NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Effective as of January 1, 2024, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,094.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2024 (https://www.newcc.gov/home/court-news/2023-10-news).
Also, effective January 1, 2024, the mileage rate will become 67.0 cents per mile for travel to seek medical treatment or while participating in an approved vocational rehabilitation plan. See related news release (https://www.newcc.gov/home/court-news/2024-01-news).
Historic mileage reimbursement rate information is available in the Tables of Maximum / Minimum Compensation Benefits, Burial Benefits, and Mileage Reimbursement Rates on the Nebraska Workers’ Compensation Court’s “Benefits” web page (https://www.newcc.gov/service-providers/attorneys/benefit-rates).
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2023 – December 2023
Ex-Spouse Does Not Qualify as Dependent for Death Benefits Under Statute
Virgel Bird (deceased), Karen Bird v. US Assets Recovery LLC, Case No. SD37966 (Mo. App. 2023)
FACTS: The sole issue in the case was whether Karen Bird (“Bird”), the ex-spouse of Virgel Bird (“Ex-Husband”) is a “dependent” under Section 287.240. Bird is disabled, unemployed, and receives Social Security disability benefits. Bird and ex-husband were married in 1987 and divorced in 2019. After the divorce, Bird and ex-husband continued to live together until ex-husband died on June 8, 2021, in an accident arising out of and in the course of his employment. While Bird and ex-husband lived together after their divorce, the two maintained a joint bank account from which their bills were paid. Bird never deposited any money into that account, and ex-husband paid the bills.
Following ex-husband’s death, Bird filed a claim for death benefits, alleging she was a dependent of ex-husband under Section 287.420. The Commission denied Bird’s petition for death benefits. Bird appealed.
HOLDING: On appeal, Bird argued that she was a “dependent” under Section 287.240(3)(b) because the 2017 amendment to the statute eliminated the requirement that a dependent be a relative by blood or marriage. According to Bird, the “[i] in all other cases” language of Section 287.240 (3)(b) created a catch all condition for all cases where a person is dependent upon the decedent. The Court stated that Bird’s argument had no merit because she read that clause in isolation ignoring the sentences before it and the clause that followed it. The phrase “in all other cases” referred to cases where the degree of dependency between a child and spouse and the decedent was not outlined in the previous sentences. It did not create a new category of dependence.
Paragraph (a) and (b) state two possible classes of dependents: children and spouses. Paragraph (b) described the condition in which children may qualify as a dependent. The language of Section 287.240 (3) was clear and unambiguous and requires that the dependent spouse be a wife or husband.
The Court affirmed the Commission’s decision because Bird does not qualify as a “dependent” under Section 287.240.
Claimant Must Present Persuasive and Credible Expert Testimony of Qualifying Preexisting Disability to Be Awarded PTD from Fund
McCoy v. Meridian Medical Technology and Second Injury Fund, Case No. ED1111299 (Mo. App. 2023)
FACTS: Prior to the primary injury, claimant suffered from multiple health conditions, including morbid obesity, low back pain, asthma, ventral hernias, and pulmonary disease. In 2006, ALJ awared claimant 17.5% PPD at the right wrist and 17.5% PPD of the left wrist for which the employer was liable.
Claimant’s primary injury occurred in 2017 when she was diagnsoed with “lateral epicondylitis” of the right elbow arising out of the course of her employment. The ALJ found the employer liable for 10% PPD of claimant’s right elbow. The ALJ also found claimant’s preexisting disabilities to her body satisfied the first condition of Section 287.220.3 RSMo 2016 so that the Fund was liable for PTD benefits.
The Fund appealed. The Comission adopted the ALJ’s finding that the employer was liable for 10% PPD for the right elbow injury. However, the Comission found that claimant was not permanently and totally disabled because claimant’s expert opinions were not credible or persuasive. The claimant appealed.
HOLDING: The Court affirmed the Comission’s decision. The Court stated that it is required to defer to the Comission’s credibility determination. The Comission found that the claimant’s experts, Dr. Volarich and Mr. Lalk, lacked credibility. Dr. Volarich testified that the claimant’s obesity was the cause of multiple factors rendering her 65% PPD of the body. The Fund did not introduce its own expert testimony. The Court pointed out that the Fund does not have the burden of proof and is not obligated to contradict claimant’s evidence. The Comission may believe some, all, or none of a witness’s testimony.
The Commission stated that Dr. Volarich’s opinion was neither persuasive nor credible. As a result, there was no credible expert testimony to support claimant’s claims regarding her body as a whole disability. The Comission was not required to believe testimony from Dr. Volarich simply because the Fund did not present a countervailing expert.
Thereore, the Court ruled that the Comission did not err in finding that claimant’s body as a whole disability was not a qualifying preexisting disability. The Court affirmed the Commision’s decision of awarding 10% PPD of the elbow against the Employer and did not award PTD against either the Fund or Employer.
Employer’s Untimely Answer Results in Admission of Factual Allegations but Not Legal Conclusions Regarding Issue of Prevailing Factor in Occupational Diseases
Collins v. Century Ready Mix Inc, Case No. WD86101 (Mo. App. 2023)
FACTS: The Commission found that claimant sustained a compensable occupational disease as a result of his exposure to repetitive trauma within the course and scope of his employment. The Commission also determined that the ALJ correctly ruled that the “Maximum Rate/Wage” listed on claimant’s claim was a statement of fact deemed admitted by Employer’s untimely answer. However, the Commission determined that Employer’s untimely answer to claimant’s claim did not preclude it from disputing the threshold issue of whether claimant sustained an occupational disease arises out of and in the course of employment. The Commission found that Employer’s defense was not without reasonable grounds, and therefore, denied claimant’s motion for costs and expenses.
HOLDING: The claimant appealed, arguing that the Commission erred in concluding that causation was a legal issue not admitted by a late answer. However, the Court disagreed and affirmed the Commission.
The statute states “Unless the Answer to Claim for Compensation is filed within 30 days from the date the Division acknowledges receipt of the Claim or any extension previously granted, the statements of fact in the Claim for Compensations shall be deemed admitted for any further proceedings.” (8CSR50-2.010.8)(B). Furthermore, the Court noted that the Compensation Act is an exclusive and complete code and provides its own procedures.
The Court stated that an Employer’s untimely answer results in the admission of factual allegations in the claimant’s Claim for Compensation such as: how the injury occurred, causation, average weekly wage, rate of compensation, and the date of the accident.
