State News

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.

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.

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April 2024 Case Law Update


Troy Faughn v. Northern Improvement Company, Jan. 10, 2024

Jurisdiction – Out-of-state Employment

Statutes Construed – Minnesota Statutes § 176.041, Subdivision 3

Where the employee was at his current residence in Minnesota when he was offered and accepted a seasonal job at a North Dakota jobsite, for purposes of Minn. Stat. § 176.041, subd. 3, the employee was hired in the state of Minnesota.

Jurisdiction – Out-of-state Employment

Statutes Construed – Minnesota Statutes § 176.041, Subdivision 3

Where an employee is hired in the state of Minnesota, by a Minnesota employer, and is injured while temporarily working outside the state of Minnesota, the compensation judge properly determined that the employee’s injury is compensable under the Minnesota Workers’ Compensation Act.



Gerald Bauer v. Flint Hills Resources, Jan. 26, 2024

Permanent Total Disability – Retirement

Statutes Construed – Minnesota Statutes § 176.101, Subdivision 4

The statutory presumption of retirement under Minn. Stat. § 176.101, subd. 4 (2016), controls for the employee’s date of injury as the 2018 amendment to the statute does not have retroactive effect.

Permanent Total Disability – Retirement

The record as a whole supported the compensation judge’s conclusion that the employee had failed to rebut the presumption that he had retired at age 67, and the judge did not err by noting the fact that the employee had not sought to supplement his income by returning to work or from other sources.

Practice and Procedure – Dismissal

The compensation judge did not abuse her discretion in dismissing the employee’s claim with prejudice upon determining that he failed to rebut the retirement presumption of Minn. Stat. § 176.101, subd. 4, as the decision was a final order resolving that issue.



Andrew Thompson v. Minnesota Trial Courts – District 4 and State of Minnesota Department of Administration, Jan. 26, 2024


Arising Out of and in the Course Of

Although the employee was incidentally carrying a work laptop and other work-related materials while commuting to work when he slipped on an icy public sidewalk, substantial evidence supports the finding that the employee failed to meet the “arising out of and in the course of” employment requirements of Minn. Stat. § 176.021, subd. 1, where the compensation judge could reasonably find an absence of a sufficient causal connection between the employee’s injury and his employment under the “special hazard,” “street risk” or “special errand” exceptions.


In Alabama, all disputed workers’ compensation claims are handled through the regular court system. Alabama is the only remaining state to handle disputed claims in this manner. The statute of limitations (“SOL”) for filing a workers’ compensation lawsuit is 2 years from the date of injury or date of last indemnity payment. For cumulative trauma or exposure claims, it is 2 years from the date of last exposure. One exception to the 2-year SOL is if the claimed injury was latent and could not reasonably have been discovered until a later date.

In the recently released opinion of Dillard v. Calvary Assembly of God, the Alabama Court of Appeals affirmed and clarified that a latent injury exception to the SOL is not applicable to situations where a reasonably minded employee knows they have a compensable injury even when there has been no lost time from work. Further, an injury will not be considered latent based on the employee not knowing the full extent of the injury. In Dillard, the employee testified that he had frequent low back pain. Despite being off work following each of his two back surgeries, he never claimed and did not receive temporary-total-disability benefits. As a result, the trial court concluded that a reasonable person would have known the nature, seriousness, and probable compensable nature of the work-related injury as of the date the first surgery was recommended as a possible treatment option.

About the Author:

This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at or by calling her directly at 205-332-1599.

On May 19, 2023, the Alabama Supreme Court release its opinion in Ex parte Midsouth Paving, Inc. wherein it reversed the trial court’s denial of summary judgment on the issue of whether the roadside paving company where the temporary employee was assigned was afforded the protections of the exclusivity doctrine as a special employer. The trial court declined to grant summary judgment because the employee was never made aware that he was a special employee. In reversing the court’s decision, the Alabama Supreme Court rationalized that the mindset of an employee is of little consequence when determining whether a special employer/employee relationship exists.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at or by calling him directly at 205-332-1448.

On December 2, 2022, the Alabama Supreme Court release its opinion in Ex parte Varoff wherein it granted the employer’s petition for writ of mandamus. The trial judge had previously denied summary judgment in this safety guard removal case where the evidence revealed that a lid was removed from the subject machine just prior to the employee injuring his arm. The Alabama Supreme Court determined that it was necessary to remove the lid to unclog the machine. Since unclogging the machine enabled the machine to work properly it constituted a repair thus disqualifying it as a safety guard removal.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at or by calling him directly at 205-332-1448.

