Really, Dad? Really letting go

Michaela

My brother is currently spending a semester abroad in Vienna, Austria. Before leaving he offered the idea of my visiting him alone. When I proposed this to my parents, their eyes filled with hope and adoration at the thought of a culturally engaging and potential bonding experience for their son and daughter. And much to my surprise, my father did not display symptoms of a cardiac arrest at the thought of his 17-year-old daughter traveling 4,144 miles across the Atlantic Ocean by herself.

Based on this reaction, one would assume that when I asked my parents several weeks later to go to Indiana over winter break they would not think twice before saying yes. However, their response would have made you conclude that I was asking to go to a different country by myself. … Oh, wait. This immense difference in their attitude was due to nine letters: B-O-Y-F-R-I-E-N-D. The boyfriend, mind you, whom I have known for five years now and have been dating for almost two. I was justifiably enraged by their irrational decision-making and thus a ferocious debate began.

One night, my parents told me that the three of us would be going to dinner with a couple that my father knows through work. I was at first reluctant to “fifth wheel” the dinosaur reunion, but I reluctantly blessed them with my presence. Right off the bat, my mom decided to humiliate me by explaining the controversy to these two strangers (to me) using several alternative facts.

“Michaela is upset because we won’t let her stay in a hotel room in Indiana with her boyfriend for a week.”

My dad immediately leapt to my defense, telling them that I merely wanted to visit him, not to shack up in a hotel room for week.

NOT!

In reality, he slithered down into the booth across the table from me and avoided eye contact in the manner of a bird that has just flown into a windshield. However, even after this embarrassing betrayal, I won. See, my mother had unwittingly assumed that all parents are as illogical in their parenting methods as she and my dad. She was (not so happily) surprised when her “ally” sided with me.

“If you trust her and believe that she is responsible then unless there is a serious concern that you are putting her into danger, you need to give her some freedom.”

One would think that my parents, bright as they are, would look at their soon-to-be 18-year-old daughter who (not to toot my own horn) is driven, responsible, and has never broken their trust, and see this on their own. But they are getting old and at some point, as my mom likes to point out, you have to swallow your pride, put on the reading glasses and read what’s in front of you. Needless to say, my flight leaves Friday.

Michael

“As long as I’m living my baby you’ll be.” This was the refrain from a book that I used to read to Michaela every night for the first nine years of her life. During that time when she would run to the door to loop her arms around my knees every night, it seemed impossible that she would ever be anything but my baby. Nine more years have blinked by and my baby girl is just a few months shy of 18. Last year she began dating a senior in high school, who went off to college in Indiana at the end of the summer. She has seen him when he comes home on breaks, but it is always like ripping off a Band-Aid when he has to fly back.

So it was inevitable that the question would come up, and it did, repeatedly, almost as soon as the wheels were up on her boyfriend’s outbound flight after the Christmas break. “Can I go out to Indiana for winter break?” She may as well have been asking me if it were okay to declare her childhood over. The words stung like the purple tentacles of a Portuguese man-of-war.

“No problem as long as mom flies out with you,” I suggested helpfully.

“No, I want to go by myself.”

“Sure. Next February.”

“But you let Caelan go all the way to Virginia to see Logan when he was a year younger than I am.”

Guilty as charged. In fact, we had allowed her older brother to take a train down to Virginia by himself when he was 16 years old to spend a spring break with his girlfriend. But that did not mean I had to double down on bad precedent. I pointed out that Logan’s dad was with his daughter under their roof during the entire visit: I would be 850 miles away.

“You need to trust me, Dad. In six months I am going to be living in a dormitory surrounded by boys.”

The mantra has continued for weeks, as inexorably as waves rolling onto shore.

“So have you guys made up your minds?” she asked the other day, meaning, have you caved in yet? My wife is a licensed clinical social worker who deals with teenage issues all the time. She told me that we needed to trust Michaela to make her own decisions, but ultimately, she was deferring to me. As long as I made the right decision. I ran it past one of my best friends, who told me: “Have a little faith in her. Let her go, as she is in the process of letting you go.”

And so we will let her go to Indiana, and I suspect to farther flung places in the coming years. She needs to find her place in the world. But I hope my sweet girl will always remember, wherever she is, that as long as I’m living my baby she’ll be.

Mike Kerin is a lawyer in Milford, and his daughter, Michaela, is a student at Amity High School. In their column, this father and daughter bicker and banter about boys, curfews, homework, stress at school, dress codes, and a host of other issues that represent the jagged edges of adolescence they must navigate every day, sometimes with humor, sometimes with sarcasm, always with love.

Really, Dad? Really letting go

Really Dad? Planning for spontaneity

Michaela

In my 17 years I have noted that people tend to believe that spontaneity is a favorable attribute, something to seek in a friend or spouse. In reality, it is an atrocious character flaw. I simply cannot wrap my head around why this trait would be alluring to anyone.

My family is one of the most “spontaneous” groups of people you could find. From deciding on a whim one Thursday afternoon to grab the grandparents and drive 1,200 miles to Florida, to missing the class party on my 100th day of kindergarten because six inches of fresh powder were sitting atop Magic Mountain waiting to be carved by my family’s skis, little room is left for solid plans in the Kerin household. This is laughable considering 50% of the family is comprised of control freaks whose lives revolve around devising and executing meticulous plans.

A prime example of this “spontaneity” can be seen in the literal last-minute cancellation of a trip to one of my top schools. Ironically, my mother and I had planned the trip on Columbus Day weekend, months in advance. I say “ironically” because as already noted we rarely make actual plans in my family; so predictably, the one time we bought plane tickets weeks, rather than hours, before our flight, we ended up deferring the trip.

I was awakened the morning of our departure by my parents’ loud chattering in the hallway. They must have heard my covers ruffle because seconds later my dad whipped my door open, flicked on my light, and started talking to me at a normal volume and speed as if I’d been awake for hours.

Really Dad?

He proceeded to explain that due to “dangerous weather” my mom and I were not going to fly and we were instead going to visit schools in Connecticut.

Somehow our college weekend turned into a quick swing through Storrs (the location of the University of Connecticut) followed by an overnight at a lake house in the middle of nowhere. The A frame is owned by the second craziest man I know, my dad earning the distinction of first place in that category, namely Tom, one of my dad’s best friends.

Although I was not overly excited about the change of plans, that weekend was amazing. We sat on the porch for hours singing along to Taylor Swift songs (yes, the “we” includes my dad and Tom who were jamming out to T-Swizzle, and I have video-proof of it). We ate delicious Polish food that people who live across the lake brought over in their boat. We danced on the porch until we nearly lit our hair on fire in the tiki torches lighting the deck. We even saw a mythical sea creature emerge from the eerie lake waters which, as it turns out, was really just one of Tom and Sarah’s neighbors sneaking up to the dock on his paddle board. We ended the night by diving into the dark freezing water.

Sometimes I guess the best things in life really are those that we could never plan for.

Michael

Plans change fast for the Kerins.  When you spend your summers living on a boat and your winters skiing you are always subject to the vagaries of Mother Nature. You have to develop a little fluidity in your plans. Sometimes going with the flow means you have to suddenly unpack a truck full of sweaters and ski gear, and repack it with bathing suits and sunscreen, when there’s a forecast for a week of rain up north. These minor deviations, okay 1,200 mile detours, are occasionally a necessary evil.

So Michaela was not pleased when we were obliged to nix her trip down to New Orleans because Hurricane Nate was barreling through the Caribbean with its sights set on the Big Easy. As a consolation prize, I thought we could look at some schools in New England, even though Michaela had vowed not to go to a school her parents could drive to in one day. My buddy, Tom, had, coincidentally, invited us to stay with him on an island at Lake Williams, about 12 miles from U Conn.

She was unimpressed as we drove through the rolling farmland of Northeastern Connecticut that morphed into a bustling campus of 32,000 students. But incredibly, she ran into two friends who were originally, like Michaela, reluctant applicants, but whose unbridled enthusiasm for their new home was apparently contagious as Michaela was beaming by the time we drove away from the campus.

Tom and his 16-year-old daughter, Sarah, met us at the dock on the mainland in their motorboat so they could ferry us out to the island as the sun slid behind the trees across the lake, lighting up the sky in a raspberry sherbet swirl that seemed to brighten defiantly before surrendering to nightfall. Four neighbors arrived in a pontoon boat, joining our impromptu party on Tom’s porch, as Taylor Swift blared from a speaker and the five girls started to shake, shake, shake to her sick beat. At one point someone ghosted across the lake, his paddle board all but invisible, just another neighbor approaching.

The next morning, the four of us, plus Tom’s Lab, piled into a canoe whose bottom sloshed with an alarming amount of water. We all tried to squeeze our bottoms onto the aluminum braces that clamped the sides of the boat together, but whenever Tom turned the little electric motor one way or the other the canoe tipped precariously. We had to lower our center of gravity and quickly. Michaela must have sensed that I was going to enlist her as a volunteer because she threw a beach towel onto the floorboards, then more or less nudged me off of the aluminum strut onto towel. “Thanks, dad,” she giggled. My jeans stayed dry but only for the few seconds that it took before the towel was fully soaked.

We said goodbye and headed south on 395 toward New London until Mickey announced there was a better likelihood of her going to school on Mars, so we spun around and pointed north toward Boston.

I wish that kid would stick to a plan, just once.

Mike Kerin is a lawyer in Milford, and his daughter, Michaela, is a student at Amity High School. In their column, this father and daughter bicker and banter about boys, curfews, homework, stress at school, dress codes, and a host of other issues that represent the jagged edges of adolescence which they must navigate every day, sometimes with humor, sometimes with sarcasm, always with love.

Really Dad? Planning for spontaneity

Intersection of Med-Legal

MEDICAL ISSUES IN WORKERS’ COMPENSATION: LEGAL PERSPECTIVES

Understanding the AMA Guides

As Attorney Robert Enright, one of the deans of workers’ compensation in this state loves to say, workers’ compensation is 99% medicine. It is true that workers’ compensation represents the intersection of legal and medical principles. One useful roadmap for safely navigating this intersection is Cocchiarella, Linda and Gunnar Anderson, Guides to the Evaluation of Permanent Impairment, Chicago, American Medical Association, 2001. (Hereafter AMA Guides.) There are currently six editions, and in general physicians, to the extent they use them at all, use the Fifth and Sixth editions. It should be noted that there is no requirement either in the statute or in relevant case law requiring medical practitioners to make impairment ratings based on the AMA Guides as opposed to other available guides or their own experience and training in a particular area of expertise. See Safford v. Owens Brockway, 265 Conn. 526, 533, 816 A.2d 556 (2003).

Terminology Nuances

It should be noted that the AMA Guides makes a distinction between “legal” causality and “medical” causality. “Legal terminology defines the association between an event and an outcome as ‘probable’ if it is more likely than not – – if the probability of a cause and effect relationship is greater than 50%.” However, this is not true with the standards in medical literature because, after all, doctors are first and foremost scientists.  According to the AMA Guides the standard for a likelihood of an association between a potential cause and effect has to be “greater than 95% for the relationship to be considered ‘probable’, everything else is only possible”, Id. at 25.