However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by an Employer’s untimely answer. Whether an injury was in the course of employment is a legal question not admitted by an untimely answer. A disability percentage determination alleged within a Claim for Compensation is not deemed admitted nor is the Commission bound by it. The determination of degree of disability is within the exclusive province of the Commission. Also, the Court noted that the claimant’s allegations on the claim form that the claimant “was exposed to occupational disease/cumulative trauma in a degree greater than or different from that which affects the public generally and some distinctive features of his job which was common to all jobs of that sort” as well as statement that the claimant suffered injury “as a direct, proximate, and prevailing factor of his occupational position and duties” are legal conclusions and not factual statements that the injury occurred at work.
Therefore, the Court concluded that the Commission did not err in concluding that Employer’s untimely Answer did not preclude it from disputing the issue of whether claimant sustained a compensable occupational disease injury within the course and scope of his employment.
In conclusion, the Court noted that the Employer’s appeal was not frivolous as it presented a reasonable question on merit. Because the Employer was not frivolous, the Court denied claimant’s motion for damages due to Employer’s appeal.
Claimant Must Submit Evidence Constituting a Prima Facie Case Showing Incident was Compensable
Taylor v. General Motors LLC., Injury No. 20-078394
FACTS: This case at Hearing raised several issues arising out of an alleged work-related injury which the claimant, a factory assembly line worker, developed knee pain at work. The issues for determination were (1) accident or occupational disease arising out of and in the course of employment (2) medical causation, (3) additional medical care, (4) permanent disability.
The claimant testified that on July 20, 2020, he slipped on a nut and felt his left knee go out of socket and had pain but did not fall. He submitted in evidence Exhibit B, the plant medical records which showed that the claimant was seen on July 24, 2020, four days after the injury. The assessment was left knee pain.
Evidence was also presented at Hearing that since leaving the Employer, claimant had worked for three additional employers, FedEx, Toyota, and Chick-Fil-A. He had to stand throughout his entire shift for subsequent employers and testified that he had sharp pain while working for at least subsequent employer.
HOLDING: The ALJ noted that the claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of his employment, and the accident resulted in an injury. In this case, the question was whether the evidence established that the incident at work, specifically his slip on a bolt and having pain, was the prevailing factor causing both the resulting medical condition and disability.
The medical report, Exhibit B, simply reflected that the claimant was seen at the medical facility for the occurrence of left knee pain. There is no additional evidence to support a conclusion that claimant’s condition was sufficiently debilitating to constitute permanent or temporary disability.
After reviewing all the evidence, the ALJ found that the claim must be denied for failure to prove that it meets the statutory element of compensability. None of the evidence supported a conclusion that the claimant’s condition was sufficiently debilitating to constitute total disability, either permanently or temporarily, and the claimant failed to provide certification from a physician to prove disability under Section 287.190.6. Therefore, the claimant did not present a prima facie case that the incident was the prevailing factor causing any disability as defined by the worker’s compensation statute. The Commission affirmed the ALJ’s Decision. [Editor’s Note: This case was handled by our office.]
Parties Can Stipulate to Settlement and Modify the ALJ’s Award After Medical Fee Dispute Hearing
Orthopedic Ambulatory Surgery Center of Chesterfield v. ClayCo., Inc. and American Zurich, Medical Fee Dispute No. 15-02310
FACTS: A Medical Fee Dispute Evidentiary Hearing was held regarding the Application for Payment of Additional Reimbursement of Medical Fees filed by the healthcare provider. The Employer and its insurer were not present or represented at the Hearing despite being dually notified of the Evidentiary Hearing.
The healthcare provider offered into evidence an affidavit along with bills and medical records for treatment provided. The healthcare provider also asked that the judge take Judicial and/or Administrative Notice of the contents of the Missouri Division of Worker’s Compensation file in the matter.
The ALJ found that the employer and insurer were mailed the Medical Fee Dispute Notice of Evidentiary Hearing via certified mail by the Missouri Division of Worker’s Compensation notifying them of the Hearing. The USPS tracking results noted that the employer received the notice at their last known address on file.
After reviewing all of the evidence, the Judge found that the charges were fair and reasonable and finding no other factual or legal basis for denying the charges, ordered the employer/insurer to pay the healthcare provider $8,460.77.
The Judge also awarded interest. The Judge noted that the healthcare provider also requested recovery of interest based on the number of months from the date of the demand to the hearing. Therefore, the Judge ordered the employer and insurer to pay the additional sum of $2,601.68 or prejudgment interest.
HOLDING: The employer/insurer filed a timely Application for Review to the Commission. The employer/insurer provided the Commission an undated agreement signed by counsel for the healthcare provider and for the employer/insurer stating that the parties have reached an agreement requesting that the Judge’s Award be modified to reflect the settlement as to some of treatment. Therefore, the parties agreed that the remaining balance shall be modified to $4,755.77.
As the Commission agreed to modify the Medical Fee Dispute Award of the ALJ, the employer/insurer was now ordered to pay only the remaining amount of $4,755.77 plus the interest on that lower amount, $1,462.47, for a total of $6,218.24.
The Commission stated that the modification was incorporated in their final Award based on the agreement of the parties to the extent that it was not inconsistent with their Decision and Award.
Complex Issues Involving Medical Causation from Occupational Exposure Must be Based on Persuasive and Credible Expert Medical Testimony, Not Common Knowledge
Pierce v. Ford Motor Company, Injury No. 18-112200
FACTS: The issues in this case included whether the claimant sustained an occupational disease in the course and scope of his employment from exposures to chemicals at his place of employment, and if so, whether the alleged exposure was the prevailing factor in claimant’s diagnosis of Parkinson’s disease.
At Hearing, there was testimony that in 2012 and 2013, Ford built a new paint facility. During that time claimant and other maintenance workers would stand on a boom or scissor lift to cut down the old pipes and then haul the old pipes away. The contents of the pipes included stagnant paint, solvent, and water, which spilled onto them as they worked. The claimant spent a year removing the pipes. The claimant also testified that he lost his sense of smell shortly after he removed and replaced the pipes in the paint plant.
The claimant’s primary care physician referred him to Dr. Shorten for a neurological consultation in April 2018 at which time the doctor noted that the claimant’s tremors started about 9 months earlier in 2017. He diagnosed the claimant with essential tremor. The claimant’s expert witness, Dr. Koprivica opined that exposure to multiple chemicals, specifically including various solvents, was the prevailing factor in the claimant’s development of Parkinson’s disease. However, it was noted that Dr. Koprivica did not perform an analysis of the specific chemicals that the claimant was exposed to or the duration of that exposure.
Also, on behalf of the claimant, Dr. Pahwa also opined that the claimant did develop Parkinson’s disease and that environmental chemicals, genetics, and interactions between genes and chemicals, were responsible for Parkinson’s disease. However, Dr. Pahwa, conceded that he did not analyze any specific chemicals, solvents, or other sources that the claimant may have been exposed to while working for the employer. He admitted he did not analyze the duration of that exposure. He could cite no studies or scientific evidence in support of his conclusion.
