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NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


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Did someone suggest bringing back extent of injury waiver?   


For about a five-year spell, the Division’s Appeals Panel interpreted Labor Code section 409.021’s 60-day compensability deadline to mean that an insurance carrier could waive its right to raise an extent of injury dispute if it did not dispute a condition within 60 days from its initial notice. This waiver theory meant that the mere utterance of a diagnosis on a medical record or even a work status report obligated an insurance carrier to dispute the condition or waive its right to do so.
 
This waiver theory created a new dimension to CCH evidence: the injured employee had to identify the date the diagnosis was first mentioned and the insurance carrier had to show that it had conducted a “reasonable investigation” and disputed the diagnosis at its earliest opportunity. Extent of injury disputes frequently boiled down to mere words on a page, the adjuster’s ability to scrutinize each medical report, and a hearing officer’s opinion about what is a reasonable investigation.  (See APD 060233).

What’s a reasonable investigation, you ask? Well, for a real rabbit hole analysis, the Appeals Panel once stated that “reasonable investigation with the claimant’s treating doctor would have disclosed a referral, and the referral doctor’s referral for diagnostic testing.” (See APD 081222).

Then, in 2009, the Texas Supreme Court in State Office of Risk Management v. Lawton found that the 60-day waiver in Labor Code section 409.021 should not apply to extent of injury disputes.  That seemed to be waiver’s last breath.
   
That is, until November 2022, when House Bill 790 was filed before the 88th Legislative Session even began.  House Bill 790 would create a statutory right to the extent of injury waiver and require every first designated doctor request to include a request for an extent of injury opinion, proposing changes to Texas Labor Code 409.021 and 408.0041.   

Although this seems to be designed mostly for persons covered under Gov’t Code §§607.051 (first responders), HB 790 proposes to include that an insurance carrier who fails to comply with new subsection (a) (not just the part related to first responders) within 60 days waives its right to deny the extent of the specific injury claimed by the injured worker or “reasonably reflected” in a review of the injured worker’s medical records. We will provide an update if this gets past the committee.
 


Congratulations are in order

 
The Division just issued a list of the hardest working comp attorneys for 2022. Here are the top three claimant and top three carrier attorneys with the average number of hours worked per day assuming they worked every single day of the year, weekends and holidays included, and billed at the Division’s maximum allowable rate of $200 per hour: 

Claimant Attorney    Approved Fees      Hours per day
Bill Abbott                   $958,162.50           13.13
Adam Henderson       $939,700.00           12.87
Kim Wyatt                   $774,820.00           10.61
 
Carrier Attorney      Approved Fees        Hours per day
Dean Pappas            $880,492.50             12.06
Jeremy Lunn             $641,589.00              8.79
Mark Midkiff              $509,600.30              6.98

Bill Abbott moved up to first place from number two in 2021 while Kim Wyatt dropped from first to third and Adam Henderson moved up one spot to number two for 2022. Mr. Henderson was indicted for billing fraud in 2021 along with Leslie Casaubon and Roger Farahmand (see story above). The indictment alleges that Mr. Henderson submitted bills for work he did not do from January 1, 2012 to January 31, 2019. The case remains pending and he has a pretrial hearing set for February 9, 2023. Dean Pappas was the number one carrier attorney again, making him the top carrier attorney five out of the last six years.
 
To view the amount of approved attorney’s fees for each of the top 100 Claimant and Carrier workers’ compensation attorneys for 2022, click the following link: Top 100 2022

Prior years can be viewed here: Top 100 2021, Top 100 2020, Top 100 2019, Top 100 2018, Top 2017

Austin court of appeals may be close to deciding fate of SIBs rule


The Third Court of Appeals in Austin has signaled that it may be on the verge of issuing its long-awaited decision in the challenge to the validity of the Division’s rule on Supplemental Income Benefits. The validity challenge, styled Texas Department of Insurance, Division of Workers’ Compensation v. Accident Fund Insurance Company of America and Texas Cotton Ginners’ Trust, has been at the court of appeals since February 12, 2021. 

The case began when Accident Fund (represented by this firm) and TCGT filed petitions for declaratory relief in Travis County district court, challenging the validity of the SIBs rule. The carriers argued that the Division exceeded its rule-making authority because the rule is inconsistent with the Texas Workers’ Compensation Act – specifically, the rule permits a worker to qualify for SIBs even if the worker does not meet any of the three criteria for SIBs required by the Act. Travis County district judge Maya Guerra Gamble agreed with the carriers, held the rule invalid, and enjoined the Division from applying it. But the Division appealed, and the appeal has stayed the trial court’s ruling for almost two years. 

In a letter this month, the court of appeals notified the parties that the cause is set for submission on briefs on February 1, 2023. That could mean that the court’s decision will issue on that date or soon thereafter. 
 