Rule 325-1.26

·         Treatment by chiropractors, acupuncturists, physical therapists, and occupational therapists must be done in person.


·         Treatment by physicians, podiatrists, nurse practitioners, and P.A.s

o    First exam in person

o    For treatment within three months of injury date, every third exam in person

o    For treatment more than three months from injury date, in person exam required every three months unless claimant at permanent MMI

§  If claimant at MMI, at least one in person exam per year required


·         Treatment by Psychologists and Licensed Clinical Social Workers

o    Remote visits allowed under certain circumstances

o    For treatment more than three months after the injury date, in person exam is required every three months unless claimant at MMI

o    IMEs may be done by telehealth when all parties consent and IME is not opining on permanency


Board Announcement

In mid-2024, the Board will start issuing notices of indexing for all cases where the file contains a C-3 or FROI-00 and a medical report which triggers the carrier’s obligation to file a Notice of Controversy



On March 22, 2024, Governor Tony Evers signed into law 2023 Wisconsin Assembly Bill 1073, now 2023 Wisconsin Act 213 (the Act), which was originally introduced by the Committee on Labor and Integrated Employment on February 8, 2024. The Act’s effective date was March 24, 2024.

Most notably, the Act provides amendments to Chapter 102 regarding: (1) the weekly permanent partial disability (PPD) rate for the remainder of 2024 and 2025, (2) the statute of limitations run date after compromise agreement approval, and (3) voluntary advancements in PPD.


I.               Weekly PPD Rate

The Act increases the maximum weekly PPD rate to $438 (previously $430) for injuries occurring on or after the effective date of the Act through December 31, 2024. The Act also increases the weekly PPD rate to $446 for injuries occurring on or after January 1, 2025.

Therefore, all PPD benefits for injuries occurring on or after March 24, 2024, need to be paid at the rate of $438. Further, all PPD benefits for injuries occurring on or after January 1, 2025, need to be paid at the rate of $446.


II.             Statute of Limitations

Previously, Wis. Stat. §102.17(4) was silent regarding the effect of a compromise agreement on the statute of limitations. This Act provides clarification regarding when the statute of limitations (12 years for occupational injuries and 6 years for traumatic injuries) begins to run, stating that it “begins to run on the date an order is issued by the division approving a compromise agreement.”

Previously, the Division had the ability to hold open claims that were settled on a limited basis, thereby halting the statute of limitations, potentially indefinitely. The new language in the Act changes that practice, ensuring that the Division’s holding of claims has no effect on the statute of limitations.  This is a welcome change for all employers and workers’ compensation carriers as it guarantees that the statute of limitations will continue to run even if a claim is resolved on a limited basis.


III.           Advancements in PPD

It remains that the department or the division has the authority to direct an advance on the payment of unaccrued compensation for permanent disability or death benefits if it is determined to be in the best interest of the injured employee or employee’s dependents; the employer or insurer shall be given a 5% interest credit in such situations. Now, the Act also allows advancements on PPD to be made voluntarily by an employer or insurer, without DWD authority, if the claim is undisputed. If an employer or insurer decides to voluntarily advance unaccrued PPD, the employer or insurer cannot impose any interest credit.

This additional provision allows employers and insurers to pay out “lump sum” PPD awards in full, prior to their accrual. This way, employers and insurers can close their files rather than continue to pay out benefits over the accrual period. Nevertheless, it is important to note that opting for advancement in PPD payments will not affect the statute of limitations, as the statute of limitations is based on the date the last PPD payment should have been made, if paid as it accrues. In other words, paying PPD in a lump sum will not speed up the statute of limitations. 

Memorandum Decision Only Indiana Court of Appeals 

David Vass v. Barklay Purkans, LLC 23A-EX-2090 

Although a memorandum-only decision, this Indiana Court of Appeals case supported medical treatment following a finding of maximum medical improvement and PPI award by the Board, but held fast to the Board’s decision plaintiff was not temporarily totally disabled during the ongoing treatment, which took place over several years.  

This case had a long history following a compensable worker’s compensation injury occurring in 2014. The original knee injury resulted in a total knee replacement.  However, plaintiff had  ongoing complaints of pain, contending he was unable to work for that reason, despite having been released to full duty work by the treating physician and by a subsequent IME  physician.  Examinations were normal and physicians could identify no medical reason plaintiff could not work.  As a result, he had no medical evidence taking him off work, despite continuing medical attention.  In a 2018 decision the Single Hearing Member found claimant was at MMI in 2017, was not entitled to additional TTD benefits, assigned a 31% PPI of his right leg and retained jurisdiction over the matter. 