Employer’s medical witnesses testified that they analyzed relevant studies regarding chemical exposures and Parkinson’s disease and noted that none of the studied chemical risk factors established with certainty causation of Parkinson’s disease.
HOLDING: The ALJ noted that the central issue in the case was one of medical causation. Due to the complex nature of the case and the differences of opinion between the experts, the Judge concluded that medical causation in this matter cannot be determined by common knowledge or experience but must be based on the opinions of medical physicians and other expert witnesses.
The Judge concluded that when supplied with multiple opinions upon reviewing the medical and expert evidence, she found that the expert opinions on behalf of the claimant were simply unpersuasive and not credible. In contrast, she found the experts submitted by the employer were credible and persuasive and their opinions dispositive.
Therefore, the judge found that the claimant failed to meet the requisite burden of proof to establish by a preponderance of the evidence that he sustained an occupational disease pursuant to Section 287.067.2 of the Worker’s Compensation Statute, specifically, the claimant did not initially provide evidence to prove by reasonable probability that his development of Parkinson’s disease arose out of and in the course of his employment.
The claimant appealed. The Commission affirmed the ALJ’s Award.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our SUMMER 2023 WORKERS’ COMPENSATION LAW UPDATE. Please feel free to share this update with your colleagues. If someone inadvertently has been left off our email list and would like to receive future updates they can contact Jason Dodge at jdodge@ctworkcomp.com or 860-785-4503.
***See below important Appellate Court decisions in Cochran and Martinoli cases dealing with denial of payment of TT to retirees in certain situations.
OUR ATTORNEYS:
Lucas D. Strunk, Esq. 860-785-4502 Courtney C. Stabnick, Esq. 860-785-4501
Jason M. Dodge, Esq. 860-785-4503 Christopher Buccini, Esq. 860-785-4500 x4520
Richard L. Aiken, Jr., Esq. 860-785-4506 Philip T. Markuszka, Esq. 860-785-4500 x4510
Anne Kelly Zovas, Esq. 860-785-4505 Christopher J. D’Angelo, Esq. 860-785-4504
Heather K. Porto, Esq. 860-785-4500 x4514 Ariel R. MacPherson, Esq. 860-785-4500 x4528
Colette S. Griffin, Esq. 860-785-4500 x4525 Melissa R. Bailey, Esq. 860-785-4500 x4527
Nancy E. Berdon, Esq. 860-785-4507 Richard T. Stabnick, Esq., Of Counsel 860-785-4500 x4550
LEGISLATIVE UPDATE
2022 LEGISLATIVE REPORT
Our 2022 legislative report can be found in the link below:
https://www.ctworkcomp.com/wp-content/uploads/2022/08/Summer-2022-work-comp-update.pdf
* * * * * *
CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
NEW ADMINISTRATIVE LAW JUDGE APPOINTMENTS:
Shanique Fenlator and Benjamin Blake have been confirmed as Administrative Law Judges in the Connecticut Workers’ Compensation Commission. Also the re-appointments of Chief Administrative Law Judge Stephen M. Morelli, Hon. Carolyn M. Colangelo, Hon. Daniel E. Dilzer, Hon. Maureen E. Driscoll, Hon. Jodi Murray Gregg, Hon. David W. Schoolcraft, and Hon. William J. Watson, III have been confirmed.
MEMORANDUM 2023-04
The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.
MEMORANDUM 2023-03
The Connecticut Workers’ Compensation Commission effective June 10, 2023 has amended subsection F of Section VII of the Professional Guide for Attorneys, Physicians and Other Health Care Practitioners Guidelines for Cooperation. The subsection now reads:
Exception for Psychiatrists, Psychologists, Neuropsychologist, and Neuropsychiatrists
Due to the particular nature of these fields, there are some exceptions to Commission rules, regulations and guidelines granted to providers in these disciplines. Please note the following:
1. Most Commission rules and regulations, including deposition fees and formal hearing testimony fees, do apply
2. Fees as listed in the Official Connecticut Practitioner Fee Schedule, which encompasses most office visit/treatment fees, do apply unless there is a contract indicating otherwise
3. Fees for Commission Medical Exams and Employer/Respondent Exams DO NOT apply. The provider may charge a maximum of $2500 for these types of exams without prior approval. Any fee above $2500 for a CME must be approved by the ALJ prior to the exam taking place. In the case of an RME, the provider may request the higher fee from the respondent. If the provider and respondent cannot agree on a fee, the respondent may choose another provider or request a hearing with an ALJ to determine a reasonable fee.
MEMORANDUM 2023-02:
RME charges have now been increased to $850.
MEMORANDUM 2022-09:
Memorandum 2022-09 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, 2022 is $1,509 (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, 2022 is $1,108 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
Please note that the TP/PPD maximum rate went down from $1,140 in 2021 to $1,108 in 2022.
MEMORANDUM 2022-12
The Workers’ Compensation Commission has developed an online filing Form 6B for officers of a corporation or a member of a limited liability company who wishes to be excluded from workers’ compensation coverage.
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2022-Memos/Memorandum-No-2022-12
MILEAGE RATES:
On January 1, 2023 the mileage rate increased to 65.5 cents per mile. The rate had been at 62.5 cents per mile since July 1, 2022
REVISIONS TO FORMS 30C AND 30D:
MEMORANDUM 2022-04 has been issued which states:
Pursuant to Public Act 22-139, the Workers’ Compensation Commission (WCC) is required to maintain and report a record of all workers’ compensation cancer claims made by firefighters. In order to accurately collect and record this data, WCC Form 30C “Notice of Claim for Compensation” and Form 30D “Dependents’ Notice of Claim” have been revised. The revision of WCC Form 30C also includes a change to reflect post-traumatic stress injuries made pursuant to C.G.S. Section 31-294k. Please use the most recent revisions of Forms 30C and 30D and check the appropriate box(es) when filing new claims.
BURIAL FEES:
As of January 1, 2023, the burial fee for deaths covered under the Workers’ Compensation Act is $13,454.70 based on the overall 2022 CPI-W increase for the northeast of 4.3%. 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.
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
WORKERS’ COMPENSATION TIP
A claimant’s internist records can provide helpful information to assist in the defense of a workers’ compensation claim. The PCP records can include history of prior personal injury or workers’ compensation claims, ratings for permanent impairment, surgical history, or diagnostic testing that may be relevant to the present claim. Any workers’ compensation claim investigation should include an inquiry regarding the name and contact information for the claimant’s internist.
