State News : Connecticut

LEGISLATIVE UPDATE

The legislature in the 2025 session attempted a “fix” of what many viewed as an incorrect decision from the Connecticut Supreme Court, Gardner v. Department of Mental Health and Addiction Services, 351 Conn. 488 (March 18, 2025) (see below review of that decision). As a result of Gardner, the Administrative Law Judges were given discretion to award ongoing temporary partial benefits notwithstanding that the claimant may have achieved maximum medical improvement. This was viewed as a significant expansion of employers’ exposure for workers’ compensation benefits.

The 2025 legislation (Public Act 25-12) is designed to resolve the expansion of benefits brought by the Gardner decision and involved some give-and-take between those legislators who believed that certain benefits should be increased and those that did not want the Gardner decision to be applied. The legislation made the following changes:

·         For all claims from July 1, 1993 forward, a Judge shall be required to establish maximum medical improvement and place the claimant on permanency benefits if the claimant is receiving temporary partial benefits. If the claimant is totally disabled, he/she will be entitled to ongoing benefits for total disability notwithstanding the fact that he/she may have been placed at maximum medical improvement.

·         For claims on and after July 1, 2025, C.G.S. § 31-308(b) will be expanded to allow for permanency of the esophagus (180 weeks) and the intestinal tract (347 weeks). Additionally, the permanency benefits for the cervical spine shall be increased from 117 weeks to 208 weeks.

·         For any death claim where there is no presumptive dependent or dependent in fact, the parents of the decedent employee shall be entitled to receive benefits for 312 weeks.

·         C.G.S. § 31-308a was amended to allow for a supplemental 60 weeks of post-specific benefits, inclusive of any benefits awarded pursuant to § 31-308a(a). To qualify for benefits under this provision, the claimant must be unable to perform his/her usual work and either be actively engaged in a vocational rehabilitation service or equivalent program, or have completed this service or program.

·         A working group will be established “to study rehabilitation services available” to employees with work injuries.  The working group will review whether rehabilitation services are adequately funded and will consider incentives, including stipends, to encourage the utilization of rehabilitation services.

The only retroactive application of the statute deals with the Gardner decision and essentially states that for all claims from July 1, 1993 to the present time a Judge must award permanent partial disability benefits if maximum medical improvement has been reached and the claimant is capable of work. We have some question as to whether this retroactive legislation will stand up to judicial review. In Connecticut, normally the “date of injury” rule will apply, which means that the version of the statute in effect as of the date of injury controls what the rights and liabilities of the parties are. This retroactive legislation is counter to that rule. Moreover, there is question as to whether the retroactive application of this substantive change to the statute will pass constitutional muster under both the state and federal constitutions.

The permanency for the esophagus and intestinal track probably will not affect many claims. On the other hand, the increase of permanency for the neck will provide enhanced benefits to many injured employees. The increase in permanency for the neck seems to make sense when compared to the number of weeks that are allowed for permanency to the lumbar spine (374 weeks).

The expansion of death benefits to parents of a deceased employee was brought about by the recent death of a young State of Connecticut employee who was struck by a drunk driver while he was working on a road crew. No workers’ compensation benefits were paid since the young worker was not married. Many found this result to be unfair and therefore sought this legislative change.

The increase of § 31-308a benefits to 60 weeks may provide a substantial increase to  injured workers who are not able to return to their normal jobs and/or who have been assessed low permanency ratings. It will also likely increase the number of individuals who will be willing to participate in the state’s vocational retraining program. The legislation as passed is vague as to whether there are 60 weeks of benefits for each body part that is injured or whether 60 is the total number of supplemental weeks regardless of the number of body parts involved. We expect claimants’ counsel will attempt to seek supplemental awards of 60 weeks for each body part that is injured.

We interpret the statutory changes to § 31-308a to allow the employer to take credit for any prior § 31-308a benefits previously paid.  For example, if the claimant had been paid a permanency award of 10% of the lumbar spine and received 37.4 weeks of § 31-308a benefits then the net additional benefits that could be claimed amount to 22.6 weeks (60 supplemental weeks minus the 37.4 weeks previously paid). If this interpretation is correct then the claimants who have received a lower number of weeks of § 31-308a previously will benefit more from this new legislation; for example, a claimant who received a 5% of the leg and equivalent § 31-308a benefits for 7.75 weeks might be able to receive an additional 52.25 weeks.

Should you have any questions regarding this new legislation, please do not hesitate to contact us.

CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS

ADMINISTRATIVE LAW JUDGE NEWS

Administrative Law Judges Colette Griffin, Christine Conley and Michael Anderson have all  been sworn in and have begun presiding over cases.

Former Administrative Law Judge Scott Barton has started a mediation company called ComProMise Mediation Services.  You can reach him for mediation services at 203-910-5137 or email at compromisems@gmail.com

MEMORANDUM 2024-07

Memorandum 2024-07 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates.  The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2024 is $1,654.00 (based on the estimated average weekly wage of all employees in Connecticut).  The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2024 is  $1,191.00 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).

BURIAL EXPENSES

As of January 1, 2025, the burial fee for deaths covered under the Workers’ Compensation Act is $14,371.23 based on the overall 2024 CPI-W increase for the northeast of 3.5%. 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.

MILEAGE REIMBURSEMENT

As of January 1, 2025 the mileage reimbursement rate is 70 cents per mile.

Previously on January 1, 2024, the mileage reimbursement rate was 67 cents per mile, on January 1, 2023 the mileage rate had been 65.5 cents per mile and as of July 1, 2002  the rate had been at 62.5 cents per mile.

 MEMORANDUM 2024-05

The Chairman has issued the following new memo which stated that physicians can charge for causation or permanency opinions in a denied case:

Effective July 1, 2024, a treating physician who is asked to provide a causation opinion or a Permanent Partial Disability (PPD) rating on a denied claim may charge up to $400 for this report.  The report must be affirmatively requested by the patient or their representative, and the patient would be responsible for payment. As with standard special report fees, if a physician feels that an additional fee is warranted, they may seek permission to charge that higher rate from an administrative law judge. However, physicians considering requesting additional fees should keep in mind that the patient bears the responsibility for payment and should proceed accordingly.

The Professional Guide for Attorneys, Physicians, and Other Health Care Practitioners and the Payor and Medical Provider Guidelines to Improve the Coordination of Medical Services will be updated to reflect this change. 

MEMORANDUM 2024-04

Effective June 14, 2024, the following changes have been made to WCC forms:

·         Form 30C has been updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S. Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section 7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139. Language on Post Traumatic Stress Injuries has also been updated to reflect such injuries are pursuant to C.G.S. Section 31-294k. 

·         Form 30D has been updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S. Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section 7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139.

·         The Hearing Request Form has been updated to allow the option for an email address to be added under the Injured Worker section.

·         Voluntary Agreement Form has been updated with “Check, if C.G.S. Sec. 5-142”to help WCC better identify wage calculations which are pursuant to C.G.S. Sec. 5-142.

·         WCR-1: Rehabilitation Request Form has been updated with options to either fax or email the form to Rehabilitation Services in addition to mailing or submitting the form in-person. An optional line has also been added for applicants to add their email address.

Effective June 14, 2024, the following form is now available:

·         Indemnity Only Stipulation and What it Means. 

MEMORANDUM 2024-03

Effective July 1, 2024, wage statements should be attached to all Voluntary Agreements. If the claimant is concurrently employed, wage statements from all employers should be included with the submission. Failure to attach a wage statement(s) will result in the rejection of the Voluntary Agreement.

WORKERS’ COMPENSATION PORTAL

The Commission does have a website where you can look up such information as to whether a hearing is assigned, list of all claims for an employee, status of a Form 36, and interested parties.  This is quite a useful site and is a different website than the Commission’s main site.  It can be found at:

http://stg-pars.wcc.ct.gov/Default.aspx

 NEW COMPENSATION REVIEW BOARD PANEL

The new CRB panel beginning January 1, 2025 will be Administrative law Judges Peter C. Mlynarczyk and Daniel E. Dilzer along with Chief Administrative Law Judge Morelli.

 CASE LAW

 QUINN v. PIERCE BUILDERS, INC., 6539 CRB-1-24-4 (APRIL 25, 2025)

