RECENT DECISIONS: 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. RECENT CASES POMERANZ, DRAYTON & STABNICK HAS LITIGATED: JOLICOEUR V. DUNCKLEE, INC.; (5150, CRB, 2-06-10, Nov. 8, 2007) The claimant sought authorization for a four-level disc replacement surgery. The Trial Commissioner denied authorization for the four-level surgery. The CRB affirmed the Commissioner’s decision based on the surgery constituting a real danger and suffering without fair assurance of improvement and therefore it is not reasonable and necessary medical treatment. MANNARINO V. CIRCON/ACMI & ACE USA, (Seventh District, September 2007) A Finding and Dismissal entered on the claim for ongoing pain management treatment where the claimant had reached maximum medical improvement. Claimant failed, in the face of defenses raised by PDS through medical evidence, to prove that the treatment sought was necessary, reasonable, and curative. LEVARGE vs. GENERAL DYNAMICS CORP., ELECTIC BOAT DIVISION, 282 Conn. 386 (May 15, 2007) The Connecticut Supreme Court refuses to consider whether Federal Longshore decision collaterally estopped issue of causation in State forum. The Court determined there is no final judgment because the issue of apportionment between the carriers had to first be addressed. ESPOSITO vs. SIMKINS INDUSTRIES, INC., 5065 CRB-3-06-3 (March 1, 2007) Claim by self-insured for apportionment upheld by CRB against Connecticut Insurance Guaranty Association. Pomeranz, Drayton & Stabnick successfully argues that General Statutes Section 31-299b allows for apportionment against Guaranty Association and that Hunnihan v. Mattatuck, 243 Conn. 438 (1947) does not control. BOYEA vs. PRATT AND WHITNEY, (Eighth District March 23, 2007) Death claim based on allegation that lung cancer developed secondary to exposure at work. Commissioner finds defense experts presented by Pomeranz, Drayton & Stabnick credible and dismisses claim. LLOYD WILLIAMS vs. PRATT AND WHITNEY, (First District May 9, 2007) Claim for hip replacement related to twist at work dismissed. Commissioner does not adopt opinion of treating physician. FRANK BARBERA JR. vs. CHEROKEE CARRIERS, (Eighth District May 18, 2007) Pomeranz, Drayton & Stabnick successfully defends insurance carrier that denied coverage in effect. MAFFEO vs. BAYER, (Third District October 18, 2006) Claimant sought payment for right shoulder injury in addition to accepted right elbow, hand and left wrist injury. Based on Pomeranz, Drayton & Stabnick’s cross-examination of the treater regarding causation, the claim for right shoulder is dismissed. MARRON vs. CITY OF NORWALK (Seventh District, May 22, 2007) The Respondents sought credit for temporary total paid while the claimant was working. Based on surveillance and investigator’s testimony the Commissioner awarded the Respondents’ credit of $17,263.12 for the entire period of temporary total paid following shoulder surgery. MLECZKO vs. 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. STONE vs. SIKORSKY AIRCRAFT CORP. (Fourth District, June 30, 2006) Dismissal of bilateral carpal tunnel syndrome which the claimant alleged was caused by either an accidental injury or repetitive trauma while working as a firefighter/EMT. Through both medical evidence and testimony as well as lay testimony, Pomeranz, Drayton & Stabnick successfully convinced the Commissioner that the claimant’s carpal tunnel condition did not arise out of and in the course of his employment. Legislative Update This year's legislative regular session ended June 6, 2007. When the dust had settled, five pieces of legislation relevant to the Workers Compensation Act or 7-433b had passed and have now become law. Despite the concerted effort of the CTLA, several legislators, and a group of practitioners, however, two significant bills, one addressing scarring (SB-153) and one amending §31 - 308a (SB-847) failed during the legislative process. A proposed act that would have established rebuttable presumptions for firefighters and policemen in the case of heart and hypertension as well as other diseases also failed. Given the effort and resources expended on SB-153 and SB-847, a bit of the history of those bills is appropriate. The scarring bill would have expanded our law to cover disfigurement on any body part and eliminated the two year limitation in which to pursue such a claim. In a most interesting Appropriations Committee hearing, the bill failed on a 20-20 vote. The hearing can be seen on the CT-N website. SB-847 was subject of a skillful amendment at the Senate session level. Rather than a potential 520 week duration of 31-308a benefits, an amendment proposing that the length of a 31-308a potential award mirror the schedule for the body part in question, i.e. 117 weeks for a neck, 374 weeks for a back etc. This bill passed in the Senate. The bill never came to a vote in the House. The new Public Acts in two or three instances do provide some limited additional benefit to the injured worker. The new legislation is as follows: P.A. 07-80 - An Act Concerning Notification to Injured Employees of the Discontinuation or Reduction of Workers' Compensation Benefits. (effective 10-1-07) This Act amends §31-296 so as to allow the employee to contest a form 36 by requesting a hearing not later than 15 days after receipt of the 36. The form 36 will also now identify the employee's treating physician and direct the employee to call the district worker's compensation office to request a hearing. The new form 36 will also advise the employee to be prepared to provide medical or other documentation to support the objection. The commission will be issuing a new form 36 effective 10/1/07 and it will be available on their website. The Act, however also amends §31-288(b) addressing the fault or neglect of an employer or insurer in the adjustment or payment of compensation unduly delayed by increasing the penalty to $1000 for each case of such delay to be paid to the claimant. P.A. 07-161 - An Act Concerning Survivor Benefits. (effective 10-1-07) This Act amends §7-433b (heart and hypertension) relative to the pension side of the combined survivor benefit such that the pension benefit shall not terminate