Scars Don’t Count Unless They’re on the Head, Face or Neck (Mc Clain v. Market Star Corporation 5604 CRB – 4– 10 – 11)

The Compensation Review Board (CRB) recently reversed a trial Commissioner who had awarded benefits to a claimant who had suffered scars to her shoulder, wrist, and arms following a work related motor vehicle accident. At issue was an interpretation of Connecticut Gen. Statutes Sec. 31 – 308 (c) which provides in relevant part that a workers compensation commissioner may award scarring benefits to any claimant who sustains a permanent significant scar on “the face, head or neck, or any other area of the body which handicaps the employee in obtaining or continuing to work.”

 The claimant testified at trial that the scars on her arms were distracting to employees that she was required to train as part of her job. She further testified that customers and representatives of her employer questioned what happened causing a distraction because they focused on her arm rather than the training materials. However, she further testified that not only had her employer continued to give her work, but had actually given her a raise since the date of the accident.

 The CRB could not uphold the scarring claim when the sole basis presented by the claimant for a scarring award was her own subjective fear as to the impact that it might have on her employment. It is incumbent upon the claimant to produce evidence at the formal hearing that the scars suffered have hindered her work performance or impeded a job search or limited an identifiable job opportunity. While the CRB’s decision seems to make sense under these facts, query whether there would be a different result if the claimant were employed by a model agency or even a strip club. Under those facts, the claimant’s ability to obtain or continue such work might be impaired.

SUPREME COURT PROVIDES BRIGHT LINE TEST IN HEART AND HYPERTENSION LAW

Under Connecticut Law, CGS §7-433c a uniformed member of a paid fire department or regular member of the paid police department who passed a pre-employment physical which demonstrated no evidence of pre-existing heart disease enjoys a presumption under the law that his heart disease is work-related. It should be noted that this statute does not apply to any injured workers who began employment on or after July 1, 1996.

The question that has always been mired in controversy is: when does the injured worker have to file a claim for his heart and hypertension benefits. Until quite recently, the compensation review board had interpreted the relevant statutes to require a claimant to file a notice of injury within one year of the date the claimant had notice of prior high blood pressure readings. In Ciarlelli v. Town of Hamden, the Supreme Court in Connecticut set aside the existing law and stated that the one year clock only begins to start ticking once the injured employee has a formal diagnosis of hypertension or heart disease communicated to him. The Supreme Court further stated it was “particularly inappropriate to expect a patient to discern that he or she suffers from that condition (heart disease) in the absence of a diagnosis by a professional with medical training and expertise.” In effect the Supreme Court stated that it would not be up to the subjective determination of the claimant as to whether or not a history of periodic high blood pressure readings which might have been the result of a “white coat effect,” constituted heart disease. Instead, this determination has be to be made by the doctor. Once the worker has been told by the healthcare provider that he has heart disease, the one year statute begins to run.

The Supreme Court in Ciarlelli went on to clarify that while a claim could be made for heart disease on a repetitive trauma basis, i.e. the claimant had been subject to series of events over the course of his employment that caused his heart disease, such employee could not assert a claim under §7-433c because he would unfairly be getting the benefit of the presumption of that statute which does not require the claimant to prove causation. In other words, if the claimant wants to get the benefit of the presumption in §7-433c, he cannot also extend the statute of limitations through the use of the repetitive trauma claim, which extends the statute until the last day that the claimant worked on that particular job, otherwise known as the last date of injurious exposure injurious exposure.

COMP COMMISSIONER HAS NO AUTHORITY TO REINSTATE STATE MARSHAL TO FULL TIME EMPLOYMENT UNDER CGS §5-142.

KENNETH RAMSONE VS. STATE OFCONNECTICUTAND GAB ROBBINS

A State Marshal was injured by a prisoner who assaulted him during a transport. He sustained an accepted injury to both knees and underwent multiple surgeries. He was deemed temporarily and totally disabled and collected temporary total benefits under CGS §5-142, which allows for the injured state employee to receive the full salary that he was receiving at the time of injury, as well as any annual adjustments for up to a period of five years, if such employee was engaged in hazardous duty at the time of his injury.

