State News

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).

2025 Kansas Legislature: The 2025 Kansas legislative session has now ended.  There were no significant changes to Kansas workers compensation statutes in 2025. The Kansas workers compensation pro-employer 2011 reform laws remain in place through the 2025 legislative session. The significant 2024 legislative changes (see below) which increased benefits to claimants have now had one year to play out, and while we do not have any significant Kansas appellate court decisions interpreting those 2024 changes, on the employer/carrier claim handling ground level for new injury claims occurring after July 1, 2024, employers are seeing increased compensation payouts, particularly for high wage earners.

2024 Key Statutory Changes Recap:

1. Increased Caps (previous caps in parentheses):

               a. Death benefit cap increases to $500,000 ($300,000).

                               i. Benefits can exceed death benefit cap for dependent children until the

                                 later of

                                             1. age 18.

                                             2. age 19 or graduation if still in high school at age 18; or

                                             3. until age 23 if in vocational school or college.

               b. Permanent Total Disability Cap increases to $400,000 ($155,000).

                               i. To be eligible to 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 worker’s total permanent partial impairment to the whole body must be at                 least 15%.

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

               c. Permanent Partial Disability Cap increases to $225,000 ($130,000).

                              i. 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%.

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

               d. If the work accident results in only permanent partial impairment, an injured worker’s recovery is capped at $100,000. ($75,000).

               e. 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.

2. Preliminary Hearings:

               a. Injured workers shall provide records to opposing counsel at least 20 days before a preliminary hearing.  If records are not provided at least 20 days before the preliminary hearing, the court can grant additional time for the employer to provide evidence which may controvert the employee’s records.

 3. Future Medical:

               a. The authorized treating physician’s opinion as to the need for future medical is presumed determinative on the issue of                 whether future medical will be awarded in cases where there have been no invasive procedures. This presumption can                 only be overcome with clear and convincing evidence.  What constitutes “invasive” will be the subject of litigation.

               b. If the injured worker had invasive treatment as a result of the work injury, the authorized treater’s assessment that no future treatment will be needed is still presumed determinative of the issue. However, that presumption may be overcome if claimant proves it is more likely than not that future medical will be needed.

4. Court-ordered independent medical examinations (COIME):

               a. The Administrative Law Judge may only order one COIME without agreement of the parties.

                              i. If the ALJ does order a COIME, the COIME must be done prior to Prehearing Settlement Conference.

                              ii. In addition, the COIME may not be used for the purposes of a rating, permanent restrictions, or opinions on                 permanent total disability.

               b. Parties are still free to agree to a joint IME.

5. Post award medical and attorney fees:

               a. The only procedure allowed to pursue post award medical treatment will be under the provisions of KSA 44-510k. An injured worker may not pursue post-award medical benefits under preliminary hearing procedures of K.S.A. 44-534a.

               b. If post-award benefits sought are provided within 30 days after an application for post award medical is filed, no attorney fees should be awarded without showing, by clear and convincing evidence, that the claimant attorney made significant legal effort.

6. Medical records:

               a. Upon receipt of notice from the Division of the setting of a Regular or Post-Award Hearing, the parties shall exchange medical reports including those by examining and treating health care providers. The exchange shall be at least 30 days before the hearing.

               b. The testimony of a treating or examining health care provider may be submitted into evidence without additional foundation by submission to the opposing side of a complete medical report that complies with procedural rules set forth in the statute.

               c. Upon receipt of a proposed complete medical report, a party has ten days to file a written objection to the offering party stating the grounds for the objection. The ALJ shall then conduct a hearing on the objections as to whether the proposal meets the requirements of a complete medical report.

7. Notice of injury:

               a. An injured worker must notify the employer of the accident within 30 days (was 20 days) from date of accident or 20 days (was 10 days) from last date of employment, whichever is earlier.

8. Stipulated awards:

               a. If the employee is represented by counsel, a settlement can be completed without the need for a settlement hearing. The Division created the appropriate stipulations and Award documentation. The Administrative law judge is given five days from receipt of the signed stipulation to approve the agreed award or settlement.  Note however, there are significant employer/carrier advantages to formalizing the settlement before a Special Settlement Judge.