A case to watch


The 13th Court of Appeals heard oral argument on January 11th in Accident Fund v. Rodrigo Mendiola, Cause No. 13-21-00361-CV.  Although there are several evidentiary issues in the carrier’s appeal, the primary issue is whether the “old law” standard for determining an injured workers’ entitlement to Lifetime Income Benefits (LIBs) can be applied to the “new law.”  This case is of interest because it narrowly focuses on the applicability of the old law case of Travelers insurance Company v. Seabolt, 361 S.W. 2d 204, 206 (Tex.1962) to new law cases.  The case squarely challenges the past practice of the agency and of the courts which until now have applied Seabolt without question.  The trial court applied the Seabolt standard in awarding Mr. Mendiola LIBs rather than the express requirements of the current statute. 
 
Texas Labor Code section 408.161(b) is the current law governing LIBs entitlement. In this case, Mr. Mendiola had to prove that he had lost one foot at or above the ankle, which he proved, and that he had lost one hand at or above the wrist, which Accident Fund argued that he could not prove. The standard of “total and permanent loss of use” of a body part under section 408.161 is now based on the specific impairment of the body part.  It is an analysis of function. In contrast, the old law statute and the Seabolt standard were based on general disability and the injured worker’s ability to work using the body part. Under the old law standard, a worker could qualify for LIBs if he could show that the body part in question no longer had “any substantial utility as a member of the body,” or that the worker could not “procure and retain employment requiring the use of the body part.” The trial court ruled that he met that standard.  But under section 408.161(b), in addition to having had a partial leg amputation, Mr. Mendiola had to prove that one of his hands was totally and permanently useless. Accident Fund’s argument brought to light through traditional means of statutory construction that it was legal error for the court to ignore the requirement under new law that Mr. Mendiola’s hand had to be proved totally useless in order for him to qualify for LIBs.   Given that the worker testified that he could use his hand for many functions, some of which were compatible with work, Accident Fund argued he did not meet the statutory requirement.  

The 13th Court will decide whether the plain and ordinary use of the phrase “total loss of use” should be applied as written to LIBs cases, or whether it is appropriate to expand the meaning of the term by grafting the Seabolt standard into the new law.
 

Announcing a new SLS attorney! 


Nancy Ippolito joins us this month, after almost 4 years as an assistant general counsel at the Texas Department of Insurance, Division of Workers’ Compensation. Prior to her work at the agency, Nancy handled workers’ compensation insurance defense for over 15 years in Austin, Texas.  She has been board-certified in workers’ compensation law since 2009.  According to the Texas Board of Legal Specialization, out of 110,000 licensed lawyers in Texas, only 7,150, or a mere 6.5% of all attorneys, are board-certified which requires passing a rigorous exam among other criteria.  We’re excited that Nancy has joined the Firm and look forward to working with her and getting to know her better.  

Effective 1-1-23 – Ambulatory Outpatient Surgery Centers (ASC) are added to the definition of “medical service facility” under the worker’s compensation law. ASC’s will be reimbursed at the 200% of Medicare  rate for the same procedure provided in the same  facility on the same day.

IC 22-3-10 is amended to increase compensation payable for permanent impairment for injuries:

 

Degrees of                   July 1, 2023    July 1, 2024    July 1, 2025    July 1, 2026

Impairment:

 

1 – 10                          $1,803 per       $1,857 per       $1,913 per       $1,970 per

                                                degree             degree             degree             degree

 

11 – 35                        $2,011 per       $2,071 per       $2,133 per       $2,197 per

                                                degree             degree             degree             degree

 

36 – 50                        $3,282 per       $3,380 per       $3,481 per       $3,585 per

                                                degree             degree             degree             degree

 

Above 50                    $4,182 per       $4,307 per       $4,436 per       $4,569 per

                                                degree             degree             degree             degree

 

 

            The maximum average weekly wage for determining compensation of permanent impairment, temporary total disability and temporary partial disability is increased for injuries occurring on and after July 1, 2023, occurring on and after July 1, 2024, occurring on and after July 1, 2025, and occurring on and after July 1, 2026:

 

Maximum average weekly wage:

July 1, 2023                July 1, 2024                July 1, 2025                July 1, 2026

 

$1,205                         $1,241                         $1,278                         $1,316

 

The maximum compensation payable, exclusive of medical benefits, is increased for injuries occurring on and after July 1, 2023, occurring on and after July 1, 2024, occurring on and after July 1, 2025, and occurring on and after July 1, 2026:

 

Maximum compensation, exclusive of medical benefits:

July 1, 2023                July 1, 2024                July 1, 2025                July 1, 2026

 

$402,000                     $414,000                     $426,000                     $439,000

 

            IC 22-3-7-16 and IC 22-3-7-19 of the Occupational Diseases Act are amended to provide the same increase in benefits for disablements occurring on and after July 1, 2023, on and after July 1, 2024, on and after July 1, 2025, and on and after July 1, 2026. §4.8

 

Case Law Update:

Reported Case:

 

Palmer v. Ake, 181 N.E.3rd 421(Ind. App. 2021). In Palmer the Plaintiff was working on the roof of a pole barn and was injured when part of the building collapsed.  The building was located on property owned by Ake who was the owner of Fas-Pak, Inc., a company that is in the business of liquid filling and packaging.  Ake stated that it was his intent to use the pole barn for vehicle repairs and storing equipment.  Some of the pole barn would be used by his family for personal reasons. 