As a consequence, it is extremely important that when you are communicating with a doctor asking for an opinion as to causality that you spell out the legal standard that we rely upon every day, which is to say that there has to be at least a 50.1% likelihood (more likely than not) that the work related activity is a substantial contributing factor to the need for the medical treatment sought.

There are other terms that we need to be careful about using. For example, doctors often refer to an aggravation or an exacerbation in reports in which the claimant had a pre-existing injury.  This may seem to lawyers a distinction without a difference. However according to the AMA Guides an aggravation is “a circumstance or event that permanently worsens a pre-existing or underlying condition.” Id. at. 25. Ergo, an aggravation would necessarily be a substantial contributing factor because it has made something significantly and permanently worse. The terms “exacerbation, recurrence, or flare-up” “generally imply worsening of a condition temporarily which subsequently returns to baseline.”  Id. at 25. Therefore, the two terms are not synonymous and have significantly different legal import, with “aggravation” being the term of art that is helpful to claimants.

Another distinction of which we need to be aware is the difference between “impairment” and “disability”. Permanent partial impairment measures the degree of loss of function in a specific body part. This is to be distinguished from disability which describes the way in which an impairment affects one’s lifestyle because of the loss of function. The term “permanent partial disability” or PPD is, therefore, a misnomer, and should really be called permanent partial impairment. The two terms can be distinguished best by way of an example. A concert pianist may lose the tip of her master right pinkie or “fourth finger” as is described by the statute and suffer a permanent partial impairment of the removal of one phalanx or a 50% impairment of her finger which amounts to 8.5 weeks of a specific rating. However, the loss of one phalanx of her pinkie may result in complete disability in terms of her ability to play as a concert pianist in the future. Again, we as lawyers, Commissioners, and doctors use the terms interchangeably, but there is a significant difference between the two.

Regional Versus Whole Person Impairments.

Both the Fifth and Sixth editions of the AMA Guides express their ratings in whole person ratings, or wpi. The Connecticut Workers’ Compensation forum does not recognize whole person ratings and such ratings must be converted to the regional body part. Very often, the treating physician or the respondent’s medical examiner will reference a specific table in a specific edition of the AMA Guides in rendering his opinion as to the claimant’s impairment rating. As a claimant’s practitioner, it is imperative that you determine whether the physician has applied the conversion table to his rating. For example, in the event that a treating physician specifically references the Sixth Edition of the AMA Guides Table 17-4 and states that the claimant has a 12% of the whole person as it relates to his lower back, you must then ask the treating physician to complete the additional conversion that is required. In the Fifth Edition of the AMA Guides this conversion table appears on page 427 and is attached in the appendix as Exhibit 1.  This is best accomplished by a letter to the doctor which I have also included in the appendix as Exhibit 2. I have also included a doctor’s response to such a request as Exhibit 3. In the example used above, the conversion table requires that the doctor divides the 12% impairment by 0.75 for a conversion to a lumbar rating which will derive a 16% permanent partial impairment instead of a 12%. The conversion for cervical spine is much more dramatic because the conversion factor is 0.35. Therefore a 10% of the cervical spine is equal to a 28.57% when it is converted.

This distinction can be particularly effective in cross-examining orthopedic surgeons who have proffered a respondent’s medical opinion and specifically referenced sections of the AMA Guides but have not done the conversion. Sometimes they are required to be dragged across the finish line to get them to indicate they did not do the conversion; however, if they are going to reference and use the AMA Guides, whatever edition, then they must use them completely and not piecemeal.

There was apparently a committee that the Chairman’s office has commissioned to address this issue because a number of doctors think that this conversion factor is unfair. However, at the time of publication of these materials there has been no memorandum issued by the Chairman’s office to address this issue. The Sixth Edition did not originally publish this table and was riddled with other errors that required a republication of the Sixth Edition in which the same conversion table is now included.

From a respondent’s point of view, there is a similar conversion of the unscheduled body part – the shoulder – to a scheduled body part, the upper extremity. The Safford decision describes a scenario in which the treating physician originally awarded a 20% of each shoulder. 265 Conn. 526, 817 A 2d. 556. Respondent’s counsel wrote to the treating physician to ask for a conversion from a shoulder rating to an upper extremity rating. The physician reduced the rating to 12% of each shoulder. The trial Commissioner and the CRB relied on the original 20% rating but the Supreme Court reversed, finding that there was no medical documentation supporting a 20% rating.

Work-Related Aggravation of Pre-Existing Conditions (Substantial Contributing Factor)

There is a well-known axiom that “we take our claimants as we find them”. We have to

accept our claimants with all their blemishes, including their pre-existing condition for the same body part as the one for which they are trying to collect benefits in the current claim.

There are myriad circumstances where this can occur. Typically the claimant has sustained an accepted injury to a specific body part which may have been accepted and paid for through a different carrier or a different employer. Then the claimant reinjures the same body part and the question becomes whether this is a new injury or not. As stated above earlier, this is where the distinction between an “aggravation” and an “exacerbation” or recurrence is implicated. Integral to this discussion is whether the new injury is a substantial contributing factor to the overall need for the treatment that is now being requested, or whether it is simply a recurrence of the old injury that has suddenly flared up.

In making this determination, the treating physician should not just be asked whether the new injury is a substantial factor.  Instead, the practitioner should provide the physician with a definition of what substantial contributing factor means in our lexicon. Specifically, you should send a letter to the treating physician asking him to consider whether the new injury is an important factor which can be one of a number of other factors and need not be the most important factor to be considered a substantial contributing factor. Treating physicians must understand that causation may be multifactorial and that there may be several independent concurrent causes for a specific condition. See Exhibit 4 attached. It is equally important if a Commissioner is inclined to order a Commissioner’s exam, to ask the Commissioner to include language in her letter defining this term for the Commissioner’s examiner. As stated in the Guidelines for Cooperation, sometimes an opinion will turn on something as simple as using the article “a” substantial contributing factor rather than “the” substantial contributing factor. The Supreme Court has wobbled back and forth in its definition of substantial contributing factor. In the case of Birnie v. Electric Boat Corp., 299 Conn. 392 (2008) they articulated what appeared to be a watered-down standard indicating that the employment or the risks incidental thereto, contribute to the development of the injury in more than a “de minimus” way. In Sapko  v. State of CT, 305 Conn. 360, 44 A. 3rd 827 (2012), the court backtracked by stating that in Birnie “the court’s aim was not to clarify – much less alter – the substantial factor test but to explicate it… The substantial factor test remains as it was prior to Birnie” whatever that may mean.

There is case law to suggest that even if a particular surgery that is now required would have been required in any event because of the pre-existing injury, if this surgery is appreciably hastened by the new injury then the new injury is a compensable event.  Again, the opinion of the doctor must be expressed in terms of a reasonable medical probability, more likely than not. This same analysis is true when asking a doctor for the impairment rating for a pre-existing injury. Obviously in cases where there has already been a paid or payable event, the treating physician should deduct the prior rating when awarding a new rating for the new injury. It is my practice to provide the doctor with the prior rating so that the treating physician knows what the base line is prior to committing herself to a rating.

In cases where the prior injury has not been rated with an impairment as a result of a paid or payable event, then the doctor must include any percentage of impairment for the prior injury, and provide an assessment for the entire injury, including the impairment which would be imputed to the original injury. Connecticut General Statutes § 31-349, attached as Exhibit 5, indicates that if an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the second injury alone, he gets the entire disability less anything paid or payable.  An example will help illustrate this concept. If a claimant tore his meniscus in high school playing baseball, (not an event that he could have been paid for through either workers’ compensation or negligence), and if the claimant would have been entitled to a 10% for that prior impairment, and he then sustains a second work-related injury in which he re-tears the meniscus and is awarded an additional 10%, he is entitled to the entire 20%. In the alternative, if the claimant sustains a prior 10% in an automobile accident for which he received a settlement, and if we further assume he is awarded an additional 10% in a work-related injury, he only gets credit for the new 10% because the 10% from the M.V.A. was paid already.

Relapse Rate

In a case where there has been a prior accepted injury from which the claimant

has recovered, then suffers a flare-up which causes the claimant to be totally disabled at a subsequent date, then the claimant may choose between the basic compensation rate as of the date of the recurrence, or as of the original injury, whichever is higher. The BCR for purposes of establishing his specific award is based on his average weekly wage as of the date of the original injury; the claimant does not get the benefit of choosing the higher amount for the purposes of the rate to calculate his specific award.

In an instance in which the claimant sustains an injury but is not rendered totally incapacitated until a date months or years in the future, the BCR for purposes of temporary total benefits are based on the claimant’s earnings as of the date of incapacity, not the date of injury, even if the date of injury would yield a higher BCR. See Partlow v. Petroleum Heat and Power Company, 5432 CRB-7-09-2 (February 9, 2010); Mulligan v. F.S. Electric, 231 Conn. 529 (1994), and Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995), which also establish the date of incapacity standard for the determination of a wage rate where there is a gap between the date of injury and the date of incapacity. See 31-307b, attached as Exhibit 6.

Communicating with Physicians

As the son of an orthopedic surgeon, I can attest to the sometimes-prickly relationship between lawyers and doctors. Although the workers’ compensation forum is generally more user-friendly to doctors because we rely on their deposition testimony at trial rather than having them testify as live witnesses, there is still some animus that doctors have for lawyers. There are a number of doctors who refuse to take workers’ compensation cases altogether because they simply do not want to deal with the litigation in which they may necessarily become embroiled. Other doctors begrudgingly participate in the process, but make it clear they are not happy about it. And still others seem to relish their position as the darlings of the workers’ compensation Commissioners and to take an active role as respondent’s medical examiners and Commissioner’s examiners.

The Guidelines for Cooperation allow a treating physician to charge $200.00 for a response to a request for a special report. I have taken the cue from adjusters’ letters to doctors in which they outline the issues in the case and then attach two possible alternatives, asking her to check off the correct box and then sign and date the report. Often the doctor will not feel compelled to charge a fee for this check-in-the-box type of report. See Exhibit 7 attached hereto. Sometimes the doctor will request a fee that is not countenanced by the Guidelines. Generally, I will attach a copy of the relevant section of the Guidelines to my letter indicating that I am not allowed to pay more than $200.00, which provides cover for claimant’s attorney not wanting to pay more than the $200.00 fee. See Exhibit 8.