9. Social security offset:

               a. An award of permanent partial or permanent total disability shall be subject to an offset equal to 50% of the claimant’s Social Security retirement benefits.

               b. An award of TTD and TPD benefits shall not be subject to an offset for Social Security Retirement benefits.

10. Average Weekly Wage Computation:

               a. The calculation of average weekly wage shall include vacation, sick leave and PTO paid during 26 weeks before accident.

               b. In addition, the average weekly wage calculation eliminates the first week of wages from

               calculations if the employee did not work a full week.

11. Unauthorized Medical Allowance:

               a. The allowance per case for unauthorized medical is raised to $800 (was $500).

12. Per Diem for medical trips:

               a. If an employee is required to be away from home all day to obtain medical treatment, the employer shall pay the employee a $30 (was $15) per diem.

               b. The employer shall be responsible for reimbursement of the reasonable expenses of overnight accommodation as needed to avoid undue hardship on the employee.  This is a completely new benefit that did not exist in previous law.

13. Transcription of Hearing:

               a. The Director may order hearings to be recorded by digital recording or other means and later transcribed by a certified shorthand reporter or notary public who shall attest to the transcription’s accuracy.

14. 2024 Rates Update (2025 rates come out after July 1, 2025):

               a.  The maximum weekly indemnity benefit rate increased to $835.00, effective for injuries occurring 7/1/2024 through 6/30/2025, based upon annual indexing to the state average weekly wage.  Likewise for the same period, the minimum weekly survivor benefit rate for fatalities increased to $556.71.  Effective for medical travel after July 1, 2024, the medical mileage reimbursement rate increased from $.655 cents per mile to $.67 cents per mile.

About the Author: This update was prepared by National Workers’ Compensation Defense Network Kansas member Kim R. Martens of the Wichita, KS firm MARTENS WORK COMP LAW LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation before the Kansas Division of Workers’ Compensation and the Kansas appellate courts. If you have any questions about this submission or Kansas workers’ compensation in general, please contact Mr. Martens by either e-mailing him at Kim@MartensWorkCompLaw.com or by calling him directly at 316-461-0135.

After 16 years of dedicated service here at Bernard & Merrill, PLLC, we proudly announce the retirement of Margaret (Meg) Sack.

Meg graduated from Saint Michael’s College (B.A. 1982) and attended New England School of Law (J.D. 1987) where she graduated cum laude.

Since joining Bernard & Merrill, PLLC in 2009, Meg has been a driving force behind the firm’s success and client relationships. In 2018, Meg became a partner of the firm, continuing her dedication to workers compensation law. With a sharp legal mind and unwavering professionalism, she brought insight, integrity, and leadership to our practice and to the broader legal community.

Her contributions have shaped the culture and values of our firm, and her mentorship has left a lasting impact on colleagues and clients alike.

As Meg transitions into retirement, we extend our deepest gratitude for her years of dedication and excellence. While she will be greatly missed in the daily life of the firm, we look forward to continuing her dedication to workers’ compensation law, representing self-insured employers, third-party administrators and workers’ compensation insurance carriers. 

The Oklahoma Supreme Court has accepted certiorari in a case in which the Workers' Compensation Commission and the Court of Civil Appeals (COCA) differ in the interpretation of the statute that governs the appointment of a new treating physician (Form A). The case is SSM Health Care Corp. v. Monica Goodwin, Supreme Court # 121,192.

The claimant suffered a compensable injury to several parts of her body when a patient suffered a psychotic episode and became combative. The employer admitted an injury to the neck and shoulder.  The ALJ ordered a change of physician to a shoulder specialist who does not treat necks and later granted a Form A to send the injured worker to a neck specialist. The employer objected and appealed. The appointment of an additional Form A doctor was affirmed by the WC Commission.

The issue is the interpretation of 85A O.S. Sec. 56(B). COCA, in a 2-1 decision, ruled that the statute allows only one change of treating physician per case no matter how many parts of the body are injured.