The claimant was released to full duty approximately three and a half years after the date of the accident. The state refused to reinstate the claimant to his previous position, asserting that the claimant had been separated from state services in good standing once the claimant had reached light duty status, pursuant to CGS §5-244. The claimant argued that under CGS §5-142 the state was required to restore the claimant to full time employment and full wage benefits as of the date that he had been eligible to returned to work without restrictions, pursuant to his treating physician.

The Compensation Review Board rejected this argument for two reasons:  first the CRB held that the Workers’ Compensation Commission had no statutory jurisdiction which would enable it to require an employee to be returned to work by the State of Connecticut; and second, the claimant’s interpretation of this statute would allow an injured hazardous duty officer to be entitled to full salary for five years after the date of injury irrespective of his recovery and work capacity. Because this would lead to a bizarre or unreasonable result, the CRB rejected this interpretation of the statute and found that the trial commissioner had properly dismissed this case.

Mileage Reimbursement For Snowbirds Returning To Connecticut For Medical Treatment

John Evensen v. City of Stamford, et al.,  5541CRB-7-104 (March 31, 2011) 

A Stamford police officer retired to Florida after having suffered numerous compensable injuries.  The trial commissioner awarded mileage reimbursement for three trips in which he had driven back to Connecticut for medical treatment, subject to proof that he had attended such visits, and further, the respondent was directed to pay for prospective trips using the most inexpensive mode of transportation available. 

The CRB vacated the award with regard to the past trips holding that the claimant is entitled to return to Connecticut for medical care under §31-312 if such treatment is reasonable and necessary, but the claimant must seek the approval of the respondents or the commissioner prior to embarking on the trip.  The CRB upheld the trial commissioner’s ruling concerning prospective trips so long as the claimant and respondent coordinate the trip for reasonable and necessary treatment prior to the commencement of travel.

A Specious Defense of Temporary Total Benefits, and Sua Sponte Sanctions

LEE VS. CULTEC, INC. CASE NO. 5546 CRB-7-10-4 (FEBRUARY 25, 2011) In a case in which the respondent originally accepted a cervical injury, but ignored the treating physician’s recommendation for a referral to a spine specialist, during which period of time the claimant was deemed to be totally disabled by the treating internist, the respondent could not cry foul when its belated-RME determined that the claimant had a work capacity for some indeterminate period prior to his examination. Respondent conducted an RME only after the respondent claimed that the trial commissioner did not have  competent evidence upon which to determine that the claimant was temporarily and totally disabled for the period of time between the injury and the date of the finding and award, almost a year later. Using unvarnished language, the CRB characterized the respondent’s arguments as specious, finding that there was plenty of evidence in the record to sustain the commissioner’s decision that the claimant was totally disabled. Further, the CRB determined that having limited the claimant to treating with general practitioners, the respondent could not then fairly criticize the opinion from such physicians.

The CRB upheld the trial commissioner’s sua sponte finding that the respondent’s egregious behavior in failing to provide appropriate medical treatment prior to the finding and award, and then formulating a defense payment of temporary total  benefits by attacking the quality of his treatment and credibility of the treating physicians, which they foisted upon the claimant, (by not allowing the referral to his spinal specialist),  merited a penalty under 31-288(b)(1). In affirming the trial commissioner’s 31-288(b)(1) penalty, the CRB indicated that 31-300 attorney’s fees sanction had been properly noticed and because of the similarity in the statutes between 31-300 and 31-288(b)(1), respondent could not claim it was deprived of due process. Specifically, the CRB stated “we do not find the two sanction statutes so dissimilar that the respondent was unable to prepare an effective defense regarding §31-288(b)(1) CGS.

(§7-308 Barring Firefighter’s From Suing Other Negligent Firefighters Operating Motor Vehicles is Constitutional)

Keane v. Fischetti, 300 Conn. 396, 13 A.3d 1089, (Conn. 2011

The plaintiffs, both firefighters, brought a negligence complaint against a fellow employee who was driving the fire truck. The trial court struck their complaints on the ground that §7-308 barred injured firefighters who are eligible to receive workers’ compensation benefits from bringing negligence action against other firefighters for their injuries. The plaintiffs appealed claiming that the immunity provided to firefighters by §7-308 violates the equal protection clauses of the state and federal constitutions.