 

            Palmer sued in state court for negligence and Ake filed a motion to dismiss claiming that Palmer’s exclusive remedy was worker’s compensation.  The trial court granted the motion to dismiss for want of subject matter jurisdiction.

 

            In reversing the trial court, the Court of Appeals used the factors discussed in Moberly v. Day, 757 N.E.2d 1007(Ind. 2001) (discussed in this Section) where the Supreme Court set forth a ten factor analysis that is used by courts to determine whether one acts as an independent contractor or employee.  The court then concluded that majority of the factors favored independent contractor status, specifically the fact that the Plaintiff worked as a laborer/carpenter on a project, that Plaintiff had specialized skills and experience in carpentry work, used his own tools, and did not perform continuous service for Ake. §3.8

 

 

Special Analysis of Memorandum Case:

 

 

            The Court of Appeals in a memorandum decision issued a decision in 2021 that is of interest to practitioners.  While a memorandum decision may not be cited as authority, in Allen v. Smithfield Packaged Meatgroups, Corp., 173 N.E.3rd 1076 (Ind. App. 2021), the court addressed the issue of whether a worker can sue their employer in court for negligence if the employer asserts an affirmative defense pursuant to IC 22-3-2-8 in the worker’s compensation claim.  Simply stated, IC 22-3-2-8 bars compensation if the injury is due to the employee’s knowingly self-inflicted injury, commission of an offense, knowing failure to use a safety appliance, knowing failure to obey a reasonable written rule of the employer which has been posted in a conspicuous position in the place of work, or the employee’s knowing failure to perform any statutory duty.  The burden of proof is on the defendant.

 

In Allen, the worker suffered injury when her left arm became caught in a conveyor belt.  Allen filed a claim for worker’s compensation; however, the defendant alleged the affirmative defense that Allen knowingly failed to use a safety appliance and knowing failed to use a safety appliance, and the failures caused the injury.  Allen then filed a claim for negligence in the Miami Superior Court claiming that the employer waived the exclusivity of the Indiana Worker’s Compensation Act by invoking fault as a defense under IC 22-3-2-8.  The trial court dismissed Allen’s negligent action for want of subject matter jurisdiction. 

 

            In affirming the trial court’s dismissal for lack of subject matter jurisdiction, the court pointed out that Allen cited no authority supporting the argument that when an employer raises an affirmative defense under IC 22-3-2-8 the exclusivity provision of the Act no longer applies.  The court also noted that whether the affirmative defense applies is litigated in the worker’s compensation proceeding.  Finally, the court reminded that if Allen does not prevail in front of the single hearing member, she has the right to have the decision reviewed by the Full Board, the Court of Appeals and finally the Indiana Supreme Court.

 

            This decision addresses the question that has pended a long time amongst worker’s compensation practitioners. That is, whether the affirmative defenses listed in IC 22-3-2-8 causes what may be a compensable injury to no longer be compensable.  The holding in Allen, again not precedent, suggests that while an injury may be compensable, the IC 22-3-2-8 affirmative defenses act simply as a bar to compensation.  The injury is compensable, but compensation is barred. 



Diana L. Wann

Jackson Kelly PLLC

Cell: (317) 695-0552

Diana.Wann@jacksonkelly.com

2022 LEGISLATIVE REPORT

 

The Connecticut legislature short session ended May 4, 2022.  Despite the short session, a number of workers' compensation related bills were proposed.  The two Senate bills which garnered most of the attention focused on an attempt to adopt the recommendations of the task force created by Special Act 21-35 to study cancer relief benefit for firefighters (SB-313), and a bill which proposed expanding workers' compensation coverage for all employees sustaining post-traumatic stress injuries (SB-321).  I will herein provide a summary of the legislature's final action relative to these bills and on other matters germane to the workers' compensation practitioner. 

 

PUBLIC ACT 22-139 “An Act Concerning Adoption of the Recommendations of the Task Force to Study Cancer Relief Benefits for Firefighters"  As of the preparation of this report, the new law was on the governor's desk.  The new law, however, is of much lesser potential benefit than the underlying Senate bill.  Senate Bill No. 313 as originally drafted was expansive legislation that would have created a rebuttable presumption to the benefit of firefighters who developed cancers beyond those listed in Section 31-294j of the Act.  Six circumstances would have rebutted the “presumption.”

 

  1. The firefighter worked less than five years on or after February 1, 2017;

 

  1. There was physical examination upon entry into service which revealed evidence of the claimed cancer or a propensity for such cancer;

 

  1. Failure to have an annual physical subsequent to entry into service;

 

  1. Use of cigarettes or other tobacco products within 15 years of diagnosis;

 

  1. Failure to use respiratory protection and other PPE for five consecutive years; and

 

  1. The claimed cancer is not one known to result from heat, radiation, or known carcinogen as determined by IARC or the National Toxicology Program of the United States Department of HHS.  Additionally, the provision would have covered firefighters who developed disease no later than five years after the end of service.