The dissenting COCA judge wrote:

...."The Statute does not preclude the Commission from ordering more than one change of treating physician or otherwise limit how many changes may occur. Accordingly, I would find that Sec. 56(B) provides one change of treating physician at the claimant's request and that subsequent changes are allowed at the ALJ's discretion...."

   The dissenting opinion implies that allowing more one change of physician per case is reasonable, and does not violate legislative intent. 

The Supreme Court will decide the issue. 

Nebraska Workers’ Compensation Burial Benefit to Increase Effective July 1, 2025

LINCOLN, Neb. – Beginning July 1, 2025, the burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,900.00. This benefit is provided in the event of an employee’s death resulting from personal injuries, as defined in Neb. Rev. Stat. § 48-151.

The burial benefit amount is reviewed and adjusted annually by the Nebraska Workers’ Compensation Court, as outlined in Neb. Rev. Stat. § 48-122(3).

A chart detailing current and past benefit rates—including those related to death benefits—is available on the court’s website: Benefit and Reimbursement Rates.

If you have questions about Nebraska Workers’ Compensation, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

UTAH

TRENDS

UTAH COURT OF APPELAS DECISION RE: LABOR COMMISSION AUTHORITY TO RESCIND PRIOR APPROVAL OF SETTLEMENT AGREEMENT

Waxies Enterprises, Inc. v. Halladay, 2025 UT App 7 (January 16, 2025)

After reaching a settlement of a claim made for injuries suffered while on the job, which the Labor Commission approved, the parties discovered they had different ideas about how to interpret one of the agreement’s material terms. The employer moved to have the Labor Commission either compel the employee to sign additional documents to implement its understanding of the agreement or set aside the prior approval of the agreement. The Labor Commission denied both requests. On appeal, the Utah Court of Appeals affirmed the denial of the motion to compel but reversed the denial of the motion to set aside. With respect to the latter, the court reiterated prior precedent that the Labor Commission has continuing jurisdiction that encompasses the authority district courts have under Rule 60 of the Utah Rules of Civil Procedure. The court went on to hold the Labor Commission had the authority to rescind its prior approval of the settlement agreement once it was presented with a substantial question as to whether there had been a meeting of the minds on the material term at issue.  Because the appeals Board ruled that it lacked such authority, Utah Court of Appeals set aside that decision and instructed the labor Commission to revisit the issue.

© Copyright 2025 by Ford G. Scalley, Scalley Reading Bates Hansen & Rasmussen, P.C.

On April 24, 2025, Governor Kay Ivey signed the Mary Anne Leonard Educators' On-The-Job Injury Act into law. Prior to this new law, public education employees had no access to workers’ compensation benefits. If they did not purchase private disability insurance, then they did not get paid if a work injury prevented them from working. Although they could previously request reimbursement for medical bills, the new law provides for the direct payment of medical bills pursuant to a fee schedule. The following is a breakdown of the key components of the new Act and how it compares to the traditional Alabama Workers’ Compensation Act.

Who is Maryann Leonard? Maryann (according to her FB page, this is how she spells her name) was an Alabama educator who hit her head in a freak accident while at work. The resulting injury turned out to be serious enough to prevent her from returning to her job as a teacher. She did not have disability insurance and, like all other public teachers in the state, had no access to workers’ compensation benefits. Her story of hardship became a catalyst for change which is why the new legislation bears her name.

Before: No weekly compensation was available to public education employees when they were out of work due to job injuries. Although an employee could submit incurred medical expenses for reimbursement, the process could be slow and there was no guarantee that the expense would be fully reimbursed.

Now: An employee’s salary can continue for up to 90 days post-accident. In addition, medical bills can now be paid directly through the Public Education Employees Health Insurance Program.

Who is Covered? Education employees such as teachers, bus drivers and lunchroom workers.

Who is not Covered? Part-time, substitute, temporary, non-full-time employees and volunteers.

How will the Compensation Aspect be Funded? The recently passed $10 billion education budget carved out $15.6 million to fund the Public Education Employee Injury Compensation Trust Fund.

When? The program shall begin accepting on-the-job injury claims on an implementation date declared and published by the board in consultation with the Board of Adjustment but not later than October 1, 2026.

How is the New Act Different from the Alabama Workers’ Compensation Act?

