A Defective, Preemptive Form 36 Bars Motion to Preclude

 

 

Robert Tanguay v. Rent-A-Center, Inc. & Sedgwick Claims Management Services

 

 5714 CRB-8-11-12, 800172710

 

 

 

The Compensation Review Board recently overturned a trial commissioner’s ruling in which the commissioner granted the claimant’s motion to preclude based on his claim that the workers’ compensation carrier failed to file a timely contest of claim, also known as a Form 43. Prior to the claimant having filed a Form 30C, the respondent filed a Form 43, disclaiming an injury that occurred to the claimant’s “left” knee, indicating that the claimant had suffered from a preexisting condition. Several months later, the claimant filed a Form 30C, alleging an injury to his right knee, reciting the same date of injury as had been stated on the Form 43. The respondent did not file a separate Form 43 to respond to the claimant’s 30C until after the claimant filed a motion to preclude approximately three months after having filed the Form 30C. The trial commissioner determined that the Form 43 was defective in terms of naming the wrong knee, and as such, its first Form 43 “did not substantially comply with the strictures of §31-294c(b),” and thereby granted the motion.

 

 

 

The Compensation Review Board reversed the trial commissioner, claiming that the determination of whether a Form 43 is sufficient to communicate a respondent’s intent to contest a liability for a specific element of the claimant’s, is a question of law rather than fact. As such, the CRB is not second-guessing the trial commissioner’s factual determination in finding that the trial commissioner had come to the wrong conclusion of law. Specifically, the respondent could file a preemptive disclaimer of liability if it appears that a workers’ compensation claim is imminent. It further held that “this commission is loathe to order it (preclusion) under circumstances where the underlying basis for preclusion appears to be allegations of technical deficiencies and not substantive deficiencies.” The CRB held that it would not exalt form over substance to inflict the harsh penalty of granting a motion to preclude.

 

Mixing Business With Pleasure: Compensable

It has long been accepted that workers injured in the course of a business trip are eligible for compensation, so long as the purpose of the trip inures to the benefit of the employer, at least partially.  A recent Australian court took this a step further when it ruled that a government employee who was injured during sex in her hotel room while on a business trip, be paid for her resulting physical injuries and lost wages. Apparently, while so engaged with a companion, a glass lighting fixture came loose above the bed, and struck her in the nose and mouth, causing injuries that required medical attention. Initially, the government insurer, Comcare (you cannot make this up), approved the claim, but then rejected it, arguing that her injuries should not be covered under workers’ compensation, since sexual activity was not a requirement of her employment, nor was it an “ordinary incident of an overnight stay” in a hotel, such as showering or sleeping. On December 13, 2012, however, Australian Federal Court Judge John Nicholas overturned that decision and supported the claimant’s rights to coverage, on the basis that simply being in the hotel room was a result of her employment, and that her activity at the time was irrelevant, and should not be subject to scrutiny or judgment on the part of the tribunal. While she might very well also have justification for a third-party negligence claim on the issue of substandard hotel maintenance, it was ruled that she was entitled to benefits through her workers’ compensation coverage. According to a Comcare spokesman, the insurer is considering an appeal to the High Court, Australia’s highest legal authority. If the decision stands, it may give new meaning to the idea of mixing business with pleasure.

“All credibility, all good conscience, all evidence of truth come only from the senses.”

In a recent decision, Puturi v. Benny’s Home Service, LLC, 5697CRB-2-11-11 (November 5, 2012) the CRB dismissed a claim in which an employee had injured his back and offered undisputed medical evidence supportive of compensability because the claimant was deemed not to be a credible witness by the trial commissioner. In a “fruit of the poisonous tree” analysis, the CRB found that even though there was uncontroverted evidence from the treating physician that the claimant had sustained a compensable injury while at work, “if a trial commissioner believes a claimant is not a credible witness, he may determine that any medical opinion which was reliant on the claimant’s narrative is also unreliable.” The CRB apparently gave significant weight to the fact that the treating physician indicated his ultimate opinion on compensability was largely formed by the history that his patient (the claimant) provided to him in the initial visit. In essence, the CRB upheld the trial commissioner’s determination that because the claimant was not credible during his testimony at trial, that it is reasonable to conclude that his history to the treating physician would also not have been truthful. As a result, the CRB dismissed the case.

Is A Day Laborer a Casual Employee, Exempt From Workers’ Compensation?