 

The comprehensive provisions of the proposed law called for a number of safety measures and adoption of best practices to prevent cancer.  The legislation directed the appropriation of $1.2 million to fund the Firefighter Cancer Relief Account (7-313k), required Workers' Compensation Commission to record all claims of firefighters due to cancer diagnosis with an annual report to the Labor Committee; repealed language that barred a firefighter from receiving funds from the Firefighter Cancer Relief Program if receiving workers' compensation benefits; required the provision of two sets of turnout gear to be provided to firefighters under guidance of CONN-OSHA; required the comptroller to conduct a feasibility study when providing pension benefits to firefighters in circumstances when service years are not met due to early retirement resulting from a cancer diagnosis; and would have expanded 31-284b benefits beyond employee to covered dependents.

 

The proposed bill did provide departments with the ability to purchase a separate private insurance policy to cover the exposure as long as comparable benefits to our Act were provided.

 

As noted above, the negotiation process and concerns with the cost of the proposed legislation, however, led to significant amendment of the original bill.  Public Act 22-139 mandates that the Joint Counsel of Connecticut Fire Services Organization in consultation with the Connecticut State Firefighter's Association develop a joint plan for maintenance and remediation of toxic substances on turnout gear which plan must be submitted to the Commission of Fire Prevention and Control by July 1, 2023.  That commission will thereafter advise fire departments on implementation of the plan.  The law mandates that a fire department must adopt a plan within 90 days of the approved plan released by the commission.  The Workers' Compensation Commission will now need to maintain a record of all workers' compensation claims made by firefighters with cancer diagnosis.  The commission will provide a report summarizing those records to the Joint Standing Committee of the General Assembly relating to labor.

 

The Cancer Relief Fund statute, § 7-313i, was amended to reflect that payment of wage replacement benefits to a firefighter shall not create a presumption that the cancer is "work related."  Payments from the Fund are not to be construed as diminishing the firefighter's rights to benefits or the rights or defenses of the employer under Chapter 568.

 

The comptroller is directed to conduct a study on the feasibility of providing pensions to firefighters who do not meet the required service due to a qualifying work-related cancer or death.  The study is to include an examination of the feasibility of implementing a prorated benefit for such firefighters.

 

Effective January 1, 2024, each municipality within the state is mandated to contribute $10.00 per firefighter to the Cancer Relief Account with the exception that the municipality need only contribute funds for those members who have submitted to annual physicals failing to reveal cancer or a propensity for cancer and have not used cigarettes within the last 15 years or have worked less than five years.  Please note that as of July 1, 2022, qualifying firefighters are now eligible to apply for wage replacement benefits.

 

I anticipate that as commission reports summarizing cancer claims are received and reviewed that further legislation will be proposed.

 

Public Act 22-89 "An Act Concerning Minor and Technical Changes to the Workers' Compensation Act" codifies House Bill 5250 as proposed by the Chairperson’s Office of the Commission.  The changes are to be effective from passage and were signed by the governor May 24, 2022.  The bill corrects references throughout the Act to the Chairman who is now designated Chairperson.  The new law also directs that filings under § 31-275 to be included or excluded from coverage under the Act shall now be filed with the Chairperson's office and not the local administrative law judge.  The new law also confirms that notices under the Workers' Compensation Act shall be filed by registered or certified mail.

 

Senate Bill 321 "An Act Expanding Workers' Compensation Coverage for Post-traumatic Stress Injuries for all Employees" ultimately did not come to a vote and remained on the foot of the Senate calendar.  The bill which was reported out of the Labor Committee, 13-0, and had significant support in the Appropriations Committee, did not have a final physical note attached that would have projected the cost to the State of Connecticut and municipal employers.  The quickly advancing close of the session and other priorities including the governor's budget likely precluded fiscal analysis.  I would anticipate that the bill will resurface in next year's longer session.

 

A number of other bills relevant to the practitioner did not make significant progress beyond the Labor Committee, although House Bill 5251 “An Act Concerning Workers' Compensation for Dispatchers” that would have provided portal-to-portal coverage did reach the house calendar.  Senate Bill 222 "An Act Requiring Notice of Discontinuing Prescription Medicine Under a Workers' Compensation Claim" which would have required a Form 36 to discontinue prescription medications did not advance.  Similarly, Senate Bill 212 "An Act Concerning Permanent Partial Disability Benefits and Pension Offsets" which would have impacted certain municipalities and fire districts that offset permanent partial disability benefits against pensions failed.

