuk the Court concluded that the trial commissioner properly applied the substantial contributing factor test. The decedent was diagnosed with asbestosis in 1986. He died in October 1995. The medical evidence presented on behalf of the claimant-widow at trial was that the decedent’s underlying restrictive lung disease associated with asbestos exposure was a contributory factor to his death. The trial commissioner, the Compensation Review Board and the Appellate Court all noted that no physician or medical report opined that the claimed asbestos exposure at Electric Boat and the resulting asbestosis were substantial and/or significant contributing factors in causing the decedent’s death. The Court noted that something merely being a contributing factor is not enough to support compensability. The decision contains an extensive review of the “substantial factor” test of causation, which was analyzed in the 2008 Supreme Court decision of Birnie v. Electric Boat. Magee v. Sikorsky Aircraft Corporation, 400009995 (Commissioner Goldberg, 11/30/09) Pomeranz, Drayton & Stabnick successfully defended claim for 20% penalty interest asserted pursuant to §31-303. The payment in dispute was issued 13 days after the stipulation approval. It was sent by the respondent to claimant’s counsel by Fed-Ex two-day express. Fed-Ex did not complete the delivery until the 21st day after the stipulation was approved. Commissioner Goldberg relied upon the Compensation Review Board Garcia v. Middletown Nissan 2006 decision, as well the agreed-upon language contained in the stipulation, which indicated that the settlement proceeds shall become payable within 20 days. | ||
| NOVEMBER 2009 UPDATES | ||
Cases of Interest: The Supreme Court affirmed the Appellate Court’s reversal of the trial commissioner in Dinuzzo v. Dan Perkins Chevrolet Geo, Inc., et al released November 10, 2009. The case should serve as a strong statement that the claimant must establish all underlying facts necessary to support a medical opinion on causation of injury. A doctor’s conclusionary opinion will not suffice. In Dinuzzo the claimant was alleged to have died due to a heart attack brought on by inactivity following a back injury. The evidentiary record failed to reveal a diagnosis of atherosclerotic heart disease or witnesses to describe heart attack symptoms. To further confound the expert there was evidence that the claimant’s symptoms could have been consistent with interferon usage. There was no evidence that the inability to exercise was as a result of the back injury. The Court noted that no proper inference of a causal relationship could be drawn from the facts produced and that the claimant therefore had failed to meet his burden of proof. Recent Decisions: Kehone v. Berman & Russo, 100167547 (Commissioner Delaney, 10/14/09) In this case, Pomeranz, Drayton & Stabnick successfully defended a claim for a back injury that was made by a paralegal in a law firm. The paralegal alleged that the injury occurred while carrying a file but the initial medical reports did not document the claim. The Commissioner dismissed the claim based on failure of the claimant to sustain her burden of proof. Case Law Update: In the case of Van Hoesen v. Cianbro, jurisdiction under the longshore and Harbor Workers’ Compensation Act was successfully challenged. The Administrative Law Judge concluded that the claimant, an ironworker renovating a drawbridge, had failed to establish that the river spanned by the bridge was subject of commercial vessel traffic and that he had failed to establish that covered duties (i.e. Longshore status) had contributed to his bilateral hand condition. The claimant has withdrawn his appeal. | ||
| OCTOBER 2009 UPDATES | ||
Recent Decisions: Brinkley v. Pratt & Whitney, 8th District, file number 800153188 (Comm. Dilzer, October 8, 2009) Pomeranz, Drayton and Stabnick were able to successfully defend a claim for cervical spine injury based on repetitive trauma theory. In this case the commissioner’s examiner, Dr. Murray, initially commented that claimant’s condition was due to alleged repetitive trauma at work, however, subsequently Pomeranz, Drayton and Stabnick was able to show that the claimant’s work was not repetitive in nature and that the claimant had not provided a complete history to the commissioner’s examiner in regard to past non-occupational cervical spine injuries. Dr. Murray changed his opinion regarding causation when he was presented with accurate history of prior non-occupational injuries. Neville v. Baran Institute of Technology, 5383 CRB-8-08-10 (9/24/09) This case includes an excellent analysis of how to apply the decision of Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003) and C.G.S. Sec 31-349 concerning 2 injuries and 2 carriers. In Neville, the claimant sustained injuries to his cervical spine while working for employer C in 9/94 and 1/99. He underwent surgery to his cervical spine 12/94, 9/02, 11/03, 11/04 and 6/05. He ceased working for C when the company was sold in 2006. On 3/9/07, he sustained a new injury while at employer B when a panel dropped, bounced off his hard hat and struck his hand. While the carrier for employer B accepted the hand injury, it denied the neck as being causally related to the 3/9/07 incident. The carrier for C argued that since there were neck complaints following the 3/9/07 injury, their responsibility for the neck was cut off by the new injury. While the dispute between the carriers was pending, the carrier for C paid the medical bills without prejudice and the carrier for B paid indemnity without prejudice. The claimant's treater testified at a deposition that the 3/07 incident was only a temporary aggravation of a pre-existing condition to the cervical spine and that he returned to baseline within a year of 3/07. Carrier B's IME also agreed that 3/07 was a temporary aggravation of the pre-existing cervical condition. After a formal hearing, the Commissioner ordered the carrier for employer B to pay all benefits under the Hatt case. The appeal by employer B followed. The main argument was that the second carrier cannot be saddled with the burden of the second injury when the claimant only suffers from a temporary aggravation of his symptoms. The CRB agreed and reversed the trial commissioner's decision, adding that the trial commissioner cannot rely upon the claimant's subjective testimony as to the condition of his neck, but only upon expert testimony (a doctor) that the second injury created additional permanent disability. In the words of 31-349: apportionment is only proper when the claimant has sustained a disability "which is materially and substantially greater than the disability that would have resulted from the second injury alone." Sierra v. C&S Wholesale Grocers, Inc., 5370 CRB-1-08-8 (9/23/09) In this case, the claimant sustained an injury to his lumbar spine and abdomen. He originally was assigned an 8% permanent partial disability rating to his lumbar spine, which was accepted by the respondent and paid. He then sought to include a rating on his abdominal wall, an unscheduled body part. The treating physician for the abdomen assigned a 50% rating and indicated it should be to the lumber spine. However, in his deposition, this doctor testified that he was not qualified to make an assessment to the lumbar spine for an abdominal injury. The CRB affirmed the trial commissioner's holding that the evidence before him was not credible to assign permanency for injuries to the abdominal wall. The decision also discusses his permanent total claim for which there was not enough evidence either. Rosario v. City of Hartford, First District, (9/3/09) In this trial commissioner’s ruling, Pomeranz, Drayton and Stabnick successfully defended a claim for a knee injury. The claim was dismissed based on credibility issues. Nicotera v. City of Hartford, 5381 CRB-1-08-9 (9/2/09) In this case, Pomeranz, Drayton and Stabnick successfully defended a claim for indemnity benefits for a low back injury. The CRB affirmed the Commissioner's ruling that the claim was not well-documented; also, the Commissioner found that an intervening motor vehicle accident was a substantial factor in causing the claimant's disability. This case is now on appeal to the Appellate Court. | ||
| SEPTEMBER 2009 UPDATES | ||
Case Updates: A technical error by the appellee affords the Appellate Court the chance to reverse the CRB’s decision and remand the case when the companion case also decided by the Appellate Court on the same day and involved the same issues was affirmed. The Appellate Court recently decided two cases involving essentially the same issue with slightly different facts. Both cases involved an appeal by the Second Injury Fund. The essential issue on appeal was an issue of first impression for the Appellate Court. Specifically, the Court needed to decide in both cases the time limitation for an appeal from a decision by the trial commissioner to the Compensation Review Board by the Second Injury Fund pursuant to Section 31-301. In Dechio v. Raymark Industries, Inc., 114 Conn. App. 58 (2009), the Second Injury Fund appealed a trial commissioner’s subsequent order and the appellee filed a timely Motion to Dismiss. Since the Motion to Dismiss was timely the Appellate Court affirmed the CRB’s