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   MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                              January 2023 – March 2023

Claimant Must Establish a Medically Documented Pre-existing Condition Significantly Aggravated the Primary Injury

Dubuc v. Second Injury Fund, Case No. SC99605 (Mo. S. Ct. 2023)

FACTS: The claimant sustained an injury in October 2015 when he fell off a ladder at work injuring his wrist, kidneys and low back. He settled with his employer for his primary injuries but alleged that he was PTD under Section 287.220.2 and that the Fund was liable for benefits due to his pre-existing disabilities, including multiple hernias and Factor V Leiden mutation with anti-coagulation and his primary injury.

Following the hearing, the Administrative Law Judge denied benefits because the ALJ determined the primary injury alone rendered him PTD. Claimant appealed and the Commission reversed the Award of the ALJ and awarded him benefits from the Fund. The Fund appealed.

While the case was pending the Supreme Court handed down Cosby, which required the claimant to meet the standards in Section 287.220.3 to prove his claim. Prior to Cosby, Section 287.220.3 applied only when both pre-existing and primary injuries occurred after January 1, 2014 but Cosby held that Subsection 3 applies when any injury occurred after January 1, 2014.

Thereafter, the Court of Appeals reversed the Commission’s Award and remanded the case, instructing the Commission to determine if the claimant was entitled to benefits from the Fund under Section 287.220.3. The Commission did not award the claimant benefits from the Fund.

HOLDING: The Supreme Court affirmed the Commission’s decision. The claimant failed to establish his primary injury and pre-existing disabilities entitled him to PTD benefits from SIF under Section 287.220.3. He failed to establish any “medically documented” qualifying pre-existing disability that “directly and significantly aggravated or accelerated” his primary injury.

First, there was no “direct evidence” in the record of claimant’s hernias but only “self-reported history.” Claimant’s own statements about hernias noted by doctors in medical records were not considered “medically documented” because the doctors’ references to hernias were not based on records of diagnosis or treatment, but based on the claimant’s own statements.

Second, there was no showing that claimant’s Factor V Leiden mutation and anti-coagulation “directly and significantly aggravated or accelerated” his primary injury. When discussing the relationship between claimant’s pre-existing injuries and primary injury, Factor V Leiden mutation and anti-coagulation were omitted from the expert’s report. The claimant must show that “the impact of the pre-existing disabilities on primary injury is more than incidental; they must clearly exacerbate the primary injury in a meaningful way.”

Claimant’s Medical Evidence Must Show Pre-existing Disability Significantly and Directly Aggravated the Primary Injury

Swafford v. Second Injury Fund, Case No. SC99563 (Mo. S. Ct. 2023)

FACTS:  Claimant’s primary injury occurred in October 2017 when he slipped at work while getting out of a truck. He was diagnosed with a moderately large rotator cuff and labrum tear. After settling his worker’s compensation claim with his employer, he went to a hearing against the Fund, alleging his pre-existing disabilities combined with his primary injury, rendering him PTD.

The claimant had multiple pre-existing disabilities including ankylosing spondylitis, various cardiac conditions for which he had undergone multiple procedures, and right shoulder pain since 2012. In 2016, prior his work injury, he was diagnosed with bursitis in his right shoulder, which required steroid injections every three to four months.

Following the hearing, the ALJ denied the claim, concluding that the claimant failed to demonstrate he suffered from a “qualifying” pre-existing disability under Section 287.220.3. The Commission agreed with the ALJ’s determination that the claimant failed to show his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury pursuant to Section 287.220.3. Claimant appealed the Commission’s decision.

HOLDING:  On appeal, the claimant challenged the Commission’s decision for allegedly disregarding the expert testimony he offered to establish a causal relationship between his pre-existing disabilities and his primary injury. The Court found that the claimant failed to establish that his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury.

While the claimant’s medical reports establish that his pre-existing disabilities had some worsening effect on his primary injury, they were insufficient to show that the worsening effects rose to the level of significant and direct aggravation or acceleration. First, Dr. Lingenfelter’s “vaguely worded report” failed to establish “as a factual matter that claimant’s pre-existing disabilities ‘significantly and directly’ aggravated his primary injury.” He did not clearly articulate the extent to which any of those disabilities exacerbated that injury.

Second, Dr. Koprivica also provided “no medical evidence” that any of claimant’s pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury. While Dr. Koprivica stated that there was a “significant synergistic effect” between the pre-existing disabilities and the primary injury, that specific language relates to the standard for SIF liability prior to the 2013 amendments. Although medical experts need not use “magic words” (“synergistic effect”) associated with the less stringent standard (“combined with”) that qualifies for SIF liability under the pre-amended Section 287.220.2. Such language is insufficient under Section 287.220.3. Therefore the Fund was not liable for benefits.

Claimant Must Present Evidence Required to Meet All Statutory Requirements to Show PTD.

Weibrecht v. Second Injury Fund, Case No. SC99493 (Mo. S. Ct. 2023)

FACTS: Claimant’s primary injury was a low back injury he sustained at work in July 2016. After settling his claim with his employer, went to a hearing against the Fund alleging that he was PTD due to his pre-existing injuries to his low back in 2005 and 2009 and right shoulder in 2014 combined with his primary injury.

A hearing was held before the ALJ in May 2019. Before the ALJ issued her final Award, the Court handed down its opinion in Cosby finding that Section 287.220.2 applies when all injuries occurred prior to January 1, 2014 and Section 287.220.3 applies when any injury occurred after January 1, 2014.

After the hearing, but before the ALJ’s final Award, the claimant filed a motion to reopen the record for a supplemental hearing, contending that Cosby changed the law. He contended the Court’s decision in Cosby changed his burden of proof, which constituted “good cause” to reopen the record. The SIF argued that while the ALJ has authority to reopen the record in certain circumstances, doing so was not warranted under the facts of this case.

The ALJ denied claimant’s post-hearing motion and denied his claim for benefits from the SIF. The Commission affirmed the ALJ’s decision.

HOLDING:  The Court affirmed the earlier decisions finding that  the Commission did not abuse its discretion in affirming the ALJ’s denial of claimant’s post-hearing motions to reopen the record and submit additional evidence.

The Court pointed out that workers’ compensation law is entirely a creature of statute. Nothing prohibited the claimant from presenting evidence under both Sections 287.220.2 and 287.220.3 at his hearing. It was not against the logic of the circumstances and so unreasonable to indicate a lack of careful consideration for the ALJ to conclude there was no good cause to reopen the record when the Court had not previously interpreted Sections 287.220.2 and 287.220.3 and nothing precluded the claimant at from making alternative arguments. Accordingly, the ALJ did not abuse her discretion. Claimant should have been aware of what evidence was required to make a submissible case for PTD and the plain language of Sections 287.220.2 and 287.220.3 set forth the necessary evidence to make a submissible claim.

Upon Reaching MMI, Claimant Can Be Found PTD

LME, Inc. v. Robert Powell and Second Injury Fund, Case No. WD85427 (Mo. App. 2023)

FACTS:  The claimant suffered a work injury to his back while operating a pallet jack. He underwent a lumbar decompression fusion by Dr. Bailey. He determined the claimant reached MMI and provided a 12.5% rating of the lumbar spine. Prior to the work injury, claimant had suffered disability to the back due to two prior motor vehicle accidents.

After he was released at MMI for the back, the claimant began treatment on his own for major depressive disorder. Prior to the work injury, he had been diagnosed as bipolar and had experienced depression and suicidal ideation since he was a teen. Furthermore, he had only a ninth grade education, no GED and a history of learning and behavioral problems.

Dr. Stuckmeyer determined that as a result of the work injury, the claimant sustained 35% PPD to the body in addition to a pre-existing 15% for lumbar and pelvis injuries from his previous car accident. In a subsequent report, he determined the claimant was permanently totally disabled as a result of the work injury after reviewing the vocational report of Mr. Cordray and psychiatric report of Dr. Hill who opined that the work accident was the prevailing factor for the claimant’s development of major depressive disorder and somatic symptom disorder, and he assigned 40% and 15% PPD for each disorder, respectively.

The ALJ found the claimant PTD and that the employer was responsible for benefits. The Commission affirmed the Award.

The employer appealed, arguing that the Judge and Commission erred by determining the claimant PTD by misstating the agreement reached by the parties regarding the claimant’s MMI date, because the employer only agreed that the employee reached MMI for his physical injuries, because the employer never accepted or admitted a psychological injury and therefore the employee cannot be determined to be PTD until he has reached MMI for all conditions.