 

Practitioners who represent individuals who have lost time from work due to COVID-19, however, should be aware that the Implementer Bill or Governor's Budget Bill (Public Act 22-118), at Section 205 contains changes to the "Essential Workers’ COVID-19 Assistance Program" established by Public Act 21-2.  The Assistance Program codified as Section 31-900 has been amended to expand the definition of essential employee to include those in Phase 1C as defined in the CDC's Prevention Advisory Committee on immunization practices.  Additional eligible employees, therefore, would include those in the transportation industries, logistics, waste water treatment, finance, information technologies, legal, media, public safety, public health, and engineers.  The amendments include the elimination of a possible double recovery as a result of payments under the State's Paid Leave Program.  The law extends the deadline for application for assistance from July 20, 2022 to December 31, 2022.

 

Some of the difficulties with the rather strict interpretation and review of applications have been addressed in the new law by now allowing the administrator to award partial payments while other aspects of the application are reviewed or subject to requests for additional information.  Further, a disability or unemployment claim will not prevent assistance as long as there is an offset for the money received.

 

The window of eligibility for assistance remains those who contracted the disease between March 10, 2020 and July 10, 2021.  The new additions to the law, however, mandate that the administrator review prior denied or pending claims and make new determinations of eligibility.

 

Of note, with respect to the commission and in particular our administrative law judges were resolutions confirming the reappointment of Judge Peter Mlynarczyk, Judge Brenda Jannotta, and confirming the nomination of our newest administrative law judge, Zachary Delaney.  Congratulations to all.  Also of note is that Judge Mlynarczyk, Judge Dilzer and Judge Oslena were named to be members of the Judicial Review Counsel.

 

Please note that the complete text of all public acts, proposed bills and analyses are available on the General Assembly website, cga.ct.gov.

 

 

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CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS

 

RETIREMENT NEWS:

 

On October 6, 2022, a retirement celebration was held for Administrative Law Judge Randy L. Cohen at the Waters Edge at Giovanni’s in Darien. Best Wishes to Judge Cohen on her retirement! We thank her for her service to the Workers’ Compensation Commission since being appointed in 2007.  Judge Cohen's prior experience as a Board-Certified Workers’ Compensation claimant's attorney was an asset to the Commission for both claimants and respondents. Judge Cohen's dedication to the Commission continues as she will assist with pre-formal hearings in the Seventh District per diem, as needed. Judge Cohen also will be performing private mediation in workers’ compensation cases in her new business RESOLVE IT! 

 

Memorandum 2022-09:

 

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

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

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

 

Memorandum 2022-12

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

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

 

Administrative Law Judge News:

Administrative Law Judge Zachary Delaney of West Hartford has begun presiding in the Fifth District in Waterbury. 

Attorney Nancy Bonuomo has been presiding as interim Administrative Law Judge.

Mileage rates:

 

Not surprisingly, as on January 1, 2023 the mileage rate increased to 65.5 cents per mile.  As of July 1, 2022 the rate had been 62.5 cents per mile.

 

Mediation within the Commission:

 

Memorandum 2022-05 has been issued by the Workers’ Compensation Commission updating the guidelines for mediation in the Commission.  The following Judges have agreed to participate in the mediation process:  Scott A. Barton (District 5/Waterbury),
Carolyn M. Colangelo (District 3/New Haven), Daniel E. Dilzer (District 6/New Britain), Maureen E. Driscoll (District 3/New Haven), Brenda D. Jannotta (District 4/Bridgeport), Peter C. Mlynarczyk (District 8/Middletown), Michelle D. Truglia (District 4/Bridgeport), and
William J. Watson III (District 1/Hartford).

 

Revisions to Forms 30C and 30D:

 

Memorandum No. 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, 2022, the burial fee for deaths covered under the Workers’ Compensation Act is $12,516.00 based on the overall 2021 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.

 Exam Charges:

Commission Medical Exam (CME) fee has increased to $900; Respondent Medical Exam (RME) fee is still $750.

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

 

JUAN CRUZ V SPEC PERSONNEL, HHD-CV18-5051489-S (2022)

In this lawsuit in Connecticut Superior Court the plaintiff was pursuing a negligence claim for significant injuries that he sustained while working in a warehouse.  A forklift operator for another company caused an 800 pound pallet to fall 30 feet crushing the plaintiff.  The plaintiff was paralyzed due to the accident.  The plaintiff was paid workers’ compensation benefits following the accident.  The lawsuit was brought against the forklift operator, his employer, and the company that packaged the product that fell on the plaintiff.  A verdict was issued for $100,000,000 (yes 100 million) in favor of the plaintiff and his wife (for loss of consortium claim). This is believed to be the largest verdict for a plaintiff in a Connecticut Superior Court lawsuit. Strunk Dodge Aiken Zovas Attorney Courtney Stabnick represented the co-plaintiff in the case, the employer of the plaintiff, seeking to recover reimbursement of its workers' compensation lien.  Attorney Andrew Garza represented the injured employee.  Attorney Garza stated this on Facebook regarding his work with Attorney Stabnick in the case:  “I’m thankful for the work of Attorney Courtney Stabnick. She’s a wonderful person and advocate for her clients and she understands there’s a human element to the work we do. Too often the default position of lawyers is to be adversarial, because it’s how they’re trained. Her work in this case reflects a high-level understanding of the complex and interrelated dynamics at play in a hybrid workers’ compensation-personal injury case.The best lawyers seek agreement, when possible, but never compromise on fundamentals. Her work resulted in a wonderful outcome for her clients, where the true, culpable party was held responsible and made to repay the damage they caused, and the claimant/plaintiff was supported during the process. Win-win solutions are rare and should be celebrated. Thank you for your work on this case.”