IMPORTANT RETIREE DECISIONS IN COCHRAN AND MARTINOLI CASES
COCHRAN V. DEPARTMENT OF TRANSPORTATION, 220 Conn. App. 855 (August 8, 2023)
In this important decision, the Appellate Court held that a worker who is retired and took himself out of the workforce was not 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 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.
This decision likely will be appealed to the Supreme Court.
The holding of this case has the potential to reduce the settlement value of claims involving retirees. For example, if a claimant with a compensable injury retires and takes himself/herself out of the workforce but then subsequently needs a further surgery due to the compensable injury, based on this case total disability benefits may not be owed.
MARTINOLI V. STAMFORD POLICE DEPARTMENT, ____Conn. App. ___(August 8, 2023)
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 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. The Court cited the companion case of Cochran V. Department of Transportation, 220 Conn. App. 855 (August 8, 2023)
It is likely that this decision will be appealed to the Connecticut Supreme Court
CRUZ V. INTERIM HEALTHCARE 6480 CRB-2-22-7 (May 19, 2023)
The claimant sustained a compensable and significant knee injury. She underwent knee replacement procedure and was awarded 45% of the leg. She received all 31-308a benefits, albeit at a reduced rate. She asserted that she should be entitled to a scarring award pursuant to Connecticut General Statutes Section 31-308(c). The statute allows a scarring award for disfigurement on the face, head or neck or “any other area of the body which handicaps the employee in obtaining or continuing to work.” Although the scar was not on her face, neck or head, the claimant contended that she was entitled to a scarring award because the knee scar handicapped her ability to work. The scar was 7inches by ½ inch. Dr. Zimmerman, the treating physician, issued a report that stated the scar affected the claimant’s ability to kneel or squat. The claimant testified that the scar was sensitive and because of that she could only wear shorts; she claimed that she would not feel comfortable at work wearing shorts. The Trial Judge dismissed the claim concluding that while the scar was hypersensitive and uncomfortable it did not handicap the claimant getting work. The claimant contended that the Judge erred in dismissing the scarring claim, asserting that the Judge was bound to accept Dr. Zimmerman’s medical opinion since it was uncontradicted. The CRB affirmed the dismissal noting that the Judge is the sole judge of credibility and, in this case, did not find the claimant persuasive. The Board affirmed the denial of the claimant's Motion to Correct, noting that in the corrections sought the Judge was asked to accept Dr. Zimmerman’s opinion re the scar and its impact on the claimant’s ability to work. The CRB noted that there was no evidence showing that the claimant had lost a job due to her scar.
CLARK V. TOWN OF WATERFORD COHANZIE FIRE DEPARTMENT, ET AL, ___Conn. ___ (June 20, 2023)
The Supreme Court reversed a finding of compensability in this Heart and Hypertension claim based on the part-time status of the claimant. The claimant was initially hired by the Town of Waterford as a part-time firefighter in 1992; he passed a pre-employment physical examination. In 1997 the claimant was hired as a full-time firefighter. Importantly, the Heart and Hypertension Act, Connecticut General Statutes Section 7-433c, was ended for firefighters hired after July 1, 1996. The claimant suffered a myocardial infarction on June 24, 2017 while he was still a firefighter and he sought benefits under Section 7-433c. The trial Judge and the CRB both held that the claimant was entitled to benefits under the statute notwithstanding the defense raised by the Town that the claimant did not qualify for benefits since General Statutes Section 7-425(5) defined a member of the fire department to be someone who works more than 20 hours per week. The CRB essentially concluded that there is no difference for purposes of Section 7-433c whether the claimant is a full or part-time member of the fire department. The Appellate Court affirmed the Board decision. The Appellate Court rejected the Town’s argument that the definition of a member of the fire department was found in General Statutes Section 7-425(5) when determining if a firefighter qualified for benefits under Section 7-433c. In an impressive victory for the Town of Waterford, the Connecticut Supreme Court reversed the Appellate Court decision and concluded that Section 7-425(5) does affect eligibility for Heart and Hypertension benefits under Section 7-433c. The Supreme Court stated that in amending and creating statutes they want to create a harmonious body of law. The Court noted that just because there was a similarity in job functions between part and full-time workers that did not require the Town to pay them the same. The Court remanded the case to the Administrative Law Judge for further determination of whether the claimant worked more than twenty hours per week as defined in Section 7-425(5). Judge Ecker did issue a dissenting opinion.
https://www.jud.ct.gov//external/supapp/Cases/AROcr/CR346/346CR33.pdf
dissent
https://www.jud.ct.gov//external/supapp/Cases/AROcr/CR346/346CR33E.pdf
BASSETT v. TOWN OF EAST HAVEN, 219 Conn. App. 866 (2023)
The Appellate Court affirmed a dismissal in a claim where the employee sustained a traumatic amputation of his hand after igniting an explosive device which he found in the course of his work. The claimant was a 29-year-old supervisor of a summer youth program for a municipality. In the course of this job the claimant would supervise and assist teenage workers in cleaning up areas of East Haven. During the course of picking up an area outside a school the claimant found a “small brown sphere with paper wrapped around it, foil stuck on it, and the wick attached thereto.” The claimant had a lighter which he used to light the wick; the sphere exploded causing serious injuries and an amputation of the hand. The respondent Town acknowledged that the claimant’s injuries occurred during the course of his work but did not arise out of his work. The Administrative Law Judge concluded that “his intentional lighting of the wick broke the chain of causation with respect to the scope of his employment and that the claimant’s resulting injuries did not “arise out of” his employment.” The Judge did not accept the claimant’s contention that he had lit the wick to protect other employees. There was no finding of serious and willful misconduct. The Appellate Court concluded that the injury did not arise out of the employment and the Judge’s decision below was logically and legally correct.
WICKSON V. A.C. MOORE, 6478 CRB-2-22-6 (May 1, 2023)
The claimant had a prior hearing loss and TBI before being hired by the employer. Initially the job was light duty but the claimant contended that the work over time became more difficult including stacking merchandise and unloading pallets. She worked with the employer sixteen years. On September 17, 2015 she alleged an injury to her left shoulder at work; she reported it to her supervisor but he did not fill out a report of injury for her. When she initially sought medical treatment there was no specific history provided regarding a work injury. She came under the care of an orthopedic surgeon, Dr. Anbari, who recommended reverse left shoulder arthroplasty. The claimant also began to develop right shoulder problems; she underwent a reverse right shoulder arthroplasty. The claimant sought workers’ compensation benefits both on a theory that she had a specific injury at work and repetitive trauma. Dr. Anbari supported compensability both due to the specific accident in 2015 and repetitive trauma during the course of her work. A RME, Dr. Jambor, questioned causation of the bilateral shoulder injury to work. A CME, Dr. Barnett, suggested that the 2015 incident was not well-documented; while he stated the cause of the shoulder claim was multi-factorial he could not state with any certainty the degree of contribution due to the work. The ALJ concluded that the claim was compensable based on a repetitive trauma theory and found that Dr. Anbari’s opinion credible in that regard. The ALJ concluded that while the claimant did have a 2015 incident at work it was not the cause of her bilateral shoulder injury; rather, the Judge determined that her shoulder injuries were due to the repetitive nature of her work. The CRB affirmed the decision on appeal pointing out that there was sufficient evidence in the record to support the Finding. The Board noted that the Judge could choose to accept all or a portion of an opinion by the doctors.
