State News : Connecticut

GARDNER V. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES,         Conn.     (March 18, 2025)

The claimant sustained a compensable left hand injury on April 19, 2016. She underwent two surgeries to the hand. Dr. Ashmead, the treating physician, rendered an opinion on March 11, 2020 that the claimant had attained maximum medical improvement within an 8 percent rating for the left wrist. Also, Dr. Ashmead indicated the claimant continued to have work limitations and could not lift greater than 20 pounds. The respondents, based on Dr. Ashmead’s report filed a Form 36 seeking to establish maximum medical improvement and begin permanency payments. Claimant’s counsel, however, objected to the Form 36 contending that the claimant was entitled to ongoing temporary partial benefits and that the trial judge could, in his discretion, order temporary partial benefits under the provisions of General Statutes Section 31–308(b). The trial judge noted the claim was “novel” but concluded that the claimant had achieved maximum: improvement and that the Form 36 should be approved for permanency benefits. On appeal, the compensation review board affirmed the ruling of the trial Judge that permanency benefits were owed and not ongoing temporary partial benefits.   The Appellate Court affirmed the CRB decision, however, the Connecticut Supreme Court reversed that and concluded that a Judge has “the discretion to award a claimant, after he or she reaches maximum medical improvement, ongoing temporary partial benefits under Section 31-308(a) in lieu of permanent partial disability benefits under Section 31-308(b), up to the statutory maximum of 520 weeks.”

In our opinion, this is a significant  decision which increases possible exposures for temporary partial benefits and, in general, increases the settlement value of many cases where the claimant cannot return to work in their usual position.

COCHRAN V. DEPARTMENT OF TRANSPORTATION, 350 Conn.  844 (2024)

In this important decision, the Supreme Court held that a worker who is retired and took himself out of the workforce was entitled to a claim for total disability benefits made post-retirement.

The claimant sustained a compensable back injury in 1994. Surgery was performed in June 1994; a further back surgery was performed in April 1995. A voluntary agreement was issued and approved in 1995 for 29.5% of the lumbar spine.

On April 1, 2003 the claimant, at age 54, took an incentivized early retirement from the employer. The plaintiff had no intention of returning to work. In 2013 the claimant had back surgery with an allegedly unauthorized New York physician. A CME by Dr. Dickey in 2017 gave the “lightest” work capacity to the claimant. Dr. Sabella, a vocational specialist, found the claimant unemployable. The trial judge found the 2013 back surgery related and ordered a three month period of total disability following the 2013 surgery and ongoing total disability beginning on December 30, 2017. The CRB affirmed the decision. The Appellate Court reversed the Board decision; in doing so, the Court stated it had plenary review over the case (meaning that they did not have to defer to the CRB below regarding the application of the law). 

The Appellate Court’s decision stated that: “he elected to remove himself from the workforce where he had no intention of returning and more than 10 years later sought to obtain Section 31–307(a) benefits. We cannot conclude the plaintiff is entitled to Section 31–307(a) benefits when he removed himself from the workforce with no intention of returning.”  The Appellate Court found this to be an issue of first impression before the Court.

The Supreme Court reversed the Appellate Court and concluded that “the statute as written entitles all medically qualified claimants to receive total incapacity benefits, with no exception for those claimants who may also be voluntarily retired.” The Court also stated “evidence of willingness to work has never been required to establish eligibility for total incapacity benefits.” The Court held that total disability benefits serve a “dual-purpose: to compensate for both wage loss and loss of earning power.”

The respondents had also raised the issue on appeal as to whether payment of total disability benefits were owed since there was no finding that the surgery performed was reasonable, necessary and available in Connecticut. Since that issue had not been addressed by the Appellate Court, the Supreme Court remanded the case back to the Appellate Court to address that issue.

MARTINOLI V. STAMFORD POLICE DEPARTMENT, 350 Conn. 868 (2025)

The claimant sustained a compensable heart condition in January 1999. He retired at age 64 in October 1999. In 2015, at age 80, he sustained a stroke and claimed entitlement to total disability at that time. The Judge and CRB found the stroke related to the initial claim and awarded total disability benefits to the retiree. The Appellate Court, however, reversed and said a retiree was not entitled to claim total disability benefits post-retirement. On appeal to the Supreme Court, however, the Supreme Court reversed the Appellate Court and determined that voluntary retirees could receive total disability benefits.  The Court cited the companion case of Cochran V. Department of Transportation, 350 Conn. App. 844 (2024). (see above summary of Cochran). 