decision and the Fund’s appeal remains dismissed. However, in Stec v. Raymark Industries, 114 Conn. App. 81 (2009), the appellee did not file a timely motion to dismiss the Fund’s appeal and the Appellate Court reversed and remanded the CRB’s decision. The facts in both cases are that the commissioner issued an original operative finding and award against the employer. The employer did not pay the award and a subsequent finding and award was entered against the Second Injury Fund. In both cases, the Fund did appeal within twenty days from the subsequent order but not within twenty days from the operative finding. The Appellate Court held that such an appeal is not timely in light of the fact that the Fund was a party that participated fully in the underlying proceedings that resulted in the issuance of the finding and award and the commissioner’s subsequent finding was merely a ministerial act. The key difference in the cases was that in Stec there was not a timely motion to dismiss filed and therefore the Court needed to construe whether 31-301 would allow the Board to hear a late appeal. The Appellate court held that Section 31-301 does not preclude the Board from hearing late appeals, meaning the Board has subject matter jurisdiction to do so when there has not been a timely motion to dismiss filed. Since Stec was remanded we will wait and see what further decisions may be rendered. Kernaghan v. Sikorsky Aircraft, (4th District, Commissioner Goldberg) (8/19/09) The Respondents (through lead counsel Day Pitney and assisted by Pomeranz, Drayton & Stabnick) successfully defended a death claim. The issue was whether the claimant’s death due to T-Cell Leukemia (T-PLL) was caused by exposure to benzene and trichloroethylene during the course of his employment. Both parties presented expert witnesses in support of their position. The Trial Commissioner determined that the claimant’s expert’s theory of how the decedent contracted T-PLL was not credible. The Trial Commissioner found the Respondents’ experts to be more credible as well as the testimony of Sikorsky employees regarding the fact that there was no evidence of exposure to the claimed chemicals in the workplace. The Commissioner concluded the claimant failed to prove the decedent was exposed to benzene or trichloroethylene at Sikorsky and failed to prove exposure was the cause of the claimant’s death. The case was dismissed. | ||
| AUGUST 2009 UPDATES | ||
Recent Decisions: Chappell v. Pfizer, Inc. ET AL; AC29442 (7/21/09) The Claimant-Appellee in this matter worked for a fermentation of years as a chemical operator in the defendant’s fermentation department and alleged that he suffered a compensable asthma condition diagnosed on January 31, 2002. The claimant had retired in 1992. The Respondents, while acknowledging that the claimant’s asthma was caused by his exposure to airborne organic materials during his employment defended the claim on the basis that the three year statute of limitations for occupational disease claims did not apply and that the claimant was subject to the one year statute of limitations on the basis of a repetitive trauma claim. The Appellate Court, focusing on the causal connection between the claimant’s duties of employment and the disease, found that the claimant’s employment duties were not common occurrences in most of the working world and were distinctively associated with the claimant’s occupation as a chemical operator; and that further, the claimant’s specific duties within the manufacturing plant were more likely to cause his disease than other kinds of work within the same facility. The Court concludes, relying upon the case of Estate of Doe v. Department of Correction, 268 Conn, 763 (May 2004). The claimant’s particular employment was more likely to cause his asthmatic disease “than with other kinds of employment carried on under the same conditions”. Id. Compare Malchik v. Division of Criminal Justice, 266 Conn. 728 (2003) (claim of coronary artery disease was deemed not to be an occupational disease and therefore subject to the one year statute of limitation for repetitive trauma claims. In Malchik, the court found there was no credible evidence supporting that coronary artery disease was related to the claimant’s work). Melillo v. Bayer Corp. (Third District Decision File # 300069011) (7/23/09) Pomeranz, Drayton and Stabnick successfully defended a claim for late payment of a stipulation and penalty under Section 31-303. Commissioner Cohen found that payment was not late in that the check was issued on the 20th day after receipt of the stipulation; since the stipulation language required that the settlement