This was the issue posited before the CRB in a recent holding, in which the CRB upheld the trial Commissioner’s determination that an employee who had been hired for one day, with no expectation of working any additional days, was an employee entitled to benefits under the Workers’ Compensation Act. The testimony at the underlying trial was a study of inconsistencies and contradictions. However, the Commissioner found that the claimant had been hired on the day of the accident by a third party, who was deemed to be an agent of the employer, to remove some low-lying brush. The claimant fell from a ladder, approximately 30 feet, sustaining injuries. The claimant testified that he did not know how much he was going to be paid per hour, or per day. Further, there was some evidence that the employer exerted some control over the claimant.

 

The respondent argued that pursuant to 31-275 (9) (B) (ii) an employee “shall not be construed to include…one whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.” The CRB held that in order for an employee to be exempt from coverage, the employer must establish that both prongs of this test are met: the claimant’s employment was not frequent or systematic and that it was not for the purposes of the respondent’s trade or business. In this case, the CRB agreed that the first prong was not met, to wit, the claimant’s employment was neither frequent nor systematic. However, the CRB noted that it was part of the employer’s trade to trim low-lying brush, and therefore, the exemption of casual employment did not apply.

What’s Good For the Goose…

Emilia Falkowski v. W.E. Bassett Company & Gallagher Bassett Services, Inc., 5711CRB-4-11-12, 40007604

The CRB upheld the trial commissioner’s determination that sanctions may be imposed against a claimant for an undue delay of a case. In the past, this sanction has been levied almost unilaterally against respondents. This case provides for an interesting recitation of case law on the issue of undue delay.

 In this case, the trial commissioner had ordered a commissioner’s exam and further ordered that all of the necessary medical records be provided to the commission by a date certain. The date came and went without the commissioner having received the medical records requisite to having a meaningful commissioner’s exam. As a consequence, the commissioner imposed a $100.00 fine against the claimant’s counsel for his undue delay. The CRB remanded the matter to the trial commissioner to direct the fine be levied against the party, rather than the counsel, pursuant to the underlying statute, 31-288(b). The CRB decision specifically references a memorandum promulgated by the chairman’s office regarding the procedures for commissioner’s exams, and the language in the memorandum allowing the imposition of sanctions if the party responsible for providing medical records fails to do so in a timely fashion.  The CRB upbraided claimant’s counsel for its “lack of respect to the tribunal and the administrative procedures utilized to accomplish the purpose of the Act.”

 Clearly, had claimant’s counsel requested an extension and provided some reasonable explanation prior to the expiration of the date certain for production of the records, the commissioner would not have levied the sanctions. The take-away from this case is, as the CRB reminds us, is: “the purpose of the system is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.”

And there really is an Easter bunny.

Claimant must have been informed of a diagnosis of hypertension by a medical professional before the one year statute of limitations begins to tick.

Brymer v. Town of Clinton, 302 Conn. 755, 31 A. 3rd 353 (November 22, 2011)

 Prior to the Supreme Court’s pronouncement of the new standard in Ciarlelli v. Hamden, 299 Conn. 265, 300, 8 A.3d 1093 (2010), the CRB had affirmed the trial commissioner’s dismissal of a hypertension claim based on recent CRB precedent. In this case an endocrinologist with whom the claimant had consulted for diabetes told the claimant he should “keep an eye on” his blood pressure because of one high blood pressure reading in June of 2000. However, the claimant’s internist had recorded normal readings on twelve of thirteen occasions between 1995 and 2002.

 The trial commissioner found, prior to the Ciarlelli decision, that this one record of an elevated blood pressure constituted notice to the claimant sufficient to trigger §31-294c, even though the physician had testified on cross-examination that, upon review of the other thirteen normal readings over a seven year period, he would not have diagnosed the claimant as hypertensive. TheCRB affirmed the trial commissioner’s holding.

 The Supreme Court held that under Ciarlelli, the claimant must have been told by a medical professional that he was suffering from hypertension. Even if the Supreme Court were to accept, as the defendant urged, that the claimant had been put on notice of his hypertension by virtue of his June 2000 examination by the endocrinologist (as suggested by theCRB in a footnote), because the endocrinologist had reversed his own diagnosis in light of the other readings over seven years, there was no medically sufficient evidence to support a finding of hypertension in June 2000. The Supreme Court reversed theCRB with instructions to remand the case to the trial commissioner for further proceedings.