HOLDING: The Court disagreed with the employer’s argument and affirmed the Award.

At the final hearing, both the claimant and employer stipulated on the record to the MMI date of April 12, 2018, the date Dr. Bailey released the claimant. There was no discussion or delineation between the physical and psychological injuries regarding MMI in the stipulated facts. By arguing that the employer accepted the back injury but not the alleged mental injury misconstrues that one of the purposes of the final hearing was to resolve whether the employee suffered any disability.

The Court also noted that the ALJ relied on the opinion of Dr. Hill regarding the psychiatric injury. He stated that the recommended treatments are not curative by any means, but may help improve the claimant’s daily life. Thus, contrary to employer’s position, such evidence supports that the psychiatric injury has reached the point where no further progress is expected or maximum medical improvement.

Objective Symptoms at Time of Accident Include Indications of Injury Perceptible to Others

Harper v. Springfield Rehab & Healthcare Center, Case No. SD37268 (Mo. App. 2023)

FACTS: The Commission stated in its rulings: “Claimant suffered an ‘unusual strain’ in her lower back when she pushed the heavy medicine cart…which produced objective symptoms of injury” based on claimant’s testimony that she “felt a ‘pull’ in her lower back” and “shortly thereafter (during the same work shift)…had difficulty walking.”

The employer appealed the Commission’s decision. They argued that the claimant had not sustained an accident under the law because the Commission “failed to establish objective symptoms of an injury at the time and place of occurrence.”

HOLDING:  The Court stated that although the definition of “accident” in the statute has always included the phrase “producing at the time objective symptoms of an injury,” the changes to the statute in 2005 abrogated earlier case law interpreting the definition of “accident.”

They found that the adjective “objective” when used in combination with “symptom” means “perceptible to persons other than the affected individual.” They concluded that the statutory phrase, an unusual strain “producing at the time objective symptoms of an injury” should be interpreted to mean an unusual strain producing at (i.e. near) the time objective symptoms (i.e. indications perceptible by persons other than the claimant of the existence) of an injury (i.e. violence to the physical structure of claimant’s body).

The Court noted that the Commission found that the claimant “had difficulty walking” later in the same shift during which she suffered an unusual strain. Claimant’s difficulty walking would be perceptible to persons other than the claimant, indicated the existence of violence to the physical structure of claimant’s body, and was produced near the time of the unusual strain.

Therefore, the Court affirmed the Commission’s decision.

Claimant Not entitled to Additional TTD Benefits After MMI Because Refusal to Look For Work is Not Inability to Work.

Thompson v. CSI Commercial Services, Inc. and Second Injury Fund, Injury No. 10-087819

FACTS:  The claimant testified at injured her low back on July 20, 2010. She underwent a fusion at L2-L3 with Dr. Robson on March 7, 2011. She testified the surgery did not relieve her symptoms. Dr. Robson opined in his reports that claimant’s continuing complaints following the March 7, 2011 surgery were related to chronic changes at L4-5 and L5-S1 level which were degenerative in nature and were not acutely injured during the work-related injury. Dr. Robson found her at MMI referable to the work injury on August 18, 2011 and released her from care with work restrictions.

Thereafter, the claimant agreed with her employer that she would not be able to continue working for the employer due to the work restrictions. TTD benefits were terminated as of August 30, 2011, due in part to the MMI report of Dr. Robson. The claimant testified she applied for and began receiving unemployment benefits upon termination of her TTD benefits and received unemployment benefits from September 2011 through December 2012. She also testified that since she left the employer, she has been unable to find a job and has not worked to date.

Claimant testified that when her unemployment benefits terminated in December 2012, she, at the urging of a few individuals, including her primary care physician, Dr. Maebe, applied for Social Security Disability benefits due to her back pain, surgery pain, anxiety, and depression. She was awarded SSD benefits as of January 8, 2013.

The employer sent the claimant back to see Dr. Coyle in 2016. She underwent a surgical fusion at L5-S1 May 22, 2017. Dr. Coyle released her to return to work on November 30, 2017 with restrictions of 30 pound lifting occasionally and 20 pounds frequently. The claimant testified that she had not conducted a job search since Dr. Coyle released her on November 30, 2017. She testified she cannot work due to back pain and lower extremity radicular pain and numbness. She also testified that she cannot drive a car very far from her home, and she is very limited in her daily life activities. She denied her vocational specialist, Mr. Kaver’s, testimony that she told him she had to rest in a reclining position for most of the day.

HOLDING:  The Judge found that the claimant was entitled to 42.5% PPD as a result of the July 20, 2010 work injury and was not PTD. He also did not find any liability against the Second Injury Fund.

With respect to the issue of past TTD benefits, the Judge noted that Dr. Robson found claimant at MMI as of August 18, 2011. He further noted that the claimant received unemployment benefits through November 14, 2012 and in order to receive the same, the claimant needed to certify each week that she met the basic requirements such as being able to work and being available for full time work. Therefore, he found that the claimant was not entitled to TTD benefits from September 2011 through November 14, 2012 while she was receiving unemployment benefits.

The Judge noted that the purpose of TTD benefits is to cover claimant’s healing process. TTD benefits are owed until claimant can find employment or his condition has reached MMI. When further medical procedures are not expected, temporary benefits are not owed and a temporary award for additional TTD benefits is not warranted.

For the period of time of November 14, 2012 through November 8, 2016, the Judge found that the claimant was not entitled to TTD benefits from the time of her termination of unemployment benefits on November 14, 2012 through Dr. Coyle’s reexamination of her on December 8, 2016. Evidence from vocational specialist, Ms. Gonzales, indicated the claimant was capable of obtaining employment in the open labor market as well as medical evidence of MMI status from Dr. Robson and Dr. Coyle.

For the period of time of November 8, 2016 through November 30, 2017, the Judge found that the claimant was entitled to receive TTD benefits for a second period of time from Dr. Coyle’s December 8, 2016 reexamination of claimant and during her treatment by Dr. Coyle, including the May 27, 2017 surgery and post-surgical care until Dr. Coyle released claimant at MMI as of November 30, 2017. The right to TTD during the second period of time terminated based on Dr. Coyle’s MMI finding on November 30, 2017.

With regard to the period of time of November 30, 2017 to the present, the Judge noted that the evidence demonstrated that the claimant was capable of looking for work as of the date of MMI on November 30, 2017 but did not. He stated that in this case, a refusal to look for work demonstrates an unwillingness to return to work, not an inability to return to work. He found that the claimant is not entitled to any additional TTD benefits from Dr. Coyle’s release of the claimant on November 30, 2017 to the present.

The Commission affirmed the Award of the ALJ.

Awarding of Attorney’s Fees is in the Discretion of ALJ

Roe v. Darden Restaurants, Inc., Injury No. 18-074813

FACTS: Claimant attorney asserted a 25% lien on the gross proceeds paid in the case including payment of medical bills regarding claimant’s treatment for her September 13, 2018 injury. Initially, claimant’s attorney requested a list and accounting from the employer of all of the medical bills which had already been paid. Furthermore, the evidence shows that the employer notified claimant’s attorney in January 2020 that they intended to pay the remaining bills. Proof of such payment was forwarded in April 2020 to claimant’s attorney. Despite the foregoing, claimant’s attorney never advised his client the bills had been paid and proceeded to prolong the case for an additional two years, including a request for a deposition of a corporate representative to confirm payment of the bills.

Interestingly, at the hearing in March 2022, the employee testified she had never received a bill from any healthcare provider in connection with her injury.

Following the hearing, the Administrative Law Judge awarded compensation but limited the claimant’s attorney’s fees to 25% of the PPD awarded.

HOLDING: The ALJ noted that the determination of attorney’s fees is at the discretion of the Court. She noted that the efforts of claimant’s attorney after the bills were paid in 2020 were unnecessary. Although the claimant’s attorney did review the bills and send the employer’s attorney a couple of letters prior to the payment of the bills, the services provided were no more than the average workers’ compensation case might require. The majority of the claimed hours of work were after the bills had already been paid.

The Commission affirmed the ALJ’s award finding that the limitation of attorney’s fees to 25% of the PPD awarded was fair and reasonable.

Under Strict Construction, There are No Exceptions for the Late Filing of an Application for Review.

Gray v. Hawthorn Children’s Psychiatric Hospital and Second Injury Fund, Case No. ED110400 (Mo. App. 2023).

FACTS:  On June 10, 2019, the Administrative Law Judge held a final hearing. On September 12, 2019, the ALJ issued the final Award denying benefits. The parties had 20 days from the date of the final Award to file an Application for Review with the Commission. The claimant attempted to mail her Application for Review on September 30, 2019, within the 20 day period, however, the mailing was returned to her by the USPS due to insufficient postage.