When the case has not been accepted as a compensable injury and you are asking the doctor for a special report to establish compensability, the doctor is not compelled to accept the $200.00 because without his causality report you cannot establish compensability. In those instances the sky is the limit. Recently, I encountered a doctor asking for $750.00 in an adjacent level disc disease case where there had been an accepted claim and a fusion at one level and then 10 years later the next level became herniated. I reluctantly paid $750.00 and then got a letter stating that the doctor could not state within a reasonable medical probability that the new disc was a result of adjacent level disc disease. I then sent him an article from the Bone & Joint Journal which indicated that there was a 26% chance of getting adjacent level disc disease within 10 years, and asked the doctor whether this article, which is from a respected source, recognized as an authoritative journal by orthopedists universally, would allow him to opine that the original fusion substantially contributed to the need for the new fusion. The doctor asked me to send another $750.00. To date, I have refused to do so, and I asked the claimant to discuss this with his physician at the next appointment, before throwing good money after bad.

D. WORKERS’ REHABILITATION SERVICES, K.A VOCATIONAL REHABILITATION

C.G.S. § 31–283a provides that the Department of Rehabilitation Services shall provide rehabilitation programs for employees suffering compensable injuries under the Workers’ Compensation Act in situations where those injuries disable the employee from performing her customary or most recent work. While the Vocational Rehabilitation program used to be administered within the auspices of the Workers’ Compensation Commission, as of July 2011, the D.O.R. now runs the program. While in its heyday the program included 15 vocational rehabilitation counseling coordinators, there are now a total of six staff, including four counseling coordinators, plus the director, Sharon Friedman, and a secretary. In the past, this program has had temporary suspensions due to lack of funding. As of the date of the submission of these materials for publication, the State of Connecticut still has not passed a budget, so the funding for this program may be impacted by whatever happens in Hartford.

Pursuant to Connecticut Regulations § 31-283a-2, there are two criteria which are required for the candidate to be considered for this program:

  1. The employee has to complete and file an application, a copy of which is attached to these materials;
  2. That the claimant has a permanent impairment which substantially disables her for a significant period of time from performing the worker’s most recent customary type of work and this impairment is a direct result of the compensable injury.

The regulations provide further clarification by stating that if the employee possesses adequate vocational skills to obtain other employment then she will be disqualified.  Further, the employees medically documented residual capacities and vocational status has to be stable enough that a meaningful rehabilitation effort is practicable.  In addition, the employee’s medically documented limitations must allow a reasonable expectation of successful completion of one of the programs offered by the Vocational Rehabilitation Department such that the employee can either be reinstituted at his original employer or with a new employer. Connecticut Regulation § 31–283a–3 et seq.  The Regulations also provide for a subsistence allowance, but during the course of at least the last 25 years, the program has not had the funding to provide for this payment.

There is a common misconception that if you already have an associate’s degree or a bachelor’s degree, that you will not qualify for workers’ rehabilitation. However, someone who already has a bachelor’s degree in nursing for example, may still be eligible for vocational retraining in the event that she meets the other requirements, i.e. she cannot return to nursing. Approximately ____ applications are filed each year of which ___ percentage are placed in the programs.  The concept is that State of Connecticut will waive tuition at the institutions that are able to provide this retraining.  These would include the following: most of the state universities, Branford Hall, Porter & Chester, as well as a variety of other occupational schools.

There is also a provision in the Regulations that allows for an appeal of any person or employee who has been aggrieved by the actions of the Workers’ Compensation Commission in withholding or providing benefits under this program.  This requires a written notice of appeal to the Chairman or his designee which would include the nature of the grievance, the remedy sought and any acceptable alternatives.  Within 15 days of the receipt of this notice of appeal an informal conference shall be scheduled with the grievant.  Upon consultation with the chairman’s office there were no such hearings filed last year. As a practical matter, the appeal goes to Sharon Friedman first, and all such matters have been successfully resolved. The key to making the best use of the Vocational Rehabilitation Services is to get your client to file an application as soon as practical. In my practice, this generally coincides with the award of a specific rating when the doctor determines whether the claimant can return to her original job. Regardless of whether the case settles or stays open, it is crucial that we provide our claimants with the application to one of the greatest benefits available to him, as early as possible.

Cross-examining the RME

Unfortunately, in workers’ compensation, in order for the respondent’s medical examination to commit to evidence, the respondent must, at its expense, take the RME’s deposition. There is a tendency to believe that you need to score a knockout punch in order to get the RME to flip his testimony and to concede the issue that you are trying to prevail upon at trial. It probably makes more sense to try and get the RME to agree with as much as of your case as he will agree to and then try to pick apart any vulnerabilities in the part of his opinion that are not helpful to your case. You should review the RME’s curriculum vitae. The witness may be offered as an expert in a field about which he is not an expert. For example, in a disc replacement case, I had a report from a treating orthopedist that a disc replacement surgery was reasonable and medically necessary. The expert that was proffered by the respondent was an out-of- state psychiatrist. On cross-examination, the doctor had to agree that he had never performed any back surgery and in fact was not allowed to perform back surgery as a psychiatrist. Another example is in a chemical exposure case where the treating physician is a urologic oncologist and the RME is a toxicologist; a strong inference can be drawn that the treating physicians would better understand the cancer genetics of the particular exposure than a toxicologist would.

Another area that is typically discussed in connection with cross-examination of experts is the fee charged, as well as the percentage of the physician’s practice devoted to RME work. My own feeling is that the fee is usually dictated by the Guidelines of Cooperation, although during the course of the deposition it is proper to ask the RME what he was paid for his report and what he is being paid to provide testimony. If it is significantly more than that which is allowed under the Guidelines, perhaps that is something which the Commissioner would be interested in. The same can be said of how much work the physician does in connection with defense litigation. However, I think this is more important in personal injury cases where a jury is impressed with these issues rather than a Commissioner, who has his own book on each of the doctors and has already, in all probability, formulated an opinion about the particular physician in question.

Treatises, Periodicals

Review the treatises and periodicals relied upon by experts in their field and try to find

information that supports your thesis. You can read from the textbook or publication and then ask the deponent whether he agrees to that language.

Have your client keep track of how much time the RME spends in examining your client. It is rare that the respondent’s examiner will spend more than 10 minutes with the claimant. You can then ask the RME whether the doctor who has been treating the claimant for the past year and has seen her eight times during that period is in a better position to make a determination on the particular issue in this case then the RME who has the seen the claimant for the sum total of 10 minutes. Again, the Commissioners are less impressed by the paucity of time spent with the claimant than a jury would be, but it is still relevant evidence.

Ask the RME if and how his opinion would differ if he assumed other facts upon which he did not rely in formulating his opinion. For example, in a chemical exposure case recently, the RME provided an opinion that in the event that the claimant had not been exposed to a certain chemical, he could not have developed cancer, and because the information for which he was provided indicated there was no such exposure, the cancer had to be _______ rather than related to any exposure at work. On cross examination, I asked him if he assumed that there was significant exposure to this particular chemical would his opinion differ. Although I had to drag him across the goal line he eventually acknowledged with various caveats that the claimant very well could have suffered from this particular cancer in the event he had the exposure that we were claiming that he did.

Have the witness identify technical terms that may be identified in the medical literature that is relied upon in the scientific community. Again, in a recent chemical exposure case, the treating physician had provided a report taking about the significance of damage to a particular gene as an event in the development in this type of cancer. Upon cross examination, the RME vaguely knew about this gene but could not explain the significance of damage to it in connection with the type of cancer the claimant developed.

Also, as discussed above, if the issue is the impairment rating of a lumbar spine, make sure that if the RME refers to the AMA Guides that he uses them.

Try to remember that with issues like whether something is a substantial contributing factor, it is ultimately the factual determination to be made by the Commissioner. Too often, we tend to get hung up on having the right words out of the deponent’s mouth. See Slide ___.  The witnesses can often get frustrated but ultimately, if the physician testifies that the work-related injury constitutes 5th% of the entire causality, it is up to the Commissioner to determine if that is a substantial contributing factor.

Calculating the Value of a Claim

In general, the drafting of a settlement demand is half math and half creative writing. The basic format for construction of the demand is to include the items that are in the attached diagram.

 

TT:
TP:
PPD:
308a:
FUT. TT/TP
FUT. PPD:
FUT. 308a:
FUT. MED:

The first four categories are anchored in reality: temporary total, temporary partial, permanent partial impairment and 308 wage differentials. As our old secretary of defense would refer to these four items, they are the “known and known’s”. The next four, which would include future temporary total, future permanent impairment, future wage differential, and future medicals, are more speculative in nature and are therefore the “known and unknowns”. In Connecticut, in general the employer/insurer is not going to consider settlement of a case until the claimant is no longer working for the employer. However, there are certain exceptions such as Walmart, who apparently has made a decision to settle their cases even when the claimant continues to work there. We can assume there are other instances in which the employee no longer works there, but the case cannot be settled, such as the wide majority of cases with the State of Connecticut or cases in which the insurer became insolvent and are now being administered by the CT Guaranty Fund. Again, there are exceptions to both of those entities and under some circumstances settlements are possible.

Assuming that the case is in a position to settle, the first thing to do is to make sure that the claimant has been back to the treating physicians and has a fresh report. If the claimant has not been treated by a doctor in years, then you will have to seek permission from the adjuster to get him or her back to the treating physician for a fresh report. This may also involve a new MRI or other diagnostic testing. This will provide both the claimant’s counsel and the respondent’s counsel with a fresh look at the current condition of the claimant’s injury, a prognosis for the future which would presumably include an assessment for future medical treatment, and a current impairment rating. It is my experience that the adjusters are often reluctant to provide authorization for this because of the potential for the diagnostic testing that may accompany this visit, but in order to properly value your case, there is no shortcut. You need to ask the treating physician to consider what the current impairment is, what the prognosis is for the future, and what the future medical treatment may entail. See my letter attached as Exhibit ___.

The next thing is that you must make sure you have the correct BCR. If you had a high earner, you have to be aware that there is a different rate for permanency than there is for TT or TP. If the claimant was originally injured on a date certain but was not disabled until a subsequent date, you are obliged to use the date of disability rather than the date of injury for the purpose of establishing his temporary total rate. Presumably, all of this will have already been established through a jurisdictional or a specific VA, but it is surprising how many times it is actually not done during the course of a file. So, for TT make sure you are using the correct BCR. In an occupational illness if the claimant is no longer working for the employer, they have to look to the Green vs General Dynamics Corp., 245 Conn. 66, 712A. 2d 938 (1998) which provides that if the claimant is still working then you use the average weekly wage at the time of the diagnosis since there is typically an impairment at the time of diagnosis. However, when the claimant is not employed at the time of diagnosis, you have to look at 31-310c which requires you to either A: base it on the prevailing wage for the relevant type of work at the time of the first manifestation of symptoms or date of incapacity, or alternatively the AWW may be determined based on the claimant’s last period of employment and adjusted by COLAS to the date of the first manifestation of injury. Carter and Civitello section 4:9 page 148. If you are using the weekly wage from the last period of employment adjusted by COLAs, there is someone at the Chairman’s office that can make that determination for you if you provide the last date that the claimant worked there and the first date of manifestation as well as the wage earned.  You may be able to use the relapse rate under 31-308b if the claimant is making more money either at his current job or at a new job than he was at the time of the injury. Under the specific award, make sure that the treating physicians has done the conversion from the whole person rating to the regional body part, and I would note that if he has a shoulder impairment that the doctor expresses that in terms of an upper extremity rating. See the Safford decision.