The Alabama Workers’ Compensation Act has been around for over 100 years. When you consider the number of provisions, amendments, and interpretive cases generated in that time frame, the new Act could only address a small percentage of what is included in the older and more expansive WC Act. The below short list represents the more notable provisions addressed by the new Act that are significantly different from the traditional WC Act.

Notice: An employee must give notice within 5 days of the injury. This is extended to 30 days where employee died or is not clinically able to report the claim without assistance. This is different than the 90 days available per the Ala. WC Act. In addition, the Ala. WC Act no longer requires written notice whereas the new Act specifies that the notice must be in writing.

Injury Reporting Form: Employee is required to sign the form. If employer refuses to complete and submit an injury report form after receiving timely notice, then it has to provide written findings of fact that support its decision.

Dispute Resolution: Any disputes between an employee and employer are referred to the Public Education Employee Injury Compensation Program Review Board. Disputes can also be adjudicated by an appointed hearing officer upon request of either party.

Appeals: Appeals of any Board or Hearing Officer decisions are made to the Circuit Court of Montgomery County as opposed to the Alabama Court of Civil Appeals.

Injury: It is not specifically defined as it is in the Ala. WC Act. Further, unlike the Ala. WC Act, there is no provision for the coverage of glasses or prosthetics that are damaged in an accident.

Temporary Indemnity: Instead of paying a percentage of the average weekly wage at the time of injury, the new law provides for full salary to be paid for up to 90 days. The door is also left open for the creation of a procedure to allow for additional paid weeks.

Occupational Disease: There is no mention of disease. This is most likely because Occ Disease statutes typically mandate that the disease be peculiar to the employment (i.e. black lung/coal industry). Since there are no diseases peculiar to education, it was probably intentionally left out.

Subrogation: Public Education Employees' Health Insurance Plan will pay medical bills subject to the applicable fee schedule and will retain subro rights against any responsible third party or the employee’s insurer that is responsible for the injury. Unlike the Ala. WC Act, there is no provision that the lien amount be reduced by a pro-rata share of the attorney fee (assuming an attorney was involved in the third party aspect).

Although the new Act is being referred to as workers’ compensation legislation it is not the traditional model that provides for unlimited weekly compensation benefits during a period of temporary disability nor does it provide for the payment of permanent partial or permanent total disability benefits once the period of temporary disability is concluded. As such, the compensation aspect of this new Act is more comparable to a private disability insurance policy with a finite number of available weeks.

As with any new legislation, how it will be implemented and enforced remains unclear. One thing is for sure, the Public Education Employee Injury Compensation Program Review Board, the appointed hearing officers, and the Montgomery County Circuit Court will be kept busy in the years to come.

About the Author:

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, 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 article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2025 – March 2025

 Claimant's Risk of Injury Failed to Meet the Test of Equal Exposure in Everyday, Nonemployment Life

Johnson v. OATS Inc., Injury No: 23-047500

FACTS: Claimant was a bus driver for Employer’s passenger transportation service. She kept Employer’s vehicle in her home’s driveway to avoid vandalism and gas theft, which had happened when Employer’s vehicles were parked elsewhere. Employer’s written policy required driver to conduct “pre-trip” vehicle maintenance. Claimant was performing this task on the morning of July 13, 2023, after a rainy night. She walked through the grass in her yard to retrieve plastic bags in her kitchen, where she intended to place the paper towels she had used to clean up sweet tea. The plastic bags were usually stored on Employer’s bus, but the bus supply had been depleted. Claimant’s canvas sports shoes, required by Employer, were wet due to her walking on the grass. Claimant testified that her water-soaked shoes caused her to slip and fall on her kitchen floor. As a result of the fall, she sustained fractures to her left wrist.

The main issue at the hearing was whether Claimant’s work event on July 13, 2023, arose out of  and in the course of her employment. The ALJ determined that the injury was compensable. Employer appealed.

HOLDING: In their review, the Commission reviewed Section 287.020.3 (2) and compared this matter to the Court’s decision in Johme v. St. John’s Mercy Health Care.

