NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
LEGISLATIVE UPDATE
In the 2024 session several bills were considered that addressed workers’ compensation, but no statutes were passed. Some of the legislation considered (but not passed) included raising the number of weeks for permanency of the cervical spine (now 117 weeks versus 374 for the lumbar spine), requiring carriers to file a notice to terminate prescription medication before cutting off drugs unilaterally, making medical providers provide health records timely or face potential fines, and disallowing municipalities from reducing pension benefits due to the receipt of permanency benefits.
CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
IS THE REBUTTABLE PRESUMPTION OF EXECUTIVE ORDER 7-JJJ STILL IN PLACE FOR COVID-19 CLAIMS?
On July 24, 2020, Governor Lamont issued Executive Order 7-JJJ which established a rebuttable presumption in favor of COVID-19 injuries if the injury occurred between March 10, 2020 and May 20, 2020 and was sustained by an “essential employee.” This changed the burden of proof for a workers’ compensation claim in Connecticut; generally, a claimant has the burden to prove causation and compensability of a claim. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52 (1972);
Governor Lamont’s power to issue Executive Order 7-JJJ is derived from the Connecticut Legislature’s enactment of Connecticut General Statutes §28-9. In that statute, the Governor is given the power to proclaim a civil preparedness emergency and issue an order modifying or suspending a statute, however, the Governor’s power to modify the statute is for a period “not exceeding six months unless sooner revoked ....” § 28-9(b)(1). Executive Order 7-JJJ went into effect on July 24, 2020; the Governor stated in the order it was to “remain in effect for six months.” If Executive Order 7-JJJ ended in 2021 and is therefore no longer in place or operable then a valid argument can be made that the rebuttable presumption of Executive Order 7-JJJ no longer is applicable.
The Connecticut Supreme Court in the case of Casey v Lamont, 338 Conn. 479 (2021), confirmed that the Executive Orders issued by the Governor during the pandemic were not permanent changes to the statute. Id., 664-65. In Casey, the plaintiffs questioned the constitutionality of the Executive Orders which required them to provide only “take out” service at their pub; due to this order the plaintiffs were forced to shut down their business. Id., 653. Ultimately, the Supreme Court determined that the Orders and Statute were not an unconstitutional delegation of legislative powers to the Governor, to wit, a violation of the Separation of Powers, Connecticut Constitution, Article Second. In reaching the decision that the Executive Orders passed constitutional muster, the Court noted that §28-9 provided limits as to how long the Executive Order can be in place: “Finally, the governor's actions have temporal limitations, namely, the period of time the modification or suspension may be enforced is limited to six months. Therefore, any actions the governor takes under subsection (b)(1) are temporary, that is, he cannot modify or suspend any statutes or regulations permanently.” Id., 664-65. Accordingly, Executive Order 7-JJJ has specific time limits to its application, six months, and cannot be applied after that period has run. Per Casey, the Executive order ended in 2021; to suggest otherwise would make Executive Order 7-JJJ a permanent modification of the statute, something forbidden by the language of §28-9 and the actual words of Executive Order 7-JJJ. If Executive Order 7-JJJ is applied now, more than six months after it was signed, then the Order may be a constitutional violation of the Separation of Powers.
The legislature post the termination of Executive Order 7-JJJ has had ample opportunity to permanently codify through statutory modification Executive Order 7-JJJ. The legislature has chosen, however, not to modify the statute to amend the burden of proof in a COVID-19 workers’ compensation claim for essential workers/health care workers.
Based on the above, Executive Order 7-JJJ and its rebuttable presumption in favor of compensability of COVID-19 may no longer be in place. Although many COVID-19 claims have been resolved there remain some that were not fully litigated. For those that are continuing to defend these types of claims they may wish to consider the argument that the Executive Order is no longer in place.
ADMINISTRATIVE LAW JUDGES MOVING
Judge Zachary Delaney resigned from the Connecticut Workers’ Compensation Commission as of October 4, 2024. Judge Delaney has taken a position at Travelers. We extend our best wishes to Judge Delaney in his next endeavor. Both claimants and respondents appreciated the professional manner in which Judge Delaney administered over Workers’ Compensation claims. All parties will miss his guidance.
In view of Judge Delaney‘s departure, Judge Fatone will now be moved to the First District in Hartford. Judge Fenlator will preside in the Sixth District in New Britain. Judge Blake and Colangelo will be splitting their time between the Third District in New Haven and the Fourth District in Bridgeport.
Judge Barton likely will be retiring at the end of 2024. Once he does retire, there will be three judgeships which will have to be filled.
MEMORANDUM 2024-07
Memorandum 2024-07 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, 2024 is $1,654.00 (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, 2024 is $1,191.00 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
BURIAL EXPENSES
As of January 1, 2024, the burial fee for deaths covered under the Workers’ Compensation Act is $13,885.25 based on the overall 2023 CPI-W increase for the northeast of 3.2%. 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.
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Burial-Expense-Adjustments
MILEAGE REIMBURSEMENT
As of January 1, 2024, the mileage reimbursement rate is 67 cents per mile.
As of January 1, 2023, the mileage rate had been 65.5 cents per mile. Prior to that the rate had been at 62.5 cents per mile since July 1, 2022
MEMORANDUM 2024-05
The Chairman has issued the following new memo which stated that physicians can charge for causation or permanency opinions in a denied case:
Effective July 1, 2024, a treating physician who is asked to provide a causation opinion or a Permanent Partial Disability (PPD) rating on a denied claim may charge up to $400 for this report. The report must be affirmatively requested by the patient or their representative, and the patient would be responsible for payment. As with standard special report fees, if a physician feels that an additional fee is warranted, they may seek permission to charge that higher rate from an administrative law judge. However, physicians considering requesting additional fees should keep in mind that the patient bears the responsibility for payment and should proceed accordingly.
The Professional Guide for Attorneys, Physicians, and Other Health Care Practitioners and the Payor and Medical Provider Guidelines to Improve the Coordination of Medical Services will be updated to reflect this change.
MEMORANDUM 2024-04
Effective June 14, 2024, the following changes have been made to WCC forms:
· Form 30C has been updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S. Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section 7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139. Language on Post Traumatic Stress Injuries has also been updated to reflect such injuries are pursuant to C.G.S. Section 31-294k.
· Form 30D has been updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S. Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section 7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139.
· The Hearing Request Form has been updated to allow the option for an email address to be added under the Injured Worker section.
· Voluntary Agreement Form has been updated with “Check, if C.G.S. Sec. 5-142”to help WCC better identify wage calculations which are pursuant to C.G.S. Sec. 5-142.
· WCR-1: Rehabilitation Request Form has been updated with options to either fax or email the form to Rehabilitation Services in addition to mailing or submitting the form in-person. An optional line has also been added for applicants to add their email address.
Effective June 14, 2024, the following form is now available:
· Indemnity Only Stipulation and What it Means.
MEMORANDUM 2024-03
Effective July 1, 2024, wage statements should be attached to all Voluntary Agreements. If the claimant is concurrently employed, wage statements from all employers should be included with the submission. Failure to attach a wage statement(s) will result in the rejection of the Voluntary Agreement.
MEMORANDUM 2024-02
2024 Official Connecticut Fee Schedule for Hospitals and Ambulatory Surgical Centers effective April 1, 2024 has been issued by the Workers’ Compensation Commission.
To order, please contact OPTUM360 at 1-800-464-3649, option
1, or visit https://www.optum360coding.com/reference-products/workers-compensation/,
keyword “Connecticut”.
MEMORANDUM 2024-01
The Commission has immediately suspended the mediation program and is beginning a review of the guidelines for the program. The suspension is due to “parties failure to comply with the program guidelines and misuse of the program.”
We are sure that we will hear more about this in the future. We hope that the Commission will be able to begin the program again. In the meantime, there are a number of private mediation services that are available to assist in resolving claims. Please contact us if you have any questions about private mediation.
NEW WORKERS’ COMPENSATION PORTAL
A new Worker’s Compensation portal has been established at this site:
https://wccct.govqa.us/WEBAPP/_rs/(S(ee5fdcqgfjppdvhg3ssjxq1e))/supporthome.aspx
The old Worker’s Compensation website remains in place. However, this new portal will allow a search of managed care plans for a particular date of injury. Also, workers’ compensation coverage searches and requests for workers’ compensation files and freedom of information requests can be performed through this new portal. The prior worker’s compensation history of an individual and information concerning a particular file (forms filed, hearing requests, hearings held, voluntary agreements approved) can be searched through this portal as well. Information regarding self-employers in the system can also be reviewed.
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
NEW COMPENSATION REVIEW BOARD PANEL
The new CRB panel beginning January 1, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.
MEDICARE NEWS FROM CMS
LIFE EXPECTANCY TABLES
Beginning February 24, 2024, CMS will utilize the CDC's "Table 1: Life Table for the total population: United States, 2021" for the Workers' Compensation Medicare Set Aside life expectancy calculation.
New rules for oral argument at the Compensation Review Board! There will be a clock set up for oral argument and the parties will only be allowed fifteen minutes for their presentation.
EILEEN POST V. RAYTHEON TECHNOLOGIES/PRATT & WHITNEY, 6524 CRB-8-23-12 (September 6, 2024)
The claimant alleged that she fell at work on the company premises on February 14, 2022 causing a fracture to her left leg. While the respondents acknowledged that the claimant fell at work they denied liability in the case. The respondents contended that the claimant’s injury did not “arise out of” her employment; rather, respondents asserted that the claimant’s fall was because of a pre-existing, non-occupational foot drop. The claimant had several prior left hip surgeries which caused a foot drop. As a result of this, the claimant became more susceptible to falling. The claimant did wear a brace on her left ankle to stop falls although she admitted that it was uncomfortable. The claimant fell at a restaurant outside of work in January 2022, one month before the work accident. A fellow worker testified that he saw the claimant prior to the work accident, and she was having difficulty walking. The claimant came in to work early in the morning and was walking to her workstation at the time of the fall. Following the fall, the claimant reported to numerous medical providers that she had fallen on rock salt. At the formal hearing, however, the claimant acknowledged that she did not see any rock salt at the time of her fall but did say that there had been rock salt outside of work as she entered the premises. The claimant also testified at the formal hearing that there may have been a small puddle of water on the floor where she fell. The claimant did not know why she fell, however. The respondents presented the testimony of Dr. Raymond Sullivan, a foot specialist, who opined that the claimant’s pre-existing left foot drop was a substantial factor in causing her fall at work. The Administrative Law Judge concluded that Dr. Sullivan’s testimony was persuasive that the claimant’s foot drop was a substantial factor in causing the fall. The Judge found there was no credible or persuasive evidence that there was rock salt on her shoe when she fell or that there was water on the floor. The Judge dismissed the claim concluding that the fall was caused solely by her left foot drop condition. The Compensation Review Board affirmed the dismissal on appeal finding that the record was “devoid of evidence that any workplace condition or activity contributed to the claimant’s injury.” The Board found that the respondents had successfully rebutted any presumption of compensability. This case is now on appeal to the Appellate Court of Connecticut. This claim was successfully defended by Attorney Jason Dodge of SDAZ.