be "payable" within 20 days of approval the commissioner found the issuance of payment timely even though the claimant did not receive the check until after the 20th day from date of approval of the agreement. Baron v. Lightolier, (Seventh District Case Commissioner Truglia) (July 10, 2009) Pomeranz, Drayton & Stabnick successfully defended a death claim based on a jurisdictional defense. The claimant was a salesman for a light company with a sales area in upper New Jersey and Westchester County in New York. The claimant alleges to have worked out of his home in Connecticut where he contended that he had a fax machine, copier and computer. The claimant asserted that he had a “home office” in Connecticut and that at the time that he was traveling to the employer’s main office in New Jersey the “going and coming” rule did not apply since he had left from his home office to travel to another business site. The Seventh District Commissioner rejected this argument and found that the claimant failed to show a significant relationship between Connecticut and either the employment contract or employment relationship, citing Burse v. American International Airways, Inc. 262 Conn. 31 (2002). This case probably will be appealed to the Compensation Review Board. | ||
| JULY 2009 UPDATES | ||
Recent Decisions: Hummel v. Marten Transport, Ltd., 114 Conn. App. 822 (June 9, 2009) This appeal involves a claim that seems to have been litigated forever. The case was previously the subject of a ruling in the Supreme Court in Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007), where the Court remanded the claim for further proceedings for lack of a final judgment. The claim involves the death of a truck driver and whether his widow proved that the employee’s work was a substantial factor in causing his death. In the recent ruling the Appellate Court held that the survivor’s burden of proof was sustained and that the death was compensable. Additionally, the Appellate Court held that since the defendant had not paid the case while the claim was pending appeal pursuant to General Statutes Section 31-301(f) that the CRB was correct in awarding penalty for 20% of the award pursuant to General Statutes Section 31-303. The defendant’s claim that the dependant’s award under General Statutes Section 31-306 should be offset by the Social Security offset of General Statues Section 31-37(e) was also denied. | ||
| JUNE 2009 UPDATES | ||
Recent Decisions: St. Paul Travelers v. Kuehl, HDD - CV06-4025559-S (Judge Wagner 5/27/09), appeal pending, __ Conn. __. In a decision rendered by the Honorable Wagner J., JTR, it was held that P.A. No. 05-230 was unconstitutional on the grounds that it creates a public emolument designed solely for the benefit of one individual. Pomeranz Drayton & Stabnick, on behalf of the St. Paul Travelers Companies, filed a declaratory judgment action against the defendant, claiming that P.A. No. 05-236, which allowed a widow to apply for Workers’ Compensation benefits retroactively, was unconstitutional as a public emolumenet. The plaintiff further alleged that said Act was unconstitutional in that it impaired the parties contractual rights because it is retroactive in application; and that said Act violates the Separation of Powers Doctrine because it retroactively annulled a prior final judgment of the Supreme Court in violation of the Connecticut Constitution, Art. 2. The Court found that the St. Paul Travelers Companies was able to set forth sufficient evidence in support of its assertion that the Public Act, in this case, was so narrowly drawn and passed so as to provide a benefit to only one single person, the widow, even though it does not mention her by name. An appeal has been taken by the intervening defendant, Koskoff, Koskoff & Bieder. Joseph Soracco, et. al. v. Williams Scotsman, Inc. et. al. In a decision rendered by the Connecticut Supreme Court, it was held that the trial court lacked subject matter jurisdiction to determine whether the allocation of private settlement proceeds was reasonable. On appeal, the intervening plaintiff challenged the trial court’s order regarding the allocation of proceeds of a settlement reached between the plaintiff, Joseph Soracco, his wife and the defendant. The plaintiffs brought a negligence action against the defendant for injuries Mr. Soracco sustained as a result of a fall on October 16, 2001. Mr. Soracco’s claim was filed pursuant to C.G.S. §31-293 and his wife’s claim, for loss of consortium, was derivative thereof. The Plaintiff was an employee of Manafort Brothers, Inc. (Manafort), who intervened in the plaintiffs’ action pursuant to §31-293(a), seeking to recover workers’ compensation benefits that it had paid and had become obligated to pay, to Soracco. Following an unsuccessful mediation attempt with the court, the plaintiffs and defendant reported back to J. Holzberg that a settlement had been reached. The substance of the settlement agreement was that, in exchange for a withdrawal and release, the defendant would pay the plaintiffs $750,000. Plaintiffs’ counsel further informed the court that each plaintiff would receive one half of that amount in satisfaction of their individual claims. The intervening plaintiff requested a hearing challenging the reasonableness of the equal division of the settlement proceeds. Judge Holzerg acquiesced and rendered an order that the equal division was reasonable. The Supreme Court found that Manafort lacked standing to contest the allocation of the settlement proceeds and thus, the trial court lacked jurisdiction to enter its order. The Court concluded that C.G.S. § 31-293(a) does not confer standing upon an employer seeking to challenge the allocation of the proceeds of a settlement reached between its injured employee and the tortfeasor. The statute protects employers from such agreements by preserving their rights in the face of such a settlement and providing that they cannot be bound by it without their consent. In other words, if the employee chooses to settle his or her personal injury claim against the tortfeasor, the employer’s right to recover its lien and pursue an independent action against the tortfeasor to recover any deficiency on the lien is unaffected. C.G.S. § 31-293 does not, however, allow employers to interfere with a settlement reached between its employee and the tortfeasor, nor does it provide courts with the authority to determine the appropriateness of said settlement terms. Legislative Update: The regular session of the 2009 Legislature ended 6/3/09. Several bills survived and became law. None of the legislative changes had any effect on benefits. The new Public Acts are as follows:
You will note that two bills that gained much attention did not become law in this session. House Bill 5249 which created penalties for an employer’s “delay of necessary treatment” died in the House. House Bill 6683 which sought to reduce the employer’s lien on third party actions by one third was amended so as not to apply to liens of the state, political subdivisions thereof, of the Second Injury Fund. It passed in that form in the House and then died in the Senate. The legislature of course has scheduled a special session to begin June 4. The expressed purpose is to finish the budget process. The budget proposals both on the democratic side and by the governor should be of note to you as a workers' compensation practitioner. As you know, the eighth district office is slated to be closed and that appears as a cut in both budget proposals. The closing of the eighth district therefore appears to be a given. The governor’s “no tax budget” has been described by her as eliminating some state agencies and consolidating others. She has explained that her budget proposal seeks to provide municipal aid and take into account business and industries’ inability to pay more taxes. The governor has also noted that this budget is an opportunity to reshape government and to put our state in a position to thrive when the economy rebounds. She has noted that as neighboring states continue to raise taxes, we have a chance to seize an opportunity to make our businesses and employers more attractive. The governor’s proposal seeks to eliminate ten state offices, 70 boards and commissions. At the same time it consolidates ten boards and commissions with other agencies. As you might anticipate, this reshaping of government and the cutbacks associated therewith have implications for the workers' compensation commission. A democratic proposal, later adopted by the governor, moves all five off-budget agencies into the general fund, which would officially blend our carrier/employer-funded system with those funded by the taxpayers. As noted above, some $7 million was removed from the workers' compensation system to assist with the balancing of the budget. That appropriation will be made up in the next assessment issued by the treasurer’s office. The governor’s budget proposal, however, suggests an additional $2 million appropriation in each of the next fiscal years and a $3.6 million reduction in the workers' compensation commission’s operating budget in each year.
To the extent that you as a practitioner wish to voice your opinion on any of the proposals you should probably contact your state senator or congressman.