The Commission agreed with prior case law that the equal exposure consideration should center on whether Claimant was injured because she was at work, rather than simply while at work. They noted that the source of the risk in Johme was Claimant’s decision to twist while turning, which resulted in her injury. In applying the Johme analysis to this matter, the Commission stated that the risk source was slipping while walking on her kitchen floor in her home in wet shoes.

The Commission concluded that in this case, no aspect of Claimant’s job required her to go inside her home to retrieve plastic bags from her kitchen to clean Employer’s van. Claimant may have been doing something related or incidental to work; however, retrieving trash bags to clean up Employer’s van failed to meet the test of equal exposure. Claimant’s risk of slipping and falling on her kitchen floor was a risk to which Claimant was equally exposed in her everyday, non-employment life and therefore her injury was not compensable and the claim was denied.  

Please note that on February 6, 2025, the Commission vacated the Award upon approval of the parties’ settlement

Following Refusal of Claimant's Demand for Further Medical Care, Employer is Liable for Unauthorized Treatment if Reasonable and Necessary

Erwin v. Midway Arms, Inc, Case No. WD87161 (Mo. App. 2025)

FACTS: On January 3, 2017, Claimant suffered a low back injury while loading a truck with boxes. On January 12, 2017, he was first seen by “Doctor”, the authorized treating physician selected by Employer, who diagnosed a large L5-S1 herniation. After several follow-up visits and physical therapy, on June 7, 2017, Doctor concluded that Claimant had reached MMI. Thereafter, Claimant’s attorney sent multiple letters to Employer’s attorney demanding additional treatment as well as advising that Claimant had become “suicidal from his chronic back pain” and that he urgently needed additional treatment for both his back pain and psychiatric condition that had developed as a result of the back pain.

Employer’s attorney acknowledged the demand for treatment but advised that they wanted to conclude their investigation, including taking Claimant’s deposition. Following the deposition, Employer’s attorney sent a letter to Claimant’s attorney which stated that Claimant was at MMI based on Doctor’s medical report.

At the hearing, however, Doctor would later testify that Employer never notified him of Claimant’s attorney’s letters detailing Claimant’s worsening condition, new symptoms, and requests for additional medical care. Doctor testified he would have wanted to see Claimant immediately for the new complaints and suicidal ideation. In his deposition, Doctor ultimately concluded that it was reasonable for Claimant to seek treatment elsewhere after Employer refused to authorize further medical treatment.

Following the hearing, the ALJ ordered Employer to pay $114,950.23 for denied past medical expenses and sanctioned employer for its unreasonable and outrageous conduct by ordering the payment of “25% of all amounts awarded herein ($189,607.37), or $47,401.84, plus costs of $11,979.52 for total sanctions in the amount of $59,381.36.”

Employer appealed to the Commission, who reversed the ALJ’s award as to Employer’s responsibility for payment of past medical expenses, concluding that Claimant did not “sufficiently notify Employer” of the need for additional medical treatment—and reversed the ALJ’s Award of sanctions—concluding that Employer’s conduct did not fit the “unreasonable and outrageous” standard for awarding such sanctions.

HOLDING: Claimant appealed the decision of the Commission, and ultimately the Court awarded the past medical benefits but did not place sanctions on Employer.

The Court noted that in this case, the ALJ and the Commission both concluded that the treatment in question was both medically necessary and causally connected to the January 3, 2017 injury. That conclusion was not challenged on appeal. The only relevant issues before the Court was whether a demand for further treatment was made to the Employer; whether the demand was refused or ignored; and if the demand was refused or ignored, whether Claimant was required by law to update Employer on the course of his additional treatment.

Upon review of the record, the Court found that Claimant made multiple demands to the Employer to provide further medical aid and that Employer responded to those demands by both ignoring, and later, explicitly refusing to authorize additional medical treatment.

The Court concluded that because Employer’s August 21, 2017 denial letter to Claimant’s attorney constituted a complete and unconditional refusal of Claimant’s demand for further medical care, Claimant became free to select his own doctor for further treatment of the work-related injury, and Employer became liable for that treatment—so long as the treatment was later deemed reasonable and medically necessary. 