VITTI V. CITY OF MILFORD, 6515 CRB-7-23-9 (August 30, 2024)
The claimant was seeking interest pursuant to Connecticut General Statutes §31-295(c), 31-301c(b), or 31-300 due to a delay in his permanent partial disability benefits. On February 1, 2018 the commissioner made a determination that the claimant reached maximum medical improvement on November 21, 2013 and provided a 23% impairment rating to the heart. Because there was conflict over the award, the claimant’s counsel notified the respondent on March 14, 2018 that the claimant “did not wish to get paid until all appeals are concluded.” The CRB concluded that interest is not payable under §31-301c(b) because the respondent’s appeal for compensability had no effect on the “sum certain,” however, the claimant’s appeal for the award did. The CRB also concluded that §31-295 does not apply. The claimant asserted that because their provider issued a 23%, and the respondent’s examiner issued a 12% rating, there was a meeting of the minds for the 12% rating. The CRB held that because the claim was still subject to litigation, and there was no way it could be inferred that the claimant would have accepted the 12% rating, a claim for interest could not be made. Additionally, because of the notice from claimant’s counsel to withhold payment, the claimant was estopped from making any claims for interest until all litigation concluded.
JANE DOE V. XYZ, (Judge Oslena, JULY 23, 2024)
The claimant, a night attendant at a hotel, alleged an unwitnessed foot injury caused by a falling coffee carafe. She reported the injury late and was ultimately diagnosed with a fracture in her foot. Three months later, claimant had a sudden onset of left knee pain. She went to the physician treating her for her foot fracture who opined that the claimant had an altered gait from the foot injury that was causing pain in her arthritic knee. The Respondents fully denied the claim as the injury was unwitnessed and reported late.
The claimant attended an RME and did not mention that she had an altered gait before this date of injury. RME physician related both the left knee and the right foot. Claimant was recommended for a total knee replacement which was related to the altered gait caused by the foot injury. Respondents’ Counsel met with claimant’s assistant manager who advised that claimant had an altered gait before the work injury. The assistant manager was deposed and testified consistently. The RME physician was deposed and testified that the claimant never told him that she walked with a limp prior to this date of injury and indicated that his opinion might be different if she had given him an accurate history. At the formal hearing, claimant testified that she walked with a limp before the work injury and that she wasn’t sure if she told her doctor or the RME doctor that. The deposition of claimant’s manager and the RME doctor came in as exhibits. The respondents argued that the opinions relating the left knee complaints were unreliable and not credible because the claimant never told the doctors that she walked with a limp prior to this injury.
The ALJ found the right foot fracture to be compensable but dismissed the left knee claim on the basis that the doctors’ opinions relating the knee complaints were not credible because the claimant did not provide an accurate history of a previously altered gait. A motion to correct was filed by claimant’s counsel and was objected to by Respondents’ counsel. The motion to correct was denied. No appeal followed. Attorney Ariel MacPherson of SDAZ successfully defended this case. The name of the claimant has been changed for confidentiality purposes.
COCHRAN V. DEPARTMENT OF TRANSPORTATION, 220 Conn. App. 855 (August 8, 2023) and MARTINOLI V. STAMFORD POLICE DEPARTMENT, 220 Conn. App. 874 (August 8, 2023),
The appeals in the “retirement” cases of COCHRAN V. DEPARTMENT OF TRANSPORTATION, 220 Conn. App. 855 (August 8, 2023) and MARTINOLI V. STAMFORD POLICE DEPARTMENT, 220 Conn. App. 874 (August 8, 2023), were argued before the Connecticut Supreme Court on September 23, 2024. We expect decisions to be issued by the Court in these important cases in early-2025. In Cochran, the Appellate Court held that a worker who is retired and took himself out of the workforce was not entitled to a claim for total disability benefits made post-retirement. The claimant sustained a compensable back injury in 1994. Surgery was performed in June 1994; a further back surgery was performed in April 1995. A voluntary agreement was issued and approved in 1995 for 29.5% of the lumbar spine. On April 1, 2003 the claimant, at age 54, took an incentivized early retirement from the employer. The plaintiff had no intention of returning to work. In 2013 the claimant had back surgery with an allegedly unauthorized New York physician. A CME by Dr. Dickey in 2017 gave the “lightest” work capacity to the claimant. Dr. Sabella, a vocational specialist, found the claimant unemployable. The trial judge found the 2013 back surgery related and ordered a three-month period of total disability following the 2013 surgery and ongoing total disability beginning on December 30, 2017. The CRB affirmed the decision. The Appellate Court reversed the Board decision; in doing so, the Court stated it had plenary review over the case (meaning that they did not have to defer to the CRB below regarding the application of the law). The Court’s decision stated that: “he elected to remove himself from the workforce where he had no intention of returning and more than 10 years later sought to obtain Section 31–307(a) benefits. We cannot conclude the plaintiff is entitled to Section 31307(a) benefits when he removed himself from the workforce with no intention of returning.”
In MARTINOLI V. STAMFORD POLICE DEPARTMENT, the claimant sustained a compensable heart condition in January 1999. He retired at age 64 in October 1999. In 2015, at age 80, he sustained a stroke and claimed entitlement to total disability at that time. The Judge and CRB found the stroke related to the initial claim and awarded total disability benefits to the retiree. The Appellate Court, however, reversed and said a retiree was not entitled to claim total disability benefits post-retirement.
It is uncertain what the Supreme Court will do in these cases. Whatever the outcome, it will significantly affect the value of claims for older injured workers who choose to take a voluntary retirement. We will advise you immediately once the Supreme Court issues its decisions.
WATERBURY V. BRENNAN, 228 CONN. APP. 206 (2024)
The Appellate Court affirmed a summary Judgment ruling in favor of the City of Waterbury which found that the municipality, per union contract, was entitled to a credit against the permanent partial disability award of the heart for Section 7-433c benefits based on the disability pension that the injured worker had received. In view of the contractual credit no permanency was owed.
JANET BRENNAN, EXECUTRIX (ESTATE OF THOMAS BRENNA) v. CITY OF WATERBURY, 228 CONN. APP 231 (2024)
In this longstanding heart and hypertension case under Connecticut General Statutes Section 7-433(c), the Compensation Review Board affirmed that an estate was entitled to payment of a permanent partial disability award of 77.5% of the heart, however, the Board remanded the case for further findings regarding mandatory interest under Connecticut General Statutes Section 31 – 295(c) and order for penalties for undue delay in violation of Connecticut General Statutes Sections 31–288 and 31–300. This case had previously been heard by the Connecticut Supreme Court, Brennan v. City of Waterbury, 331 Conn. 672 (2019). The Supreme Court dealt with the issue as to whether the estate of a decedent was entitled to a permanent partial disability award. The Supreme Court had found that “matured section 7–433c benefits-those that accrued during the claimant’s lifetime-properly passed to the claimant’s estate.” (Emphasis supplied.) Id., 693. The case had been remanded to the Administrative Law Judge for further findings regarding the permanent impairment award. At the formal hearing, evidence was presented that the parties had a meeting of the minds regarding an award for permanent impairment of the heart for 77.5% with a maximum medical improvement date of October 13, 1993. The evidence revealed that the claimant had received two advances totaling 77,182.32 against the award; there was also some evidence that the claimant may have received weekly advances against permanency from the date of maximum medical improvement until his retirement in 1995. The former risk manager for the municipal employer, testified that there was an agreement as to the permanent impairment award. Additionally, documentary evidence between the parties confirmed this. Notwithstanding this agreement between the parties, no written award was ever approved by the Commission. After the rating had been issued the parties had discussed settlement of the case but no agreement had ever been reached. Apparently, the claimant’s condition deteriorated and during the period February 19, 2003 through his death on April 20, 2006 the claimant received total disability payments. At the trial level, the Administrative Law Judge concluded that there was an agreement for 77.5% of the heart which was owed to the estate of the decedent; additionally, the Administrative Law Judge determined that mandatory interest was owed under Section 31–295(c) and that there had been undue delay in violation of Sections 31–288 and Section 31–300. No specific monetary award was issued either for the interest or undue delay penalty. The Compensation Review Board exhaustively reviewed the facts in the case and determined that there was an agreement for 77.5% of the heart, that it had matured, and that the estate was entitled to the award. On the other hand, the Board stated that it was unclear as to when interest would have been owed under Section 31 – 295(c) and therefore remanded the case to the Trial Judge for determination as to when the mandatory interest would be triggered. Regarding the penalties for undue delay, the CRB also remanded that to the Administrative Law Judge for further findings. The Board noted that the issue of undue delay had not been listed as an issue for the formal hearing and that the Trial Judge had not ordered a specific amount to be paid. The City of Waterbury took this appeal to the Appellate Court seeking review of finding that the award had matured during the lifetime of the decedent, that statutory interest was owed, and that there was unreasonable delay and contest of the claim. The Appellate Court held that the issue was moot based on the decision in WATERBURY V. BRENNAN, 228 CONN. APP. 206 (2024) (see above), which concluded that nothing was owed because the City was entitled to a credit against the permanency owed, per contract, based on the pension benefits received be the decedent. Since the credit was greater than the permanency, no additional benefits, including interest, were owed.
KILLARD V. BROCK INDUSTRIAL SERVICES, 6512 CRB-7-23-8 (October 25, 2024)
This case concerns an insulator injured in a workplace slip and fall who claimed compensable injuries to his cervical spine, hip, and hernia, with accepted injuries to his upper arm and shoulder. The Administrative Law Judge deemed the cervical spine and hernia injuries compensable but denied the hip injury claim, citing pre-existing conditions. Both parties appealed parts of the decision.
The claimant argued the judge erred in denying the hip injury claim, but the Compensation Review Board upheld the decision, noting the hip condition was pre-existing, with prior medical records from 2017-2018. The claimant also challenged the admission of a late report by Dr. Clinton A. Jambor, arguing due process violations, but the Board found no violation, due to the fact that the claimant had an opportunity to respond but did not act. The Administrative Law Judge allowed the claimant additional time to cross-examine Jambor but noted that the claimant did not avail himself of this opportunity.
The respondents argued that the evidence did not support the claimant's position that the work injury was a substantial factor in the development of the hernia. They contended that the judge should have relied on their expert, Dr. John P. Amodeo, who opined that the hernia was unrelated to the work incident. The Administrative Law Judge found the claimant's treating physician, Dr. Teresa A. Esposito, more credible. Esposito opined that the claimant's work contributed to the hernia's worsening, and the judge found this evidence persuasive. The Compensation Review Board upheld the judge's decision, finding sufficient evidence to support the compensability of the hernia.