The CRB thwarts an attempted end run around a Motion To Preclude

Volta v. United Parcel Service, 5612 CRB-7-10-12 (January 31, 2012)

 The claimant filed a Form 30C alleging that he had sustained repetitive trauma injuries to both feet. The Respondents failed to timely file a Form 43 or to commence payment of benefits within 28 days. The claimant filed a Motion to Preclude which was granted. During the trial the claimant offered evidence in the form of the treating physician’s testimony, that the claimant had injured his feet while he was employed by the Respondent. The Respondent offered testimony in the form of a records review, that the injuries were sustained prior to his employment with the respondent. The Commissioner found the respondent’s expert credible, and as such denied the claimant’s Motion to Preclude and dismissed the repetitive trauma claim.

 The CRBthwarted this attempted end run around the conclusive presumption accorded to a Motion to Preclude that has been granted by a careful analysis of Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Donahue v. Veridiem, Inc. 291 Conn. 537 (2009). By stating in its 30C the claimant’s last date of injurious exposure, the claimant fairly apprised the respondent of his alleged claim to allow the employer to make a timely investigation of the claim.

 The CRBreiterated the law of Harpaz and Donahue which relegates the respondent to the status of a potted wall plant, yet emphasized that the claimant still must enter a prima facie case, which in footnote 8, it strongly suggests was accomplished in this case. In addition, Harpaz and Donahue allow the Commissioner to cross-examine the claimant and claimant’s witnesses when the claimant is trying to establish its prima facie case.

 Had the respondents timely filed a disclaimer, then the arguments advanced by the respondents in this case, and the evidence adduced might well have led to a different conclusion. TheCRBreversed and remanded the trial Commissioner’s dismissal permitting the claimant to attempt to establish his prima facie case, without any evidence introduced by the respondent, subject to the cross-examination by the Commissioner.

MARANDINO VS. PROMETHEUS PHARMACY (Is the Five year Requirement for COLA’s Consecutive or Cumulative?)

TheCRB, in a split decision, grappled with the issue of whether a claimant must be temporarily and totally disabled for a period of five continuous or five cumulative years in order to qualify for COLA benefits pursuant to the language of 31-307a(c). The majority construed the term “a period of five years or more” to mean a cumulative period, thereby reversing the trial commissioner’s construction of the term as being a consecutive period.

The majority held that the language of 31-307a(c) was not clear in so far as “a period” was susceptible to either the trial commissioner’s interpretation of a continuous period, or of the majority’s interpretation of a cumulative period of 260 months of temporary total disability. The majority embarked on a Clintonian analysis of whether the indefinite article “A” necessarily imposes a numerical limitation, citing dictionary definitions to support that it does not. Similarly, the word “period” means the interval of time marked by the occurrence of certain conditions or events. Since “A” is not necessarily one, and since “period” can represent plural events, then “a period” is susceptible to more than the trial commissioner’s interpretation.

Having demonstrated the statute was not plain and unambiguous, the majority then looked for interpretive guidance in the legislative history and circumstances surrounding its enactment. The majority referenced comments from the public hearing in 1997 supportive of the cumulative vs. consecutive approach. The CRBalso buttressed its opinion by relying on its decision in Yuille v. Bridgeport Hospital (April 28, 2003) in which there was dicta which arguably supported a cumulative interpretation.

In a five page dissent, (really, a dissent) Chairman Mastropietro argues that the statute is patently clear in so far as “a period” is just that: one single unit. Therefore, there is no need to look to the legislative history. Chairman Mastropietro further argues that even if the language of the statute is ambiguous, the legislative history has ample evidence of insurance carriers’ concerns about their inability to prospectively capture money paid for COLAs from past years’ premiums.

The liberal interpretation of “a period” is incongruent with the financial realities expressed in the legislative history, Chairman Mastropietro argues. Further, he disagrees with the majority’s inference that Yuille supports the cumulative interpretative.

If the appellate history of Marandino I is any indication of the trajectory of this holding, buckle in for a long ride.

Sullins v United Parcel Service Inc., Do We Really Take Our Claimants As We Find Them?

In Sullins v United Parcel Service Inc., 5611 CRB -1-10-12 (January 6, 2012) a workers’compensation claimant had been previously diagnosed with a diabetic neuropathy, and subsequently he sustained compensable injuries to his bilateral upper extremities and bilateral hands. The treating physician offered deposition testimony that the claimant had suffered a 10% permanent partial functional impairment of each upper extremity based on his cubital tunnel injuries, including the neurolysis of his ulnar nerve, and a 10% impairment for each hand   based on the carpal tunnel releases. He further stated that the claimant was entitled to an additional 20% attributable to the diabetic neuropathy, which was an independent nonoccupational disease.