In terms of 308A wage differential, you need to have medical proof in terms of the treating physician’s or any other of the doctors that have examined him that state that the claimant has permanent restrictions that are inconsistent with his return to his former job. You then have to look at the transferable skills that the claimant has that would recommend him to a job that would pay as much or more than his old job. This would include an investigation into what specific licenses or certifications and educational accomplishment the claimant has that would recommend him to a higher paying job. (the test of incapacity is not the employee’s ability or disability because of his injury to do his old job but whether he could do another job and earn as much money.) Clark v. Henry & Wright Mfg. Co., 136 Conn. 514, 517, 72A. 2d 489 (1950) This benefit is, by statute, capped at the number of weeks that the claimant has been awarded for his specific award. This is a discretionary benefit that the Commissioner may or may not award. In most instances, I would input in my demand so minimal earning capacity rather acknowledging that the claimant can at least make minimum wage. In some instances, this will not be realistic but in most instances, it is difficult to argue the claimant does not have at least minimal wage capacity.

The evaluation of the future exposures is more of an art and usually that is where the biggest differences occur in evaluation between claimant’s counsel and respondent’s counsel. Sometime the treating physician is thoughtful enough to include a line in his or her report that it is reasonable to expect that the claimant will be side lined from his regular occupational activities because of temporary flare-ups. Typically, I look at the claimant’s remaining years prior to retirement at 65. If there are 20 years left, I then assume that there will be a certain number of weeks per year depending upon the injury. In the alternative, if there substantial likelihood that the claimant will need an additional surgery, I will often multiply the number of weeks that the claimant could be expected to be out from the surgery, i.e. 26 weeks following a total knee replacement, by the percentage of likelihood of needing this procedure, i.e. 75%, to come up with a future temporary total figure of 19.5 weeks.

For future impairment, the practitioner has to consider whether the claimant is likely to require additional surgical intervention or future surgical intervention. For example, if the claimant has sustained a torn meniscus, the removal of the cartilage in his knee will necessarily make him more susceptible to having to have a total knee replacement in the future. If this procedure is required, the 5% or 10% that has he received now will mushroom to a 25% at least in the future. Similarly, if the claimant has had a spinal fusion, there is a considerable likelihood (26% chance within the next 10 years) that the claimant will develop adjacent level disc disease that will require further intervention. Therefore, both the future impairment and future medical treatment will be implicated by these scenarios. In addition, in dealing with future medical treatment you must consider Medicare’s interests. This can be done by creating a Medicare Set Aside or by allocating a certain portion of the settlement proceeds to future medical treatment. While this subject could easily consume the entirety to these 45 segments, suffice it to say that in every workers’ compensation case that you settle you have to take Medicare’s interest into consideration. Medicare has a review threshold which requires that in cases where the person is a Medicare recipient and the case is settling for $25,000.00 or more, they will review the case; in the alternative if the case is settling for $250,000.00 or more and the claimant reasonably anticipates applying for Medicare in the next 30 months, Medicare will also review that proposed MSA. That does not mean that if your proposed settlement falls outside of those thresholds, you not need to consider Medicare’s interest or potentially create an MSA. Since it can cost a couple of thousand bucks to have an MSA completed, we usually try to prevail upon the insurance company to provide those through one of their vendors at their costs. Many insurance companies do not want to go to that cost and they want to have some dollar amount designated in the agreement itself. If you feel that your claimant may be applying to get on social security disability sooner or later, or if he or she is getting close to the age of retirement, if may be prudent to at least have an allocation for future medicals in the stipulation agreement. The reaction to a lot of adjusters is to put aside 10% of the gross settlement. While CMS would make everyone’s life easier by agreeing to such a uniform percentage, there is no such provision that exists. My own practice is to look at whatever proportion of the medical that had been attributed in my demand and use that proportion in any ultimate settlement agreement. If my demand includes $20,000.00 for future medical and if we end up settling for $____________ then if I feel that I need to include an MSA or an allocation, I will try to link it to my demand and ask for an MSA of $10,000.00. At least there is what I have written to the respondent in terms of my evaluation of future medical treatment and what ends up being in the agreement.

Future wage differential is a category of exposure that is very difficult to get the respondent to agree to because it is to some degree piling speculation. Obviously, we do not know what the future impairment is going to be and as stated before, the wage differential is tied to the impairment. In addition, the claimant has to be available for work in Connecticut in order to get this benefit. If your claimant is residing out of state, it is probably not worth getting any consideration for this exposure since the respondent can correctly assert that they don’t have to pay it to a non-resident. If the claimant lives in one of the border states of New York, Massachusetts or Rhode Island, then you can still make the argument.

If the claimant has become eligible for Medicare, the practitioner must take care that the claimant has not submitted any of his medical bills to Medicare for payment. You need to send a request for conditional payments to CMS and you will receive a letter back indicating any such payments that have been made. Your client can also get on the CMS portal and ascertain the same thing.

The Carter & Civitello treatises provides a checklist of items that need to be reviewed and considered prior to settling a case in chapter 28 of their book. One of the items that you to be _____ any items that have been properly placed on the file including Erisa health liens; Medicare Conditional Payments; Veteran’s Administration payments; Public Assistance whether it is medical or indemnity; child support; alimony/divorce; long and short-term disability and unemployment benefits.

One final part regarding MSA is there are a number of medications that are not covered by Medicare. For example, Lyrica is not covered and is very expensive. Another example is Pennsaid Gel which is $500.00 per one-month supply. Items such as these must be priced in a separate non-medical MSA because the claimant is going to be forced to absorb these payments without the benefits of having an MSA to do so. Specifically, CMS will not allow you to make payment from the MSA for items it would not allow. A valuable source in making the determination of what items are included is Mackler Associates, LLC – Medicare Set Aside Consultant, 267 Sackett Road, Westfield, MA 01085, phone number 413-391-0856. Local attorneys in this area would be Greg Liskowski and Angelo Saveriano.

Appellate Case Review

Heart and Hypertension Cases aka Heart or Hypertension *

In Staurovsky v. City of Milford Police Dept., 134 A.3d 1263 (2006), the Appellate Court reversed the CRB affirmation of the Trial Commissioner’s determination or finding and award that the claimant was entitled to benefits under the Heart and Hypertension Act, otherwise known as CGS § 7-433c. In this case, a retired City of Milford police officer had timely filed a claim for an injury prior to his retirement, and one week after his official retirement he was working for a new employer when he was shoveling snow and sustained a myocardial infarction. The plaintiff’s cardiologist provided evidence that the claimant’s coronary artery disease was a chronic disease that developed over a period of years. The Trial Commissioner initially dismissed the claim because she found that in order to receive benefits under § 7-433c “the claimant’s heart condition and the resulting disability had to be suffered while he was a member of the department”. The claimant filed a motion for reconsideration following the Commissioner’s finding asserting that the Commissioner had improperly applied the law, and that, pursuant to Arborio v. Windham Police Dept., 103 Conn. App. 172, (2007), the claimant did not have to sustain a disability while he was a police officer to have a viable claim for heart and hypertension benefits but rather only sustain an injury and file a claim within one year of that event. The Trial Commissioner amended her finding and concluded that in fact the claimant had demonstrated a condition or impairment of his health caused by hypertension or heart disease while he was employed by the department, and therefore awarded benefits.

* See Holston v. City of New Haven below

The Supreme Court reviewed a number of Appellate Court decisions addressing § 7-433c but found that all of them except one involved claimants who suffered injuries or impairments attributable to heart disease or hypertension during the course of their employment as police officers or firefighters. Therefore, all of those cases were inapposite to this claim in which the claimant was no longer employed by the City of Milford. The one case in which the claimant had been injured after his period of appointment was Gorman v. Waterbury, 4 Conn. App. 226, (1985) in which a retired police officer died of heart disease. In that case, the court determined “the hypertension did not have any disabling effects on the claimant’s husband during his tenure as a police officer.”  At 2:30 claimant’s counsel argued that the Gorman case had been overruled sub silento by the Arborio case but the Appellate Court distinguished Arborio from Gorman because Gorman concerned an issue of compensability under § 7-433c, whereas Arborio involve merely a jurisdictional issue under § 31-294c(a), specifically, the Appellate Court indicated that Arborio focused on the issue of when the one year statute of limitations begins to run and held that one need not be disabled before being required to notify one’s employer of an accidental injury under 31-294c(a).

In Vitti v. City of Milford, 6066 CRB-4-15-12 (April 21, 2017) the claimant suffered from a rare autoimmune disease that was localized to the heart and did not impact other organs. The police officer ultimately underwent a heart transplant. There was no evidence to demonstrate that the heart disease was causally related to the claimant’s work duties as a police officer. However, under the statute, the claimant was merely required to demonstrate that he suffered from heart disease. Based on the statute in effect at the time of the claimant’s heart surgery and diagnosis of heart disease in 2010, the claimant was merely required to show presence of heart disease as well as a condition or impairment of health caused by the hypertension or heart disease. The predecessor statute to § 7-433c was § 7-433a, which provided a conclusive presumption that any firefighter or police officer who suffered heart disease had a compensable claim. “The conclusive presumption utilized in § 7-433a did not pass constitutional muster because the statue required that all claims be paid under the Workers’ Compensation Act, thereby creating a Workers’ Compensation claim even if there were evidence that the claim did not arise out of the employment.”  (Carter, Civitello p. 490 § 9:1) The statute was revised to provide an “outright bonus” to police officers and firemen who passed a pre-employment physical. The statute as written in 1992 afforded municipalities a rebuttable presumption allowing the town to prove the heart condition was not related to the police officer or firefighter’s job. The relevant part of the statute provided that the employee would not recover benefits under § 7-433c “…if the municipal employer proves by a preponderance of evidence that the member’s condition or impairment of health cause by hypertension or heart disease is not job-related.” When § 7-433c was again revised in 1996, this rebuttable presumption language was deleted, although as the attached cases demonstrate, respondents are still avidly arguing that the rebuttable presumption is alive and well. The respondents argued that the 1992 version of the law, which included a “rebuttable presumption” provision in § 7-433c, should have applied, in which case the respondents could have argued that there was no nexus between the autoimmune disease and the claimant’s work duties. However, the CRB agreed that there was a reasonable basis to support the conclusion that the Giant Cell Myocarditis was a heart disease. Having made that finding, it was irrelevant as to whether or not there was a legal nexus between the heart disease and the claimant’s duties as a police officer. The Trial Commissioner had the discretion to find the treating physician’s opinion as to the GCM constituting heart disease, and as such, the claimant was entitled to heart and hypertension benefits.

Holston v. City of New Haven Police Department, 5940 CRB-3-14-5 (May 27, 2015).  In this case a police officer who was hired in June, 1996, passed a pre-employment physical with no evidence of any heart-related conditions such as hypertension or heart disease. In 2009, the claimant presented to his physician for a physical examination which revealed that he had a blood pressure reading of 130/95 and in the medical report the doctor indicated that he had a diagnosis of Stage I hypertension. In March, 2011 the claimant suffered from a heart attack, and four days later filed a notice of claim for compensation under § 7-433c.