The Compensation Review Board upheld the Judge’s decision, affirming the cervical spine and hernia injuries as compensable while denying the hip injury claim due to lack of proof and pre-existing conditions.
SABIA V. VALERIE MANOR INCORPORATED, 6520 CRB-5-23-12
At issue was whether the Administrative Law Judge was required to credit the opinion of a commission or respondent medical examiner if they determine that the treating physician’s opinion is more persuasive. The claimant sustained an injury to her finger that spread to her wrist and other fingers in 2021, when a tendon ruptured in her right hand. She previously underwent surgery for this same hand in 2009, however, the claimant’s treating physician opined that these new symptoms are different than what she treated for in 2009, but rather the tendon rupture the claimant experienced was likely caused by significant repetitive motion. The claimant underwent both a commission medical exam as well as a respondent medical exam. The respondent’s examiner opined that the injury was unrelated to the workplace, and the commission’s examiner believed that while the rupture did happen at work, it could have happened anywhere. The Administrative Law Judge weighed the evidence and found that the evidence proffered by the claimant’s treating physician was the most credible and persuasive and provided benefits to the claimant. The respondents then argued that the Administrative Law Judge erred by failing to weigh the other opinions more heavily, and that the evidence used was inadequate to support an award of benefits. The CRB however found that the Administrative Law Judge was “well within his discretion” to find the treating physician’s opinion more credible than the commission or respondents examiner, and that unless the administrative law judge’s opinion is “without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences,” it must stand.
TARTAGLIONE V. CITY OF DERBY, 6529 CRB-7-24-2 (October 25, 2024)
The claimant began working as a police officer for the City of Deby in 2016, and testified in the summer of 2019 he began experiencing lumbar pain. He attributed this pain to sitting long periods of time in his police cruiser with a bad seat, wearing a heavy gear belt, and the weight of his bulletproof vest. The claimant’s treating physicians opined that his complaints were either caused by a work-related injury or were a work-related aggravation of a pre-existing condition. Both the respondent’s medical examiner and commission’s medical examiner found that there was insufficient evidence linking the lumbar spine condition to the claimant’s work, as there was a clear disc herniation dating back as far as 2006, when the claimant was a college student. The Administrative Law Judge weighed all the medical opinions as well as the claimant’s prior involvement in both high school and college football and power training. The Administrative Law Judge found that while the claimant was credible, the testimony that he did not recall any prior injury or treatment was inconsistent with the evidence. In addition to the testimony, the Administrative Law Judge did not find the claimant’s treating physicians credible or persuasive since there was documentation of a disc herniation in 2006 and dismissed the claim. The claimant appealed on the basis that it was erroneous for the Administrative Law Judge to not rely on the treating physicians’ opinions, however the CRB stated that an administrative law judge’s opinion may only be overturned “if they are without support, contrary to the law, or based on unreasonable or impermissible factual inferences.” The CRB stated it was a “reasonable conclusion from the evidence presented,” and that no error was made by the administrative law judge.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our Winter 2024 WORKERS’ COMPENSATION LAW UPDATE.
CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
BURIAL EXPENSES
As of January 1, 2024, the burial fee for deaths covered under the Workers’ Compensation Act is $13,885.25 based on the overall 2023 CPI-W increase for the northeast of 3.2%. 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.
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Burial-Expense-Adjustments
MILEAGE REIMBURSEMENT
As of January 1, 2024, the mileage reimbursement rate is 67 cents per mile.
As of January 1, 2023, the mileage rate had been 65.5 cents per mile. Prior to that the rate had been at 62.5 cents per mile since July 1, 2022
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Mileage-Reimbursement-Rate-Rises
MEMORANDUM 2024-01
The Commission has immediately suspended the mediation program and is beginning a review of the guidelines for the program. The suspension is due to “parties failure to comply with the program guidelines and misuse of the program.”
We are sure that we will hear more about this in the future. We hope that the Commission will be able to begin the program again. In the meantime, there are a number of private mediation services that are available to assist in resolving claims. Please contact us if you have any questions about private mediation.
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2024/Memorandum-No-2024-01
MEMORANDUM 2023-09
This memo addresses legal fees between claimants and their counsel. As of January 1. 2024 counsel fees for new attorney fee agreements will increase from 20 to 25%. Requests for fees greater than 25% will not be allowed. For prior fee agreements which had the legal fee rate at 20% those will not be affected by this memorandum.
NEW WORKERS’ COMPENSATION PORTAL
A new Worker’s Compensation portal has been established at this site:
https://wccct.govqa.us/WEBAPP/_rs/(S(ee5fdcqgfjppdvhg3ssjxq1e))/supporthome.aspx
The old Worker’s Compensation website remains in place, however, this new portal will allow a search of managed care plans for a particular date of injury. Also, workers’ compensation coverage searches and requests for workers’ compensation files and freedom of information requests can be performed through this new portal. The prior worker’s compensation history of an individual and information concerning a particular file (forms filed, hearing requests, hearings held, voluntary agreements approved) can be searched through this portal as well. Information regarding self-employers in the system can also be reviewed.
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
Memorandum 2023-08
The Form 42 has been revised. The new Form 42 includes “a check box indicating "Check, if total impairment rating, inclusive of any prior ratings, for body part." The box should be checked when the rating is for the total impairment inclusive of any previous ratings for the body part. The box should not be checked when the rating is in addition to a previous rating. The revised form can be obtained from our Online Forms page.”
MEMORANDUM 2023-05:
Memorandum 2023-05 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, 2023 is $1,575 (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, 2023 is $1,154 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2023/Memorandum-No-2023-05
MEMORANDUM 2023-04
The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.
MEMORANDUM 2023-03
The Connecticut Workers’ Compensation Commission effective June 10, 2023 has amended subsection F of Section VII of the Professional Guide for Attorneys, Physicians and Other Health Care Practitioners Guidelines for Cooperation. The subsection now reads:
Exception for Psychiatrists, Psychologists, Neuropsychologist, and Neuropsychiatrists
Due to the particular nature of these fields, there are some exceptions to Commission rules, regulations and guidelines granted to providers in these disciplines. Please note the following:
1. Most Commission rules and regulations, including deposition fees and formal hearing testimony fees, do apply
2. Fees as listed in the Official Connecticut Practitioner Fee Schedule, which encompasses most office visit/treatment fees, do apply unless there is a contract indicating otherwise
3. Fees for Commission Medical Exams and Employer/Respondent Exams DO NOT apply. The provider may charge a maximum of $2500 for these types of exams without prior approval. Any fee above $2500 for a CME must be approved by the ALJ prior to the exam taking place. In the case of an RME, the provider may request the higher fee from the respondent. If the provider and respondent cannot agree on a fee, the respondent may choose another provider or request a hearing with an ALJ to determine a reasonable fee.
NEW COMPENSATION REVIEW BOARD PANEL
The new CRB panel beginning January 1, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.
MEDICARE NEWS FROM CMS
The following alert has been issued by CMS:
2023 Recovery Thresholds for Certain Liability Insurance, No-Fault Insurance, and Workers’ Compensation Settlements, Judgments, Awards or Other Payments
As required by section 1862(b) of the Social Security Act, the Centers for Medicare and Medicaid Services (CMS) has reviewed the costs related to collecting Medicare’s conditional payments and compared this to recovery amounts. Beginning January 1, 2023, the threshold for physical trauma-based liability insurance settlements will remain at $750. CMS will maintain the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibly for medicals. This means that entities are not required to report, and CMS will not seek recovery on settlements, as outlined above. Please note that the liability insurance (including self-insurance) threshold does not apply to settlements for alleged ingestion, implantation, or exposure cases.
LIFE EXPECTANCY TABLES
Beginning February 24, 2024, CMS will utilize the CDC's "Table 1: Life Table for the total population: United States, 2021" for the Workers' Compensation Medicare Set Aside life expectancy calculations.
WORKERS’ COMPENSATION TIP
Our law firm will regularly receive calls from families that have had, unexpectedly, a workers’ compensation claim filed against them due to the injury of a worker who worked in their home in some capacity. The workers that are pursuing the claim are generally in the role of a Nanny or health care assistant. The families most of the time were unaware that there was potential exposure for workers’ compensation due to injuries to these workers in their homes. Every state is different regarding the need for workers’ compensation coverage for "in home workers”; some states do not require workers’ compensation coverage for workers in the home. In Connecticut, to be covered a worker must work in the home regularly for more than 26 hours per week. Also, the so-called “control test” will determine if the worker is an independent contractor or not; that is, whether the alleged employer can and does exercise “control” over the worker. Examples of control are the homeowner determining the hours and time that the worker will work and requiring the homeowner’s approval for the worker to take time off. Individuals with an “in home” worker should consider whether they need to take out workers’ compensation coverage and protect themselves from these potentially expensive claims.
CURRAN V. STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION, 6492 CRB-1-22-12 (November 17, 2023)
The claimant alleged an injury to his right hip at work on April 12, 2011. He reported the incident to his supervisor, completed a form and was sent for an evaluation by an on-duty RN at the company on-site clinic. The RN examined the claimant and “felt his hip, took his temperature and blood pressure, provided him with an ice pack and gave him some Advil.” The RN also completed a medical incident report. The claimant did not follow up with any further treatment. Years later on July 15, 2021 the claimant filed a Form 30c and sought workers’ compensation benefits for the 2011 claim. The respondents asserted that the claimant was not timely filed. The claimant alleged that the medical care exception to written notice applied pursuant to Section 31-294c(c). The ALJ agreed and found that the claim was timely filed. The CRB affirmed the finding and rejected the respondents’ argument that the medical provider had to be a medical doctor or APRN for the exception to apply.
WILLIE HAYES, JR. V. LILY TRANSPORATION CORPORATION, 6500 CRB-1-23-4 (November 24, 2023)
The claimant was a driver. On November 17, 2014 he had to grip his steering wheel very tightly to try and avoid a motor vehicle that had gone into a spin in front of him. As a result of this, the claimant developed an injury to his right small finger. Dr. Gross performed two surgeries on the finger which were accepted by the employer as compensable. Subsequently, the claimant developed bilateral wrist problems and came under the care of Dr. Mastella, a hand specialist. The respondents questioned whether the wrists were due to the 2014 accident since there had been no wrist complaints at first. Based on the history of injury to the wrists in 2014 that was provided by the claimant, Dr. Mastella in his reports opined that the wrist injuries were due to the 2014 incident. Dr. Bernstein performed a RME and he concluded that the wrist injuries were not due to the 2014 event. The medical notes of Dr. Gross from his initial treatment did not mention any wrist injuries. At his deposition Dr. Mastella was asked to review Dr. Gross’ notes and he changed his opinion regarding causation; he stated he agreed with Dr. Bernstein that the wrist injury was not related to the 2014 incident. Dr. Mastella did concede, however, that if the claimant had experienced wrist pain initially after the incident then that would tend to support causation. At the trial level the ALJ found the claimant credible that his wrists hurt from the beginning and relied on Dr. Mastella’s opinion in his reports that the condition was due to the 2014 accident. The CRB affirmed the decision on appeal notwithstanding the respondents protestations that Dr. Mastella had changed his opinion on causation at his deposition.