 

The trial Commissioner, relying upon the Supreme Court’s holding in Deschenes, determined that the claimant’s permanent partial disability rating must be apportioned between a pre-existing non-compensable condition and  his more recent compensable injury.  The CRB upheld the trial Commissioner, reciting the holding in Deschenes wherein “apportionment of a permanent partial disability benefits is appropriate when a respondent employer is able to prove that: (1) a disability has resulted from a combination of two concurrently developing disease processes, one that is non-occupational, and the other that his work-related; and (2) the conditions of the claimant’s occupation have no influence on the development of the nonoccupational disease.

The CRB further provided that since there was no evidence that the claimant’s nonoccupational ailment caused  a work related injury  (as in the Blakeslee case, where the claimant’s epileptic seizure was the proximate cause behind his orthopedic injuries that he sustained when he was restrained) and further, there was no evidence that the work-related injury exacerbated the claimant’s nonoccupational ailment, the trial Commissioner was correct in apportioning the disability between the nonoccupational and occupational ailment. “If the two elements act independently to disable the claimant, we believe this is ‘the gap’ the Supreme Court intended the  Deschenes case to address. “

 

This Sullins decision is troubling in several respects.  CGS  Sec.  31 – 349 provides in relevant part: “if an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability cause by both the previous disability in the second injury which is materially and substantially greater than the disability that would’ve resulted from the second injury alone, he shall receive compensation…”  The statute seemingly embodied the concept that we take our claimant’s as we find them.  The Deschenes decision provided an exception in the situation in which the claimant was suffering from an occupational disease, namely, asbestosis, as well as lung disease from cigarette smoking. The Deschenes decision was, for the most part, a name only uttered on the asbestos docket.  It was widely thought to be limited to occupational disease cases.  The Sullins case may represent a further incursion into the previously established law that we take our claimant’s as we find them. 

Many of us have cases in which the claimant has a compensable back injury superimposed upon pre-existing degenerative disc disease.  We also have compensable knee injuries superimposed upon pre-existing osteoarthritic disease.  In light of the Sullins decision, we can now expect an apportionment argument by respondents’ counsel, who will argue these are separate, concurrent disease processes.  The take away from this case (for claimants’ counsel) is that the treating physician will need to say that the compensable injury has exacerbated the pre-existing disease.  Undoubtedly, respondents’ counsel will be coaching their RMEs to state that the compensable injury does not exacerbate pre-existing injury. Stay tuned.

Sabrina M. Monaco – Selmer vs. Total Customer Services and Travelers Indemnity Company (What Constitutes Commencement of Payment to Toll Preclusion under 31-294c(b)

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In this case the claimant filed a 30C on April 13, 2010 and the respondent’s failed to file a Form 43 until June 3, 2010, more than 28 days after the Form 30C had been filed. The respondents claim that because they had made two payments of $150.00 for two weeks within the period prior to filing the Form 43, that they had met the statutory threshold stated in §31-294c(b). The trial commissioner held that the because the respondents had failed to calculate an average weekly wage pursuant to the Administrative Regulation §31-296-2 or to provide the claimant with any written explanation as to how they arrived at the $150.00 payments that they made during that period of time, they had not “commenced” payment within the 28 day period so as to toll their obligation to file a disclaimer. The CRB found that the respondents apparently interpreted the word “commence” to mean that any payment to the claimant following the service of a Form 30C serves to toll the remedy of preclusion. Citing Harpaz, the CRB held that a “respondent enjoys safe harbor from preclusion not by virtue of making a single payment in lieu of filing a disclaimer, but may only preserve its rights if ‘it timely paid compensation.’”

The take away in this case is that if the respondent is going to commence payments within the 28 day period, it must articulate a basis for its payments, and make them consistently.

Refusal to Submit to Respondent’s Medical Exam

In Jane Bailey v. Greater Hartford Community College, the CRB recently decided (October 5, 2011) that where a claimant had repeatedly failed to respond to discovery requests and to appear for an respondent’s medical exam, that the Trial Commissioner’s dismissal of her case was appropriate. The CRB had heard a version of this case four years earlier when the Trial Commissioner had dismissed the claim based on the claimant’s failure to appear for a respondent’s medical exam. The CRB gave the claimant another chance by finding that the more appropriate remedy would be to suspend her benefits, effectively giving her another opportunity to submit to the respondent’s medical exam. However, the CRB had clearly cautioned that in the event that the claimant continued to obstruct the discovery requests that the respondents had made, the respondents could renew their motion to dismiss the claim.

The case was remanded, but the claimant continued to refuse to respond to written interrogatories or to undergo an examination by the respondent’s expert. As a consequence, the Trial Commissioner dismissed the claim and the CRB upheld the dismissal.