On December 3, 2020, the ALJ conducted an Evidentiary Hearing where the claimant offered testimony about the mailing. After considering the evidence from the remand Hearing, the Commission accepted the claimant’s Application for Review as timely. Thereafter, contrary to the ALJ’s decision, the Commission ordered employer to pay PPD benefits. The employer appealed.

HOLDING:  The Court reversed the Commission and set aside the Final Award. It found that the Commission acted in excess of its powers when it accepted the claimant’s Application for Review. The claimant’s Application was untimely and the statute, under strict construction, does not provide a good cause exception to the 20-day deadline.

The Court explained that even if they accepted the claimant’s argument that the postage was sufficient (which they do not) and the USPS erred in returning the mailing for insufficient postage, the workers’ compensation statute does not provide exceptions for late filings so the Commission did not have jurisdiction to review the claimant’s Application.

California workers’ compensation is off to an interesting start for the year.

The Last Of The Board’s En Banc Emergency COVID Orders Has Been Rescinded

The Appeals Board issued several En Banc decisions in response to the state of emergency brought on by COVID-19.  These decisions temporarily suspended specific WCAB Rules of Practice and Procedure.  As we began to come out of the pandemic, the Board began rescinding those rules suspensions.  On February 28, 2023, California Governor Newsom terminated the COVID-19 state of emergency.  In response, the Board issued a new En Banc decision on March 22, 2023, Misc. No. 268.  This decision rescinded all remaining provisions of prior Misc. Orders in numbers 260, 261, and 266.  As the Board noted in footnote 3, “By this order, the Appeals Board rescinds all remaining rule suspensions.”

So, what does this mean for workers’ compensation practitioners?  This means that we are back to pre-pandemic rules and procedure, though there are hopefully a few changes that will remain with us.  The Misc. No. 268 dealt with three specific areas where rules and procedure were temporarily suspended; witness signatures on C & R’s, electronic filing of documents, and walk through assignment hours.  Let’s look at the impact of Misc. No. 268 in each of these areas.

Misc. No. 260, witness signatures

This is the area that may have the most day-to-day impact on practitioners.  Misc. No. 260 temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures and specifically noted the suspension of the requirement in the Compromise and Release agreements for signatures from two witnesses. Further, signatures on the forms from all parties may be electronic.  This Misc. Order issued March 18, 2020, in the very early days of the state of emergency. 

Whether parties will once again have to obtain actual non-electronic signatures is still up in the air with some judges requiring this while at least one has said “If DocuSign is good enough for my mortgage, it is good enough for a C & R”.  What we do know is that we once again require two witness signatures or completion of the notary form.

Electronic unwitnessed signatures on the Compromise and Release was an incredible time saver for both applicants and defendants and was very convenient.  The parties could simply email documents and obtain quick electronic documents.  There was no need for anyone to actually meet in person for signatures, scan signed documents, or mail them.  There is now.

Misc. No. 261, electronic filing

This area will also remove a major convenience for the workers’ compensation practitioner.  Misc. No. 261 temporarily suspended WCAB Rule 10940(b) regarding sending documents directly to the Appeals Board by fax or email for filing.  This Misc. Order issued March 19, 2020, the day after Misc. No. 260.

Misc. No. 261 noted that Rule 10940(b) “prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board.”  This was an incredible convenience that many took full advantage of.  Email with the Board was quick and easy and a major time saver.  That is no longer allowable and we are back to Rule 10205.7(c), which provides:

“No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers' compensation administrative law judge or the appeals board.”

Misc. No. 266, walk through assignment hours

Walk-through hearings area quick and easy way to move along a dispute or to obtain approval of a settlement.  Misc. No. 266 temporarily suspended WCAB Rule 20789(c) requiring that each district office have a designee of the presiding judge available to assign walk-through cases from 8:00 am to 11:00 am and 1:00 pm – 4:00 pm on court days.  This Misc. Order issued April 6, 2020, a few weeks after the other two Orders.

Rescinding this rule suspension should not have much practical effect as this has already been the case since the all DWC district offices except Eureka started again accepting in-person walk-through documents beginning September 6, 2022.  Concurrently, effective September 6, 2022, the DWC stopped  accepting virtual walk-throughs in the Lifesize platform.

Other Pandemic Changes

The Appeals Board instituted other changes during the pandemic that will hopefully remain with us. Possibly the most convenient and time saving of these changes is remote conferences, either by phone or Lifesize. 

There is most definitely something to be said for in person appearances.  This allows the parties to meet face to face and iron out conflicts not only in the case on calendar but in other matters as well.  It also allows for the practitioners to build a sense of community. 

However, the convenience of remote hearings and depositions is unmatched.  There is also a major cost savings for travel and wait times.  This also benefits witnesses who will not be as inconvenienced in appearing.  It is still unclear whether wet signatures will once again be required.

A Board Panel Decided that "High-Velocity Eye Injury" Does Not Actually Require A Direct Injury to Eye In Order to Apply LC § 4656(c)(3(F) Exception to 104-Week TD Cap

A unanimous panel of Commissioners issued a decision in the case of Glick v. Knight Transportation Holdings, Inc. upholding an Award of up to 240 weeks of Temporary Disability indemnity benefits to an applicant based on CA Labor Code § 4656 (c)(3)(F), based on an extremely broad interpretation of the phrase "high-velocity eye injury".

The applicant was employed as a truck driver. On November 26, 2018, he was struck by a motor vehicle while crossing a street. The vehicle was traveling at approximately 30 miles per hour at the time of impact, and the applicant was thrown approximately 10 feet. Among the numerous injuries sustained were fractures to the right and left temporal bones. 

The parties utilized a QME in Physical Medicine and Rehabilitation who determined that the applicant's "number one problem" was vision difficulty. A QME in ophthalmology also diagnosed vision issues including double vision which required eye muscle surgery. 

Defendant ceased payment of Temporary Disability indemnity benefits on 11/24/2020 (based on the 104-week cap in LC § 4656 (c)(2). Applicant requested an Expedited Hearing on the issue, arguing that he had sustained a "high-velocity injury" to the eyes which entitled him to an extended period of benefits pursuant to LC § 4656 (c)(3)(F).  

On December 21, 2020, the Workers' Compensation Judge issued a Findings & Award, finding that the applicant had sustained an injury to the "ophthalmology/vision/eye" caused by a "high-velocity impact", and that the applicant was entitled to ongoing temporary disability pursuant to LC § 4656 (c)(3)(F). 

Defendant filed a Petition for Reconsideration, arguing that the "plain language or common meaning" of the term "high-velocity eye injuries" requires "at least some impact with the eye". The defendant cited the WCAB's "common sense" interpretation of "amputation" in its analysis of LC § 4656 (c)(2)(C) [Cruz v. Mercedes-Benz of San Francisco (2007) 72 CCC 1281]. The petition was denied. 

In their decision, the Commissioners cited Glover v. ACCU Construction (2009) 2009 Cal. Wrk. Comp. P.D. Lexis 301, noting that in that case the applicant was awarded additional Temporary Disability benefits as a result of being struck by a metal fragment that was thrown by a mulching mower. The metal fragment entered the applicant's nostril and fractured the eye socket, but did not directly impact the eye ball. 

In reaching their decision in this case, the Commissioners apply a very broad interpretation of the phrase "high-velocity eye injuries" to include an injury caused by "quickness of motion, rapidity of movement or speed imparted to something" that results in medical treatment to the eye. It does not require injury to the organ of the eye. 

Apparently realizing the impact this decision might have, the Commissioners' opinion is careful to note that their analysis "is limited to the facts of this case". 

Newly Enacted SB 1127 Changed the Landscape in Deciding Whether to Deny Certain Claims

SB 1127 became effective as of 1/01/2023.  This changes the California workers’ compensation landscape in three ways:

1. Reduces the decision period from 90 days to 75 days for injuries and illness defined under sections 3212 to 3212.85, and 3212.9 to 3213.2 (i.e., presumptive injuries for specified safety officers);

2. Increases the maximum number of weeks of disability benefit entitlement from 104 weeks to 240 weeks for presumptive cancer claims for specified firefighters and peace officers as defined in LC 3212.1; and  

3. Increases the penalty - up to five times the amount of benefits up to $50,000 - for claims of injury or illness as defined in sections 3212 to 3213.2 (i.e., presumptive injuries for specified safety officers and COVID-19 presumptive claims) that are unreasonably denied. (LC 5414.3)  

While all three of the above-mentioned provisions have an effective dated of 1/01/2023, the increased penalty provision of newly created LC 5414.3 applies retroactively, regardless of whether the injury occurs before, on, or after the effective date. 