JANE DOE V. XYZ COMPANY (December 7, 2023; ALJ DECISION)
The claimant alleged that she fell at work on the company premises on February 14, 2022 causing a fracture to her left leg. While the respondents acknowledged that the claimant fell at work they denied liability in the case. The respondents contended that the claimant’s injury did not “arise out of” her employment; rather, respondents asserted that the claimant’s fall was because of a pre-existing, non-occupational foot drop. The claimant had a number of prior left hip surgeries which caused a foot drop. As a result of this, the claimant became more susceptible to falling. The claimant did wear a brace on her left ankle to stop falls although she admitted that it was uncomfortable. The claimant fell at a restaurant outside of work in January 2022, one month before the work accident. A fellow worker testified that he saw the claimant prior to the work accident and she was having difficulty walking. The claimant came in to work early in the morning and was walking to her workstation at the time of the fall. Following the fall, the claimant reported to numerous medical providers that she had fallen on rock salt. At the formal hearing, however, the claimant acknowledged that she did not see any rock salt at the time of her fall but did say that there had been rock salt outside of work as she entered the premises. The claimant also testified at the formal hearing that there may have been a small puddle of water on the floor where she fell. The claimant did not know why she fell, however. The respondents presented the testimony of Dr. Raymond Sullivan, a foot specialist, who opined that the claimant’s pre-existing left foot drop was a substantial factor in causing her fall at work. The Administrative Law Judge concluded that Dr. Sullivan’s testimony was persuasive that the claimant’s foot drop was a substantial factor in causing the fall. The Judge found there was no credible or persuasive evidence that there was rock salt on her shoe when she fell or that there was water on the floor. The Judge dismissed the claim concluding that the fall was caused solely by her left foot drop condition. This case is now on appeal to the CRB. This claim was successfully defended by Attorney Jason Dodge of SDAZ. The name of this case has been changed for confidentiality purposes.
JINKS V. STOP & SHOP SUPERMARKET, 6465 CRB-6-22-1 (January 5, 2024)
The claimant sustained compensable chest injury on April 12, 2017 and a voluntary agreement was issued. He alleged two subsequent claims as well on September 14, 2018 and January 21, 2019. The claimant contended that he had PTSD due to his injuries and claimed that his diabetic condition was substantially related to his work injuries. The claimant also sought authorization of an OSKA device as recommended by Dr. Kost. THE ALJ dismissed all claims for PTSD, diabetes and the OSKA device. The Judge relied on the opinion of Dr. Pier, a CME and neuropsychologist, who disagreed with diagnosis of PTSD and causation. Regarding the diabetic condition the Judge found that the RME with Dr. Cooper was more credible than the treating physician and concluded that the diabetic condition was not related. Pertaining to the OSKA device the Judge accepted the RME opinion of Dr. Grahling that the device was not reasonable or necessary medical treatment. On appeal the CRB concluded that there was sufficient evidence in the record to support the Judge’s factual conclusions. The claimant asserted that the Judge should have ordered a CME re the diabetic condition but the Board determined that an ALJ is not required to order a CME in all cases, citing the Appellate Court case of Jodlowski v. Stanley Works, 169 Conn. App. 103 (2016). Interestingly, it appears that the ALJ had attempted at the trial level to find a doctor to perform a CME re the diabetic condition but could not find an expert to complete that examination.
GARDNER V. DEPARTMENT OF MENTAL HEALTH AND ADDICTIONS SERVICES, 223 CONN. APP. 221 (2024)
The claimant took this appeal to the Appellate Court alleging that notwithstanding the fact that she was at maximum medical improvement she should continue to receive temporary partial benefits pursuant to Connecticut General Statutes Section 31-308(a). The Appellate Court held that the Judge did not have discretion to award ongoing TP once maximum improvement had been reached; it determined that permanency was owed versus TP benefits. In this case the claimant had sustained a compensable wrist injury and reached mmi with an eight per cent rating. The trial Judge and the CRB had found that ongoing TP was not owed although the claimant had ongoing work restrictions. The Appellate Court rejected the claimant’s contention that the case of Osterlund v. State, 129 Conn. 591 (1943), compelled a conclusion that the ALJ had discretion to award ongoing TP benefits versus permanency pursuant to Section 31-308(b). It is expected that the claimant will pursue an appeal of this decision to the Connecticut Supreme Court.
HERRICK V. I.P.C. LYDON, L.L.C., 6496 CRB-2-23-2 (February 2,2024)
The claimant was employed as a welder for many years. In 1987 he sustained a left shoulder injury at Electric Boat; he had numerous surgeries due to this and was paid 25% of the arm. In May 2018 he worked as a welder for I.P.C. Lydon L.L.C. for five days. Later in the summer of 2018 he was seen by Dr. Anbari for bilateral shoulder problems. Dr. Anbari related the shoulder injuries to his heavy work as a welder. A RME with Dr. Jambor concluded that the claimant’s left shoulder condition was due to the 1987 injury and the right arm injury was due to overuse secondary to the left arm. He opined that the five days at Lydon were not significant to the development of the injuries. A CME with Dr. Rios determined that the injuries were due to repetitive trauma. He seemed to discount the contribution of the Lydon work in causing the injuries. The trial judge found that the claimant’s injuries were due to repetitive work and held Lydon liable as the last employer pursuant to Section 31-299b. Lydon appealed that decision contending that there was no evidence to support that its five days of employment were a substantial contributing factor for the injuries. The CRB affirmed the finding against Lydon concluding that under Section 31-299b “an assessment of the extent to which the respondents' period of employment materially contributed to the claimant's repetitive trauma injury is not only premature at this stage of the litigation but is also at odds with the legislative intent of the apportionment statute.” The Board did note that the respondent did not argue that the claimant's job duties during the last five-day period of employment "deviated significantly from the responsibilities associated with his prior periods of employment throughout his career as a welder." Essentially the Board concluded that since the Lydon employment was the same type of work that caused the injuries over many years, that Lydon as the last employer was liable for the initial payments notwithstanding the fact that no ruling was made that their employment was a substantial contributor to the injuries. The Board did note that the last employer was entitled to pursue apportionment against earlier employers and carriers.
We believe this ruling represents a change in how the Commission handles apportionment claims. In the past it was felt that evidence was needed to show that the last employer’s actual employment was a substantial factor in causing the injury, however, this case suggests that if the last employer’s employment is similar to the repetitive trauma that is claimed then that is enough to require the last employer to pay and then seek apportionment. This may speed up the process in a repetitive trauma claim where the injury is clearly related to work but it raises questions if it is fair to require the last employer to pay for a claim where their employment is of short duration and may not even be a significant factor in causing the condition.
MATTERA, DECEASED, v. STATE OF CONNECTICUT, 6505 CRB-8-23-6 (March 1, 2024)
The claimant sustained compensable injuries on January 5, 2018 to the neck, low back, left shoulder; a claim for PTSD was also accepted. The claimant received total disability benefits from the date of injury until April 8, 2022 when he died due to cancer unrelated to the work injury. The treating psychiatrist had seen the claimant last on March 9, 2022 and did not address maximum medical improvement in his report. Post the death of the claimant in response to request from counsel the treating doctor placed the patient at mmi as of March 9, 2022 and provided a rating of 15% of the brain. The claimant’s surviving children sought permanency based on their contention that the claimant had reached mmi prior to death. The trial Judge and the CRB both dismissed the claim finding that the claimant had not proven he had reached mmi prior to his death. The Judge found the treating physician opinion regarding mmi to not be credible or persuasive. The Board affirmed, noting that it was in the discretion of the Judge to determine if mmi had been reached based on the evidence presented. In reaching their decision the CRB cited the Workers’ Compensation treatise co-authored by Attorneys Strunk and Dodge of SDAZ.
JONELIS V. CUMBERLAND FARMS, 6499 CRB-5-23-4 (March 1, 2024)
The claimant sustained a compensable ankle injury. She was working at a time that workers’ compensation benefits were being paid which resulted in a large overpayment. The trial Judge found that there was an overpayment and ordered a repayment schedule. The Finding was issued on March 8, 2023 but an appeal was not taken until April 14, 2023., beyond the twenty day appeal period. Since the appeal was taken more than twenty days after the Finding the CRB granted the respondents’ Motion to Dismiss the appeal.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our SUMMER 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.
***See below important Appellate Court decisions in Cochran and Martinoli cases dealing with denial of payment of TT to retirees in certain situations.
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:
https://www.ctworkcomp.com/wp-content/uploads/2022/08/Summer-2022-work-comp-update.pdf
* * * * * *
CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
NEW ADMINISTRATIVE LAW JUDGE APPOINTMENTS:
Shanique Fenlator and Benjamin Blake have been confirmed as Administrative Law Judges in the Connecticut Workers’ Compensation Commission. Also 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 have been confirmed.
MEMORANDUM 2023-04
The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.
MEMORANDUM 2023-03
The Connecticut Workers’ Compensation Commission effective June 10, 2023 has amended subsection F of Section VII of the Professional Guide for Attorneys, Physicians and Other Health Care Practitioners Guidelines for Cooperation. The subsection now reads:
Exception for Psychiatrists, Psychologists, Neuropsychologist, and Neuropsychiatrists
Due to the particular nature of these fields, there are some exceptions to Commission rules, regulations and guidelines granted to providers in these disciplines. Please note the following:
1. Most Commission rules and regulations, including deposition fees and formal hearing testimony fees, do apply
2. Fees as listed in the Official Connecticut Practitioner Fee Schedule, which encompasses most office visit/treatment fees, do apply unless there is a contract indicating otherwise
3. Fees for Commission Medical Exams and Employer/Respondent Exams DO NOT apply. The provider may charge a maximum of $2500 for these types of exams without prior approval. Any fee above $2500 for a CME must be approved by the ALJ prior to the exam taking place. In the case of an RME, the provider may request the higher fee from the respondent. If the provider and respondent cannot agree on a fee, the respondent may choose another provider or request a hearing with an ALJ to determine a reasonable fee.
MEMORANDUM 2023-02:
RME charges have now been increased to $850.
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.
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.
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.
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 TIP
A claimant’s internist records can provide helpful information to assist in the defense of a workers’ compensation claim. The PCP records can include history of prior personal injury or workers’ compensation claims, ratings for permanent impairment, surgical history, or diagnostic testing that may be relevant to the present claim. Any workers’ compensation claim investigation should include an inquiry regarding the name and contact information for the claimant’s internist.
IMPORTANT RETIREE DECISIONS IN COCHRAN AND MARTINOLI CASES
COCHRAN V. DEPARTMENT OF TRANSPORTATION, 220 Conn. App. 855 (August 8, 2023)
In this important decision, the Appellate Court held that a worker who is retired and took himself out of the workforce was not entitled to a claim for total disability benefits made post-retirement.