 

 

CALLAHAN V HEALTHCARE SERVICES GROUP, 6453 CRB-8-21-11 (November 4, 2022)

The claimant sought to reopen a full and final settlement for $20,000 based on her contention that the stipulation approval hearing was not done in a reasonable manner, she did not understand the stipulation and that she was coerced into accepting the settlement agreement. At hearing on November 14, 2019 Judge Schoolcraft had, on the record, explained the proposed settlement for $20,000 to the claimant; at the hearing the claimant agreed to settle the matter and settlement agreements were approved. The respondent’s tendered to the claimant a check at the hearing for $20,000 and she deposited it in her account. On November 20, 2019 the claimant moved to reopen the settlement agreement. The Compensation Review Board on appeal determined that the stipulation process was appropriate and there was no basis to reopen the settlement agreement. The Board also determined that the trial judge’s denial of a Motion to Correct was appropriate. Attorney Christopher Buccini of SDAZ defended the case for the respondents.

 

BERRY V. UP REALTY, L.L.C. ET. AL., 6460 CRB-8-21-12 (November 9, 2022)

The claimant sustained a compensable ankle injury on a Friday while breaking up a cast-iron tub; a piece of iron hit him on the medial side of his ankle.  Due to pain the employee stopped work an hour and a half after the incident and was driven home by a fellow employee.  The claimant did not seek medical treatment over the weekend, although he developed a fever, nausea, and had abdominal pain.  On Monday morning he was found naked in bed, in a fetal position and emaciated.  An ambulance was called and the claimant was given CPR en route to the hospital.  Initial diagnosis was acute respiratory failure, septic shock, and lung mass.   Thereafter, the claimant was diagnosed with acute kidney injury secondary to ischemic tubular necrosis.  The claimant’s left leg became cold and purple showing mottling.  The claimant ultimately underwent a left leg amputation for control of ischemia and systemic toxicity. 

The claimant pursued a workers’ compensation claim alleging that the compensable left ankle injury caused the left leg amputation.  In support of his claim, he submitted the opinion of Dr. Luchini, an orthopedist, that the collapse on Monday was due to dehydration caused by inability to walk over the weekend post the ankle injury. A cardiologist, Dr. Vidhun, testified that the ankle injury caused circulatory issues in the left leg leading to the amputation.  This was countered by the respondents with the testimony of a cardiologist, Dr. Samuel Hahn, who indicated that the ankle injury and left leg ischemia which led to the amputation were not related.  The Administrative Law Judge did not find persuasive the opinions of Dr. Luchini and Dr.Vidhun and dismissed the claim and also denied a Motion to Correct filed by the claimant.

On appeal the CRB affirmed the dismissal noting that there was sufficient basis in the record for the Judge to determine that the work accident was not a substantial factor in causing the amputation.  The Board noted that there was evidence in the record that the claimant had prior vascular issues.  The Board stated that it is the claimant’s burden to prove the work accident is a substantial factor in causing the injury with competent evidence.  The CRB provided a thorough review of the case law pertaining to the substantial factor test and the claimant’s burden in that regard.

 

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.

 

 

2022 came and went in the blink of an eye in South Carolina for employers, carriers, defense counsel, and the myriad of individuals involved in the workers’ compensation system.  It left behind, however two interesting points of reflection. 

 

First, it wasn’t a good year for the Workers’ Compensation Defense Bar when it came to appellate decisions.  The South Carolina Court of Appeals decided and published a total of five appeals from the Workers’ Compensation Full Commission, down from eight decisions in 2021.  “Are there any other differences?” you may ask.  Unfortunately, yes.  In 2021, Defendants prevailed in five of the eight opinions, with one arguable tie (affirm in part, reverse in part, and remand).  In 2022, however, workers’ compensation defendants struck out on all five appeals.   

 

For example, in Brooks v. Benore Logistics Systems & Great American Alliance Insurance Company, decided in January 2022, the Court of Appeals upended a long-standing test for repetitive trauma claims in South Carolina, seemingly reducing the burden of proof for the claimant in ceasing to require proof that a claimant’s specific job duties were, in fact, repetitive in nature.  In Padgett v. Cast and Crew Entertainment Services, Inc. & American Zurich Insurance Company, decided in October 2022, the Court of Appeals continued the trend and held that even when a claimant has reached the statutory 500-week cap for benefits under a single claim, TTD benefits must continue and may not be terminated until such time that the parties come to a separate, mutual agreement or the claimant is placed at MMI and permanent disability can be assessed. 