The reduced decision period provision affects fewer injuries and illnesses when compared to the increased penalty provision. However, both provisions apply to specified safety officer claims for hernias, heart trouble, pneumonia, cancer, PTSD, tuberculosis, MRSA, biochemical substances, meningitis, skin cancer, Lyme disease and to the low back under the duty belt presumption. 

By contrast, the penalty provision covers the three COVID-19 presumptions – 3212.86, 3212.87 and 3212.88 – whereas the reduced decision period provision does not. Thus, the timelines for decision-making specified for COVID presumption claims under SB 1159 still apply: 30 days under LC 3212.86 (essential workers with dates of injury before 7/05/2020); and, for qualified employees with a date of injury after 7/05/2020, LC 3212.87 (certain peace officers, firefighters and specified health care workers) allows for 30 days, whereas a decision must be made within 45 days for COVID claims arising under LC 3212.88 during a period of outbreak (for employees not covered by 3212.87).

Now more than ever, the defense community, and in particular claim examiners, should be cautious when determining if an employee has a qualifying job and qualifying injury.  

Written by: Kyla Block

Amended Full Commission Decision Provides Updated Guidance on Navigating Requests for Second Opinions and Clarifies the Issue of Payment Under the Fee Schedule 

A long-standing issue under the Workers’ Compensation Act has been second opinions on treatment options under N.C. Gen. Stat. § 97-25(b). The parties have frequently been at odds over whether defendants must 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit. Many administrative motions on the issue have ensued over the years. In May of 2202, the Full Commission issued a non-binding decision, Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), holding that:  

• Defendants did not need to pay any kind of prepayment for a second opinion under N.C. Gen. Stat. 97-25(b);
• Defendants did not need to pay beyond the fee schedule for that visit; and
• The fee schedule amount for a N.C. Gen. Stat. 97-25(b) second opinion is $301.23, based on CPT code 99456. 

You can find my partner Matt Marriott’s more extensive write up on that decision here. Following the Wyatt decision, Plaintiff filed Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings. While Plaintiff’s Motion was pending, the Commission, during its annual publishing of the Medical Fee Schedule Tables for 2022, identified inaccuracies in the fee schedule tables and corrected the inaccuracies in line with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. These changes removed the CPT Cod 99456 for second opinions and replaced it with UCR or Pay Per Agreement. UCR stands for usual, customary, and reasonable. Thereafter Plaintiff filed Plaintiff’s Supplement to Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings and pointed to the changes to the second opinion code to reflect “UCR or Pay Per Agreement” and noted that it no longer had a specific monetary amount. Plaintiff asserted that per the updated fee schedule, the second opinion fee would now be what was usual and customary. 

The Full Commission, in amending its Opinion and Award to find that the Medical Fee Schedule sets the maximum fee allowable by a physician conducting a 97-25(b) second opinion examination at “UCR or Pay Per Agreement”, found that Plaintiff was entitled to have Defendants pay his selected 97-25(b) expert or any other provider the usual, customary, and reasonable charge for such a provider in such a circumstance or a rate agreed upon by the physician and the parties. The Full Commission also noted that Defendants did not need to make prepayment, but that any motions or requests for a specific prior approval to charge “shall” be submitted to the Commission for each charge. Based on the facts in Wyatt, the Full Commission declined to grant Plaintiff’s request for approval of his specific physician’s fee, indicating there was insufficient evidence to show that plaintiff’s provider’s fee was reasonable; the Act specified that providers not be paid for services prior to the rending of services and said report; that the Commission had the responsibility of assuring medical and related expenses be kept within reasonable and appropriate limits; and the routine nature of the request for a 97-25(b) second opinion examination.  

Practice Pointers and Takeaways 

As we have noted, a Full Commission decision is not binding case law like a decision from the North Carolina Court of Appeals or Supreme Court would be. However, it does set the tone for how the Commission will likely be deciding these matters going forward. Thus, given the change to the Medical Fee Schedule, carriers and employers should assume they will be ordered to pay the usual, customary, and reasonable charges associated with second opinions under N.C. Gen. Stat. §97-25(b). However, since Defendants will be paying the usual, customary, and reasonable charges going forward, and the parties are encouraged to agree on the provider per the statute, there may be an argument that all else being equal, the provider with the lowest charge should be the provider chosen, in line with the responsibility of the Commission to keep medical and related expenses within reasonable and appropriate limits.  

Additionally, Employers and Carriers should expect to see more administrative motions on the issue of prepayment under N.C. Gen. Stat. §97-90(a). In responding to these motions, evidence regarding the usual, customary, and reasonable charges will likely be key, and a failure to provide the same by one side, may result in an adverse decision. A reasonable alternative to motions on the prepayment issue may be suggesting that Plaintiff pay the prepayment upfront with Defendants issuing the full charge upon receipt of the report.

Written by: Tracey Jones

Starting February 20, 2023, the Industrial Commission will begin emailing Report of Mediator fee invoices at the time the mediator is appointed. This new procedure will not impact the fee’s due date but is being introduced in an effort to allow additional time for processing and payment. The $200 fee can be paid either online via credit card or e-Check (a link for payment will be provided in the email) or by mailed paper check. With this new procedure, the Industrial Commission hopes to encourage early payment so employers and carriers can manage cases more efficiently while also being able to avoid the risk of past due invoices, penalties, and interest. 

Note: Payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier. The Commission is issuing penalties when they receive late payments, so timely processing these invoices is important.

Written by: Tracey Jones

Carolyn J. Thompson Appointed to Serve as Deputy Commissioner

Carolyn J. Thompson was appointed to serve as a Deputy Commissioner and her term began on January 2, 2023. Thompson previously served as a District Court judge and then a Resident Superior Court judge in the 9th Judicial District of North Carolina for a total of nine years. She worked in litigation for 16 years prior to that, and also as a certified mediator in Superior Court cases and Family Financial Settlement disputes. She is assigned to the Commission’s Raleigh office.

Kevin V. Howell Reappointed to Second Term as Deputy Commissioner

Deputy Commissioner Kevin V. Howell has been reappointed to serve a second term, which began on December 30, 2022. Deputy Commissioner Howell will continue to serve out of the Commission’s Raleigh office.

Strict Enforcement of Late Responsive Filings Pursuant to N.C.G.S. § 97-18(j)     

The Commission has been regularly assessing sanctions for Carriers/Employers failing to file a Form 60, 61, or 63 within thirty (30) days following notice from the Commission of the filing of a claim. Failure to file a Form within the requisite period results in a fine of $400.00. After the initial sanction of $400.00, Carriers/Employers shall have thirty (30) days anew in which to remit payment-in-full for the sanction AND to file a Form 60, 61, or 63. Failure to do either will result in an additional $200.00 sanction and being referred to an Enforcement Docket before the Commission for additional sanctions.  These sanctions could include, but are not limited to, contempt.

Though this rule has been in effect since 2017, we are now seeing strict enforcement and numerous defendants have been scheduled on a contempt docket for failure to file the Forms, or to remit payment for the respective fines.

Corrected Medical Fee Schedule Tables for 2022

Rule 11 NCAC 23J .0102 requires the Industrial Commission to publish annually on its website three tables (a Professional Fee Schedule Table, a Durable Medical Equipment (DME) Fee Schedule Table, and a Clinical Laboratory Fee Schedule Table). The Commission has reported it recently discovered inaccuracies in the fee schedule tables, and it has now corrected the inaccuracies to align with the information in the 2022 fee schedule tables and with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. The revised schedule is posted on the Commission’s website.

Maximum Weekly Benefit for 2023

The Commission has established the maximum weekly benefit for 2023 pursuant to N.C.G.S. § 97-29. As of January 1, 2023, the maximum weekly benefit applicable to all injuries arising on or after January 1, 2023 is $1,254.00.

CONNECTICUT WORKERS’ COMP UPDATE

The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our WINTER 2023 WORKERS’ COMPENSATION LAW UPDATE. Please feel free to share this update with your colleagues.  If someone inadvertently has been left off our email list and would like to receive future updates they can contact Jason Dodge at jdodge@ctworkcomp.com or 860-785-4503.