The treating physician testified that he had told the claimant that he was suffering from hypertension but the claimant’s recollection was that he was never provided this diagnosis until after his heart attack. Both the treating physician and the RME indicated that the claimant’s hypertension was a significant contributing factor in his coronary artery disease. However, the RME also testified that there are other significant factors, including his male gender and his high cholesterol reading that contributed to his heart attack. Further, the Trial Commissioner found that the claimant was barred from bringing a hypertension claim because he was on a notice pursuant to the Ciarlelli decision that he was suffering from hypertension as of October 2009. However, relying on the RME’s testimony, the Trial Commissioner found that there were additional substantial contributing factors in the development of the claimant’s coronary artery disease and myocardial infarction, including his male gender and high cholesterol, which entitled him to a claim for heart disease as opposed to hypertension. Essentially, the Trial Commissioner read the statute in its literal, disjunctive sense of heart disease “or” hypertension, finding that his heart disease was “a separate malady”. Although the respondent’s counsel argued as in the cases cited above that the claimant failed to establish a causal nexus between the job duties and his heart disease, the CRB noted that this argument was specious because under the date of injury rule, the relevant statute did not allow the municipality to rebut causality.

In Stackpole v. City of Stamford 6062 CRB-7-15-12 (November 17, 2016) the claimant, a police officer, had a pre-employment physical on two dates in February, 1995, the second of which showed that his pre-stress test reading was 140/90. The treating physician who conducted this test asserted that this was not an abnormally high blood pressure test that would have led to a conclusion or to a diagnosis of hypertension because the claimant had not been seated for five minutes prior to the blood pressure test being administered. Further, the doctor was impressed by the superior results of the blood pressure results during the stress test in which the bottom number, the diastolic reading, remained constant from the pre-stress test. The doctor testified that this was the better indicator of the fact that he did not have hypertension as of the date of the pre-employment physical. The Trial Commissioner found this testimony was more credible than that of the respondent’s as opposed to medical examiner, who opined that a reading of 140/90 was hypertensive.

The claimant had a series of several other borderline tests over the next several years and on January 16, 2001 had five separate readings, all of which were abnormal. At that point the claimant was formally diagnosed with hypertension and started on hypertensive medication. The Trial Commissioner therefore accepted the claimant’s assertion that the relevant date upon which the claimant was put on notice of his hypertensive condition was January 16, 2001. Further, the Commissioner concluded that under Ciarlelli v. Hamden, 299 Conn. 265 (2010) the statute of limitation clock only started ticking once the formal diagnosis of heart disease or hypertension was conveyed to the claimant.

The CRB thwarted the respondent’s attempt to apply the “rebuttable presumption” version of the 7-433c law that was in effect as of the initial date of hire, finding that pursuant to Vitti v. Milford, 5877 CRB-4-13-8 (September 16, 2004) the “date of injury” rule governed which version of the statute should be applied, in this case, the irrebuttable version. In addition, the CRB found that the determination of whether a physical examination reveals any evidence of hypertension or heart disease is a factual issue committed to the trier’s sound discretion. As a consequence, the CRB affirmed the Trial Commissioner’s award of heart and hypertension benefits.

Before leaving the discussion of Heart and Hypertension cases, it is worth mentioning

that the claimant must choose whether to pursue a claim under Chapter 568, in which case he has to prove the nexus between his heart condition and his job duties as in any other compensable claim where the “outright” bonus does not apply. The practitioner should be aware that benefits under § 7-433c are taxable, unlike regular workers’ compensation cases, and they are capped. Section 7-433b provides that the maximum cumulative benefit of a police officer or firefighter under the provision cannot exceed 100% of the weekly compensation being paid to members of the police or fire department for the same position held by the employee at the time of his death or injury. So, for example, an officer receiving PPD payments and either a retirement or a disability pension cannot receive more than 100% of the weekly compensation paid to similarly situated employees at the time of the injury.

Coming & Going Cases

Place of Abode

In Balloli v. The City of New Haven Police Dept., 342 Conn. 14 (2016) another case involving § 31-275(1)(A)(i) concerning the meaning of the phrase “place of abode”, the relevant statute provides that “for a police officer or fire fighter, ‘in the course of his employment’ encompasses such individual’s departure from such individual’s place of abode to duty …” In this case the claimant was a New Haven police officer who had moved his car from the driveway out into the public street so that he could allow his son to get his car out of the driveway. Approximately half an hour later after the claimant had gotten prepared for work inside his home, he walked back out to his car, dropped his keys and injured his back bending over to retrieve them. The trial Commissioner dismissed the plaintiff’s claim, finding that the claimant had not yet departed from his “place of abode” pursuant to the statute. The CRB affirmed this decision. The Supreme Court reversed, largely relying on the Appellate Court’s holding in Perun v. Danbury 143 Conn. App. 313 (2013) in which they defined the place of abode as “the inside of a residential structure, the garage, the common hallways, stairways, driveways, walkways and the yard …” The Appellate Court specifically determined that a police officer or firefighter does not begin his commute when he breaks the plane of his front door but that a place of abode does not extend to public property.

The dissent indicated that although the majority’s determination was artificially alluring because it seems to present a bright line test that once the employee leaves the boundaries of his own property line he has begun his commute, that line is “unmoored to the realities of the employees’ varied circumstances.”  Specifically, employees may live in one place and park their cars on a regular basis somewhere else unattached to their property such as in a common interest community or an unassigned parking space in an apartment complex or in a neighbor’s driveway.

Clements v. Aramark Corporation 6034 CRB-2-15-10 (July 18, 2016)

The claimant had parked her car in the parking lot on the way to work, got out, and was beginning to walk towards the kitchen where she worked when she became dizzy, fainted, and fell to the concrete sidewalk, striking her head and suffering a serious concussion. She was taken to the emergency room where she was determined to have suffered a cardiac syncope. The trier concluded that the claimant’s fall was due to a cardiac syncope and dismissed the claim on the basis that the claimant’s injury did not arise out of her employment with the Respondent employer. The question boiled down to whether there was a sufficient causal connection existing between the employment and the injury, which was ultimately a question of fact for the Commissioner. The CRB cited the Sapco v. State of Connecticut, 305 Conn. 360, 385 (2012) that there must be a proximate cause between the employment the claimant was engaged in and the injury that she sustained. The CRB also relied on Daubert v. Nogatalk, 267 Conn. 583, 588-89 (2004) which provides that a claimant has a burden of demonstrating the injury occurred in the course of employment by showing that it occurred: a, within the period of employment; b, at a place the employee may reasonably be; and c, while the employee is reasonably fulfilling the duties of employment or doing something incidental to it. In this case there is no question that the first two criteria were met, but there was a significant question about whether the injured claimant was doing something incidental to her employment.

Claimant’s counsel argued that “a possible fall was an incidental risk associated with the beginning of her workday, and the employment brought the claimant to the place of injury. Further, counsel argued that the cement upon which the claimant struck her head was a condition of employment that contributed to her head injury. The claimant further argued that this case was analogous to the factual scenario in Savage v. St. Aeden’s Church, 122 Conn. 343 (1937) in which a painter fainted while on a ladder and was fatally injured similarly; the claimant pointed to the decision in Gonnier v. Chase Companies, Inc, 97 Conn. 46 (1921) where the Supreme Court affirmed an award of benefits to a claimant who fell from a scaffold after an attack of indigestion rendered him unconscious. The CRB indicated that in both of those cases the claimant’s employment brought him to a heightened risk of serious injury insofar as the claimant was subject to the danger of falling as a result of a risk arising out of the conditions of his employment.  The CRB found that “given that the incident claimant sustained her injury merely while walking across some sort of cement surface, we do not find the court’s reasoning in the Gonnier applicable to the facts of the matter at bar”.

In another case involving the arising out of and in the course of employment burden of proof, the CRB found in Magistri v. New England Fitness Distributors 6089 CRV-2-16-4 (May 10, 2017) that where a claimant was involved in a motor vehicle accident because of a bout of <6:30 UNCLEAR> the act of driving a motor vehicle on behalf of the employer constituted a heightened risk of injury inherent in providing this service. The CRB reiterated that the question of approximate causation belongs to the trier of facts because causation is essentially a factual issue. In the present case, the respondents provided the claimant with the company car and the claimant was clearly providing “mutual benefit” to his employer at the time of his injury, citing Kolomiets v. Syncor International Corp., 252 Conn. 261 (2000). As such, the Magistri case was distinguishable from the Clements case.

Finally, an older case worth reading is Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 497 A2d 435 (1985) in which the trial Commissioner found compensable an injury in which a claims adjuster drove to New London after hours to meet with an insured in connection with a settlement check. The insured asked her if she would drop him off in Hartford to get transportation to his home back in Massachusetts. She agreed but first drove to the dog track in Plainfield, then were in route to her house to grab a snack and take a shower when they were involved in a car accident at 3:00 am. The CRB and the appellate court held that the injury did not arise during the course of her employment. Specifically, the claimant was not doing anything incidental to her employment; rather this was a frolic and detour.

Along the same lines, see the summary of the Australian High Court’s decision attached in which a federal government employee was on a business trip, and was injured while having sex with a co-employee when the overhead light fixture fell on her. The High Court rejected the lower court’s reasoning that this situation was no different than if the woman had been injured playing cards in the room, finding instead that the claimant was no longer in the course of her employment.

PRECLUSION AND POTTED PLANTS

In Wilson v. Capitol Garage, Inc.,. 6109 CRB-2-16-6 (May 16, 2017) the CRB determined that a Trial Commissioner who had granted preclusion had the right to test the claimant’s prima facie case if he found it to be initially unpersuasive by ordering a Commissioner’s examination sua sponte. The legacy of the murkiness kicked up in the water by the decisions in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) continues to cause difficulties for litigants in all matters of preclusion the CRB noted in this case. Specifically, the two treating physicians had noted that the claimant was suffering from Chronic Obstructive Pulmonary Disorder (COPD) which were aggravated and worsened by the claimant’s longstanding occupational exposure to workplace pollutants. Both doctors said that the exposure to the workplace pollutants were a significant contributing factor to the COPD. One doctor is opining that it was 80% non-occupational i.e. smoking, and 20% occupational in etiology, and the other doctor did not provide a percentage of each of the two causes.

The Commissioner indicated that he had a question about whether the claimant had reached maximum medical improvement or not and the claimant’s counsel reasonably inferred that the reason for the Commissioner’s examination was to make that determination. There was further evidence in the transcript supporting this inference as the Commissioner stated on the record “I found they’ve been precluded. I think the compensability of this is presumptive, I mean, it’s done.”