With regard to the issue of sanctions, the Court noted that Employer relied in good faith on the doctor’s medical opinion in his report dated June 7, 2017, when he concluded that Claimant had reached MMI. They noted that “Doctor was a moving target on his medical opinion” with regard to the opinions in his report compared to his testimony three years later. Employer was entitled to rely upon Doctor’s medical opinion, even though the new opinion on causation directly contradicted the opinions Doctor had previously held three years prior. Therefore, under these circumstances, the Employer’s conduct did not rise to the level of conduct necessitating sanctions.

If the Primary Injury Alone Renders Claimant PTD, then the SIF is Not Liable         

Balliu v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD87032 (Mo. App. 2025)

FACTS: In 1999, Claimant suffered a work-related bilateral hernia but did not pursue a claim. He returned to the same position without any formal restrictions or accommodations. In 2004, the Claimant suffered a right-sided hernia. After another successful hernia repair surgery, he continued to perform the same work tasks. On May 16, 2015, Claimant suffered the primary injury and was diagnosed with ilioinguinal neuralgia resulting from impingement of his ilioinguinal nerve. Despite treatment, Claimant’s condition did not improve. He reached MMI on October 20, 2015 and never returned to work due to his pain.

Claimant settled his 2015 claim against Employer for $84,141.12 for TTD, medical treatment, and a lump sum payment based on a stipulated PPD of 25% of the body. He then pursued a PTD claim against the SIF, contending that his 1999 hernia created disability that combined with his 2015 injury to leave him PTD.

Claimant presented an original IME report that determined that he suffered from ilioinguinal neuralgia and nerve pain in the area of his prior hernia repair surgeries on the right side, and that his 2015 primary injury was “the direct, proximate, and prevailing factor” causing his pain, and that the 2015 primary injury “in isolation alone” required work restrictions and accommodations. The IME physician rated Claimant’s primary injury at 25% of the body and concluded that Claimant would likely be unemployable as a result of the primary injury if his condition could not be improved. The physician also concluded that the “preexisting disability of the 1999 work-related injury directly and significantly aggravated and accelerated the subsequent work-related injury of May 6, 2015.”

Subsequently, the physician prepared an addendum IME report which stated that he believed Claimant’s 1999 hernia left him with 15% PPD of the body (“preexisting disability”) and made his 2015 injury more likely to occur. However, the addendum report concluded that “the restrictions for the May 6, 2015, work injury should be unchanged when considering his preexisting work injury of 1999.” Claimant also submitted the opinion of a vocational expert who considered the restrictions following Claimant’s 2015 primary injury alone to be totally disabling.

The ALJ determined that Claimant was not entitled to compensation from the SIF. The Commission adopted the ALJ’s findings.

HOLDING: Claimant appealed the decision to the Commission, which confirmed that the SIF was not liable for benefits and the Court affirmed.

The Court noted that Claimant did not contest that the 2015 primary injury—ilioinguinal  neuralgia—is the disabling injury. Instead, he argued that the scar tissue from the 1999 repair of the work-related hernia contributed to cause the ultimate ilioinguinal neuralgia condition. However, the Court stated that this is not a case in which the cause of the primary injury is contested; instead, the question is whether the condition of the 2015 primary injury—ilioinguinal

neuralgia—created physical restrictions of such magnitude that Claimant was no longer employable.

The Court found that the overwhelming evidence presented to the Commission is that the 2015 primary injury alone, no matter what caused it, created Claimant’s permanent total disability, so the SIF has no liability. The Court concluded that if the primary injury alone amounts to PTD, the SIF is not liable because the primary injury did not combine with preexisting disability to create PTD.

PTD Claim Against SIF Denied when Expert Included Nonqualifying Disability in Medical Opinion

Thomas v. Collins and Hermann, Inc. and Second Injury Fund, Case No. ED112795 (Mo. App. 2025)

FACTS: In 1993, Claimant sustained a right knee injury in Des Moines, Iowa, when he slipped on ice at work, and received benefits but did not seek a workers’ compensation settlement for this injury. In 1994, Claimant injured his left knee while working in Missouri and settled this claim for 25%  of the knee. The settlement stated that the SIF was liable for preexisting disability to his right knee at 25% PPD with a 15% loading factor.