In affirming the trial court’s decision, the Supreme Court first assumed that §7-308 discriminates against firefighters in favor of other municipal employees because it prevents firefighters who are eligible for workers’ compensation benefits from bringing a negligence claim against other firefighters, whereas other municipal employees are not similarly prevented The Supreme Court adopted the rational purpose standard in holding that because state law requires municipalities to indemnify their employees from liability arising during the course of their employment, there was a legitimate governmental objective. Specifically the legislature could have concluded that the litigation arising from motor vehicle accidents between firefighters poses a greater risk to municipal liability than to other municipal employees, who are less likely to be involved in motor vehicle accidents.

New Case on Survivor’s Benefits

A widow who failed to file a claim for survivor’s benefits within one year of the date of the decedent’s death and was thereby precluded from receiving any benefits, was able to get §31-294c amended to extend the filing date to accommodate the particular circumstances of her case. The commissioner refused to hear the matter based on his lack of subject matter jurisdiction over the case, claiming that the amended statute constituted an unconstitutional emolument. The commissioner further advised the widow-plaintiff to file an action seeking a declaratory judgment as to whether the statutory amendment was constitutional. The trial court held that it was an unconstitutional emolument which was designed to benefit the widow individually in violation of §1 of the Connecticut Constitution. The amendment allowed a widow to file a survivor’s claim 13 years after the date of death, if the decedent was injured in June 1991 and died in November, 1992.
The widow did not appeal the trial court’s finding that the amendment constituted an unconstitutional emolument. Rather she raised jurisdictional challenges based on lack of standing and failure to exhaust administrative remedies. The Supreme Court held that the plaintiff, St. Paul’s, had standing vis a vis its legal interest in being protected from having to defend against a stale claim. The high court further held that while it is generally true that the administrative agency must be given the opportunity to address the claim on its merits, it is settled law that a commissioner cannot rule upon the constitutionality of a statute; therefore, this case presents the rare exception, the futility exception, to the general rule that one must exhaust his administrative remedies before seeking judicial relief.
THE ST. PAUL TRAVELERS COMPANIES, INC. V. SLYVIA N. KUEHL, ET AL (JANUARY 5, 2011).

Lost Preemployment Physical in Heart and Hypertension Case

In Lembrick vs State of Connecticut/ Dept. of Corrections 5543CRB-1-10-4 (February 10, 2011) the issue was whether the claimant, a correction officer, should be barred from receiving benefits pursuant to §5-145 where neither party could locate a copy of the claimant’s pre-employment physical. The CRB found that there was credible evidence in the form of the commissioner’s examination, (which attributed the claimant’s hypertension to a combination of heredity, obesity and workplace stress, without being able to quantify the relative importance of each function), to conclude that the claimant was entitled to §5-145 benefits.

The CRB emphasized that an expert witness does not have to use the magical term “substantial” “significant” or “major” to characterize the impact of the workplace stress on the claimant’s hypertension, but rather the trial commissioner must apply his/her discretion as to whether he/she believes the totality of evidence supports compensability.

The CRB also emphasized the strength of the statutory presumption of compensability stating that if the statutory prerequisites are met the employer must prove lack of causation.

Bringing An Undue Delay Claim

“The one great principle of the English law is, to make business for itself. There is no other principle as distinctly, certainly, and consistently maintained through all its narrow turnings.” Charles Dickens, “Bleak House.”