upon remarriage. The Act also adjusts the calculation of the 100% cap such that the total compensation paid now shall not exceed that paid to the members of such department at the maximum rate in the same position. P.A. 01-31 - And Act Concerning the WOrkers' Compensation Medical Practitioners' Fee Schedule and Time for Filling A Workers' Compensation Appeal. (effective 10-1-07) This Act rewrites Section 31-280(b)(11) so as to allow the Chairman to implement and update the medical practitioners' fee schedule based on the formula provided by the Medicare Resource based relative value scale and to implement coding guidelines in conformance with the coding usde by Medicare. This does not mean that Medicare rates will be used. The intent is not to significantly decrease or increase current provider payments. The Act also makes it clear that the Chairman may make necessary adjustments to the fee schedule for services where there is no established Medicare value. This change is much welcomed by the chairman and will improve the methodology of publishing the schedule which had become more and more difficult under the old 74% of the "usual and customary" charges. The Act also rewrites §31-301 such that in the event a post Finding and Award, order, or decision motion is filed, the 20 day period for filing an appeal shall commence on the date of the decision on such motion. The Chairman will be issuing a memo on the Appellate procedures after meeting with the commissioner and legal advisory committee. Those on the executive committee who commented on this proposal were unanimously in favor of it. The original proposal addressed motions to correct. The Act, however, extends the appeal period for any (presumably timely filed) motion. P.A. 07-89 - An Act Concerning Penalties for Concealing Employment or Other Information Related to WOrkers' Compensation Premiums. (effective 10-1-07) This act amends §31-288 and the procedural Labor Department statutes associated therewith by empowering the Labor Commissioner to issue stop work orders to employers who fail to properly insure their liability under the act; misrepresent employees as independent contractors; or who knowingly provide false or misleading information as to the number of employees for purpose of lower premium. The Act provides for a $1000 per day civil penalty for each day such stop work order is violated. P.A. 07-29 - An Act Concerning the Interim Appointment of Workers' Compensation Commissioners. (effective 7-1-07) This Act amends §31-276(d) by extending from 10 to 45 days the period the judiciary committee has to hold a meeting to vote on a proposed vacancy appointee. It also allows the committee to extend the investigation period an additional 15 days upon proper notice to the Governor. As in the past, failure to act within the time period is deemed an approval. Commission Update On April 4, 2008 Governor Rell named Daniel Dilzer of Kensington and David Schoolcraft of Hebron as the two newest Workers’ Compensation Commissioners. It is anticipated that for the next few months, both Commissioners will be assigned to all of the districts as part of the orientation process. By September, each of the Commissioners will probably be assigned to split their time between two districts. Honorable Daniel Dilzer Commissioner Dilzer has worked as an attorney at the law firm of Davila and Dilzer in New Britain. He earned his law degree from the University of Bridgeport School of Law and his undergraduate degree from Central Connecticut State University. Commissioner Dilzer serves on the State of Connecticut’s Victims’ Compensation Commission and has served as a Commissioner of the New Britain Housing Authority, the Berlin Board of Ethics and the Berlin Charter Revision Commission. Commissioner Dilzer also served in the Connecticut Army National Guard from 1984 to 1992. Honorable David Schoolcraft Commissioner Schoolcraft has worked as an attorney for the Rocky Hill based law offices of Donna-Maria Lonergan. He has served as Chair of the Hebron Board of Selectmen and serves on the Board of Andover, Hebron, Marlborough Youth Services, Inc. Commissioner Schoolcraft earned his law degree from Western New England College School of Law and received his undergraduate degree from the University of Connecticut. In August 2007, Randy L. Cohen was appointed by the Governor to serve as our newest workers' compensation commissioner. Commissioner Cohen is a board certified workers' compensation specialist . She previously practiced law as a partner in the firm of Corsello and Cohen of Norwalk where she focused part of her practice in workers compensation. Commissioner Cohen is currently sitting in Brideport (4th District) and Waterbury (5th District). There is a possibility that she will soon be moved to Stamford (7th District). Effective June 1, 2007 the Chairman has determined that Stipulation payments must be made no later than twenty (20) days after approval of the Stipulation. The 20 day period begins the day after approval of the agreement. See memorandum 2007-02. Commissioner Jesse Frankl and Commissioner A. Thomas White officially retired in 2007. Commissioner James Metro retired on August 31, 2007. He will be doing some per diem work conducting hearings in New Milford. Commissioner Paoletta and Commissioner Waldron will be retiring as of March 1, 2007. Governor Rell appointed Jack Goldberg to sevre as a workers' compensation commissioner. He was previously a commissioner for The Department of Public Utility Commission. Commissioner Goldberg is presiding in The Middletown office - (eighth district). In August 2007, Randy L. Cohen was appointed by the Governor to serve as our newest workers' compensation commissioner. She will be sitting in Bridgeport (4th District). Commissioner Cohen was previously a partner in the firm Corsello and Cohen where she focused part of her practice in workers compensation. Please note new statute books are now available in all the districts. Please note the Form 36 has been revised as of October 1, 2007. The Form can be obtained on the Commission's website. Please note it must also be sent directly to the claimant in addition to claimant's attorney.