RECINOS V. STATE OF CONNECTICUT/DEPARTMENT OF TRANSPORTATION, 6483 CRB-4-22-9 (June 23, 2023)
The claimant sustained a number of work-related back injuries in 2006, 2008 and 2017 with the same employer. For an August 3, 2006 accident the claimant received a rating of 7.5% from Dr. Lewis, the treating physician; Dr. Brown, the RME, rated at 0%. The parties agreed to a compromise voluntary agreement at 3.75% that was approved and paid. In 2009 the new treating physician, Dr. Opalak rated at 10% and a va was issued, approved and paid for an additional increased rating of 10% (there is no discussion in the case whether Dr. Opalak commented, at that time, whether the 10% rating was in addition to or inclusive of the prior ratings). Surgeries to the low back were subsequently performed in 2018 and 2020 and a rating of 20% was issued by Dr. Opalak “inclusive of all prior ratings.” The respondents acknowledged the rating of 20% but asserted that a credit was due against the 20% rating of 17.5% (10% from the 2009 award and 7.5% from the rating of Dr. Lewis notwithstanding that the award was compromised at 3.75%). The claimant agreed to a credit of only 13.75%. The trial Judge concluded that the credit was 13.75% based on the initial 3.75% that was paid and the subsequent 10% award. The CRB affirmed the award and rejected the respondents’ argument that pursuant to Connecticut General Statutes Section 31-349(a) that they were entitled to a credit for the initial rating of Dr. Lewis since it was “payable” even though it was not paid. In reaching their decision the Board considered the seemingly conflicting cases of Ouellette v. New England Masonry Company, 5424 CRB -7-09-2 (January 14, 2010)(credit for full 20% rating in stipulation to date given although the claimant was not paid the entire 20% rating in a compromise agreement), and Peralta-Gonzalez v. First Student, 6160 CRB-7-16-12 (November 16, 2017)(compromise payment of 18.5 credited against subsequent award and not the entire 20% rating). Based on the facts as presented one wonders why the respondents did not address the issue of credit from the first permanency claim at the time that the second va for the additional 10% was issued.
HERBERT V. WINDHAM COMMUNITY MEMORIAL HOSPITAL, 200197006 (July 25, 2023)
In this matter, the Respondents were successful in obtaining a Finding and Dismissal on the issue of whether the claimant is permanently totally disabled due to a January 5, 2017 compensable lumbar injury.
Ms. Herbert, who was 67 at time of trial, was hired in 2005 as a housekeeper for Windham Hospital. Ms. Herbert did not graduate from high school and worked in unskilled job positions throughout her employment history.
In 2017 she injured her lumbar back while lifting heavy linens. She treating conservatively, reached MMI, received a compromised 8% PPD impairment and 31-308a based on searches.
She claimed she is a permanent total under the Osterlund theory, and to support her claim she had Kerry Skillin, CRC provide a vocational assessment, who found the claimant unemployable with no earning capacity. Ms. Skillin testified as to the standardized testing results which she administered and opined the claimant had no transferable skills. She also found that Ms. Herbert would have trouble concentrating at any job due to her diminished cognitive ability.
Dennis King performed a vocational assessment on behalf of the respondents and found that the claimant was employable. He testified as to the standardized testing he used which included CAPS, COPS and COPES. He also performed 2 labor market surveys and identified several jobs for Ms. Herbert available in the current job market.
He testified that a high school diploma is not a gatekeeper in getting a job. He also testified that there was nothing in the claimant’s employment history or medical record which would suggest cognitive or diminished mental capacity as found by Ms. Skillin.
Mr. King testified that if the claimant wanted to consistently do poorly on the standardized testing administered by Ms. Skillin, then the testing results would be consistently incorrect.
Mr. King testified that the only thing that would prevent Ms. Herbert from getting one of the jobs identified in his labor market survey is her lack of desire to actually get a job.
ALJ Oslena found Dennis King’s testimony more persuasive that Kerri Skillin’s and dismissed the claimant’s claim that she is permanently totally disabled.
Attorney Nancy Berdon of SDAZ defended this claim.
ANGELA BELL N/K/A ANGELA FIASCONARIO V. HARTFORD HEALTHCARE AT HOME, 6473 CRB-8-22-4 (AUGUST 18, 2023)
The claimant, a LPN since 2014, alleged an injury to her right elbow and shoulder because of repetitive heavy work including wearing a backpack weighing 18 pounds which contained a blood pressure cuff. Conflicting medical testimony was presented from the treating physician, RME and CME. The claimant also alleged a specific accident at work on August 5, 2020, however, this was after surgery to the shoulder had already been recommended. The trial judge found the claimant’s “testimony and actions were inconsistent, unreliable and unpersuasive.” and dismissed the claim. On appeal, the Board affirmed the decision, noting that it was the claimant’s burden of proof to establish compensability. The claimant also contended that her attorney at trial did a poor job pursuing the claimant; the CRB declined to address that issue. The Board noted that the Judge’s conclusion regarding causation is conclusive so long as it is supported by competent evidence.
BRITT V. COS COB TV AND AUDIO, 6481 CRB-7-22-9 (August 18, 2023)
The claimant alleged a work injury to the low back on February 24, 2020 allegedly due to lifting a television. The claim was disputed (there was a prior low back condition). The claimant was seen by Dr. Brady on February 28, 2020 and then Dr. Katz on April 28, 2020. Dr. Katz established causation to the work accident, recommended a MRI study and disabled the claimant. The CRB found that the last medical record in the file was Dr. Katz’ report of April 28, 2020 although the Judge’s finding referenced an April 28, 2022 report. The Judge found the claim for back injury compensable but dismissed the TT claim that was made through April 28, 2021. On appeal the claimant contended that TT was supported by medical evidence and should have been ordered through April 28, 2021. The CRB affirmed the finding of compensability of the back and reversed, in part, the TT dismissal concluding that there were two medical reports confirming TT up to April 28, 2020 and therefore TT should be paid from the date of injury to April 28, 2020. The dismissal of TT was affirmed post April 28, 2020. A reading of this decision makes one think the parties/Judge had somehow confused the dates of April 28 in 2020, 2021 and 2022. If the Judge incorrectly referenced an April 28, 2022 report of Dr. Katz in her finding it is a mystery why a motion to correct was not filed.