Claimant continued to work for the next 20 years. He experienced increased bilateral knee complaints. On November 25, 2015, Claimant tore his left rotator cuff at work. He underwent surgical repair and in May 2016, Employer’s physician placed him at MMI and stated he could return to work without restrictions. Claimant returned to work but was placed on light duty. He was terminated from his employment in July 2016, and did not work thereafter.

Claimant went to a Hearing against Employer and the SIF. The parties asked the ALJ to determine whether Employer was liable for PPD or PTD benefits, and the nature and extent of the SIF’s liability.

Claimant’s medical expert assigned 40% PPD to Claimant’s left shoulder and 50% PPD for the Claimant’s knees, which he recognized was larger than the earlier settlement percentage, explaining that Claimant’s knees were considerably worse due to arthritis, which dated back to his 1993 and 1994 knee injuries. The expert also opined that if a vocational assessment was unable to identify a job for which Claimant was suited, he would find Claimant PTD because of the primary left shoulder injury “in combination with his preexisting medical conditions,” which included both knees. 

After the hearing, the ALJ found Claimant’s testimony credible and the experts persuasive. The ALJ determined Claimant sustained 32.5% PPD of the left shoulder and 12.5% PPD for psychiatric disabilities, all attributed to the primary injury for which Employer was liable. The ALJ found both prior knee injuries were work-related and resulted in 45% PPD to each knee. The ALJ recognized that Claimant settled his claim for both knees at 25% PPD but found that there was “no question his knees had gotten much worse since that time.” The ALJ then determined these disabilities qualified under the statute because they arose from work injuries and equaled more than 50 weeks. The ALJ concluded that Claimant was PTD due to a combination of his primary and preexisting injuries and disabilities, and found the SIF was liable for PTD benefits.

The SIF appealed to the Commission which found Claimant’s right knee disability was not a statutorily-defined compensable injury, and it was improperly included in the PTD analysis. The Commission determined Claimant did not allege that his Employer in Iowa nor his Iowa accident or injury were covered by the Missouri Workers’ Compensation law. The Commission also found Claimant presented no credible or persuasive evidence that his right knee injury was compensable under Iowa’s worker compensation law. Under strict construction, the Commission stated Claimant’s Iowa accident did not qualify for SIF liability because this injury in another state was not compensable under Section 287.020.

Because Claimant’s experts included the nonqualifying disability in forming their opinions, the Commission found Claimant failed to produce credible and persuasive evidence to make a compensable PTD claim against the Fund.

HOLDING: Claimant appealed the Commission’s decision but the Court confirmed the denial of benefits. The Court found that Claimant did not meet his burden in demonstrating his right knee disability was a compensable injury and since Claimant’s experts incorporated his nonqualifying preexisting right knee disability into their PTD opinions, it was immaterial whether his preexisting disabilities met the 50-week threshold to qualify for SIF benefits. Also, because Claimant did not raise to the ALJ or the Commission the legal assertion that he would be left without a remedy if SIF liability were denied despite being PTD, his claim was not preserved for appellate review.

The Statute Does Not Permit Prior Enhanced PPD for an Otherwise Nonqualifying Injury for SIF Liability

Walton v. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. SD38504 (Mo. App. 2025)

FACTS: Claimant sustained three work-related injuries during his career as a diesel mechanic. The first injury occurred in 1992 when he injured his left shoulder resulting in 20% PPD to the left shoulder (46.4 weeks) paid by Employer. The second injury to his lower back occurred in 2005 and he received a settlement of 30% PPD of the body (120 weeks). Additionally, in a settlement with the SIF, the Fund paid 16.64 weeks of enhanced PPD. “Enhanced PPD” is a special or additional allowance for cumulative disabilities from multiple injuries.

In the SIF settlement, Claimant agreed that the 1992 left shoulder injury was worth 46.4 weeks; the 2005 lower back injury was worth 120 weeks; and the “synergistic effect” of these combined injuries (166.4 weeks) was 10%, equaling 16.4 weeks.