The claimant sustained a compensable back injury in 1994. Surgery was performed in June 1994; a further back surgery was performed in April 1995. A voluntary agreement was issued and approved in 1995 for 29.5% of the lumbar spine.
On April 1, 2003 the claimant, at age 54, took an incentivized early retirement from the employer. The plaintiff had no intention of returning to work. In 2013 the claimant had back surgery with an allegedly unauthorized New York physician. A CME by Dr. Dickey in 2017 gave the “lightest” work capacity to the claimant. Dr. Sabella, a vocational specialist, found the claimant unemployable. The trial judge found the 2013 back surgery related and ordered a three month period of total disability following the 2013 surgery and ongoing total disability beginning on December 30, 2017. The CRB affirmed the decision. The Appellate Court reversed the Board decision; in doing so, the Court stated it had plenary review over the case (meaning that they did not have to defer to the CRB below regarding the application of the law).
The Court’s decision stated that: “he elected to remove himself from the workforce where he had no intention of returning and more than 10 years later sought to obtain Section 31–307(a) benefits. We cannot conclude the plaintiff is entitled to Section 31–307(a) benefits when he removed himself from the workforce with no intention of returning.” The Appellate Court found this to be an issue of first impression before the Court.
This decision likely will be appealed to the Supreme Court.
The holding of this case has the potential to reduce the settlement value of claims involving retirees. For example, if a claimant with a compensable injury retires and takes himself/herself out of the workforce but then subsequently needs a further surgery due to the compensable injury, based on this case total disability benefits may not be owed.
MARTINOLI V. STAMFORD POLICE DEPARTMENT, ____Conn. App. ___(August 8, 2023)
The claimant sustained a compensable heart condition in January 1999. He retired at age 64 in October 1999. In 2015, at age 80, he sustained a stroke and claimed entitlement to total disability at that time. The Judge CRB found the stroke related to the initial claim and awarded total disability benefits to the retiree. The Appellate Court, however, reversed and said a retiree was not entitled to claim total disability benefits post-retirement. The Court cited the companion case of Cochran V. Department of Transportation, 220 Conn. App. 855 (August 8, 2023)
It is likely that this decision will be appealed to the Connecticut Supreme Court
CRUZ V. INTERIM HEALTHCARE 6480 CRB-2-22-7 (May 19, 2023)
The claimant sustained a compensable and significant knee injury. She underwent knee replacement procedure and was awarded 45% of the leg. She received all 31-308a benefits, albeit at a reduced rate. She asserted that she should be entitled to a scarring award pursuant to Connecticut General Statutes Section 31-308(c). The statute allows a scarring award for disfigurement on the face, head or neck or “any other area of the body which handicaps the employee in obtaining or continuing to work.” Although the scar was not on her face, neck or head, the claimant contended that she was entitled to a scarring award because the knee scar handicapped her ability to work. The scar was 7inches by ½ inch. Dr. Zimmerman, the treating physician, issued a report that stated the scar affected the claimant’s ability to kneel or squat. The claimant testified that the scar was sensitive and because of that she could only wear shorts; she claimed that she would not feel comfortable at work wearing shorts. The Trial Judge dismissed the claim concluding that while the scar was hypersensitive and uncomfortable it did not handicap the claimant getting work. The claimant contended that the Judge erred in dismissing the scarring claim, asserting that the Judge was bound to accept Dr. Zimmerman’s medical opinion since it was uncontradicted. The CRB affirmed the dismissal noting that the Judge is the sole judge of credibility and, in this case, did not find the claimant persuasive. The Board affirmed the denial of the claimant's Motion to Correct, noting that in the corrections sought the Judge was asked to accept Dr. Zimmerman’s opinion re the scar and its impact on the claimant’s ability to work. The CRB noted that there was no evidence showing that the claimant had lost a job due to her scar.
CLARK V. TOWN OF WATERFORD COHANZIE FIRE DEPARTMENT, ET AL, ___Conn. ___ (June 20, 2023)
The Supreme Court reversed a finding of compensability in this Heart and Hypertension claim based on the part-time status of the claimant. The claimant was initially hired by the Town of Waterford as a part-time firefighter in 1992; he passed a pre-employment physical examination. In 1997 the claimant was hired as a full-time firefighter. Importantly, the Heart and Hypertension Act, Connecticut General Statutes Section 7-433c, was ended for firefighters hired after July 1, 1996. The claimant suffered a myocardial infarction on June 24, 2017 while he was still a firefighter and he sought benefits under Section 7-433c. The trial Judge and the CRB both held that the claimant was entitled to benefits under the statute notwithstanding the defense raised by the Town that the claimant did not qualify for benefits since General Statutes Section 7-425(5) defined a member of the fire department to be someone who works more than 20 hours per week. The CRB essentially concluded that there is no difference for purposes of Section 7-433c whether the claimant is a full or part-time member of the fire department. The Appellate Court affirmed the Board decision. The Appellate Court rejected the Town’s argument that the definition of a member of the fire department was found in General Statutes Section 7-425(5) when determining if a firefighter qualified for benefits under Section 7-433c. In an impressive victory for the Town of Waterford, the Connecticut Supreme Court reversed the Appellate Court decision and concluded that Section 7-425(5) does affect eligibility for Heart and Hypertension benefits under Section 7-433c. The Supreme Court stated that in amending and creating statutes they want to create a harmonious body of law. The Court noted that just because there was a similarity in job functions between part and full-time workers that did not require the Town to pay them the same. The Court remanded the case to the Administrative Law Judge for further determination of whether the claimant worked more than twenty hours per week as defined in Section 7-425(5). Judge Ecker did issue a dissenting opinion.
https://www.jud.ct.gov//external/supapp/Cases/AROcr/CR346/346CR33.pdf
dissent
https://www.jud.ct.gov//external/supapp/Cases/AROcr/CR346/346CR33E.pdf
BASSETT v. TOWN OF EAST HAVEN, 219 Conn. App. 866 (2023)
The Appellate Court affirmed a dismissal in a claim where the employee sustained a traumatic amputation of his hand after igniting an explosive device which he found in the course of his work. The claimant was a 29-year-old supervisor of a summer youth program for a municipality. In the course of this job the claimant would supervise and assist teenage workers in cleaning up areas of East Haven. During the course of picking up an area outside a school the claimant found a “small brown sphere with paper wrapped around it, foil stuck on it, and the wick attached thereto.” The claimant had a lighter which he used to light the wick; the sphere exploded causing serious injuries and an amputation of the hand. The respondent Town acknowledged that the claimant’s injuries occurred during the course of his work but did not arise out of his work. The Administrative Law Judge concluded that “his intentional lighting of the wick broke the chain of causation with respect to the scope of his employment and that the claimant’s resulting injuries did not “arise out of” his employment.” The Judge did not accept the claimant’s contention that he had lit the wick to protect other employees. There was no finding of serious and willful misconduct. The Appellate Court concluded that the injury did not arise out of the employment and the Judge’s decision below was logically and legally correct.
WICKSON V. A.C. MOORE, 6478 CRB-2-22-6 (May 1, 2023)
The claimant had a prior hearing loss and TBI before being hired by the employer. Initially the job was light duty but the claimant contended that the work over time became more difficult including stacking merchandise and unloading pallets. She worked with the employer sixteen years. On September 17, 2015 she alleged an injury to her left shoulder at work; she reported it to her supervisor but he did not fill out a report of injury for her. When she initially sought medical treatment there was no specific history provided regarding a work injury. She came under the care of an orthopedic surgeon, Dr. Anbari, who recommended reverse left shoulder arthroplasty. The claimant also began to develop right shoulder problems; she underwent a reverse right shoulder arthroplasty. The claimant sought workers’ compensation benefits both on a theory that she had a specific injury at work and repetitive trauma. Dr. Anbari supported compensability both due to the specific accident in 2015 and repetitive trauma during the course of her work. A RME, Dr. Jambor, questioned causation of the bilateral shoulder injury to work. A CME, Dr. Barnett, suggested that the 2015 incident was not well-documented; while he stated the cause of the shoulder claim was multi-factorial he could not state with any certainty the degree of contribution due to the work. The ALJ concluded that the claim was compensable based on a repetitive trauma theory and found that Dr. Anbari’s opinion credible in that regard. The ALJ concluded that while the claimant did have a 2015 incident at work it was not the cause of her bilateral shoulder injury; rather, the Judge determined that her shoulder injuries were due to the repetitive nature of her work. The CRB affirmed the decision on appeal pointing out that there was sufficient evidence in the record to support the Finding. The Board noted that the Judge could choose to accept all or a portion of an opinion by the doctors.
RECINOS V. STATE OF CONNECTICUT/DEPARTMENT OF TRANSPORTATION, 6483 CRB-4-22-9 (June 23, 2023)
The claimant sustained a number of work-related back injuries in 2006, 2008 and 2017 with the same employer. For an August 3, 2006 accident the claimant received a rating of 7.5% from Dr. Lewis, the treating physician; Dr. Brown, the RME, rated at 0%. The parties agreed to a compromise voluntary agreement at 3.75% that was approved and paid. In 2009 the new treating physician, Dr. Opalak rated at 10% and a va was issued, approved and paid for an additional increased rating of 10% (there is no discussion in the case whether Dr. Opalak commented, at that time, whether the 10% rating was in addition to or inclusive of the prior ratings). Surgeries to the low back were subsequently performed in 2018 and 2020 and a rating of 20% was issued by Dr. Opalak “inclusive of all prior ratings.” The respondents acknowledged the rating of 20% but asserted that a credit was due against the 20% rating of 17.5% (10% from the 2009 award and 7.5% from the rating of Dr. Lewis notwithstanding that the award was compromised at 3.75%). The claimant agreed to a credit of only 13.75%. The trial Judge concluded that the credit was 13.75% based on the initial 3.75% that was paid and the subsequent 10% award. The CRB affirmed the award and rejected the respondents’ argument that pursuant to Connecticut General Statutes Section 31-349(a) that they were entitled to a credit for the initial rating of Dr. Lewis since it was “payable” even though it was not paid. In reaching their decision the Board considered the seemingly conflicting cases of Ouellette v. New England Masonry Company, 5424 CRB -7-09-2 (January 14, 2010)(credit for full 20% rating in stipulation to date given although the claimant was not paid the entire 20% rating in a compromise agreement), and Peralta-Gonzalez v. First Student, 6160 CRB-7-16-12 (November 16, 2017)(compromise payment of 18.5 credited against subsequent award and not the entire 20% rating). Based on the facts as presented one wonders why the respondents did not address the issue of credit from the first permanency claim at the time that the second va for the additional 10% was issued.
HERBERT V. WINDHAM COMMUNITY MEMORIAL HOSPITAL, 200197006 (July 25, 2023)
In this matter, the Respondents were successful in obtaining a Finding and Dismissal on the issue of whether the claimant is permanently totally disabled due to a January 5, 2017 compensable lumbar injury.