JOHN DOE V. XYZ CO., (trial decision August 29, 2023)
On March 5, 2022 the claimant was a sales associate for the respondent working at a small convenience store. At that time the claimant was robbed by two masked individuals. The claimant testified that one of the robbers held a gun to his rib cage and also touched his right shoulder with the gun. The claimant was directed to go outside the store which he did, however, he was able to quickly enter the store again and lock the door with the two robbers outside. The claimant hit a panic button and called 911. The medical records that the claimant produced made no reference to a physical injury sustained on March 5, 2022. The claimant acknowledged that he never received any medical treatment for his neck, shoulders, or rib cage. The claimant stated that he went to AFC Urgent Care for issues regarding anxiety and psychological treatment. The claimant sought authorization for medical treatment for PTSD. The Trial Judge determined that there was no medical evidence to support the claimant sustained any type of physical injury or occupational disease at the time of March 5, 2022 robbery. The respondents contended that the claimant could not have a compensable PTSD claim since he did not sustain a physical injury at the time of the robbery and, even if he did, there was no evidence that the PTSD was substantially related to the alleged physical injuries. In support of their defense the respondent cited Biasetti v. City of Stamford, 123 Conn. App. 372, 377 (2010), cert. denied, 298 Conn. 929 (2010). The Judge held that the claimant failed to sustain his burden of proof that he had a psychological injury arising out of in the course of his and employment that was due to a physical injury and dismissed the claim. Attorney Jason Dodge of SDAZ successfully defended the claim for the respondents. The claimant’s and respondents’ names have been changed in this review given the sensitive nature of the claimant’s injuries.
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our FALL 2023 WORKERS’ COMPENSATION LAW UPDATE. We wish to all a happy and healthy Thanksgiving holiday! Please feel free to share this update with your colleagues. If someone inadvertently has been left off our email list and would like to receive future updates they can contact Jason Dodge at jdodge@ctworkcomp.com or 860-785-4503.
OUR ATTORNEYS:
Lucas D. Strunk, Esq. 860-785-4502 Courtney C. Stabnick, Esq. 860-785-4501
Jason M. Dodge, Esq. 860-785-4503 Christopher Buccini, Esq. 860-785-4500 x4520
Richard L. Aiken, Jr., Esq. 860-785-4506 Philip T. Markuszka, Esq. 860-785-4500 x4510
Anne Kelly Zovas, Esq. 860-785-4505 Christopher J. D’Angelo, Esq. 860-785-4504
Heather K. Porto, Esq. 860-785-4500 x4514 Ariel R. MacPherson, Esq. 860-785-4500 x4528
Colette S. Griffin, Esq. 860-785-4500 x4525
Nancy E. Berdon, Esq. 860-785-4507 Richard T. Stabnick, Esq., Of Counsel 860-785-4500 x4550
LEGISLATIVE UPDATE
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CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
NEW WORKERS’ COMPENSATION PORTAL
A new Worker’s Compensation portal has been established at this site:
https://wccct.govqa.us/WEBAPP/_rs/(S(ee5fdcqgfjppdvhg3ssjxq1e))/supporthome.aspx
The old Worker’s Compensation website remains in place, however, this new portal will allow a search of managed care plans for a particular date of injury. Also, workers’ compensation coverage searches and requests for workers’ compensation files and freedom of information requests can be performed through this new portal. The prior worker’s compensation history of an individual and information concerning a particular file (forms filed, hearing requests, hearings held, voluntary agreements approved) can be searched through this portal as well. Information regarding self-employers in the system can also be reviewed.
https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2023/Records-and-Information-Request-Service
Memorandum 2023-08
The Form 42 has been revised. The new Form 42 includes “a check box indicating "Check, if total impairment rating, inclusive of any prior ratings, for body part." The box should be checked when the rating is for the total impairment inclusive of any previous ratings for the body part. The box should not be checked when the rating is in addition to a previous rating. The revised form can be obtained from our Online Forms page.”
MEMORANDUM 2023-05:
Memorandum 2023-05 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates. The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2023 is $1,575 (based on the estimated average weekly wage of all employees in Connecticut). The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2023 is $1,154 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2023/Memorandum-No-2023-05
MEMORANDUM 2023-04
The Official Connecticut Practitioner Fee Schedule was issued by the Connecticut Workers’ Compensation Commission effective July 15, 2023.
MEMORANDUM 2023-03
The Connecticut Workers’ Compensation Commission effective June 10, 2023 has amended subsection F of Section VII of the Professional Guide for Attorneys, Physicians and Other Health Care Practitioners Guidelines for Cooperation. The subsection now reads:
Exception for Psychiatrists, Psychologists, Neuropsychologist, and Neuropsychiatrists
Due to the particular nature of these fields, there are some exceptions to Commission rules, regulations and guidelines granted to providers in these disciplines. Please note the following:
1. Most Commission rules and regulations, including deposition fees and formal hearing testimony fees, do apply
2. Fees as listed in the Official Connecticut Practitioner Fee Schedule, which encompasses most office visit/treatment fees, do apply unless there is a contract indicating otherwise
3. Fees for Commission Medical Exams and Employer/Respondent Exams DO NOT apply. The provider may charge a maximum of $2500 for these types of exams without prior approval. Any fee above $2500 for a CME must be approved by the ALJ prior to the exam taking place. In the case of an RME, the provider may request the higher fee from the respondent. If the provider and respondent cannot agree on a fee, the respondent may choose another provider or request a hearing with an ALJ to determine a reasonable fee.
MEMORANDUM 2023-02:
RME charges have now been increased to $850.
MEMORANDUM 2022-12
The Workers’ Compensation Commission has developed an online filing Form 6B for officers of a corporation or a member of a limited liability company who wishes to be excluded from workers’ compensation coverage.
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2022-Memos/Memorandum-No-2022-12
MILEAGE RATES:
On January 1, 2023 the mileage rate increased to 65.5 cents per mile. The rate had been at 62.5 cents per mile since July 1, 2022
BURIAL FEES:
As of January 1, 2023, the burial fee for deaths covered under the Workers’ Compensation Act is $13,454.70 based on the overall 2022 CPI-W increase for the northeast of 4.3%. 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.
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, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.