The case was remanded back to the Appellate Court to address two other issues raised on appeal by the respondents that had not been addressed by the Appellate Court.

NAPOLITANO V. ACE AMERICAN INSURANCE COMPANY, 350 Conn. 871 (2024)

This decision from the Supreme Court dealt with the issue of cancellation of a workers’ compensation policy and whether it complied with the terms of General Statutes Section 31-348; that statute indicates that cancellation of a policy is not effective until fifteen (15) days after the cancellation has been filed.  In this case the employer had a series of three workers’ compensation policies with the employer. Notice on March 28, 2018 was issued to the employer regarding an audit noncompliance charge.  On April 5, 2018 two notices were sent to the employer stating that the employer had not complied with requests for payroll information; the second notice on April 5, 2018 indicated that the coverage would terminate on April 25, 2018.  On April 10. 2018 the employer’s agent advised the employer that they were compliant.  An employee was injured on May 29, 2018; the carrier denied coverage and claimed that the policy had been cancelled.  At a formal hearing an ALJ found that there was no coverage based on the information NCCI reported; the ALJ did not address contractual claims at the formal hearing.  The employer and the second injury fund settled the compensation case with the claimant for $225,000.  The employer brought a civil action against the carrier asserting claims of breach of contract, bad faith, negligent misrepresentation and promissory estoppell.  At the trial level, a Judge granted a summary judgment motion filed by the plaintiff employer concluding that the notice of cancellation was not unambiguous and unequivocal as required to be effective.  Additionally, the carrier’s motion to strike a bad faith claim was granted.  On appeal, the Appellate Court reversed and concluded that the notice was unambiguous that the policy was going to be cancelled.  It determined that the notice was certain and unequivocal.  The Court also determined that the motion to strike the bad faith claim was error.  The Connecticut Supreme Court reversed the Appellate Court decision and found that the notice of cancellation was not sufficient to cancel the policy. The Supreme Court stated “we conclude, instead, that, when a court considers whether notice of cancellation made under a workers’ compensation insurance policy was sufficiently definite and certain, it must consider all relevant communications between the parties, rather than limit its analysis to the notice received by the chairperson under Section 31 – 348.” The Supreme Court concluded that the policy remained in place on the date of accident.

MORGAN V. SULZER PUMPS SOLUTIONS, INC., 6531 CRB-1-24-2 (January 22, 2025)

In this decision, the Compensation Review Board (“CRB”) held that the twenty-day period to appeal a finding to the CRB as set forth in Section 31-301(a) begins to run when the appellant’s aggrievement for appeal has been determined by way of finding, order, or decision.

The underlying claim proceeded through three formal hearing sessions, then a Finding and Award, which ordered the respondents to accept compensability of a right shoulder injury, was issued on December 21, 2023. The claimant filed a motion to correct the Finding and Award on January 3, 2024, and the motion was denied in its entirety on February 8, 2024. The respondents did not file a post-judgment motion, though they subsequently filed a petition for review on February 27, 2024.

The claimant filed a motion to dismiss the appeal as untimely. The CRB held that the following language of Section 31-301(a) was ambiguous as to whether an appellant’s appeal would be timely if taken within twenty days following a ruling on its counterparty’s post-judgment motion, given the appellant was aggrieved by a finding it did not seek to correct by way of motion: “If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion.”

The CRB dismissed the respondents’ appeal as untimely, relying on its analysis in Gonzalez v. Premier Limousine of Hartford, 5635 CRB-4-11-3 (April 17, 2012) and the Connecticut Supreme Court’s analysis in Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) and Dechio v. Raymark Industries, Inc., 299 Conn. 376 (2010) in holding that the twenty-day timeframe set forth in Section 31-301(a) began to run for the respondents once its grievances for appeal had been determined, which occurred on December 21, 2023, the date the Finding and Award was issued.

MASSENA V. CITY OF STAMFORD, 6534 CRB-7-24-3 (February 21, 2025)

This case involved a heart and hypertension injury under General Statutes Section 7-433c for a firefighter with date of injury February 27, 2008.  The claimant worked for the City from 1989 to 2018.The claimant sought to preclude the respondent from raising issues regarding evidence of hypertension in the pre-employment medical exam and also sought to bar the respondents from inquiring of the treating physician regarding the issue.  The respondents had filed three timely Form 43’s but the claimant alleged that issues concerning the pre-employment exam had not been raised in the disclaimers.  The Judge denied the Motions to Preclude and the CRB affirmed finding that the language of the Form 43’s was sufficient.