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.
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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
* * * * * *
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
A long-time friend of
this firm, Machelle Davidson, a senior claim representative at Accident Fund,
has been named a 2023 recipient of AF Group’s Legend Award.
In announcing the award, AF Group explained that the award recognizes AF Group
teammates who demonstrate its People First culture through their
outstanding character, leadership, and commitment to excellence. Lisa Corless,
president and CEO of AF Group, said that “each of our winners is an absolute
shining example of who we are as a People First, values-driven organization
. . . We’re all made better by having them as part of our team.”
We could not have said it better. Congratulations, Machelle!
Copyright 2023, Stone Loughlin & Swanson, LLP
A worker in Austin, Texas lost his bid to carve out an exception to the
exclusive remedy of the Texas Workers’ Compensation Act on the ground that, at
the time of his injury, he was performing duties outside of the course and
scope of his employment.
Melvin Gonzalez worked as a car detailer and porter for Dynamic Motors, a used
car dealership and service garage whose advertising catchphrase is “Don’t
Panic. GO DYNAMIC!”
The service manager asked him to help with repairs on the roof, and while doing
so Gonzalez stepped through a skylight and fell 20 feet to the concrete floor
below.
Dynamic filed a report of injury with its workers’ compensation insurance
carrier and Gonzalez accepted workers’ compensation insurance benefits. He then
sued Dynamic, alleging that the company was negligent in failing to provide
fall protection.
Dynamic asserted the affirmative defense that workers’ compensation insurance
benefits were Gonzalez’ exclusive remedy, and the trial court agreed. On
appeal, Gonzalez argued that because roof repairs are not part of Dynamic’s
business, and because he was injured while performing such repairs, he was not
engaged in the usual course and scope of Dynamic’s business and was, therefore,
not an “employee,” as that term is defined by the Texas Worker’s Compensation
Act, at the time of the injury. The Austin court of appeals disagreed and said
that the Act does not contemplate a “task-by-task” approach to the issue of
whether a worker is injured in the course and scope of employment.
You can read the decision here.
Copyright 2023, Stone Loughlin & Swanson, LLP