WORKERS’ COMPENSATION TIP
Before an Administrative Law Judge allows a Workers’ Compensation matter to be settled on a full and final basis the Judge and his/her staff require information concerning the claim and how the settlement was negotiated. The Judge will want an updated medical report documenting whether there is any additional need for medical treatment. Also, the Judge will want to know whether there are any outstanding health liens or any conditional payment issues involving Medicare. If the claimant is a potential Medicare recipient, the Judge will review the settlement agreement to make sure that Medicare’s interests are considered. If the claimant is receiving Social Security disability benefits the Judge may require that “offset” provisions be placed in the settlement to reduce any potential reduction of Social Security disability benefits because of the Workers’ Compensation settlement. Also, the Judge will want to know whether there were any permanent impairment ratings and whether they have been paid partially or in full. Finally, the Judge will want to know how the settlement figure was negotiated between the parties. Settlement documentation must be submitted to the Judge before any case will be assigned for settlement approval; the settlement documentation includes a stipulation and what it means form, a stipulation questionnaire form and the stipulation itself. It is important for the insurance carrier to provide counsel with this background information in order that settlement of the claim can be accomplished.
GERALD ROWE, EXECUTOR OF THE ESTATE OF PATRICIA ROWE V. BRIDGEPORT HOSPITAL, 6485 CRB-4-22-9 (September 15, 2023)
The claimant was born on October 2, 1948. She sustained a compensable needle stick at work on October 31, 1996 and developed hepatitis and associated lung injury. She became totally disabled on November 16,1996 and received TT and cola’s until her death on April 17, 2022. At the time of her injury Connecticut General Statutes Section 31-307(e) was in place which provided employers an offset against total disability payments for Social Security retirement benefits that the claimant may be entitled to receive. In this case the claimant never applied for Social Security retirement benefits; notwithstanding this, the respondents filed a Form 36 on December 10, 2019 claiming the offset based on the benefits that the claimant could have received from Social Security. The trial judge concluded that there was no offset since she never received any Social Security benefits; the Compensation Review Board affirmed the denial of an offset concluding that the claimant was not entitled to Social Security retirement benefits if she did not apply for them. Section 31-307(e) did apply to this claim since the rights and obligations of the parties are based on the statutes in effect as of the date of injury. Section 31-307(e) was enacted in 1993 but was repealed in 2006.
BARROS V. CITY OF BRISTOL, 6491 CRB-6-22-11 (October 6, 2023)
The claimant sustained a head injury on February 8, 2019 in the course of her work as a teacher. She came under the care of Dr. Hasbani, a neurologist, who provided medical reports indicating that the claimant was totally disabled. The claimant, however, also worked as a realtor and continued to work in that position notwithstanding Dr. Hasbani’s opinion that the claimant was totally disabled. The claimant received total disability benefits from the date of injury until a Form 36 was approved at an informal hearing on November 12, 2019. The claimant continued to contend she was entitled to medical treatment, total disability benefits and health insurance pursuant to General Statutes Section 31–284b. Eventually the claimant entered into a separation agreement with the employer and received a disability retirement in December 2020. At the formal hearing evidence was presented that the claimant was working as a realtor, took trips to the beach and amusement parks, and went to Portugal during periods of time when she claimed she was totally disabled. The Administrative Law Judge concluded that the claimant was not credible, however, he determined that the claimant was entitled to temporary partial benefits from the date of injury through the date of the separation agreement in December 2020. Additionally, the Judge found that Section 31–284b benefits were not owed after the separation agreement in December 2020. He did order that the claimant continue to receive medical treatment for the accepted body parts. Both parties took an appeal to the CRB, however, the Board affirmed the Trial Judge Finding.
ROSENSTEIN V. HARTFORD DISTRIBUTORS, 6490 CRB-8-22-11 (October 20, 2023)
The Compensation Review Board in this case affirmed a Finding and Dismissal of a claim for temporary total and Connecticut General Statutes Section 31-308a benefits; in doing so, the Board affirmatively cited the recent Appellate Court decision in Cochran v. Department of Transportation, 220 Conn. App. 855, appeal pending, S. C. 230146, which denied TT benefits to an individual who voluntarily retired before making a claim for benefits. In Rosenstein, the claimant was elderly (born in 1933). The claimant in 2010 was seriously injured when he heroically was attempting to stop a shooter at the company facility. The claimant himself was shot in the leg, abdomen, and left arm. After the incident the claimant did return to work and the employer provided accommodation to him including providing a work assistant, giving him a golf cart to travel in the large facility and keeping his desk near the bathrooms (the claimant at times had to go the bathroom emergently due to abdominal injuries from the shooting). The claimant retired voluntarily in 2018 at age 85, although there was testimony that the claimant’s desk was kept open at the employer because they thought he would be coming back to work. Post retirement there was evidence that the claimant was active taking dance classes, going to ball games and playing golf. After his retirement the claimant sought either TT or Section 31-308a benefits, claiming that he would not have retired but for his injuries. The claimant did produce a report from his gastroenterologist suggesting that he could not work; also, the claimant presented the testimony of a vocational specialist who indicated that the claimant was unemployable. The employer was willing to accommodate the claimant and his restrictions but the claimant did not request accommodation. The ALJ found that the claimant was not willing to return to work and that his claim for benefits was denied. The Judge did not adopt the medical or vocational evidence that suggested the claimant was TT/unemployable. A Motion to Correct was denied as well as a Motion to Open to present the testimony of the claimant’s boss, Mr. Hollander. The CRB affirmed the dismissal noting that the issue of TT entitlement was an issue of fact for the ALJ to decide. The Board affirmed the denial of the Motion to Correct and Motion to Open (they interpreted this to be a Motion to Submit additional evidence). In support of their decision the Board cited the Cochran decision, noting that the claim for benefits for the retiree in Cochran was denied even though there was some evidence in that case that the claimant retired in part due to his work injuries. A petition for certification has been granted in the Cochran case to the Connecticut Supreme Court and therefore the Supreme Court will address the issue of total disability benefits post voluntary retirement in the Cochran decision.
DUSTO V. ROGERS CORPORATION, 222 Conn. App. 71 (2023)
The plaintiff, the executor of the estate of the decedent, filed a claim for damages against the former employer of the decedent contending that the employer had knowingly exposed the decedent to asbestos and that the employer knew there was substantial certainty that the employee would be injured. The defendant employer filed a Motion for Summary Judgment asserting that the exclusive remedy provisions of General Statutes Section 31-284 applied and that the employee’s sole remedy against the employer was workers’ compensation benefits. The trial Judge granted the Motion for Summary Judgment, however, on appeal the Appellate Court reversed that decision and concluded that the claim against the employer could proceed. The Appellate Court determined that there was a genuine issue of material fact whether the employer “subjectively believed that its conduct was substantially certain to result in injury to its employees.” In reaching its decision the Court cited the case of Lucenti v. Laviero, 327 Conn. 764 (2018) and its analysis of what a plaintiff must prove in direct action claims against employers. The employer will file a petition for certification to the Connecticut Supreme Court seeking to reverse this decision.