Ms. Herbert, who was 67 at time of trial, was hired in 2005 as a housekeeper for Windham Hospital. Ms. Herbert did not graduate from high school and worked in unskilled job positions throughout her employment history.
In 2017 she injured her lumbar back while lifting heavy linens. She treating conservatively, reached MMI, received a compromised 8% PPD impairment and 31-308a based on searches.
She claimed she is a permanent total under the Osterlund theory, and to support her claim she had Kerry Skillin, CRC provide a vocational assessment, who found the claimant unemployable with no earning capacity. Ms. Skillin testified as to the standardized testing results which she administered and opined the claimant had no transferable skills. She also found that Ms. Herbert would have trouble concentrating at any job due to her diminished cognitive ability.
Dennis King performed a vocational assessment on behalf of the respondents and found that the claimant was employable. He testified as to the standardized testing he used which included CAPS, COPS and COPES. He also performed 2 labor market surveys and identified several jobs for Ms. Herbert available in the current job market.
He testified that a high school diploma is not a gatekeeper in getting a job. He also testified that there was nothing in the claimant’s employment history or medical record which would suggest cognitive or diminished mental capacity as found by Ms. Skillin.
Mr. King testified that if the claimant wanted to consistently do poorly on the standardized testing administered by Ms. Skillin, then the testing results would be consistently incorrect.
Mr. King testified that the only thing that would prevent Ms. Herbert from getting one of the jobs identified in his labor market survey is her lack of desire to actually get a job.
ALJ Oslena found Dennis King’s testimony more persuasive that Kerri Skillin’s and dismissed the claimant’s claim that she is permanently totally disabled.
Attorney Nancy Berdon of SDAZ defended this claim.
ANGELA BELL N/K/A ANGELA FIASCONARIO V. HARTFORD HEALTHCARE AT HOME, 6473 CRB-8-22-4 (AUGUST 18, 2023)
The claimant, a LPN since 2014, alleged an injury to her right elbow and shoulder because of repetitive heavy work including wearing a backpack weighing 18 pounds which contained a blood pressure cuff. Conflicting medical testimony was presented from the treating physician, RME and CME. The claimant also alleged a specific accident at work on August 5, 2020, however, this was after surgery to the shoulder had already been recommended. The trial judge found the claimant’s “testimony and actions were inconsistent, unreliable and unpersuasive.” and dismissed the claim. On appeal, the Board affirmed the decision, noting that it was the claimant’s burden of proof to establish compensability. The claimant also contended that her attorney at trial did a poor job pursuing the claimant; the CRB declined to address that issue. The Board noted that the Judge’s conclusion regarding causation is conclusive so long as it is supported by competent evidence.
BRITT V. COS COB TV AND AUDIO, 6481 CRB-7-22-9 (August 18, 2023)
The claimant alleged a work injury to the low back on February 24, 2020 allegedly due to lifting a television. The claim was disputed (there was a prior low back condition). The claimant was seen by Dr. Brady on February 28, 2020 and then Dr. Katz on April 28, 2020. Dr. Katz established causation to the work accident, recommended a MRI study and disabled the claimant. The CRB found that the last medical record in the file was Dr. Katz’ report of April 28, 2020 although the Judge’s finding referenced an April 28, 2022 report. The Judge found the claim for back injury compensable but dismissed the TT claim that was made through April 28, 2021. On appeal the claimant contended that TT was supported by medical evidence and should have been ordered through April 28, 2021. The CRB affirmed the finding of compensability of the back and reversed, in part, the TT dismissal concluding that there were two medical reports confirming TT up to April 28, 2020 and therefore TT should be paid from the date of injury to April 28, 2020. The dismissal of TT was affirmed post April 28, 2020. A reading of this decision makes one think the parties/Judge had somehow confused the dates of April 28 in 2020, 2021 and 2022. If the Judge incorrectly referenced an April 28, 2022 report of Dr. Katz in her finding it is a mystery why a motion to correct was not filed.
JOHN DOE V. XYZ CO., (trial decision August 29, 2023)
On March 5, 2022 the claimant was a sales associate for the respondent working at a small convenience store. At that time the claimant was robbed by two masked individuals. The claimant testified that one of the robbers held a gun to his rib cage and also touched his right shoulder with the gun. The claimant was directed to go outside the store which he did, however, he was able to quickly enter the store again and lock the door with the two robbers outside. The claimant hit a panic button and called 911. The medical records that the claimant produced made no reference to a physical injury sustained on March 5, 2022. The claimant acknowledged that he never received any medical treatment for his neck, shoulders, or rib cage. The claimant stated that he went to AFC Urgent Care for issues regarding anxiety and psychological treatment. The claimant sought authorization for medical treatment for PTSD. The Trial Judge determined that there was no medical evidence to support the claimant sustained any type of physical injury or occupational disease at the time of March 5, 2022 robbery. The respondents contended that the claimant could not have a compensable PTSD claim since he did not sustain a physical injury at the time of the robbery and, even if he did, there was no evidence that the PTSD was substantially related to the alleged physical injuries. In support of their defense the respondent cited Biasetti v. City of Stamford, 123 Conn. App. 372, 377 (2010), cert. denied, 298 Conn. 929 (2010). The Judge held that the claimant failed to sustain his burden of proof that he had a psychological injury arising out of in the course of his and employment that was due to a physical injury and dismissed the claim. Attorney Jason Dodge of SDAZ successfully defended the claim for the respondents. The claimant’s and respondents’ names have been changed in this review given the sensitive nature of the claimant’s injuries.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our FALL 2023 WORKERS’ COMPENSATION LAW UPDATE. We wish to all a happy and healthy Thanksgiving holiday! 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.
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
Nancy E. Berdon, Esq. 860-785-4507 Richard T. Stabnick, Esq., Of Counsel 860-785-4500 x4550
LEGISLATIVE UPDATE
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CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
NEW WORKERS’ COMPENSATION PORTAL
A new Worker’s Compensation portal has been established at this site:
https://wccct.govqa.us/WEBAPP/_rs/(S(ee5fdcqgfjppdvhg3ssjxq1e))/supporthome.aspx
The old Worker’s Compensation website remains in place, however, this new portal will allow a search of managed care plans for a particular date of injury. Also, workers’ compensation coverage searches and requests for workers’ compensation files and freedom of information requests can be performed through this new portal. The prior worker’s compensation history of an individual and information concerning a particular file (forms filed, hearing requests, hearings held, voluntary agreements approved) can be searched through this portal as well. Information regarding self-employers in the system can also be reviewed.
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2023/Records-and-Information-Request-Service
Memorandum 2023-08
The Form 42 has been revised. The new Form 42 includes “a check box indicating "Check, if total impairment rating, inclusive of any prior ratings, for body part." The box should be checked when the rating is for the total impairment inclusive of any previous ratings for the body part. The box should not be checked when the rating is in addition to a previous rating. The revised form can be obtained from our Online Forms page.”
MEMORANDUM 2023-05:
Memorandum 2023-05 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, 2023 is $1,575 (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, 2023 is $1,154 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2023/Memorandum-No-2023-05
MEMORANDUM 2023-04
The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.
MEMORANDUM 2023-03
The Connecticut Workers’ Compensation Commission effective June 10, 2023 has amended subsection F of Section VII of the Professional Guide for Attorneys, Physicians and Other Health Care Practitioners Guidelines for Cooperation. The subsection now reads:
Exception for Psychiatrists, Psychologists, Neuropsychologist, and Neuropsychiatrists
Due to the particular nature of these fields, there are some exceptions to Commission rules, regulations and guidelines granted to providers in these disciplines. Please note the following:
1. Most Commission rules and regulations, including deposition fees and formal hearing testimony fees, do apply
2. Fees as listed in the Official Connecticut Practitioner Fee Schedule, which encompasses most office visit/treatment fees, do apply unless there is a contract indicating otherwise
3. Fees for Commission Medical Exams and Employer/Respondent Exams DO NOT apply. The provider may charge a maximum of $2500 for these types of exams without prior approval. Any fee above $2500 for a CME must be approved by the ALJ prior to the exam taking place. In the case of an RME, the provider may request the higher fee from the respondent. If the provider and respondent cannot agree on a fee, the respondent may choose another provider or request a hearing with an ALJ to determine a reasonable fee.
MEMORANDUM 2023-02:
RME charges have now been increased to $850.
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.
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
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.
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
NEW COMPENSATION REVIEW BOARD PANEL
The new CRB panel beginning January 1, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.
WORKERS’ COMPENSATION TIP
Before an Administrative Law Judge allows a Workers’ Compensation matter to be settled on a full and final basis the Judge and his/her staff require information concerning the claim and how the settlement was negotiated. The Judge will want an updated medical report documenting whether there is any additional need for medical treatment. Also, the Judge will want to know whether there are any outstanding health liens or any conditional payment issues involving Medicare. If the claimant is a potential Medicare recipient, the Judge will review the settlement agreement to make sure that Medicare’s interests are considered. If the claimant is receiving Social Security disability benefits the Judge may require that “offset” provisions be placed in the settlement to reduce any potential reduction of Social Security disability benefits because of the Workers’ Compensation settlement. Also, the Judge will want to know whether there were any permanent impairment ratings and whether they have been paid partially or in full. Finally, the Judge will want to know how the settlement figure was negotiated between the parties. Settlement documentation must be submitted to the Judge before any case will be assigned for settlement approval; the settlement documentation includes a stipulation and what it means form, a stipulation questionnaire form and the stipulation itself. It is important for the insurance carrier to provide counsel with this background information in order that settlement of the claim can be accomplished.
GERALD ROWE, EXECUTOR OF THE ESTATE OF PATRICIA ROWE V. BRIDGEPORT HOSPITAL, 6485 CRB-4-22-9 (September 15, 2023)
The claimant was born on October 2, 1948. She sustained a compensable needle stick at work on October 31, 1996 and developed hepatitis and associated lung injury. She became totally disabled on November 16,1996 and received TT and cola’s until her death on April 17, 2022. At the time of her injury Connecticut General Statutes Section 31-307(e) was in place which provided employers an offset against total disability payments for Social Security retirement benefits that the claimant may be entitled to receive. In this case the claimant never applied for Social Security retirement benefits; notwithstanding this, the respondents filed a Form 36 on December 10, 2019 claiming the offset based on the benefits that the claimant could have received from Social Security. The trial judge concluded that there was no offset since she never received any Social Security benefits; the Compensation Review Board affirmed the denial of an offset concluding that the claimant was not entitled to Social Security retirement benefits if she did not apply for them. Section 31-307(e) did apply to this claim since the rights and obligations of the parties are based on the statutes in effect as of the date of injury. Section 31-307(e) was enacted in 1993 but was repealed in 2006.