The claimant argued that once he had proffered a prima facie case, the Commissioner could not then order a Commissioner’s exam. The respondent argued that because the Commissioner apparently had doubts, the claimant had not made a prima facie offering and therefore should have dismissed the case. Ultimately, the CRB remanded the case back to the Trial Commissioner so as to provide the claimant with an opportunity to respond through the Commissioner’s examination, either through one of the treating physician’s responses to this Commissioner’s examination or, presumably through a deposition of the Commissioner’s examiner. The CRB believe that the claimant’s counsel may have enrolled into a reasonable belief that the scope of the examination is going to be limited to the issue of whether or not the claimant had reached maximum medical improvement.  As such, the claimant was denied due process in his ability to confront the Commissioner’s examiner’s opinion. “We believe due process in this case should permit additional latitude to the claimant to enable him to challenge the evidence that the Commissioner relied upon to discuss this claim.”

In Laverne Johnson v. State of Connecticut, 6132 CRB-4-16-9 (August 21, 2017) the CRB described the claimant’s status in an appeal of a utilization review denial to a Workers’ Compensation Commissioner as equivalent to that of a respondent in a preclusion case: namely, a potted plant. However, if the respondent has both of her hands tied behind her back in a preclusion case, the claimant has both of his hands and feet tied, his eyes blindfolded, and his mouth gagged. Even in a preclusion case, as we saw in Wilson v. Capitol Garage above, the Commissioner was free to make inquiries beyond the original record to satisfy herself that the plaintiff or the claimant’s burden of proof, a prima facie case, has been established. In the case of a utilization review hearing, the Commissioner can only look at one document, namely the record created by the utilization review process. Therefore, while in a preclusion situation the claimant still has the burden of proof and the Commissioner can test that burden of proof with, for example, the Commissioner’s examination, in a utilization review hearing, the burden is still with the claimant, not the respondent, and the Commissioner’s hands are tied as well.

In this case, the claimant’s counsel wanted to introduce evidence outside of the four corners of the utilization review record which might have proven that the requested surgery of the claimant’s left shoulder was “unreasonable, arbitrary or capricious”, the standard of reversal in these cases. However, at the formal, the claimant refused to enter into evidence the relevant utilization review decision or any other supporting medical documentation on the grounds that the decision favored only the respondent’s position. The claimant attempted to introduce additional evidence supportive of her claim which was outside of the utilization review procedure and the respondent filed an objection that was sustained. The respondent chose not to enter the utilization review decision either and the Commissioner therefore dismissed the claim. The CRB determined that “the burden of persuasion and the burden of presenting the record of such proceedings in a case under § 31-279 CGS rests with the claimant.”  The CRB further held that since the only means of presenting a prima facie case that the respondent was to present the record, and since the claimant chose not to present the record, the Commissioner had no choice but to dismiss the claim.

 

Really Dad? The Adventure: Looking at Colleges

The Adventure: Looking at Colleges

Michaela

If you are like most of my friends, you had your first, second, and third dream colleges, along with safeties, memorized since you were a freshman. However if you’re like me, when someone asked where you were looking, you spontaneously chose names that rolled off of your tongue like “Quinnipiac” or something that matched your outfit like “Brown,” until you actually looked at schools and formulated an idea of what you were looking for.

In April, my parents took me on a five day college road trip. My mom and I had planned the trip months before, scheduling tours at several schools in Delaware, D.C., Virginia, and North Carolina. We made sure to coordinate our agenda in such a way that we would have time for a guided tour of each school with extra time to explore the campuses on our own.  Well, we certainly had extra time to explore as we successfully missed every single tour that we had scheduled. My dad likes to blame me for missing the tours, claiming that my inability to get dressed and ready quickly was the ultimate cause of our tardiness at the schools. However, if we didn’t have to circle around the parking lot of our hotels four times every morning while the dinosaur learned how to use his “iPhone GPS”  we may have had a better chance of making it to a tour on time.

Surprisingly, making it to the schools was the easy part: maneuvering through the campuses while attempting to pretend that the weird, tall guy in the bright orange shorts and the fur-lined crocs was not my father was the harder part. It only got worse when he opened his mouth. One morning, we arrived at the University of Virginia, late of course, where hundreds of people spilled out of a huge auditorium, but somehow the three of us managed to cram into a nook in the vestibule. After a few moments of looking around and sizing up everyone, my dad turned to me with a mischievous grin and not-so-quietly remarked: “Hey, I’m pretty confident that I am the coolest dad in this room right now. I mean, look at me!” Come on dad, I would like to say that there was a time when the “Hairless Potter glasses” and  hiked up-shorts were in, but Mom assures me there was never such a time.

After missing our tour and latching onto someone else’s already over-crowded tour in progress, we wanted to get a quick bite to eat on the patio of a Georgetown café overlooking the Potomac.. After waiting for nearly 45 minutes, my dad asked me what I ordered, insinuating that my order caused the delay.

“A quesadilla and a salad.” I answered.

“Quesadilla. That means ‘house of the day’ in Spanish. Casa día.”

No Urkel, not even close.  Really Dad?

 

Michael

“Dad, can you please not yell: ‘Hey Mick, are you okay?’ when I don’t come out of the bathroom instantly?” my daughter pleaded as we walked into the lobby of the Walt Whitman rest stop of the New Jersey Turnpike.  Like I’m some kind of over-protective weirdo.  We were on our way home from our college tour through some of the Southern Atlantic colleges on the Thursday before Easter.  I hit the men’s room, shuffled around the lobby watching the steady progression of humanity flow through the rest stop, thinking it was not a safe place to linger.  I poked my head into the foyer of the ladies’ room, if that’s even the correct name anymore, and shouted: “Hey Mick, you okay?”  More than a couple sets of eyeballs glared at me.

Someone from the recesses of the bathroom yelled “Freak!” although I couldn’t tell whether it was Michaela.. Usually, I just enlist the assistance of a good Samaritan to wander in and ask if there is a Michaela in the bathroom, but with the irritated looks I was getting from the potential volunteers, I  had no choice but to call again, “Mick?”

“You freak show, dad,” was the hoarse whisper that was unmistakably my daughter. .Now I could relax.

Like all the best laid plans, our meticulously “Mapquested” adventure was doomed from the get-go by a combination of factors that conspired against us.  We missed our official Georgetown tour because of DC’s tangled traffic, but managed to merge inconspicuously (or so I thought) with a tour already in progress.  The ebullient guide interrupted her canned spiel when she spied our arrival saying: “Welcome. Glad you could join us!”  I fought off the urge to introduce ourselves as the Griswold family, but my little Audrey, I mean Michaela, was already looking for a large rock to crawl under, so I settled for a dorky wave.

We missed the American University tour later that afternoon because of a lackadaisical waiter.  No great loss because as soon as we rolled onto campus Michaela crossed the school off her list.  “How did you spend two years here, Dad?”  I wondered the same thing as we sliced southwest across Virginia to Charlottesville where we checked into a hotel three mile from the campus of the next school, confident we would be on time for our 8:30 am tour the following morning.

Wrong again.  Despite my repeated entreaties to coax my girl out of the hotel, I couldn’t end the fashion show in front of the mirror quickly enough.  My stylish daughter was one of the last prospective students to saunter into the UVA amphitheater, where the Dean of Admissions reminded us that in 16 months we would be saying goodbye to our daughter as she embarked on her academic journey.  I could feel Michaela looking up at me, reading my thoughts, as she looped her arm through mine, oblivious to the crowd of her peers surrounding us.

Really Dad? TV

Really Dad? 16

Michael
For the first seven or eight years of Michaela’s life, we did not subscribe to cable, and the only entertainment we played on our 12 inch television screen consisted of Blockbuster videos and the occasional recorded VCR tapes of American Idol that Lisa’s mom would mail up from Alabama because of her growing concern that our kids were being culturally deprived by not knowing who Kelly Clarkson or Adam Lambert were. My idea was that the kids could not miss something they never experienced. I dreampt that the kids would be hunkered down in their rooms transported to exotic places by Jules Verne and Daniel Defoe, their journeys limited only by their imaginations.

What a long slide down the slippery slope since that Super Bowl weekend years ago when I sprang for a whopping 24 inch screen and plugged in cable. “The Bachelor”? Really Michaela? Who watches that contrived nonsense about some two-time loser playing tonsil hockey with 30 women, agonizing over who goes home and who gets a rose? Michaela and my wife, that’s who. So unless I want to sit by myself in the living room reading a book, I have to listen to Nick the nitwit philosophize about whether the third time will be a charm. Thank God, after bedding three of the contestants, one before the show began and two during the climax of the season, he was able to select his soul mate. Now if he can only find his soul.

Ever since my son left for college a couple of years ago, I have been consistently out-numbered whenever there is a vote for a television program. So I am relegated to watching chick flicks like “This is Us” or “Vampire Diaries”. If I try to watch something a little more hard-hitting like NCIS, my wife will boycott the show claiming there is too much violence. And if I turn on “48 Hours” or “20/20” Michaela will storm out of the den horrified that I am so absorbed by these redundant murder mysteries.

On the increasingly rare weekend nights that Michaela graces us with her presence, I crank up the wood stove, and scan the latest movies available “On Demand” while simultaneously checking the “Rotten Tomatoes” rating on my I Phone. Apparently it annoys Michaela that, unlike her, I don’t just pick movies by how cute their title is (how did “Alvin and the Chipmunks, the Squeakquel” work out?) but I have found some real gems that way. It is not my fault that these movies usually are not spoken in English.

There is hope for us: last night we watched a Planet Earth Two episode and loved it. It was Mother Nature’s version of “The Bachelor” in which male komoto dragons fight ferociously over their mutual girlfriend until one of the giant lizards is wrestled into submission, the winner earning his rose. Who would have thought that two reptiles slapping each other silly with their tails could restore harmony in the household? And happily, unlike our friend Nick, the Bachelor, these lizards mate for life.

Michaela
Most nights, after we have finished dinner, my family unwinds watching a one hour T.V. show in the living room. This means that we all have to agree upon which OnDemand show we will play each evening. You would think that with a social worker and a lawyer as parents, coming to any sort of compromise would be a breeze. You would think wrong. My mother, the tender and loving hand that guides her clients to a middle ground day in and day out, is ruthless. And my dad, a man literally paid to negotiate, is like a toddler fighting over a toy. My mom pulls the “I never get to sit down and watch with you guys, can we please watch something I enjoy this once.” Interesting. After following several seasons of “The Voice” per her request, I would have guessed that we watched it more times than “this once.” Then the whining begins in my other ear, “Mick, I’ve had a very stressful day, I just want to relax.” Well jeez, with this level of exasperation coming from a man that has been a top ten World Champion Duathlete twice, my advice is to never become self-employed because if everyday is that trying, it can’t be worth it. He just wants to watch “Cool Cool LJ” as he calls it. Which, in my father’s language, translates to his favorite cop show, NCIS: Los Angeles, featuring the actor LL Cool J. Really Dad? You could at least make an effort to say the name right.
Now that you have the teams, I’ll give you the play-by-play. Dad’s move first: he waits, silently pouting, until we announce that we will be watching my choice, “The Bachelor” and then he pounces. First complaining, followed by a threat to go to bed, roping mom in for the defensive move. Mom comes in, guns blazing, frustrated that we can’t come to an agreement. First, she yells at dad for not spending time with the family, then it’s my fault, “You knew he was going to do this, let’s just watch his stupid show so he’ll be happy.” Then dad with the assist, “Yeah Mick, come on!” The crowd goes wild: dad wins yet again! This defeat would probably be much more disappointing if my dad wasn’t going to fall asleep in about 20 minutes.
…4…3…2… “This is The Voice!” Sleep tight daddy.