The claimant in this case, who detailed vehicles and equipment for a living, alleged that on the date of injury he was an employee of the respondent, a construction company, and sustained a left ankle/foot injury in the course and scope of his employment.  The respondents contested the claim arguing that the claimant was an independent contractor and there was no employee-employer relationship and also that the injury occurred on a different date at the claimant’s home while he was cleaning his front yard from a tropical storm.  During the formal hearings, the claimant sought to introduce a recording of a partial phone call he had made without the knowledge and consent of the other party on the call.  The respondents objected pursuant to C.G.S. sections 52-570d and 52-184a, but the administrative law judge entered the recording into evidence.  The judge issued an April 2, 2024 Finding and Award concluding that the claimant was an employee, was not an independent contractor, and that he sustained his left ankle injury during the course and scope of his employment on August 4, 2020.  The respondents filed a Motion to Correct, which was denied, and appealed the decision to the Compensation Review Board.  On appeal, the respondents argued that the weight of the evidence can only support a finding that the claimant was an independent contractor, that the objective evidence showed that the claimant’s injury occurred on a different date at his home performing a non-work related task, and that the judge improperly allowed into evidence an illegally recorded audio recording.  In its decision, the CRB stated that they were not persuaded that the judge applied the appropriate test to determine whether an employer-employee relationship existed consistent with Hanson v. Transportation General, Inc., 245 Conn. 613 (1998), which requires the judge to consider the totality of the evidence and factors when using the “right to control” test.  The CRB took issue with the fact that the Judge made no reference in his decision to the evidence and documentation submitted by the respondents, including 1099s, business invoices, expense business invoices, tax returns filed as a self-employed sole proprietor, and information that the claimant hired an employee to assist him, and questioned whether that evidence was included in the judge’s analysis.  The CRB found that the lack of analysis rose to a level to find the trier failed to consider relevant factors and remanded the case for a new trial before a new judge, as the prior judge is no longer a workers’ compensation administrative law judge.  The CRB also found that the recording of the partial phone call should not have been allowed into evidence given the statutes that bar use of such evidence and ordered that it be stricken from the record.  Attorney Maribeth McGloin of SDAZ is defending this case.

DODGE v. STATE OF CONNECTICUT/DEPARTMENT OF MOTOR VEHICLES, 6538 CRB-8-24-4 (May  2, 2025)

The claimant died due to diagnosis of mesothelioma which resulted from asbestos exposure  in his employment.  The Administrative Law Judge found the case compensable.  The widow was determined to be entitled to dependency benefits under Section 31-306 but the Judge allowed a credit/moratorium as a result of third party recoveries.  The widow argued that the moratorium should be based solely on recoveries due to occupational exposure to asbestos and not non-occupational exposures.  The Judge and CRB disagreed and awarded the respondents the full moratorium for third party recoveries due to asbestos exposure regardless if the exposure was occupational or non-occupational.

SHAWNA ZITO-HANNAN, SURVIVING SPOUSE OF MICHAEL HANNAN V. ELECTRIC BOAT, 6537 CRB-2-24-3 (May 20, 2025)

This claim for death benefits was dismissed by the trial Judge and the dismissal was affirmed on appeal by the CRB.  The claimant widow alleged that her husband’s cardiac event that led to his death at home was due to physical and emotional stress on the job.  The decedent was a design technician for the employer and would travel frequently to Cape Canaveral, Florida to work.  While in Florida he would work six days per week; he would travel to Florida for two weeks and then come back to Connecticut for one week.  After a trip to Florida he returned to Connecticut and the following day he died in his sleep at home.  The cause of death was listed as hypertensive heart disease, hyperlipidemia, tobacco use and thoracic aortic aneurysm.  There were conflicting expert opinions regarding the cause of death.  The trial Judge concluded that work-induced stress was not a substantial factor in leading to the heart disease and death. The Board found that the ALJ had applied the law correctly and they would not disturb his factual findings dismissing the case.

FIORAVANTI V. NCR CORPORATION, 6545 CRB-5-24-6 (May 27, 2025)

The injured employee hurt his knee at work on February 7, 2005.  He was paid  a permanency award of 7.5% with a mmi date in 2013.  Subsequently, in March 2019 the claimant had an authorized total knee replacement. The employee was scheduled to be seen by the treating surgeon for the knee in March 2020 but the exam was cancelled because of the Covid pandemic.  Instead, the patient completed an online survey regarding the surgery and his recovery.  The treator at that time did not establish mmi and gave no rating.  The employee died in October 2020 unexpectedly and for unrelated causes.  In February 2021 the treating surgeon completed a Form 42 and listed the impairment of the leg at 40%; he did not provide a date of mmi on the Form 42. At a later deposition the treating doctor agreed that the rating was speculative because it was based on the limited records before death and not an actual physical examination.   The Administrative law Judge dismissed the claim because he found mmi had not been established before the death and the rating was speculative.  No motion to correct was filed but an appeal was taken to the CRB.  The Board affirmed the dismissal finding that there was sufficient evidence in the record to support the dismissal of the claim for the posthumous permanency award.

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. The legislature has attempted to modify this decision with new legislation in the recent legislative session (see above discussion).