 

Second, the beginning of 2023 brought with it some new changes to the South Carolina Workers’ Compensation Net Present Value (NPV) Tables.  Pursuant to Reg. 67-1605(E)(5), the NPV Tables for weeks 101 through 500 are calculated based upon the yield-to-maturity rate of the Five-Year U.S. Treasury Note reported by the Federal Reserve.  As of January 3, 2023, the Five-Year YTM rate was 3.94%, up significantly from 1.54% in January 2021.  Therefore, the NPV Tables for 2023 for weeks 101 through 500 will now be calculated using a 3.94% discount rate.  These NPV tables are used to calculate the present value of any lump sum payment for an award greater than 100 weeks in benefits.  For example, defendants may choose to commute a 40% disability award to the back (120 weeks), or an award for permanent and total disability, or an award for death benefits; the list goes on as long as the award is greater than 100 weeks of compensation and the claimant hasn’t accrued (by receiving TTD benefits) enough weeks that would put the award below 101 weeks.  

 

So how does this affect South Carolina workers’ compensation claims moving forward?  Well, the higher discount rate means defendants are guaranteed to save anywhere from 1.88% to 8.53% in commuted lump sum payments to claimants.  For example, let’s say we have a claimant with a compensation rate of $500.00 who receives an award of 40% disability to his back, or 120 weeks of compensation with no prior TTD checks.  In 2022, that claimant would receive a commuted lump sum of $59,102.70, whereas in 2023, he will receive $57,788.60.  If that same claimant was determined permanently and totally disabled and entitled to 500 weeks (we’ll assume for ease that he didn’t receive any TTD checks), in 2022 he would have received $227,803.85, whereas in 2023 he will receive $208,375.65, a difference of almost $20,000.00. 

 

After a year of hard appellate blows and shifting burdens, the new NPV Tables serve as a welcomed silver lining. 

 

The Pennsylvania appellate courts continue to compound an apparent misunderstanding of how review of medical treatment is to be addressed under the Pennsylvania Workers’ Compensation Act and corresponding Medical Cost Containment Regulations.  Further, the Court continues to interpret the Act in the light most favorable to the Claimant’s bar as is reflected in a recent decision addressing reimbursement of costs.


In UPMC Benefit Management Services, Inc. v. United Pharmacy Services (BWC Fee Review Hearing Office), No. 558 C.D. 2021 (Pa.Cmwlth. December 15, 2022) and State Workers’ Insurance Fund v. Harburg Medical Sales Co., Inc. (BWC Fee Review Hearing Office), No. 712 C.D. 2021 (Pa.Cmwlth. December 15, 2022), the Commonwealth court has essentially indicted that liability for a claimant’s prescribed treatment may only be disputed through a utilization review.  If there is an open Notice of Compensation Payable or other document/decision establishing liability for a work-related injury, the Courts appear to be of the belief that this will foreclose the possibility to render a Fee Review premature under 34 Pa. Code 127.256.  This section reflects that a Fee Review will be returned as being prematurely filed by the provider when 1) the insurer denies liability for the alleged work injury; 2) utilization review has been filed or 3) the 30 day period allowed for paying a bill has not elapsed.  


According to the Court, when an employer or insurer seeks to render a provider’s fee review application premature, a dispute regarding the causal connection between the prescribed treatment and the underlying work injury apparently must be reframed as a challenge to the reasonableness and necessity of the treatment through the utilization review process. 


These Decisions compound the original error by the Court in its Decision in Omni Pharmacy Services, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (American Interstate Insurance Company) where the Court required a Utilization Review be filed so as to challenge treatment on the basis of causation, despite the regulation governing such actions specifically forbidding a Utilization Review from addressing causation.  See 34 Pa. Code § 127.406(b)(1), which provides that a Utilization Review may not decide “the causal relationship between the treatment under review and the employee’s work-related injury.”  These cases place the Workers’ Compensation Judge adjudicating such a matter in a difficult position of applying this clearly erroneous precedent or the law as has been applied for years in the practice of workers’ compensation.

These holdings would appear to be contrary to Listano v. WCAB (INA Life Ins. Co.), 659 A.2d 45 (Pa. Cmwlth. 1995); Delarosa v. WCAB (Masonic Homes), 934 A.2d 165 (Pa. Cmwlth. 2007)(providing that should an employer or carrier unilaterally deny treatment on the basis of causation, they may be subject to penalties, at the discretion of the WCJ, if it is found that the medical bills are causally related to the work injury).  The Court did not previously attempt to impose this requirement on employers and carriers to challenge causation through the utilization review process.  However, now it appears the Court conflates the issue of reasonableness and necessary with causation by indicating if treatment is not causally related to an accepted work injury, it is not reasonable and necessary treatment.  However, if the Utilization Review is precluded from deciding issues of causation, the reviewer is in a catch 22 as to how to address this issue.