STRUNK DODGE AIKEN ZOVAS NEWS

We are starting the new year with some exciting news about our legal staff:

We are pleased to announce that Attorney Nancy Berdon has become a partner at SDAZ.  Attorney Berdon has been with SDAZ since the law firm was established in 2014 and has been an integral part in the success of the firm. Attorney Berdon’s direct line is 860-785-4507 and her email is nberdon@ctworkcomp.com   Please follow this link to Attorney Berdon’s bio:

https://www.ctworkcomp.com/attorneys/attorney-nancy-e-berdon/

Attorney Colette Griffin has also joined SDAZ as a partner as of January 1, 2023.  Attorney Griffin has over thirty years of experience defending employers in workers’ compensation claims in Connecticut.  She was the Chair of the Connecticut Bar Association’s Workers’ Compensation Section during the Covid Pandemic and, in that role, assisted the Workers’ Compensation Commission in Connecticut in keeping the system running smoothly.  Attorney Griffin is Board Certified as a Workers’ Compensation Specialist by the Connecticut Bar Association. Attorney Griffin also has a special interest in animal advocacy and in the past has been the Co-Chair of the CBA Animal law Section.  Attorney Griffin’s email is cgriffin@ctwORKCOMP.COM

Attorney Colette Griffin

Attorney Ariel MacPherson joined SDAZ as an attorney on January 1, 2023.  Attorney MacPherson graduated from the University of Connecticut School of Law in 2013 and defends employers and municipalities in workers’ compensation claims in Connecticut.  Attorney MacPherson’s email is amacpherson@ctworkcomp.com

Attorney Ariel MacPherson

Attorney Melissa (Missy) Bailey joined SDAZ as an attorney as of October 2022.  Attorney Bailey received her Bachelor of Arts degree in political science, Magna Cum Laude, from Franklin Pierce University in 2018..  She graduated from Western New England University School of Law and passed the Connecticut Bar in 2022.  Missy has been with the firm as a legal assistant/law clerk since June 2016 prior to becoming an associate in October 2022.  Attorney Bailey represents municipalities and self-insurers as well as insured employers before the Connecticut Workers’ Compensation Commission. Attorney Bailey can be reached at 860-785-4500 x4527.  Her email is mbailey@ctworkcomp.com

Attorney Missy Bailey 

Congratulations to Attorney Richard Aiken of SDAZ for being named a Fellow of the College of Workers' Compensation Lawyers. The College of Workers’ Compensation Lawyers is a national organization established to honor those attorneys who have distinguished themselves in their practice in the field of workers’ compensation. The induction ceremony for Attorney Aiken will take place in New York City on May 6, 2023. Attorneys Lucas Strunk and Jason Dodge are also Fellows in the College.

Attorney Jason Dodge of SDAZ has been named by Best Lawyers as the 2023 “Lawyer of the Year” for workers’ compensation law-employers in the Hartford region.

Attorneys Lucas Strunk, Richard Aiken, Heather Porto and Courtney Stabnick of SDAZ have been selected by their peers for recognition of their professional excellence in the 29^th edition of The Best Lawyers in America.

Super Lawyers have issued their rankings for 2022.  Attorney Jason Dodge of SDAZ was named to the “Top 50” lawyers for Connecticut in all fields of law in the 2022 Connecticut Super Lawyers nomination, research and Blue Ribbon process.  Attorney Richard Aiken was also named a Super Lawyer in the field of workers’ compensation law.  Attorneys Christopher D’Angelo and Philip Markuszka were named “Rising Stars” in workers’ compensation law.   

Strunk Dodge Aiken Zovas has been named by Best Lawyers as a 2023 Tier 1 “Best Law Firm.”  Best Lawyers is the oldest and most respected lawyer ranking service in the world. The U.S. News – Best Lawyers® "Best Law Firms" rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process.

Strunk Dodge Aiken Zovas has been named the Connecticut representative of the National Workers’ compensation Defense Network.  The NWCDN is a nationwide network of workers’ compensation defense law firms that partner with other attorneys to provide clients with expertise, education, and guidance in the field of workers’ compensation.  Only one firm per state is selected for this prestigious organization. If representation is needed in a state outside of Connecticut, the NWCDN network provides a vetted list of law firms that can provide excellent legal assistance to clients of SDAZ.

Attorney Philip Markuszka of SDAZ  was approved on October 25,  2022 unanimously by the Glastonbury Town Council to serve on the Town Plan and Zoning Commission.

Attorneys Jason Dodge and Philip Markuszka of SDAZ are Board members of Kids’ Chance of Connecticut. The mission of Kids’ Chance of Connecticut is to provide educational scholarships to the children of Connecticut workers who have been seriously or fatally injured in work-related accidents. If you or your organization wish to become involved in this worthy charity please contact Jason or Phil.  If you are aware of a child who may qualify for a scholarship to a college or technical school please go to the following website for an application www.kidschanceofct.org.

The 2022-2023 supplement to the Connecticut workers’ compensation treatise “Connecticut Workers' Compensation Law” published by Thomson Reuters was issued in December 2022. This two-volume treatise co-authored by Attorneys Jason Dodge and Lucas Strunk of SDAZ, and Attorneys James Pomeranz, Robert Carter and Donna Civitello provides a broad and historical view of Connecticut Workers' Compensation Law and discusses current issues, both in decisional law and in legislative trends. Topics addressed in the treatise include: arising out of and in the course of employment, causation, statue of non-claim, filing notices to contest liability, Motions to Preclude, third party lien rights, and Medicare and Social Security interplay with Connecticut Workers’ Compensation claims. The treatise can be purchased online at:

 https://store.legal.thomsonreuters.com/law-products/Treatises/Connecticut-WorkersCompensation-Law-Vols-19-and-19A-Connecticut-Practice-Series/p/100006513

You can now follow us on Facebook at https://www.facebook.com/Strunk-Dodge-Aiken-Zovas-709895565750751/ 

SDAZ can provide your company with seminars regarding Connecticut Workers’ Compensation issues.  Please contact us about tailoring a seminar to address your particular needs.

We do appreciate referrals for workers’ compensation defense legal work.  When referring new files to SDAZ for workers’ compensation defense please send them to one of the attorneys’ email:  azovas@ctworkcomp.com, raiken@ctworkcomp.com, lstrunk@ctworkcomp.com, jdodge@ctworkcomp.com, HPorto@ctworkcomp.com, cgriffin@ctworkcomp.com, nberdon@ctworkcomp.com, cstabnick@ctworkcomp.com, cbuccini@ctworkcomp.com, pmarkuszka@ctworkcomp.com,  cdangelo@ctworkcomp.com, amacpherson@ctworkcomp.com, rstabnick@ctworkcomp.com, mbailey@ctworkcomp.com or by regular mail.  We will respond acknowledging receipt of the file and provide you with our recommendations for defense strategy.

Please contact us if you would like a copy of our laminated “Connecticut Workers’ Compensation at a glance” that gives a good summary of Connecticut Workers’ Compensation law to keep at your desk.  

OUR ATTORNEYS:

 Lucas D. Strunk, Esq.              860-785-4502              Courtney C. Stabnick, Esq.                     860-785-4501

Jason M. Dodge, Esq.               860-785-4503              Christopher Buccini, Esq.                       860-785-4500 x4520

Richard L. Aiken, Jr., Esq.       860-785-4506              Philip T. Markuszka, Esq.                        860-785-4500 x4510

Anne Kelly Zovas, Esq.            860-785-4505              Christopher J. D’Angelo, Esq.                860-785-4504             

Heather K. Porto, Esq.              860-785-4500 x4514  Ariel R. MacPherson, Esq.                       860-785-4500 x4528

Colette S. Griffin, Esq.              860-785-4500 x4525  Melissa R. Bailey, Esq.                             860-785-4500 x4527 

Nancy E. Berdon, Esq.             860-785-4507              Richard T. Stabnick, Esq., Of Counsel 860-785-4500 x4550 

LEGISLATIVE UPDATE

2022 LEGISLATIVE REPORT

Our 2022 legislative report can be found in the link below for our Summer 2022 update:

https://www.ctworkcomp.com/wp-content/uploads/2022/08/Summer-2022-work-comp-update.pdf                                                                

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CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS

NEW ADMINISTRATIVE LAW JUDGE APPOINTMENTS:

The Judiciary Committee of the Legislature on February 15, 2022, confirmed the new appointments of Shanique Fenlator and Benjamin Blake to be Administrative Law Judges in the Workers’ Compensation Commission. The Judiciary Committee also confirmed the re-appointments of: Chief Administrative Law Judge Stephen M. Morelli, Hon. Carolyn M. Colangelo, Hon. Daniel E. Dilzer, Hon. Maureen E. Driscoll, Hon. Jodi Murray Gregg, Hon. David W. Schoolcraft, and Hon. William J. Watson, III.  The full House and Senate still need to confirm the appointments which likely will take place in March 2023. Best wishes to all the Administrative Law Judges on their appointments.