In subsequent appearances, the judge issued an order requiring plaintiff to participate in an FCE, his refusal to attend the FCE previously recommended.  Eventually, the treating physician began a course of conservative treatment for IT Band syndrome with a later recommendation the plaintiff have IT band surgery, which was done in 2023.  Following an additional hearing the judge concluded the ITB surgery was necessary to limit or reduce the 31% PPI, which is allowed under the Indiana Worker’s Compensation Act following a PPI award, and denied plaintiff’s request for additional TTD based on its conclusion he had reached MMI in 2017.  

The Court of Appeals upheld the decision of the Indiana Board, supporting appropriate post MMI/PPI palliative medical care and supporting no TTD owed following that finding given the consistent medical opinions plaintiff could work.

A.  Lifetime Benefit Caps Increases: SB 430 increases the following lifetime maximum benefits as follows:

1.   Death benefit cap will increase from current $300,000 to $500,000.  Benefits can exceed death benefit cap for dependent children until the later of:  1) Age 18; 2) If enrolled in high school, May 30th of the senior year, or until such child becomes 19, whichever comes first; or 3) Until age 23 if enrolled in vocational school or college.

2.  Permanent Total Disability cap will increase from current $155,000 to $400,000.

a.         To be eligible pursue permanent total disability benefits, an injured worker must prove the work accident resulted in at least a 10% permanent partial impairment to the body as a whole or, if the injured worker has preexisting impairment, the injured workers total permanent partial impairment to the whole body must be at least 15%.

b.         The injured worker must still prove they are essentially and realistically unemployable as a result of the accident.

3.  Permanent Partial Disability cap will increase from $130,000 to $225,000 

a.         Injured worker must prove permanent partial impairment to the whole body from the work accident of at least 7.5% or, if the injured worker has preexisting impairment, the injured worker’s combined permanent partial impairment to the whole body must be at least 10%.

b.         Work disability is still determined by the average of wage loss and task loss related to the work injury.

4.  Functional Only Cap:  If the workers compensation accident results in only permanent partial impairment, an injured worker’s recovery cap is increased from $75,000 to $100,000.

5.  Built In Cap Modifier:  Caps will remain fixed until July 1, 2027, at which time a cost of living adjustment will kick in to raise caps on a yearly basis. The annual percentage increase will be based on a 5-year average of the percentage increase in the State’s average weekly wage.

B. Note:  This is a basic summary of some of the key SB 430 work comp law changes.  As of the date of this writing (April 2, 2024), SB 430 has passed both the Kansas House and Senate, but has not yet been signed into law by Governor Kelly.  Details concerning additional changes in SB 430 will be updated once Governor Kelly has signed SB 430 into law.  Effective date of these new law changes will be for work injuries occuring after July 1, 2024.


The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our Winter 2024 WORKERS’ COMPENSATION LAW UPDATE








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





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




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.



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.



A new Worker’s Compensation portal has been established at this site:

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:


 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 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).



The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.




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. 




The new CRB panel beginning January 1, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.




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.



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.



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.






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.



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.



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.



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.


The Department of Labor, Division of Industrial Affairs issued a Final Order concerning the revised Fee Schedule Introduction, which became effective February 11, 2024. Please click here for a copy of the Order.


Heckler & Frabizzio's partner, Anthony Frabizzio serves on the Workers' Compensation Oversight Panel and participated in making the necessary revisions which were approved.


One of the most important changes includes outpatient facilities being able to be reimbursed for facility charges for multiple-level procedures (see Sections 1.4; old 4.6.2/new 4.7.2; old


Other possible impactful changes include:


  • new 4.11.2 -- CRNA’s paid at the same rate as anesthesiologists.
  • old  -- There are 11 codes that moved from $0.00 to POC (64480, 64484, 64491-64492, 64494-64495, 64634, 64636, 77001-77003)
  • old 4.6.2-4.6.6/new 4.7.2-4.7.6, old & old -- clarification on using the 2015 status indicators and state comments on these indicators.
  • old – redefining the POC percentage to be as already found in FAQs vs. the listed percent in the narrative.
  • old 4.9.3/new 4.10.3 -- redefining the POC percentage to be as already found in FAQs vs. the listed percent in the narrative.
  • old - changes to moderate sedation (due to CPT changes a few years ago).
  • status indicator N does still apply but the state comment does allow for some exceptions if noted in the Fee Schedule. Those exceptions are currently to codes (64480, 64484,64491-64492, 64494-64495, 64634, 64636, 77001-77003) which changed from 0.00 (not covered) to POC.


For more information, please contact Anthony Frabizzio.