BARROS V. CITY OF BRISTOL, 6491 CRB-6-22-11 (October 6, 2023)
The claimant sustained a head injury on February 8, 2019 in the course of her work as a teacher. She came under the care of Dr. Hasbani, a neurologist, who provided medical reports indicating that the claimant was totally disabled. The claimant, however, also worked as a realtor and continued to work in that position notwithstanding Dr. Hasbani’s opinion that the claimant was totally disabled. The claimant received total disability benefits from the date of injury until a Form 36 was approved at an informal hearing on November 12, 2019. The claimant continued to contend she was entitled to medical treatment, total disability benefits and health insurance pursuant to General Statutes Section 31–284b. Eventually the claimant entered into a separation agreement with the employer and received a disability retirement in December 2020. At the formal hearing evidence was presented that the claimant was working as a realtor, took trips to the beach and amusement parks, and went to Portugal during periods of time when she claimed she was totally disabled. The Administrative Law Judge concluded that the claimant was not credible, however, he determined that the claimant was entitled to temporary partial benefits from the date of injury through the date of the separation agreement in December 2020. Additionally, the Judge found that Section 31–284b benefits were not owed after the separation agreement in December 2020. He did order that the claimant continue to receive medical treatment for the accepted body parts. Both parties took an appeal to the CRB, however, the Board affirmed the Trial Judge Finding.
ROSENSTEIN V. HARTFORD DISTRIBUTORS, 6490 CRB-8-22-11 (October 20, 2023)
The Compensation Review Board in this case affirmed a Finding and Dismissal of a claim for temporary total and Connecticut General Statutes Section 31-308a benefits; in doing so, the Board affirmatively cited the recent Appellate Court decision in Cochran v. Department of Transportation, 220 Conn. App. 855, appeal pending, S. C. 230146, which denied TT benefits to an individual who voluntarily retired before making a claim for benefits. In Rosenstein, the claimant was elderly (born in 1933). The claimant in 2010 was seriously injured when he heroically was attempting to stop a shooter at the company facility. The claimant himself was shot in the leg, abdomen, and left arm. After the incident the claimant did return to work and the employer provided accommodation to him including providing a work assistant, giving him a golf cart to travel in the large facility and keeping his desk near the bathrooms (the claimant at times had to go the bathroom emergently due to abdominal injuries from the shooting). The claimant retired voluntarily in 2018 at age 85, although there was testimony that the claimant’s desk was kept open at the employer because they thought he would be coming back to work. Post retirement there was evidence that the claimant was active taking dance classes, going to ball games and playing golf. After his retirement the claimant sought either TT or Section 31-308a benefits, claiming that he would not have retired but for his injuries. The claimant did produce a report from his gastroenterologist suggesting that he could not work; also, the claimant presented the testimony of a vocational specialist who indicated that the claimant was unemployable. The employer was willing to accommodate the claimant and his restrictions but the claimant did not request accommodation. The ALJ found that the claimant was not willing to return to work and that his claim for benefits was denied. The Judge did not adopt the medical or vocational evidence that suggested the claimant was TT/unemployable. A Motion to Correct was denied as well as a Motion to Open to present the testimony of the claimant’s boss, Mr. Hollander. The CRB affirmed the dismissal noting that the issue of TT entitlement was an issue of fact for the ALJ to decide. The Board affirmed the denial of the Motion to Correct and Motion to Open (they interpreted this to be a Motion to Submit additional evidence). In support of their decision the Board cited the Cochran decision, noting that the claim for benefits for the retiree in Cochran was denied even though there was some evidence in that case that the claimant retired in part due to his work injuries. A petition for certification has been granted in the Cochran case to the Connecticut Supreme Court and therefore the Supreme Court will address the issue of total disability benefits post voluntary retirement in the Cochran decision.
DUSTO V. ROGERS CORPORATION, 222 Conn. App. 71 (2023)
The plaintiff, the executor of the estate of the decedent, filed a claim for damages against the former employer of the decedent contending that the employer had knowingly exposed the decedent to asbestos and that the employer knew there was substantial certainty that the employee would be injured. The defendant employer filed a Motion for Summary Judgment asserting that the exclusive remedy provisions of General Statutes Section 31-284 applied and that the employee’s sole remedy against the employer was workers’ compensation benefits. The trial Judge granted the Motion for Summary Judgment, however, on appeal the Appellate Court reversed that decision and concluded that the claim against the employer could proceed. The Appellate Court determined that there was a genuine issue of material fact whether the employer “subjectively believed that its conduct was substantially certain to result in injury to its employees.” In reaching its decision the Court cited the case of Lucenti v. Laviero, 327 Conn. 764 (2018) and its analysis of what a plaintiff must prove in direct action claims against employers. The employer will file a petition for certification to the Connecticut Supreme Court seeking to reverse this decision.
PATRICIA BUCHANAN, SURVIVING SPOUSE OF PAUL BUCHANON V. TOWN OF EAST HARTFORD/POLICE DEPARTMENT, 6488 CRB-6-22-10 (November 3, 2023)
The claimant was a police officer with a municipal employer. Throughout his career he was exposed to dangerous and stressful situations. On January 15, 2013 he was at a fire during work that was described as chaotic; the officer had some smoke inhalation as a result of this. The officer had been treating for emotional/mental health issues. On March 12, 2013 he committed suicide while at work. A claim for widow benefits was sought with the date of accident March 12, 2013. The Trial Judge concluded that the decedent did have PTSD and that it was an occupational disease but that it was not secondary to a physical injury. The Judge found that the claimant had major depression per the respondent examiner’s opinion and that the death of the decedent was due to that and prescription medication management issues. The Judge dismissed the claim. On appeal the CRB determined that the Judge’s decision was ‘clearly erroneous” and misapplied the law to the facts. The Board found that the case was a “mental-physical” claim with the physical injury being the gun shot that led to the death of the decedent. The CRB cited the heart attack case of Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 208 Conn. 909 (2006) in support of its decision and the case of Biasetti v. Stamford, 250 Conn. 65 (1999) (claimant’s psychiatric injury an occupational disease but not compensable since not due to physical injury). The Board reversed the dismissal. In doing so, the CRB did not explain why the claim at the Supreme Court in Biasetti was dismissed but this claim was somehow found compensable. The Biasetti Court in dismissing that claim stated:
Section 31-275 (16) (B) (ii) includes within the definition of "personal injury" an emotional impairment that arises from or is caused by a physical injury or occupational disease. It does not, however, extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed within the term "arises."
We expect this decision will be appealed to the Appellate Court.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our SPRING 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
On May 6, 2023 Attorney Richard Aiken of SDAZ was inducted to the College of Workers' Compensation Lawyers at a ceremony held at the Marriot Marquis Hotel in New York City. 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. Attorneys Lucas Strunk and Jason Dodge are also Fellows in the College and they attended the induction ceremony to honor Attorney Aiken. Only fifteen attorneys in Connecticut have ever received this honor.
The Joseph J. Cassidy Memorial 5K Run/Family Walk stepped off on Saturday May 13 at the MDC reservoir in West Hartford and was a great success! Attorneys Anne Zovas and Phil Markuszka of SDAZ helped organize the annual event which raises funds for the Hartford County Bar Foundation, the charity arm of the HCBA. #HCBF #Charity #RoadRace2023
Attorneys Rick Aiken, Colette Griffin and Jason Dodge of SDAZ attended the CBA workers’ compensation section seminar in Nashville, Tennessee on May 7-9. Dr. Tamer Ghaly provided an interesting presentation regarding interventional pain management. Judge Mlynarczyk discussed settlements and mediation in the workers’ compensation system. Kudos to Attorney Jeremy Brown for putting the seminar together.
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 29th 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, Ariel MacPherson and Philip Markuszka of SDAZ were named “Rising Stars” in workers’ compensation law.
Attorneys Lucas Strunk, Richard Aiken and Jason Dodge at the College of Workers’ Compensation Lawyers induction ceremony in New York City.
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. Attorneys Anne Zovas and Lucas Strunk of SDAZ attended the NWCDN regional conference on May 4-5 in Charlotte, North Carolina.
Attorneys Anne Zovas, Richard Aiken, Lucas Strunk, Jason Dodge and Richard Stabnick of SDAZ have received an AV rating by Martindale-Hubbell. Martindale-Hubbell states that the AV rating is “The highest peer rating standard. This is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers.”
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:
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:
Shanique Fenlator and Benjamin Blake have been confirmed as Administrative Law Judges in the Connecticut Workers’ Compensation Commission. Also 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 have been confirmed.
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.
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.
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.
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
CASE LAW
AJDINI V. FRANK LILL & SON, INC., 6474 CRB-4-22-4 (March 17, 2023)
The claimant alleged two separate injuries on different dates of accident with same employer. He filed two timely notices of claim regarding the accidents; both were received on May 3, 2019. The respondents issued two Form 43’s in response to the claims and mailed them on May 29, 2019. The Form 43’s were received by the Commission on June 3, 2019 and by the claimant on June 6, 2019. A Motion to Preclude was filed regarding both claims; the preclusion was granted by the Administrative Law Judge. On appeal the respondents contended that the disclaimers were timely issued and that the mailing of the Form 43’s on May 29, 2019 was within the twenty-eight day time period required by Connecticut General Statutes Section 31-294c(b). The respondents contended that the “Mail Box Rule” applied and that the preclusion should not be granted. The respondents asserted that the mailing of the documents on May 29, 2019 met the requirement of the statute to “file with the commissioner.” The CRB affirmed the granting of the Motion to Preclude and pointed out that the “Mail Box Rule” only assumes that the document is received if it is properly mailed and does not go to the issue of the timing of receipt of the mailing. The Board held that the statute required actual receipt of the Form 43 before the twenty-eight day period and that mailing the notice to contest within the twenty-eight day period was not sufficient to avoid a preclusion.
RIGGINS V. STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION, 6452 CRB-6-21-11 (April 4, 2023)
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.
RIGGINS V. STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION, 6452 CRB-6-21-11 (April 4, 2023)
The claimant was pro se regarding this appeal which may explain the result in this case. Prior to the formal hearing the claimant alleged that she had been underpaid for a permanent partial disability award for the ankle that was owed to her. The claimant had sustained several different injuries as a result of a number of work-accidents with permanent impairment ratings covering many body parts including the back, left hand, arm and feet. Some voluntary agreements for permanency had been approved. At the start of the formal hearing which was sought by the claimant the stated issue was “31–295 (c) penalty for late payment of PPD benefits.” The claimant testified at formal hearing as well as an adjuster for the respondent, State of Connecticut. Ultimately, the Trial Judge found the testimony of the claimant not credible or persuasive and determined that the adjuster’s testimony was credible and convincing. The Judge determined that the claimant had failed in her burden to prove that any amount due for permanency had been paid in an untimely manner; in fact, the Trial Judge also found that some permanency had been paid at a rate higher than the correct rate and held there was an overpayment of $2,808.50. On appeal, the Compensation Review Board concluded that the Trial Judge had gone beyond the stated issue for the formal hearing when he determined that there was overpayment. Citing due process issues, the CRB vacated the Trial Judge’s Finding and ordered a trial de novo. The Board noted that prior to the formal hearing there was no indication that the respondent alerted the claimant that they were seeking to establish an overpayment. The Board stated “if the commission is to be asked to engage in an effort to redress prior errors made in the payment of benefits to the claimant, we believe that it would be fundamentally unfair to allow the respondent to cherry pick which mistakes it would like to rectify.” Interestingly, there does not appear to be any determination by the Board that the Trial Judge’s findings regarding the overpayment were in error. Essentially the claimant’s request for the formal hearing was for an audit of the payments to determine if they were delayed or underpaid; a potential consequence of such an audit is the discovery of an overpayment. The Board in this case did not seem to be satisfied with that result.