RETIREMENT NEWS

The Honorable Michelle D. Truglia who was presiding in the Fourth District in Bridgeport is retiring as an Administrative Law Judge.  We extend our congratulations to Judge Truglia for her retirement and thank her for her many years of dedication to the Connecticut Workers’ Compensation Commission; Judge Truglia was an Assistant Attorney General for the State of Connecticut before being appointed as a Judge. 

MEMORANDUM 2022-09:

 Memorandum 2022-09 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates.  The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2022 is $1,509 (based on the estimated average weekly wage of all employees in Connecticut).  The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2022 is $1,108 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).

Please note that the TP/PPD maximum rate went down from $1,140 in 2021 to $1,108 in 2022.

https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2022-Memos/Memorandum-No-2022-09

MEMORANDUM 2022-12

The Workers’ Compensation Commission has developed an online filing Form 6B for officers of a corporation or a member of a limited liability company who wishes to be excluded from workers’ compensation coverage.  That link will be available at the commission website as of December 15, 2022.

https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2022-Memos/Memorandum-No-2022-12

 MILEAGE RATES:

On January 1, 2023 the mileage rate increased to 65.5 cents per mile.  The rate had been at 62.5 cents per mile since July 1, 2022

REVISIONS TO FORMS 30C AND 30D:

MEMORANDUM 2022-04 has been issued which states:

Pursuant to Public Act 22-139, the Workers’ Compensation Commission (WCC) is required to maintain and report a record of all workers’ compensation cancer claims made by firefighters. In order to accurately collect and record this data, WCC Form 30C “Notice of Claim for Compensation” and Form 30D “Dependents’ Notice of Claim” have been revised. The revision of WCC Form 30C also includes a change to reflect post-traumatic stress injuries made pursuant to C.G.S. Section 31-294k. Please use the most recent revisions of Forms 30C and 30D and check the appropriate box(es) when filing new claims. 

BURIAL FEES:

As of January 1, 2023, the burial fee for deaths covered under the Workers’ Compensation Act is  $13,454.70  based on the overall 2022 CPI-W increase for the northeast of 4.3%. Connecticut General Statutes Section 31-306 was amended in 2021 to reflect that the compensation for burial benefits will be adjusted by the percentage increase in the consumer price index for urban wage earners and clerical workers in the Northeast as defined in the United States Department of Labor’s Bureau of Labor

Statistics.

CRB APPOINTMENTS:

Chief Administrative Law Judge Morelli has appointed Administrative Law Judges Toni M. Fatone and Soline M. Oslena to sit as panel members on appeals before the Compensation Review Board for the calendar year beginning January 1, 2023.

 MEMORANDUM 2022-02

This Memorandum discusses the way an employer opts out of coverage:

Connecticut General Statutes §31-275(10) sets forth the procedure to be used by an employer who opts in and/or out of coverage under the Workers’ Compensation Act. On July 17, 2013, and pursuant to the authority granted to the Chairman by C.G.S. §31-321, Forms 6B, 6B-1, and 75 were amended to include the instructions that all such documents should be submitted to the office of the Chairman at 21 Oak Street, Hartford, CT 06106.

Public Act 21-76 §17(b) has further clarified the manner in which these forms may be filed. Although §1-268(d) of Chapter 15, the Connecticut Uniform Electronic Transactions Act, states that it does “not apply to any of the rules of court practice and procedure under the Connecticut Practice Book,” the filing of Forms 6B, 6B-1, and 75 are administrative in nature and not legal pleadings. As such, notwithstanding the language in C.G.S. §31-275(10) that requires these documents to be sent certified mail, return receipt requested, they may now be delivered to the office of the Chairman by electronic means with proof of a delivery receipt. The email address to be used for electronic submissions of these forms is WCC.Forms@ct.gov.

 The Commission does have a website where you can look up such information as to whether a hearing is assigned, list of all claims for an employee, status of a Form 36, and interested parties.  This is quite a useful site and is a different website than the Commission’s main site.  It can be found at:

http://stg-pars.wcc.ct.gov/Default.aspx

WORKERS’ COMPENSATION PRACTICE TIP

Often medical providers will not provide medical treatment unless written authorization for treatment is given by the insurance carrier. Delay in medical treatment sometimes occurs when the insurance carrier sends written authorization to the medical provider but somehow it is misplaced or ignored by the provider. If the claimant or their representative is not carbon copied on the written authorization, they are not aware that the authorization has been provided and they cannot follow up with the medical provider to obtain the treatment. SDAZ recommends that when issuing written authorization to medical providers that the claimant or their attorney be sent a copy of the authorization in order avoid delay in treatment and unnecessary hearings. It has been our experience that sometimes hearings are assigned specifically to address authorization for medical treatment that has already been authorized unbeknownst to the claimant.

CASE LAW

BRITTO V. BIMBO FOODS, INC., 217 CONN. APP. 134 (2022)

The Appellate Court affirmed the CRB decision which denied a Motion to Preclude in a bilateral knee injury case.  Initially the claimant filed a Form 30C for a specific injury to the left knee alleged to have occurred on January 21, 2017; this Form 30C was filed with the Commission on February 21, 2017 and a timely Form 43 was issued by the respondents. Subsequently, the claimant filed a further Form 30C for bilateral knee injuries based on a repetitive trauma theory. The claimant filed the second notice with the commission in December 2017 and attempted to send certified mail directly to the employer. The claimant asserted that the postal service attempted to serve the mail on three occasions, December 14, 2017, December 15, 2017, and December 30, 2017. Eventually, claimant’s counsel received from the post office the envelope with the Form 30C marked “undeliverable as addressed and unable to forward.” The employer contended that they did not receive the new notice of claim until their counsel was hand-delivered the notice at a hearing on January 18, 2018; immediately thereafter a Form 43 was filed. Testimony was provided by the employer as to how certified mail was received generally; the testimony indicated that there was a buzzer to be rung and an employee would meet the carrier at an exterior door. The Administrative Law Judge determined that there was a “very noticeable sign on the building” pointing to where the office of the employer was. The Judge determined that the second Form 30C was not properly served until it was hand-delivered to the respondent’s attorney in 2018 and therefore denied the Motion to Preclude. The Compensation Review Board affirmed,  noting that Connecticut General Statutes Section 31–321 requires notice to be served by registered or certified mail or in person. In affirming the denial of the Motion to Preclude, the Appellate Court rejected the claimant’s argument that the “mailbox rule” should have been applied and that delivery must be presumed to have been made to the employer at the address listed on the notice; the Court noted that even if the mailbox rule applied it was not sufficient to overcome the Judge’s factual conclusion that the notice was never received by the employer. The Appellate Court stated that the Judge had not accepted the claimant’s expert testimony by a former postal worker that the notice had been delivered; rather, the Judge relied on the marking on the envelope that it was “undeliverable.” The Appellate Court also did not agree with the claimant’s contention that the finding of the CRB had essentially required the claimant to prove that the employer refused service of the notice of claim.  A petition for certification to the Connecticut Supreme Court will likely be filed in the case.

PREECE V. CITY OF NEW BRITAIN, 6468 CRB-6-22-2 (December 28, 2022)

In what is believed to be the first appellate decision regarding a Covid-19 claim, the Compensation Review Board remanded the case back to the Trial Judge for further determination of the standard of causation that was applied in his dismissal of the case.  The claimant was a firefighter for the municipal employer.  He supervised three firefighters, had administrative duties and commanded a crew at emergency scenes.  On December 30, 2020 the claimant met in person (unmasked) with a fellow firefighter who believed that he was exposed to Covid 19 (it appears this other firefighter eventually tested positive).  On January 3, 2021 the claimant tested positive for Covid- 19 based on a routine test administered by the employer; this test was reported to him on January 7, 2021.  The claimant also tested positive on January 6, 2021 based on a rapid molecular test.  The claimant’s primary medical provider, a APRN, was unable to provide a report establishing a causal relationship between the work and the Covid-19 diagnosis.  It appears that the claimant did not present any medical opinion regarding causation at the formal hearing. The Trial Judge dismissed the claim and concluded that the claimant had not met his burden of proof; he also noted that the claim did not qualify for the rebuttable presumption per Governor Lamont’s Executive Order 7JJJ since the claimant was not diagnosed between March and May 2020.  The Trial Judge stated that since no rebuttable presumption was in place “the claimant would face a higher burden of establishing causation.”  The claimant appealed contending that the Trial Judge determined that since the rebuttable presumption did not apply to the claimant then he had a higher burden of establishing causation than an ordinary claim for a workplace injury. The claimant also questioned whether medical evidence was necessary to establish causation in the case given the exposure at work and subsequent diagnosis. The CRB reviewed the applicable substantial factor causation test for workers' compensation claims in Connecticut.  Ultimately, the CRB determined that the Judge’s reference to a “higher burden” was “ambiguous.”  Accordingly, the Board remanded the case to the Trial Judge for further findings regarding the legal causation standard that he applied and whether expert testimony was necessary in the case to determine causation based on this set of facts.