PATRICIA BUCHANAN, SURVIVING SPOUSE OF PAUL BUCHANON V. TOWN OF EAST HARTFORD/POLICE DEPARTMENT, 6488 CRB-6-22-10 (November 3, 2023)
The claimant was a police officer with a municipal employer. Throughout his career he was exposed to dangerous and stressful situations. On January 15, 2013 he was at a fire during work that was described as chaotic; the officer had some smoke inhalation as a result of this. The officer had been treating for emotional/mental health issues. On March 12, 2013 he committed suicide while at work. A claim for widow benefits was sought with the date of accident March 12, 2013. The Trial Judge concluded that the decedent did have PTSD and that it was an occupational disease but that it was not secondary to a physical injury. The Judge found that the claimant had major depression per the respondent examiner’s opinion and that the death of the decedent was due to that and prescription medication management issues. The Judge dismissed the claim. On appeal the CRB determined that the Judge’s decision was ‘clearly erroneous” and misapplied the law to the facts. The Board found that the case was a “mental-physical” claim with the physical injury being the gun shot that led to the death of the decedent. The CRB cited the heart attack case of Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 208 Conn. 909 (2006) in support of its decision and the case of Biasetti v. Stamford, 250 Conn. 65 (1999) (claimant’s psychiatric injury an occupational disease but not compensable since not due to physical injury). The Board reversed the dismissal. In doing so, the CRB did not explain why the claim at the Supreme Court in Biasetti was dismissed but this claim was somehow found compensable. The Biasetti Court in dismissing that claim stated:
Section 31-275 (16) (B) (ii) includes within the definition of "personal injury" an emotional impairment that arises from or is caused by a physical injury or occupational disease. It does not, however, extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed within the term "arises."
We expect this decision will be appealed to the Appellate Court.
There are two new administrative law judge appointments pending. First is Phil Rich of Louisville, KY. Phil Rich has been practicing law for more that 30 years. He worked as an insurance defense attorney for 10 years before transitioning to the representation of Plaintiffs in workers' compensation, social security disability and personal injury claims. Second is Kimberly O'Bryan of Paintsville, KY. She has been practicing for more than 20 years representing Plaintiff's in personal injury, social security disability, and workers' compensation claims.
Scott M. Miller will be reappointed to the Workers' Compensation Board for a four year term beginning January 5, 2024. Judge Miller was previously appointed in December of 2021 to replace R. Scott Borders, for a term expiring January 4, 2024.
KRS 342.020(4) states medical providers shall submit billings within 45-days of service. Claimant’s medical providers did not submit billings for multiple visits until several months after the visits. The medical obligor rejected the bills since they were not submitted within 45 days of the date of service.
The ALJ determined the 45-day rule did not apply until after an award of benefits. The Workers’ Compensation Board affirmed the decision, relying partly on Wonderfoil, Inc. v. Russell (holding 60 day time limit for Claimant to submit unpaid medical bills for reimbursement only applies after an award). P & P appealed arguing that the Wonderfoil decision was not applicable to the statutory duties of medical providers.
The Supreme Court of Kentucky held that medical providers must bill within 45 days of treatment, regardless of whether claim has been adjudicated as work-related, or they have lost the right to be compensated for their services under workers’ compensation.But note, the Court does reference 803 KAR 25:096 Sec. 6, which states if the provider fails to submit a statement for services as required by KRS 342.020(4) without reasonable grounds, the medical bills shall not be compensable. There was no evidence in this claim of reasonable grounds for the late submissions.
Injury Claim Existing But Not Joined at Time of Settlement of Prior Injury Claim is Barred
Rodarte v. BlueLinx Corporation, 2022-SC-0423-WC rendered 9/28/23
Claimant sustained a work-related knee and ankle injury in 2016 and work-related shoulder injury in 2018. In 2019, Claimant filed an application for resolution of a claim (Form 101) for the knee and ankle injuries. At that time he was receiving TTD for the 2018 shoulder injury. Claimant and employer settled the 2016 knee and ankle injury. There was no language in the agreement regarding the 2018 shoulder injury. Eleven months after settling the 2016 claim, the Claimant's TTD benefits for the 2018 shoulder claim were stopped and he filed a Form 101 three months later. The Employer denied the claim, arguing it was barred under KRS 342.270 which states an employee must join all accrued causes of action against the named employer and failure to join will result in those claims being barred.
The ALJ dismissed the 2018 claim. The Board reversed, stating the 2018 claim had not yet accrued at the time of the settlement of the prior claim, because Claimant was not yet at Maximum Medical Improvement (MMI). Claimant also filed a motion to reopen the 2016 claim, arguing it was a mutual mistake that the shoulder claim was not addressed in the 2016 agreement. The Motion to Reopen was denied by the ALJ and the Board upheld the denial.
The Supreme Court of Kentucky affirmed the ALJ opinion that the 2018 claim was barred, holding Claimant was required to join his 2018 shoulder claim to his 2016 knee and ankle claim prior to finality of that settlement. The Court found that the shoulder injury claim accrued on the date of the injury and had therefore accrued at the time of the settlement of the prior claim. The Court also upheld the denial of the Motion to Reopen finding no basis for same as there was no evidence the Employer mistakenly failed to include reference to the shoulder claim when settling the 2016 claim.
Timely Notice to Subsequent Employer of Harmful Change in Pre-existing CWP Condition
Tennco Energy, Inc. v. Lane, 2023-SC-0028-WC rendered 9/28/23
Claimant was a coal miner for more that 30 years. He had been diagnosed with CWP (black lung disease) on multiple occasions starting in 2003. In 2005 he settled a CWP workers' compensation claim against his then employer. He continued working in coal mining, joining Tennco in 2009 and remaining there until his last day of employment on 1/21/19. On 7/11/19, Claimant advised Tennco he was filing a CWP claim. The medical evidence established a worsening of his CWP. Tennco argued that Claimant's prior CWP diagnoses in 2003 and 2004 rendered his 2019 notice untimely and the ALJ agreed.
The Supreme Court of Kentucky reversed, holding that evidence of a harmful change in one's CWP condition attributable to the new employer is a likely prerequisite to any successful subsequent CWP claim, thus the Claimant's awareness of such change is the event triggering the statutory obligation to provide notice rather than the original CWP diagnosis.
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