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A postscript on last year’s report relative to Public Act 08-61 which created benefits for firemen and policemen hired after 7/1/96. That Act provided benefits under the provisions of Chapter 568 and is effective July 1, 2009. The legislative history and bill analysis suggested that the result of the bill, which created a rebuttable presumption in the case of a cardiac arrest or myocardial infarction during training or attendance at a fire, would be increased claims under Section 7-433C. I reported, therefore, that the assumption was that this would be codified as part of or near 7-433C in the statutes. In reality, the law was codified at 31-294i and the practitioner should appreciate the implications of placing the legislation in the Workers' Compensation Act. |
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| MAY 2009 UPDATES | ||
Recent Decisions: Donahue v. Veridiem, (SC 18237) (5/19/09) The central issue in this case involved whether an employer who is conclusively presumed precluded is also precluded from challenging the claimant’s proof through cross examination and submission of a written argument. The Supreme Court while noting that preclusion did not relieve claimants of their obligations to prove their claim by competent evidence went on to opine once a Motion to Preclude is granted the only role an employer can take is to decide whether to stipulate to the compensation claimed. If the employer does not stipulate, the case proceeds subject only to examination by the commissioner. The employer is not permitted to test the claimant’s evidence by way of question or argument. The court citing Connecticut General Statutes Section 31-298 noted the legislature vested broad powers to the commissioners and has allowed them to exercise such powers “in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Update: The Commissioner is to assess and consider attorney’s fees on Medicare Set Aside Trust. At a recent meeting of the Workers’ Compensation Commissioners, discussions were held concerning whether a Commissioner should consider attorney’s fees on Medicare Set Aside Trusts. Some Commissioners feel that a claimant’s attorney should not be entitled to receive attorney’s fees when a Medicare Set Aside Trust is necessary since the issue is one determined by the Commission on Medicaid and Medicare Services and does not involve any direct benefit to the claimant and is not the result of any work effort or negotiation on the part of claimant’s counsel. As anticipated, claimant’s counsel are unified in their belief that they should be entitled to fees since they view part of the negotiation process as encompassing the monies which are necessary to fund the Set Aside Trust including potential social security disability ramifications. A decision was made by the Commission that each case will be treated on an individual basis and the Commissioner may and shall inquire as to what activities or services were provided by claimant’s counsel before ruling on the attorney’s fees. One of the questions which was raised was whether the fees should be allowed when the Medicare Set Aside Trust is determined or results from the activities paid for by respondents and/or insurance carriers through outside vendors. Recent Decisions: McCoy v. Willow Convalescent Home and the Guaranty Fund Management Services. In a decision rendered by the Compensation Commissioner for the Fifth District Office, it was held that the Guaranty Fund Management Service should be required to reimburse Anthem Blue Cross/Blue Shield and other private medical insurers for benefits paid on behalf of a claimant pursuant to §31-299a. The claimant in this case suffered a compensable injury and the insurance company for the employer was deemed insolvent so that Guaranty Fund Management Services took over the administration of the case on behalf of the insolvent insurer. Anthem Blue Cross/Blue Shield paid medical benefits amounting to $5,068.84. The Guaranty Fund took the position that since it is a non-profit association existing pursuant to CGS §38a-836 and provides a limited form of protection in the event of the insurer insolvency, the Fund’s responsibility or exposure is limited to “covered claims” as defined under the Act subject to limitations and exceptions. CIGA argued that Anthem’s reimbursement claim was barred since it is an insurer and therefore not subject to reimbursement under the Act. Anthem claimed that as a health administrator, it was not an insurer-reinsurer since it does not contribute to the Guaranty Fund and the claim is directed against the employer and not the Guaranty Fund as the insurer. The case represents an extension of the Supreme Court decisions in Doucette v. Pomes et al, 247 Conn. 442 and Esposito v. Simken Industries, Inc., 286 Conn. 319. The Guaranty Fund has taken an appeal and the case will be heard by the Appellate Court and will in all likelihood continue up through the Supreme Court. |
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