The third injury, the primary injury, occurred on July 17, 2017, when Claimant fell out of a truck, was knocked unconscious, suffered a concussion, and was diagnosed with scalp laceration, right shoulder strain, chronic right-sided lower back pain and right-sided sciatica. Claimant was later diagnosed with right cervical radiculopathy, impingement syndrome, various injuries to his biceps and neurocognitive disorder due to the concussion he sustained from the fall.

Dr. Mullins found PTD resulting from a combination of the 1992 left shoulder, 2005 lower back, and primary injuries. Specifically, Dr. Mullins found a “synergism” existed from the combination of the primary injury, which injured the right shoulder, and the preexisting 1992 left shoulder injury, because both shoulders were injured and unable to compensate for each other. While Dr. Mullins did not expressly assign “51.04 weeks” to the left shoulder in his report, Claimant argued that this total, represented by the 1992 left shoulder injury (46.4 weeks) and a portion of the enhanced PPD represented the left shoulder (4.64 weeks) was the basis for Dr. Mullins’s PTD determination.

Following the hearing, the ALJ issued an Award finding that Claimant failed to prove that he was entitled to PTD benefits. Specifically, the ALJ found that the left shoulder disability was 46.4 weeks—3.6 weeks short of the 50-week threshold required by statute. Claimant then appealed the Award to the Commission, arguing the ALJ erred by ignoring the enhanced PPD paid by the Fund.

The Commission affirmed the Award of the ALJ finding that it was supported by competent and substantial evidence, including Claimant’s own testimony that he did not have difficulty with his left shoulder prior to the primary injury, Dr. Koprivica’s rating of 46.4 weeks PPD to the left shoulder, Dr. Mullins’ reliance on said rating, and Dr. Lennard’s findings regarding the left shoulder.

HOLDING: Claimant appealed arguing that a portion of the prior enhanced PPD Award can be used to add additional weeks of compensation to an otherwise non-qualifying injury to determine whether such injury makes the 50-week threshold.

The Court looked at the language of the statute and noted that under strict construction the Commission was correct in finding that Claimant had a medically documented preexisting disability to his left shoulder that was a direct result of a 1992 left shoulder injury. However, standing alone, this preexisting disability was nonqualifying because it did not meet the 50-week threshold required by Subsection 3.

The Court concluded that because Section 287.220.3 does not permit a prior enhanced PPD Award to be used to add additional weeks of compensation to an otherwise non-qualifying injury, Claimant’s argument was denied and the Commission’s decision was affirmed.

In the past year, the Office of Workers’ Compensation, and the District of Columbia Court of Appeals, has heard and issued opinions on both brand new and old doctrines of law.  Ranging from medical marijuana reimbursement, to the “coming and going rule,” DC workers' compensation has and will continue to see shifts in trends under the District of Columbia’s Workers’ Compensation Act.

On January 3, 2024, the Compensation Review Board (“CRB”) issued a decision in Freeland v. Dominion Mechanical, Inc. holding that a claim for reimbursement for out of pocket expenses associated with medical marijuana is not permissible under the District of Columbia’s Workers’ Compensation Act.  The decision notes that allowing reimbursement of expenses related to medical marijuana is contrary to federal law.  This decision was not appealed. 

On June 6, 2024, the D.C. Court of Appeals (“the Court”) issued a decision in Rieger v. D.C. Department of Employment Services, reversing the decision of the CRB.  The Claimant, a midwife, worked at multiple locations on the medical campus, including the main hospital building, as well as the medical arts building.  While walking from one location to the other, the Claimant took her usual route and left the university property and turned onto a public street, when she collided with a jogger running on the sidewalk.  The claim was initially found to be compensable before the CBR reversed the decision.  The Court applied the positional risk test and opined that the injury was in the course of the Claimant’s employment as her work obligations placed her at the location in which she was injured.  The Court held that the claim was not barred by the coming and going rule and stated that once an employee arrives on the employer’s premises, the going and coming rule does not bar the claim even if the employee had not reached a specific worksite on the premise.  Additionally, the Court noted that the Claimant’s activity of walking on the public sidewalk between premises was foreseeable and a part of her regular duties.  

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.