Stipulations and Vocational Rehabilitation (by Andrew Salerno)

A stipulation is an agreement between the claimant and the respondent in which the claimant gives up his rights under the Worker’s Compensation Act in return for a lump sum payment. Numerous factors go into the establishment of this figure, including, but not limited to, reimbursement for hours which the claimant was unable to work, compensation for work which the claimant will likely miss in the future, medical bills from treatment after the injury, permanent impairment, and compensation for medical expenses which may arise in the future because of the injury.

Once an agreement is made, it must also be reviewed by a commissioner at a hearing with the claimant. The commissioner is charged with ensuring that the claimant is fully aware of the implications of the stipulation and that the agreement is fair and equitable to the claimant. Nearly all stipulations are approved by the commissioner, and these hearings usually last only 15 minutes.

When a claimant signs a stipulation and it is approved, he/she gives up his/her right to several benefits which were previously available. These benefits include, but are not limited to, disability benefits, payment for future medical expenses, and lost earnings caused by having a new job which pays less than the job at the time of injury. The right to these benefits is extinguished because the compensation from the stipulation is meant to be a substitute for the benefits as well as cover any expenses the claimant would have to pay out-of-pocket.

The only benefit which is not extinguished by a stipulation is the right to vocational rehabilitation – a program offered through the State of Connecticut to retrain workers who cannot return to their previous jobs because of their injuries.  First, the claimant must request vocational rehabilitation and be deemed eligible by the Chairman of the Connecticut Workers’ Compensation Commission.  Approval is granted if the worker has suffered a permanent impairment that disables the claimant from retaining employment at his/her previous job. If approved, physical, intellectual and psychological evaluations are done to determine what type of rehabilitation is best suited for the claimant. This can include, but is not limited to, assistance in obtaining a job with his/her previous employer, on-the-job training with a new employer, or vocational education for a new profession  Applicants may be entitle to receive courses which will provide the equivalent of an Associate’s degree.  The application is very simple and can be online at http://wcc.state.ct.us/download/acrobat/rehabapp.pdf, or at each of the district offices.  The Chairman is responsible for supplying appropriate services such as training in job seeking skills, individual counseling, and follow-up assessments to ensure the vocational rehabilitation is successful. In many instances, allowance payments are made to the claimant while he/she is undergoing vocational rehabilitation. Poor behavior, substandard performance in rehabilitation programs, or excessive absences from training will result in the discontinuance of benefits.

A stipulation agreement is final. Barring rare exceptions, once a stipulation is signed by both parties and approved by the commissioner, the case is closed and the claimant is unable to seek any additional compensation for the injury. The only time a case is reopened is if there is evidence of fraudulent claims, or if there was a mutual mistake made at the time the final agreement was entered into. It is the commissioner who decides if a case may be reopened.

Really Dad? Land of the Free

Michaela

When I walked into school the morning after Donald Trump was announced the President-elect, it was for lack of better words, a crap show. After wading through the hallways of quicksand that seemed to weigh down my peers, I entered the classroom of one of my teachers whom I respect immensely. I sat down in my seat across the room from her, shocked to see that she was crying. She sat like a child, grasping tissues and shaking as the sobs rippled through her body. Then I looked up at the smart board in the front of the classroom. On it, in bold font, was a quote from Shakespeare’s Julius Caesar. I interpreted it to be an ominous message from a despondent Cassius, who was contemplating his own suicide as a means to escape Caesar’s tyranny.

Really, dad? Why all the hysteria? The problem is not Donald Trump or Hillary Clinton, or any of the polarized demographic/social classifications that the media has created to separate us: Hispanics, African Americans, educated whites, uneducated whites, pro-life, pro-choice, gay, straight, pro-guns, anti-guns. The problem in America is that all of these categories have been emphasized so much by the media that we forget we are all Americans. The media loves to stick these labels on us that by definition separate us rather than focusing on things that bring us together as Americans.

However you may have arrived in America, you live in the “Land of the Free.” Americans are blessed to live in a nation as promising and successful as this one. So whether or not your candidate won, we have to embrace the results and be grateful to live in a country where this democratic process is alive. Sure, Donald Trump may not be the most attractive presidential candidate, but the fact of the matter is, in a nation of nearly 325 million people, it is impossible to satisfy everyone.

I am 16 years old. But I know when the day comes and I am the role model, standing in front of a room of children looking for any glimmer of hope in my eyes, I will give it to them. I will not cry because the candidate that I believed was “less corrupt” did not win. I will always be grateful to live in a nation that gets to decide its own fate, even when it is unexpected and disappointing. And the lesson that Julius Caesar will help me teach is: “Now bid me run and I will strive with things impossible.” So please, hold your head up, say the Pledge of Allegiance, and believe it.

Michael

How do I explain this election to Michaela? How is it that the same throngs of middle Americans who voted for President Obama twice just elected a candidate whose campaign was built on promises to undo all of his predecessor’s accomplishments? How was it that a real estate mogul who builds penthouses and exotic golf courses was embraced by a basket of unemployed rust-belters who could afford neither his rent nor his greens fees? How could a crotch-grabbing, Muslim hating, tax-evading, race-mongering bully, who picked a fight with the Pope, get elected to the highest office in the land?

Because when they listened carefully, above the din of his vulgar, homophobic, xenophobic, Islamaphobic vitriol, they heard what they wanted to hear: a promise for change. Even if they were afraid to articulate it in public, enough people living in the right electoral swathes of the country wanted the American Dream to work for them again, even if the details of his plan were scant. So these people went into the polling booths, held their noses, and voted for change, terrified about what that change might look like.

Where do we go from here? I would suggest that we do not go where many of our institutions of higher learning have gone. Hampshire College has decided not to fly American flags over their campus because, in the words of the college spokesman, for some of the students, “the flag is a powerful symbol of fear they’ve felt all their lives because they grew up as people of color, never feeling safe.”

Following the election, classes in colleges across the country were cancelled so that grieving students and faculty could come to terms with …oh yeah, the results of an election. If only the wounded veterans who sacrificed arms and legs and their sanity to ensure our blessings of liberty could receive the same immediate mental health treatment afforded to the whining students who have the luxury of nurturing their petty grievances.

I would also suggest we do not go where the media has gone and appears to be going.

Until election night, the Republican candidate was never perceived as a direct threat to the ascendancy of the heir apparent, the one who had been anointed by the media, and for whom the election was a mere formality. Only a homogenous group of liberal, self-inflated elitists could have insulated themselves so fully from the foul mood among so many Americans. For a day after the election, there was much hand-wringing and soul searching, but now the media is back to casting aspersions and finger pointing.

Perhaps the media and other malcontents like Whoopi Goldberg and Smiley Virus (both of whom are still residents of these United States last I checked) should adopt the more conciliatory tone modeled by our current commander-in-chief in accepting and honoring the sanctity of our democratic process.

Despite the freaks at the fringes of both sides of the political spectrum, this is still the best country in the world to call your home. I was reminded of this at a Thanksgiving road race when the National Anthem was being piped out of the speaker with almost no accompaniment. Suddenly the canned recording malfunctioned, and there was one awkward beat of silence. Then 500 voices came alive together, spontaneously. “Oh say does that star spangled banner yet wave, O’er the land of the free and the home of the brave.” We looked at one another feeling something I am pretty sure none of us had felt in this election cycle. United.

Mike Kerin is a lawyer in Milford, and his daughter, Michaela, is a student at Amity High School. In their column, this father and daughter bicker and banter about boys, curfews, homework, stress at school, dress codes, and a host of other issues that represent the jagged edges of adolescence which they must navigate every day, sometimes with humor, sometimes with sarcasm, always with love.

Originally posted at the Milford Mirror

Really Dad? While Mom Was Away

From the Milford Mirror

Michael

My wife, Lisa, had to go out of town on short notice a couple of weeks ago. It was just Mick and me for seven days. I felt a niggling doubt that I hadn’t experienced since we left the hospital 16 years ago with our baby girl when I wondered: “Now what do I do?” How hard could this be, I wondered. Single parents do this 24/7/365.

So on Monday morning I get up at 6 a.m., knock on Mickey’s door, hear her muffled plea for “five more minutes” then brush my teeth, knock on Michaela’s door again, hear her mutter “I’m up” in a husky voice. I shave, rap on the door again, flip on the light in her room and yell: “Michaela Elise!”

“I’m getting up, Dad,” she mumbles, but there is still no movement from behind the door.

It was apparent I had to roll out the big guns. If you don’t get up right now, your boyfriend can’t come over.” A nanosecond later I hear her feet padding across her bedroom. And then, just as predictably as the sun rises in the east and sets in the west, Michaela asks, “Dad, can you let T-Bone out for me?” I see the fluffy fury circling around the braided rug in the hallway, like a plane looking for a place to land. I scoop him up to bring him down the stairs, not willing to mop up or pick up one of his premature releases.

About the time I get back inside with T-Bone, Mickey yells downstairs to ask if I can make her a chai and some cinnamon toast which she will undoubtedly leave unfinished in the truck after she disembarks for school. I stumble around the kitchen flipping her bread into the toaster, blending my banana, berries and protein in the Ninja, stepping over our golden retriever who is, as always, camped out in the middle of the kitchen floor. Then I select my suit, tie, shoes and towel so that I can shower after my track workout. I pack my soup, sandwich and apple in a paper bag, just as Michaela flitters past me, a supermodel lithely stepping off the runway in Paris. She stuffs her books in her backpack, grabs her coffee and toast, as she makes a beeline for the door.

“Can you put T-Bone in his kennel?” she asks, slamming the storm door before I can respond. I am just latching the door to the kennel when I hear the horn blasting in the driveway. I fill dishes with water and food when the horn blares again.

I lock the front door and stride across the driveway to the driver’s side of the truck, but Michaela is already behind the wheel, anxious to get in as much practice as possible before she takes her driver’s test in January. I walk around the truck to the passenger side.

“You are going to make me late, Dad,” she snarls.

When we arrive at the rear entrance of the school, I ask her to park in the back lot so that I can run on the track before going into the office. It is the only hole in my schedule today. We get out of the truck, and I walk with her the hundred yards to the track, donned in my shorts, fluorescent green shirt and loud running shoes, as a steady procession of cars passes us. Michaela hangs her head as if it is raining, walking at a brisk pace.