WHITE v. CITY OF WATERBURY, 218 Conn. App. 711 (April 11, 2023)
The Appellate Court affirmed the finding and dismissal of this claim involving a fireman’s injury at home while preparing to get ready for his shift. The claimant had been asked to do a shift at Station 5 at 8 p.m. on March 22, 2020. The claimant’s normal Fire House was Station 2. The claimant brought home with him his gear bag which resembled a hockey bag and weighed about 50 pounds. He brought the bag home with him so that he would not have to stop at Station 2 to pick it up before going to Station 5 for his shift; the claimant was not directed by the employer to bring the bag home. The claimant testified that the reason he brought the bag home was to shorten his commute. The claimant hurt his leg at home at 6:30 p.m. carrying the bag downstairs while getting ready for his shift. The Administrative Law Judge concluded that the claimant’s injury occurred at home and not during his commute; therefore, the claimant was not covered by the so-called “portal-to-portal” provisions of General Statutes Section 31-275(1)(A)(i). The Judge also concluded that the claimant bringing the bag home was not a mutual benefit to both him and the employer; rather, he determined that bringing the bag home was for the “sole benefit and convenience of the claimant.” The Appellate Court agreed with the ALJ’s conclusion and affirmed the dismissal noting that just because the employer knew of the practice of employees to bring their gear home does not make it for the benefit of the employer.
GEORGE KELLY, M.D. v. STATE OF CONNECTICUT/DEPARTMENT OF MENTAL HEALTH & ADDICTION SERVICES, 218 Conn. App. 445 (April 4, 2023)
The Appellate Court affirmed the CRB ruling that the claimant was entitled to workers’ compensation benefits due to injuries sustained while he was working as a staff psychiatrist and assaulted by a patient, however, the Appellate Court also affirmed the dismissal of a claim for full salary under General Statutes Section 5-142(a). Section 5-142(a) provides full salary to certain Department of Mental Health and Addiction Services employees if they are assaulted in the course of their work. The claimant was hired as a psychiatrist in 2013 to work at Connecticut Valley Hospital, a State-run mental health institution. The claimant was employed as a “per diem” psychiatrist meaning that he would be paid a higher wage but not entitled to “retirement benefits, health insurance, life insurance, paid leave, longevity or other economic benefits.” In 2017 the claimant was assaulted by a patient and was totally disabled. The administrator for the State initially began paying the claimant 100% of his average weekly wage which was $7,039.63; the claimant also received voluntary agreements for a claim under Section 5-142(a). Eventually the State changed its position and contended that due to the claimant’s “per diem” status he was not entitled to benefits under Section 5-142(a) and was not due any workers’ compensation benefits at all. The Judge concluded that the claimant was an employee at the time of the assault and was due workers’ compensation benefits; the Judge determined, however, that given the claimant’s “per diem” status he was not entitled to Section 5-142(a) benefits. In reaching his decision the Judge had to consider the terms of the union contract and had to interpret changes made for the addition of “per diem” clinical staff. The Appellate Court stated: “we conclude that the commissioner reasonably concluded, on the basis of his findings, that § 5-142 had been superseded by the 1989 memorandum of agreement between the state and the plaintiff’s union.” The regular temporary total rate was $1,292 compared to the $7,039.63 he would have been entitled to under Section 5-142(a).
HOLBROOK V. STATE OF CONNECTICUT/DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, 6455 CRB-1-21-12 (April 6, 2023)
The claimant fell at work on August 1, 2018 and sustained an injury to her right knee. The claimant testified that she could not recall why she fell but did note that her hair was wet after falling on the floor; the claimant stated that she had seen other employees lose their footing in the same area previously. The claimant apparently testified that it had rained earlier in the day and the Trial Judge found this credible. The respondents contended that the claimant’s fall did not arise out of her employment and was due to a pre-existing pituitary adenoma that they asserted caused dizziness and unsteady gait; there was mention of the condition in the medical records post the fall. The respondents did not submit any expert testimony that the claimant’s condition was due to the pre-existing condition. The respondents contended that the case of Clements v. Aramark, 339 Conn. 402 (2021), (fall at work due to cardiogenic condition found not compensable) applied and that the claim should be dismissed since the injury was due to a personal infirmity and not due to anything incidental to the employment. This case was the subject of a prior CRB decision where the Board had remanded the case for further findings, HOLBROOK v. STATE OF CONNECTICUT/ DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, 6398 CRB-1-20-8 (AUGUST 9, 2021); in the earlier decision the Board had stated the “Commissioner still must identify the factual basis wherein this injury arose out of her employment…such evaluation must include a determination as to how the subordinate facts link the injury to a condition of her workplace and support the legal conclusion of compensability.” On remand the Trial Judge ruled that the injury was not due to a pre-existing personal condition of the claimant but was caused by a “defect in the premises.” The respondents appealed contending that the medical evidence supported that the fall was secondary to an underlying personal condition and there was no evidence in the record to support that the fall was due to a defect on the premises. The Board affirmed the Finding and concluded that there was sufficient evidence in the record to support the Judge’s ruling.
DESIMONE V. GRIFFIN HEALTH SERVICES, 6479 CRB-4-22-7 (April 13, 2023)
The claimant filed a Motion to Preclude the respondents regarding a March 8, 2018 date of injury for which a Form 30C was filed on October 10,2018 alleging repetitive trauma to both knees. The trial judge concluded that the respondents were precluded because no Form 43 was filed within 28 days of the Form 30C. The respondents appealed asserting that the initial Form 43 filed on April 9, 2018 was sufficient to advise the claimant that her bilateral knee claim was being denied. The trial judge found that the April 9, 2018 Form 43 cited an earlier date of injury involving a prior compensable left knee injury claim and therefore the date on the Form 43 was incorrect. The trial judge also found that the respondent did not check the occupational disease/repetitive trauma box. The respondents maintained that the claimant had sufficient information to make it clear to her that the bilateral knee claim was being denied. The respondents cited the language in the Form 43 as well as the letter that accompanied the Form 43 in which it was clear that the bilateral knees were being contested.
The CRB determined that the central issue was the sufficiency of the preemptive disclaimer filed on April 11,2028 and whether it properly advised the claimant that the respondents intended to contest the liability for a repetitive trauma injury to her knees.
The CRB reversed the trial judge and found that the Form 43 was sufficient to apprise the claimant that the claim was being disputed and therefore the respondents were not precluded.
The Review Board stated that “In reviewing the record in its totality, we simply cannot conclude that a reasonable person would not have determined that the respondents, as of their April 11, 2018 disclaimer, were contesting compensability of an injury to either knee under whatever theory of recovery the claimant advanced. “
The CRB also relied on the lack of any finding of prejudice to the claimant in furtherance of their ruling. Attorney Colette Griffin of SDAZ successfully defended this claim.
WICKSON V. A.C. MOORE, 6478 CRB-2-22-6 (May 1, 2023)
The claimant had a prior hearing loss and TBI before being hired by the employer. Initially the job was light duty but the claimant contended that the work over time became more difficult including stacking merchandise and unloading pallets. She worked with the employer sixteen years. On September 17, 2015 she alleged an injury to her left shoulder at work; she reported it to her supervisor but he did not fill out a report of injury for her. When she initially sought medical treatment there was no specific history provided regarding a work injury. She came under the care of an orthopedic surgeon, Dr. Anbari, who recommended reverse left shoulder arthroplasty. The claimant also began to develop right shoulder problems; she underwent a reverse right shoulder arthroplasty. The claimant sought workers’ compensation benefits both on a theory that she had a specific injury at work and repetitive trauma. Dr. Anbari supported compensability both due to the specific accident in 2015 and repetitive trauma during the course of her work. A RME, Dr. Jambor, questioned causation of the bilateral shoulder injury to work. A CME, Dr. Barnett, suggested that the 2015 incident was not well-documented; while he stated the cause of the shoulder claim was multi-factorial he could not state with any certainty the degree of contribution due to the work. The ALJ concluded that the claim was compensable based on a repetitive trauma theory and found that Dr. Anbari’s opinion credible in that regard. The ALJ concluded that while the claimant did have a 2015 incident at work it was not the cause of her bilateral shoulder injury; rather, the Judge determined that her shoulder injuries were due to the repetitive nature of her work. The CRB affirmed the decision on appeal pointing out that there was sufficient evidence in the record to support the Finding. The Board noted that the Judge could choose to accept all or a portion of an opinion by the doctors.
NAPOLITANO V. ACE AMERICAN INSURANCE CO., 219 Conn. App 110 (May 2023)
This decision from the Appellate Court dealt with the issue of cancellation of a workers’ compensation policy and whether it complied with the terms of General Statutes Section 31-348; that statute indicates that cancellation of a policy is not effective until fifteen (15) days after the cancellation has been filed. In this case the employer had a series of three workers’ compensation policies with the employer. Notice on March 28, 2018 was issued to the employer regarding an audit noncompliance charge. On April 5, 2018 two notices were sent to the employer stating that the employer had not complied with requests for payroll information; the second notice on April 5, 2018 indicated that the coverage would terminate on April 25, 2018. On April 10. 2018 the employer’s agent advised the employer that they were compliant. An employee was injured on May 29, 2018; the carrier denied coverage and claimed that the policy had been cancelled. At a formal hearing a ALJ found that there was no coverage based on the information NCCI reported; the ALJ did not address contractual claims at the formal hearing. The employer and the second injury fund settled the compensation case with the claimant for $225,000. The employer brought a civil action against the carrier asserting claims of breach of contract, bad faith, negligent misrepresentation and promissory estoppell. At the trial level, a Judge granted a summary judgment motion filed by the plaintiff employer concluding that the notice of cancellation was not unambiguous and unequivocal as required to be effective. Additionally, the carrier’s motion to strike a bad faith claim was granted. On appeal, the Appellate Court reversed and concluded that the notice was unambiguous that the policy was going to be cancelled. It determined that the notice was certain and unequivocal. The Court also determined that the motion to strike the bad faith claim was error. The Court remanded the case for further proceedings and noted that the counts regarding negligent misrepresentation and promissory estoppel were revived on remand by the ruling.
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 29th 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.
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.