Recent decisions:

Birnie v. Electric Boat Corp., ___ Conn. ___ (August 19, 2008)

Attorney Lucas Strunk of Pomeranz, Drayton, and Stabnick successfully defended a death claim in this decision which reversed a finding of compensability at the trial and CRB level. The employee had died due to a myocardial infarction allegedly due to lung disease which had developed due to exposures at this Groton shipyard. Under the federal Longshore and Harbor Workers’ Compensation Act the death claim was found to be compensable. The widow thereafter came to the Connecticut forum seeking compensation under the state act which provided more generous benefits. The trial commissioner and the board found that the doctrine of collateral estoppel applied and that the widow was due benefits under the state act in view of the prior Longshore finding of compensability citing Lafayette v. General Dynamics, 255 Conn. 762, (2001). The Supreme Court in Birnie, however, considered the question whether the Longshore judge had applied the “substantial factor” analysis required in the state forum for a finding of compensability or some lesser standard. The Court determined that the federal administrative law judge had not articulated clearly the standard for causation that he had applied and therefore concluded that there was no basis to apply the doctrine of collateral estoppel in the state forum. The case was remanded for further trial at which the employer will be able to present evidence regarding causation.

Brymer v Town of Clinton, 5135 CRB-3-06-9 (2008)
Ciarlelli v. Town of Hamden, 5098 CRB-3-06-6 (2008)
Roohr v. Town of Cromwell, 5122 CRB -8-06-8 (2008)
Carter v. Town of Clinton, 5185 CRB-3-07-1 (2008)

The above cases have been taken up on appeal by the Connecticut Supreme Court. These claims deal with General Statutes Section 7-433c claims and, more particularly, issues regarding the statute on non-claim. The CRB has affirmed dismissals in numerous 7-433c claims in 2008 based on non-claim issues. Be on the lookout in 2009 for the Supreme Court to weigh in regarding how Section 7-433c non-claim issues should be reviewed. Pomeranz, Drayton, and Stabnick have successfully defended the Roohr and Ciarlelli claims to date.

 

Anderson v. R & K Spero Company, AC 28625 (May 13, 2008)

In this case, the Appellate Court upheld the Compensation Review Board and trial commissioner’s decision, which found that the claimant’s chiropractic treatments were not medically reasonable and necessary. The claimant, in this case, had a compensable back injury and was treated for a period of time. He reached maximum medical improvement but sought further treatment, including chiropractic. An independent medical examination found that the claimant’s current back pain was not related to the compensable injury. A commissioner’s examination also was conducted and found that the claimant had, in fact, achieved maximum medical improvement. The claimant continued to treat with a chiropractor after that examination and sought payment of those bills, which totaled some $9,000. The Appellate Court provides an excellent analysis as to the power and duty to determine facts is within the discretion of the commissioner. Further, the Appellate Court found that the discretion clearly allows the commissioner to deal with expert medical testimony and that it is the commissioner’s province to accept the evidence, which impresses him as being most credible and more weighty. The commissioner found that based upon the commissioner’s examination, the claimant had reached maximum medical improvement and denied that the respondent was responsible for payment of those bills. The CRB and Appellate Court upheld that decision.

 

 

2008 Legislation

P.A. 08-3 (effective 10/1/08)
New Section 31-294b requires that the WCC send Form 30c to claimants once a first report of injury is filed by the employer with the WCC. Presumably designed to resolve statute of non-claim problems for employees.

P.A. 08-61 (effective 7/1/09)
Establishes a rebuttable presumption under Chapter 568 claims in favor of police and fireman hired after 7/1/06 for cardiac conditions which occur at training, fires or accidents; successful passage of pre-employment physical is required.

P.A. 08-156 (effective 7/1/08)
Establishes the Joint Enforcement Commission on Employee Misclassification to address the problem of employers attempting to avoid state and federal responsibilities by misclassifying workers.