In the United Pharmacy case, the issue was one where the carrier was arguing that the treatment in the nature of use of compound creams, 3 fills at $2,249.98 per tube, were not related to the low back strain injury.  In the Harrburg Medical Supply case, the carrier paid for $1,725.00 worth of the bills for multiple injuries but denied on the basis of causation the $2,199.95 memory foam mattress overlay as not being related to the work injury. Thus, in both of these situations, the treatment may have been provided for the accepted body part.  Hopefully that is the driving force in these decisions.  However, with the language utilized by the Court, there can be arguments that treatment clearly unrelated to the accepted injury now has to be subject to Utilization Review when the dispute is clearly on causation. 

If, hypothetically, a Notice of Compensation Payable is issued accepting a shoulder injury and.   Claimant starts to treat for a different/unaccepted body part, must the carrier now file for Utilization Review despite the holding of Listano in such situations?  Can the Claimant simply treat workers’ compensation like private health insurance to cover any conditions that they allege may be related to the work injury even if there is no obvious causal relationship to what was originally reported as being the injury?  Already there is the potential for abuse with charges for non-medical items like a foam mattress overlay and the language of these decisions seems to provide open the door to the potential for additional future abuses.  


If the carrier needs to file for Utilization Review that is typically a fixed cost of $1,500 to $2,000, is it worth the cost of filing for Utilization Review and then potentially the costs of litigation to avoid a charges like these in these matters?  When the carrier can deny on the basis of causation for treatment that is not obviously related to the work injury, like a memory foam mattress, that would dissuade medical providers from trying to take advantage of the system.


As it stands now, carriers may need to be more proactive in terms of filing a Petition to Review Medical Treatment and/or Billing, which is a Petition that can also bring the issue of medical causation before a Workers’ Compensation Judge.  However, the medical provider may still need to be paid for the treatment with there being a potential for reimbursement from the Supersedeas Fund if the carrier ultimately prevails.  Of course, there are the litigation costs and most likely the cost associated with obtaining a medical opinion whether through Independent Medical Evaluation or record review, associated with taking such action.  As it stands, the Medical Cost Containment Regulations are now approximately 30 years old and are in need of review and potential revamping.       


In Lawhorne v. Lutron Electronics Co., Inc. (WCAB), No. 1132 C.D. 2021 (Pa.Cmwlth. October 18, 2022), the Court once again looked into Section 440(a), like it did the year prior with Lorino v. WCAB (Commonwealth of PA/Penn Dot), 266 A.3d 487 (Pa. 2021).  In Lorino, the Court found that payment of counsel fees by the Employer/Insurer/Carrier was mandatory if the Claimant prevailed but could be excluded by the Judge in the event of a reasonable contest.  In Lawhorne, the Court once again review 440(a) of the Workers' Compensation Act, 77 P.S. §996(a), and determined that a claimant must be awarded reasonable litigation costs should the claimant prevails in part or whole, even if the costs incurred did not directly contribute to the success of the matter at issue.


Once again, the Courts looked at the language as being mandatory despite the Workers’ Compensation Judge having specifically concluded that the testimony offered by the Claimant’s medical expert was not credible and did not aide in the determination by the Judge that the Employer did not prevail on its Petition to Terminate Compensation Benefits.  In the past, these costs would have properly been excluded.  At least there was a dissent in Lawhorn, as it was noted that the Claimant could present with a number of medical experts who are not credible or even may not be contemptuous.  The dissent focused on the language “reasonable” cost and noted that this should allow discretion in the Workers’ Compensation Judge to determine whether the costs incurred are those that should be reimbursed.  I would think that the defense bar should continue to focus on the language in the dissent moving forward to argue for the Judge to be able to apply discretion to what costs are to be reimbursed as opposed to applying a standard that should the Claimant prevail, even if only in part, then all costs are required to be reimbursed.  


By:  Nathan Geronimo (Associate Attorney - Santa Rosa)

In a recent case, Schaan v. Jerry Thompson and Sons, the Board reiterates the Wilson analysis for whether an injury is "catastrophic" includes an analysis of the nature and severity of the physical injury, without consideration of psychiatric sequelae.  In order to establish a catastrophic injury and entitlement to PD for psyche as a compensable consequence, the Board will look at the following factors:

1) Intensity and seriousness of medical treatment required by injury;

2) the ultimate outcome of employee’s physical injury when employee is permanent and stationary; 

3) impact of injury on activities of daily living (ADLs); 

4) whether injury is analogous to one of injuries specified in Labor Code § 4660.1(c)(2)(B) (loss of limb, paralysis, severe burn, or severe head injury); 

5) if the physical injury is incurable and progressive.

Here, the WCAB found that applicant's seven shoulder surgeries (including replacement on both sides) were not sufficiently “serious and life-threatening” medical treatment, his ADLs were not sufficiently impacted, and his injury was not analogous to those outlined in statute nor was it progressive or incurable.  The psyche symptoms, which were found by the QME to be a compensable consequence of the physical injury, were not considered in the above.

Note: This case has not been designated a significant panel decision and cannot be cited.  

Read more here:  https://highlights.hannabrophy.com/post/102i2ht/psyche-sequelae-not-considered-in-analysis-of-whether-an-injury-is-catastrophic

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