 NASSER V. PREMIER LIMOUSINE OF HARTFORD, 6463 CRB-6-21-12 (December 30, 2022)

The claimant alleged neck and knee injuries in a motor vehicle accident.   There was a video of the motor vehicle accident.  The treating doctor testified that the video of the motor vehicle accident was inconsistent with claimant’s history of injury.  The Trial Judge dismissed the claim because “the video evidence was inconsistent with the claimant’s narrative and that the claimant’s testimony was not persuasive or credible.” The claimant was represented by counsel at the formal hearing and counsel filed an appeal but thereafter the claimant pursued the appeal on his own.  The claimant did not file any appellate pleadings such as reasons of appeal or a motion to correct.  At argument the claimant did not dispute the Judge’s findings but contended he had problems with the evidence that his attorney presented.  The CRB granted a Motion to Dismiss that was filed by the respondents on appeal pursuant to Practice Book 85-1 since the claimant had not filed any appellate documents.  The Board in granting the Motion to Dismiss also stated that if they reached the merits of the appeal they would have affirmed the Finding of the Judge since there was sufficient evidence in the record to support the dismissal.

MIKULSKI V. A. DUIE PYLE, INC., 6448 CRB-7-21-11 (January 11, 2023)

In this case the CRB affirmed a finding by the Administrative Law Judge that an approved stipulation should not be reopened.  The claimant was pro se and had a compensable injury.  He settled the indemnity claim for $781,000 in 2017.  The claimant sought to open that settlement after payment had been made.  Further settlement negotiations were held and another settlement was negotiated for a payment of an additional $39,500, $500 for a general release and a MSA for $129,426 seed money and $24,069 yearly payments for 27 years.  The medical was settled with the second settlement.  CMS approved the structured payout of the MSA.  By the terms of the second settlement, AMETROS was to administer the MSA.  Judge Jannotta, on the record, approved the settlement at a hearing on February 20, 2020.  Judge Jannotta was meticulous in canvassing the claimant regarding the terms of the settlement and the claimant acknowledged that he understood and wanted to proceed with the settlement.  The claimant after approval of the second settlement sought again to reopen that award claiming that he wanted to self-administer the MSA, that some providers would not accept the payments from AMETROS, that he was not competent when the stipulation was approved, and that he did not see the settlement until the eve of the approval hearing. No medical evidence was submitted by the claimant that he was not medically competent at the time of the settlement approval although his wife testified that he was suffering from a mental illness at the time of approval. Evidence was presented by the respondents that the claimant’s medical providers would accept AMETROS payments.  Judge Cohen at the trial level denied the Motion to Open finding that the claimant was not credible and that there was no evidence of mistake of fact or fraud; this was affirmed on appeal by the CRB which concluded that the request to open the settlement did not meet the standards required in Connecticut General Statutes Section 31-315.

LEMAIRE V NEW ENGLAND INDUSTRIAL TRUCK, ET AL, 6466-CRB-3-22-1 (January 26, 2023)

The claimant worked for the same company with different carriers for three dates of accident regarding his low back.  He sustained a compensable injury on November 24, 2010; due to this injury he underwent surgery and was paid 10% of the back.  He subsequently had another injury on November 23, 2015 which was accepted as compensable.   For the 2015 claim he underwent extensive fusion procedure.  Following the surgery, he was told by the treating physician that he may have pseudoarthrosis and could require additional surgery.   Subsequently, on October 12, 2018, the claimant was working in a seated position breaking down boxes at work when he twisted and felt something in his back.  The 2015 carrier contended that this was a new accident and their liability in the claim had ended.  The 2018 carrier denied the claim.  A RME with Dr. Becker did not address causation; a RME with Dr. Lantner concluded that the 2018 incident was only an exacerbation.  A CME, Dr. Strugar, concluded that there was no new injury in 2018 and that the 2015 claim was a substantial factor in the injury to the back.  Based on this, the Administrative Law Judge found the 2015 carrier liable for TT benefits and medical treatment.  Motions to Correct and Articulate were denied.  The CRB reviewed the case law regarding intervening/superseding accidents, Sapko v. State, 305 Conn. 360 (2012), and determined that there was sufficient evidence in the record to affirm the Finding.  Judge Driscoll had this interesting comment in her decision below: “I find that any testimony or evidence in the record suggesting that the claimant had an increase in pain or symptoms on October 12, 2018 does not in and of itself lead me to the conclusion that what happened on that date was either a new injury caused by the claimant’s work or an aggravation of an old injury within the meaning of the workers’ compensation act.”

ZEZIMA V. CITY OF STAMFORD, 6472 CRB-7-22-4 (FEBRUARY 3, 2023)

The claimant sustained a compensable December 7, 2016 head injury as a result of an assault by a student while the claimant was teaching a class. On January 3, 2017 the claimant fell at home due to dizziness. Issues arose as to whether the claimant’s fall at home on January 3, 2017 was due to pre-existing health conditions including heart problems and pre-existing syncopal condition or whether it was substantially related to the December 7, 2016 incident. Conflicting medical evidence was presented regarding the cause of the claim. A number of doctors opined that the December 7, 2016 work accident was the cause of the January 3, 2017 subsequent fall at home. The respondents presented the opinion of a neuropsychologist, Dr. Peck, that the claimant’s prior well-documented heart and syncopal conditions were the cause of the fall at home. The Administrative Law Judge did not find the respondent’s expert credible and determined that the December 7, 2016 work injuries were the cause of the fall at home. On appeal the Compensation Review Board determined that there was sufficient evidence in the record to support the trial commissioners finding and affirmed the decision.

ESPOSITO V. CITY OF STAMFORD, 6470 CRB-7-22-4 (FEBRUARY 6, 2023)

The claimant sustained a head injury when he fell at work and struck a concrete floor on April 24, 1982; because of the head injury the claimant developed vision problems. The respondents did not dispute that the vision problems were related to the head injury. It was determined that the claimant had profound visual loss in both eyes. The respondents agreed that the claimant was entitled to total disability benefits pursuant to Section 31–307(c)(1); that statute provides that a claimant is entitled to totally incapacity benefits if he sustained “total and permanent loss of sight of both eyes, or the reduction to 1/10 or less of normal vision.”

On April 1, 1998 the respondents filed a Form 36 questioning whether the claimant was entitled to total disability benefits. In a 1998 decision, Commissioner Paoletta determined that the claimant was entitled to ongoing benefits for total disability. The Commissioner ordered temporary total benefits to be paid pursuant to pursuant to Section 31–307(c)(1).

The claimant continued receiving total disability benefits until his death on November 7, 2020. Upon his death, the claimant’s spouse sought permanent partial disability award for loss of vision of the eyes pursuant to section 31–308(b). The statute in effect as of the date of claimant’s date of accident allowed for a permanency award up to 235 weeks per eye.

The claimant was initially married to his spouse on July 4, 1974, divorced in 1992, and remarried to the same spouse in 2010. The claimant was married as of the date of death in 2020.

An issue arose as to whether the spouse was entitled to benefits for permanency post the demise of the claimant. At the trial level, the Administrative Law Judge found that maximum medical improvement had been attained by June 9, 1998, the date of the decision by Commissioner Paoletta, and that the permanency award of 235 weeks for each eye was owed. While the Judge determined that there was an award for permanency owed to the spouse, she also found that the respondents were entitled to credit for benefits paid since June 9, 1998 up until the date of claimant’s demise in November 2020. Since the payment of total disability from 1998 to 2020 exceeded the amount of the permanency award, there was no additional money owed to the spouse.

The claimant appealed the decision to the Compensation Review Board contending that the Judge erred in allowing a credit for total disability paid against the permanency due. The claimant contended that while maximum medical improvement may have occurred, there was no request for permanency benefits and therefore credit against the permanency award should not be given for the total disability benefits that were paid to the claimant.