“Do you have an exam this morning?” I ask, wondering why she seems so somber. She grimaces as if to say, “Really, Dad?” But instead, she says: “I KNOW all of these kids!” cutting her eyes over to the line of cars slowly rolling toward the school. “And you’re dressed like a freak show.”

“So I guess a kissing hand is out of the question?” I ask, grabbing her hand and pulling it half way up to my lips before she twists away from me and jogs ahead.

“You’re such a goober, dad.”

An hour and a half in the books, and, yep, I am crushing this Mr. Mom thing.

Michaela

A few weeks ago, my mom went to visit her family in L.A., lower Alabama that is, or the “Redneck Riviera” as my dad likes to call it. With mom away and the boys at college, I was on my own. Technically, I was being “supervised” by my father, but as the week unfolded, it became clear that his supervision was neither super nor sighted: in fact, I felt like I was on a ship being steered by a blind captain. Suffice it to say, the week without mom was a little bumpy.

Recently, in a television show that I like to watch, a woman gifted to her significant other a plant as part of a test to see whether her partner would make a good parent. She was going away for a business trip and wanted to see how well he would and/or could take care of the plant. Based on the way our week went, my mom DEFINITELY should have invested in a daisy or two before starting a family with my dad.

The seven days can be summed up in one symbolic scene: Dad feeding the dog. One night I was sitting at the bar table doing some homework when my dad came in and offered to feed the dogs since I was engrossed in my work. Don’t be fooled, he only made this gesture because he was sucking up after not allowing me to have a friend over because I “had too much work to do.” That was a pretext—the real reason being there wouldn’t be enough time for us to have a “cuddle session” while watching TV later if I didn’t get my work done.

A few minutes after my dad had banged around near the dogs’ bowls, I heard T-Bone whining. A frustrated T-Bone was frantically trying to consume the perfectly-oval-shaped chunk of meat that had been carelessly plopped onto a paper plate and tossed onto the floor. He was futilely pushing the plate across the floor because he couldn’t sink his teeth into the pre-formed hunk of meat.

Really Dad?

T-Bone is a smart dog, but he hasn’t quite mastered the use of the fork and knife. I mean, come on. I tried to give him the benefit of the doubt, by patiently asking: “Dad, did you consider cutting up the food for T-Bone so that he could chew it?” After all, I always mince up the food with a disposable spoon before offering it to my Bobo.

“The dog can’t bite it? Maybe I should have put it in one of my shoes—he rips those apart with no problem.”

I can only imagine what it was like when I was a baby. “What Li, she can’t eat an apple on her own? I see some teeth breaking through her gums. Why doesn’t she use them?”

It’s common sense. If the object of consumption is bigger than the consumer’s head, chances are, they cannot eat it.

Speaking of eating, the meals while mom was away were interesting, to say the least. One night, my dad asked if I wanted “vegetarian Thai curry,” which sounded great. I was puzzled when my dad placed a black plastic container filled with a soupy swirl of chickpeas in front of me. I forced a smile and held my nose so that I could swallow a few bites of the steaming mess.

You’d think that after all of the time my dad spent in postgraduate study, racking up the degrees, he would at least know how to pick out some good microwaveable meals.

Really Dad?

One day during my mom’s absence, my dad bought a cluster of bananas and instead of hanging them on the hook, he skewered one of the bananas through the skin, so that by the next morning all five of the bananas were partially unpeeled, and blackening as a swarm of fruit flies descended upon them.

I realized this was a perfect metaphor for my mom’s place in the family. She is the hook that holds our bunch of bananas together: without her we are unhinged.

I still let my dad think he’s top banana. Sometimes.

Mike Kerin is a lawyer in Milford, and his daughter, Michaela, is a student at Amity High School. In their column, this father and daughter bicker and banter about boys, curfews, homework, stress at school, dress codes, and a host of other issues that represent the jagged edges of adolescence which they must navigate every day, sometimes with humor, sometimes with sarcasm, always with love.

Really Dad? Friends over on weeknights

Michaela

In the Kerin family, education is paramount. Don’t get me wrong: my parents aren’t the type to put the weight of the world on their children’s backs, expecting perfection and accepting nothing less. However, they do expect that Caelan, Andrew and I will always try our absolute best because as long as we are giving it our all, they can’t be disappointed. (Most of the time). Just to be clear, this article is not meant to make me sound unaware or ungrateful for the life and love provided by my amazing parents. I am beyond thankful that I have a mother and father who believe in me and love to see me prosper in everything that I do. On the other hand, I am not always thankful for what comes with this thirst to watch me succeed. Let me explain.

High school is an extremely strenuous time for teens. My two brothers, now in college, can definitely attest to that. I try REALLY hard to wake up at 5:45 a.m. to get ready for school, only to sit through hours upon hours of classes, and return home at around 3 p.m.

This schedule does not include the multitude of extracurriculars which add to the stress and strain of a long academic day. As you can imagine, after these long, difficult days, some CWMH (Chilling With My Homies) time sounds great to me. Unfortunately, it never sounds so good to Pop, which is ironic considering he can’t hear too much these days.

“Not on a school night Michaela,” begins his lecture to me on the plethora of reasons why having a friend over is not consistent with my goals and responsibilities: Friends will distract me; I won’t get my work done; I will be up too late; I won’t have time to study. And then he concludes his little pep talk with the “Father knows best” card: “I know you don’t understand this now, but I’m doing it for you. I just want you to be the best student that you can be.”

Really Dad? You’re trying to pull a guilt trip on me? I am the queen of puppy dog eyes, but nice try. So, to all of you parents out there who might be thinking that his response is perfectly reasonable, l hope this changes your mind.

Thanks to one of those aforementioned extracurriculars, the debate team at Amity, I have discovered that every claim must have credible justification and/or evidence to be considered “valid.” So if my father’s support for his claim is that my friends will distract me from my studies if they visit on school nights, his argument is, in fact, invalid. I go to school every day with nearly 2,000 of my peers, at least 25 of whom are in each of my classes and according to my dad, that is 25 distractions. But how can that be true? If the very place where I learn is full of friends, then how can he claim that only one of them will derail my ability to focus on studies outside of school? This is especially true when you consider that by being together, my friends and I are capable of working with each other on the homework, which can only increase our understanding. Therefore, his supports are not credible. Boom.

My dad doesn’t seem to have a problem with after-school activities that he thinks look good on my resume. If it’s the debate team, or the justice program, or even track, he will find a way to tear himself away from the Red Sox game to transport me to the North Pole if necessary, which discredits his justification of “being up too late.” Hate to break it to ya Daddio, but whether it’s hanging out with the boy toy or mock trying a court case as part of my Yale Justice Program, the pre-calculus homework will still be waiting for me. The moral of the story is that all I ask is for is a little free time to do my “thang” with the people (besides my family) that I love. You’re cute dad, but sometimes I need a change of scenery.

 

Mike

I’m not quite sure why Michaela feels so oppressed when I try to enforce our policy of no friends over on school nights. It’s really quite a simple rule: No friends over on weeknights. There, I’ve said it twice now. But anyone who knows Michaela well is aware she will not take “no” for an answer. The kid is like a jackhammer on steroids, chipping away at you in her relentless quest to change a “no” into a “yes’.” The excuses she comes up with to try to wheedle an exception out of me are as imaginative as they are endless. “Dad, Thursday really is the weekend because it ends with a Y just like Saturday and Sunday.” Or “Dad, James has to come over because I am going to cut his hair for our school pictures tomorrow,” like suddenly she has a barber’s license, and a pair of hedge clippers for this kid’s chia pet hairdo. Or “Can Caroline’s mom drop her off here after horseback riding because her parents have a meeting to go to,” even though I’m pretty sure Caroline’s mom was told this was my idea.

One of her favorite ploys is telling me she has this massive project, such as annotating the US Constitution for AP Gov., which will be unyielding to her singular brain, and can only be comprehended if she assembles a gaggle of giggling girls to plumb the depths of such esoteric language as “We the people of the United States, in order to establish a more perfect union…”  Whew! That’s impenetrable.

And even if her friends are not physically assembled, she can and most assuredly does summon their electronic presence while she sits at the bar in our kitchen with her laptop illuminated with text, and a box in the upper left-hand corner with a classmate’s live video-stream, a pair of buds wedged between her ears, her notebook and textbook open, a pen in hand as she “face-snatches” with one or more of her classmates.

How  can she have these “chatter-grams” while simultaneously trying to conjugate verbs in Spanish? Yikes, I’m not even sure if she is taking another year of Spanish, which I thought would look good on her resume and be useful in life, but I’ve learned that kids are like tillers on a sailboat: If you want to steer them to the right, you have to push the rudder to the left—you know, tell them the opposite of what you want them to do. She probably zigged with Spanish because I had suggested she zag.

When I glare at her for breaking the spirit of our rule “no friends over on weeknights” she inevitably has an excellent excuse on hand for me—“we have a quiz tomorrow in marine biology, and me and MacKenzie want to divide up the material.”

I tell her for the millionth time that it’s “MacKenzie and I” which elicits her annoying hand gesture in which she spreads open the five fingers of her left hand, with the exquisite precision of a conductor, then slowly draws them closed together, while softly shushing me.

Last night she told me that she had gotten back a grade in her AP Gov class in which she was able to use her annotations from the Constitution in an open book test. She explained that the class as a whole had under-performed and the several instructors were trying to determine whether to give a curve because of the atrocious grades.

I sensed she was laying the foundation for what was coming next, and could feel the anger begin to darken the edges of my mood.

“I got a 47, Dad.”

As I let that sink home, hearing my molars clicking in my jaw, I noted that her naughty smile seemed out of place in light of the somber news. Then she added: “Out of 50.  A 94!”  Boom indeed.  Maybe I should try twitter-gramming with one of my buddies while I write my next brief.

Mike Kerin is a lawyer in Milford, and his daughter, Michaela, is a student at Amity High School. In their column, this father and daughter bicker and banter about boys, curfews, homework, stress at school, dress codes, and a host of other issues that represent the jagged edges of adolescence which they must navigate every day, sometimes with humor, sometimes with sarcasm, always with love.

Elias Shymidt V. Eagle Concrete, LLC

The claimant, after injuring his left shoulder and sustaining a bilateral injury to his feet filed a Form 30C. Twenty-eight days after the action, the claimant had not received a return form 43,and he proceeded to file a preclusionary motion. This was denied on the grounds that the claimant’s payment and benefits had begun before the initial filing of the 30C form. Upon appeal, the finding and denial was upheld. The claimant argued, on a material basis, that, because he had sustained two injuries simultaneously he should be compensated for both concurrently. (This can be seen in Pagan v. Carry.) Commissioner Gregg however, found that compensation for his feet had already begun, deeming the claimant’s Motion to Preclude invalid. Applicable in this case are the findings of Gill v. Brescome Barton which follow: concurrent injuries of two separate body parts disabling the claimant from work allow only one benefit for incapacity to be paid at a time. Technically they were in the “safe-harbor” period.

-Caelan Kerin