On appeal, the Compensation Review Board determined that no permanent partial disability award was owed, but its reasoning was different from that of the Trial Judge. The Board stated “entitlement to permanent partial disability benefits cannot be established in the absence of proof that the claimant has reached maximum medical improvement along with the concomitant assignment or award of a permanent partial disability rating or an agreement between the parties sufficient to establish a binding meeting of the minds.” (Internal quotes omitted.)

The CRB went on to state “we are therefore unable to conclude that the decedent established the entitlement to permanent partial disability benefits during his lifetime such that any permanency benefits due and owing would have been payable to his estate or representative after his death.” The Board determined that “in light of the foregoing analysis, we are not persuaded that either the date of maximum medical improvement or the date of an affirmative request for permanency benefits in lieu of temporary total disability benefits constitute the exclusive basis for calculating the commencement date for a permanency credit. Rather, applicable precedent would appear to suggest that the calculations for when a permanency credit starts to run are more appropriately determined by the specific circumstances of the claim along with consideration of the prohibition against double recovery.” The Board concluded that “no entitlement to permanency was established during this decedent’s lifetime.” This case provides a thorough analysis of many of the cases which deal with the contention that permanency benefits are due post the death of a claimant. We expect that this case will be appealed to the Appellate Court.

ASBERRY V BUNKER HILL PROPERTIES, INC., 6469 CRB-1-22-3 (February 21, 2023)

The claimant alleged a right shoulder injury on July 2, 2020 while moving refrigerators in his maintenance job.  The respondents contested liability raising issues as to whether the claim was immediately reported and that there was conflicting history in the medical regarding a work accident (one of the records had a history that the claimant hurt his shoulder reaching out for salt at a dinner).  Eventually, the claimant came under the care of Dr. Miranda who diagnosed a full thickness rotator cuff tear and related the injury to the alleged work accident. The Administrative Law Judge found the claimant credible and concluded that the shoulder injury was compensable.  The respondents appealed the Finding solely regarding the Judge’s conclusion that the claimant was owed total disability benefits; the respondents contended there was no support for total disability in the record.  Dr. Miranda had testified in response to questions posed by respondent’s counsel that the claimant had a light or sedentary work capacity; on the other hand, Dr. Miranda stated that a sedentary capacity was “not consistent with his work position” in maintenance. The Board stated that when considering a claim for total disability benefits the Judge should consider the “totality of the factors” in determining whether TT is owed citing Romanchuk v. Griffin Health Services, 5515 CRB-4-09-12 (October 20, 2010). In this case the claimant did not have a high school diploma, had never held a desk job and had only done physical labor in the past.  Given these factors the CRB affirmed the Finding that the claimant was entitled to total disability benefits.  The treatise “Connecticut Workers’ Compensation Law,” co-authored by Attorneys Strunk and Dodge of SDAZ, and Attorneys Robert Carter, Donna Civitello and James Pomeranz was cited in the case. 

• Maximum Weekly Income Benefit: Effective 01/01/2023, the maximum weekly income benefit under the Nebraska Workers' Compensation Act is $1,029.00.

• Mileage Reimbursement Rate: Effective 01/01/2023, the mileage reimbursement rate is 65.5 cents per mile.

When it comes to setting reserves for claims, the most common expenses that come to mind are doctor’s visits, physical therapy, the potential for surgery, and indemnity benefits. Most of the time, significant consideration isn’t given to an expense like mileage. Frankly, mileage expenses rarely exceed five figures. However, mileage is unique in that almost every single compensable claim involves an employee needing to drive to seek medical treatment. Stated another way, mileage is arguably one of the few expenses that occurs in every case.

It should come as no surprise that there are very few cases in the Nebraska Workers’ Compensation Court where mileage is the sole dispute (though admittedly, it does occur once or twice a year). Likewise, mileage disputes aren’t usually hotly contested. The dispute is usually whether the underlying treatment is causally related to the alleged accident. However, several recent decisions from the compensation court serve as good reminders that mileage isn’t simply owed because the underlying treatment is compensable.

Before discussing the cases, it’s important to remember the overarching law regarding mileage. Mileage has routinely been considered a “medical expense” reimbursable pursuant to Neb. Rev. Stat. § 48-120. Specifically, when the employer is liable for reasonable medical services, it must also pay the cost of travel incident to and reasonably necessary for obtaining these services. Armstrong v. State, 290 Neb. 205, 218, 859 N.W.2d 541, 552 (2015). Before mileage is due, the burden is on the employee to prove that he or she had a compensable accident and injury, and that the treatment he or she is driving to is causally related to the same. Id. Assuming this burden can be met, most employees will demand mileage by providing the dates of medical treatment and the number of miles driven to and from that treatment.  Once the employee provides notice that mileage is due, assuming there is no reasonable basis for the employer to deny the same, the employer must issue payment for the mileage within 30 days. There are very specific mileage rates depending on the date of the treatment. These rates are determined by the compensation court and can be found on its’ website here. With that general framework in mind, we turn to some of the recent compensation court decisions regarding mileage.

Pursuant to Neb. Rev. Stat. § 48-120(2)(a), an employee is not entitled to mileage if he or she selects a physician located in a different community than where the employee lives or works. This provision only applies if a physician is available in the employee’s local community or in a closer community than where the selected provider is located. By way of example, suppose that an employee living and working in Grand Island is injured. Pursuant to the Form 50 rules, the employee selects his doctor in Kearney to treat his injuries. While the law clearly allows the employee to make that selection, that decision also means the employee may not be entitled to mileage since there are many qualified physicians available in the Grand Island and Hastings areas, both which are in a “closer community” than Kearney. See Ripp v. Senior Lifestyle Holding Company, 2022 WL 2708076 (Neb. Work. Comp. Ct. July 2022)(J. Martin); Duarte v. Cargill Meat Solutions Corp., 2019 WL 5294637 (Neb. Work .Comp. Ct. Oct 2019)(J. Block).

While the judges are relatively consistent in applying the above approach, there is some disagreement as to whether this rule applies when the employee selects a surgeon outside of his or her local community. In 2016, Judge Hoffert held that an employee’s right to select his or her surgeon essentially trumps the provision regarding mileage not being compensable if there is a surgeon available in the immediate community. In Wilson v. JBS Holdings, 2016 WL 6142878 (Neb. Work. Comp. Ct. Oct. 2016), Judge Hoffert ordered an employer to pay an employee’s mileage from Grand Island to Omaha as it was reasonable for the employee to select an Omaha based surgeon despite Hastings and Grand Island having several surgeons available. However, how far this rule will stretch is a bit of an unanswered question. While selecting a surgeon within Nebraska seems to be more reasonable, disputes start to become more significant when an employee chooses a surgeon in a different state. See Heisner v. The Nebraska Medical Center, 2022 WL 18216313 (Neb. Work. Comp. Ct., Dec 2022)(J. Coe)(approving the parties proposed resolution regarding compromised mileage when the employee traveled to Chicago for the surgeon of her choosing).

Along the same lines, be mindful of a medical provider that offers treatment in multiple locations. For example, a pain management provider may have offices in Omaha and Lincoln. Absent a showing by the employee that the medical services were unavailable at the location closest to their home, the compensation court may disallow an increased mileage demand if the employee treats at the location farther away from his or her home. Morales v. JBS USA, LLC, 2022 WL 274865 (Neb. Work. Comp. Ct., Jan. 2022)(J. Martin).

Another important consideration when it comes to mileage is whether the employer can confirm that the reason for the mileage is related to the accident and injury. More often than not, an employee can prove the mileage is related by simply producing the corresponding treatment notes. However, it frequently happens that an employee fails to produce any evidence explaining the mileage. Take for example one of Judge Martin’s decisions in 2019. The employee demanded reimbursement of 3,440 miles to see her doctor. However, the treatment notes from the doctor were for entirely different dates of service. In light of the same, Judge Martin declined to award any mileage.

As a final reminder, because mileage is considered a “medical expense,” it’s important to ensure that mileage is paid within 30 days’ notice of the obligation to pay unless there is a reasonable basis to deny the same. If there is no basis to deny the mileage, an employee may request an attorney’s fee for the failure to pay within 30 days. Neb. Rev. Stat. § 48-125. There are many reasons that mileage may not be compensable, including those discussed above. This, of course, is not an exhaustive list of the reasons that mileage may be fairly disputed, but instead is only a small list of reasons that may shield an employer from potential penalties.

If you have questions about a case involving mileage, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.