“The era of procrastination, of half measures, of soothing and baffling expedients, of delays, is coming to a close. In its place, we are entering a period of consequences…”Winston Churchill

The Connecticut Supreme Court announced in De’Oliveira v. Liberty Mutual Insurance 273 Conn. 487, 870 A.2d 1066 (Conn. 2005) that it would not countenance any bad faith insurance claims against insurance carriers in the world of workers’ compensation. “We agree with the California Supreme Court that ‘injuries arising out of and in the course of the workers’ compensation claims fall within the scope of the exclusive remedy provisions because this process is tethered to a compensable injury. Indeed every employee who suffers a workplace injury must go through the claims process in order to recover compensation.’” Id. p. 503. Whatever redress the hapless claimant can seek will have to come in the form of the remedies available in Chapter 568 of the Connecticut General Statutes. Only in instances where the conduct is “so egregious that the insurer no longer could be deemed to be acting as an agent of the employer …” can a bad faith claim now be asserted. Id. p. 507
Until that 2005 decision, the superior courts had been divided as to whether or not there was a right to directly prosecute a civil claim against an insurer who engaged in conduct that would constitute undue delay. See Spencer v. Health Direct, Inc., Superior Court, judicial district of New London, Docket No. 544356, 1999 WL 30589 (January 8, 1999) (23 Conn. L. Rptr. 675) (listing decisions on both sides of the issue); see generally Brosnan v. Sacred Heart University, Superior Court judicial district of Fairfield, Docket No. 333544, 1997 WL 678197 (October 21, 1997) (20 Conn. L. Rptr. 509) (discussing at length arguments on both sides of the issue). The sword of Damocles that had been suspended above the heads of claims adjusters by that fine thread of horse hair finally snapped and clanged harmlessly at their feet, arguably emboldening some claim representatives to adjust claims with less than their characteristic alacrity. Now, in the post DeOliveiran era, it is settled law the unscrupulous conduct of a claims adjuster cannot be scrutinized in a civil forum with its more formidable remedies. This author has inquired of the Chairman’s office as to whether statistics are kept regarding the number of undue delay claims brought pre and post DeOliveira. The number of hearings per year calendared per year following the Supreme Court’s 2005 decision in DeOlivera has increased exponentially, as illustrated in this graphic.
2003 278 hearings
2004 267 hearings
2005 392 hearings
2006 473 hearings
2007 432 hearings
2008 772 hearings

As practitioners, we do have a number of arrows within our quiver that we can deploy to deal with cases in which an adjuster has not paid indemnity benefits and/or medical bills in a timely fashion. The scope of the materials today includes a brief review of those statutory remedies, as well as some of the case law which has provided the contours of the landscape evolving in this area.
CGS Sec 31-288(b)(1) provides in relevant part: “Whenever through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, such employer or insurer may be assessed by the commissioner hearing this claim a civil penalty of not more than one thousand dollars for each such case of delay, to be paid to the claimant.” It further allows for the commissioner to award a civil penalty up to five hundred dollars per hearing for each hearing the completion of which is unreasonably or unduly delayed. Further, C.G.S. §31-300 provides, in relevant part: “In cases where, through the fault or neglect of the employer or insurer…payments of compensation have been unduly delayed…the commissioner may include in the award in the case of undue delay in payments of compensation, interest at 12 per cent per annum and a reasonable attorney’s fee.”
The CRB has held that for a respondent to be penalized for undue delay under this statute, the trial commissioner must determine the action or inaction by the respondent “unduly delayed” benefits due the claimant. The trial commissioner must further find these delays were due to “fault or neglect.” These are factual questions which places the determination within the discretion of the trial commissioner. Kuhar v. Frank Mercede and Sons, Inc. 5250 CRB-7-07-7 (2008). When such a determination is reached the reviewing tribunal must extend “every reasonable presumption in favor of the action.” Daniels v. Alander, 268 Conn. 320, 330 (2004). The extent of that presumption was outlined in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).
Further, the CRB and the Appellate Court have affirmed an award of $500.00 for each of 18 instances in which the respondents failed to make payments for benefit amounts which were undisputed, and eight instances in which the respondents unduly delayed payment to the claimant, pursuant to the then-existing version of Sec 31-288b, (at which time the maximum penalty was $500.00 per instance of undue delay). Hummel v. Marten Transport, LTD 5080 CRB-5-06-4 (2007); affirmed, 114 Conn. App. 822, 970 A.2d 834 (2009).
A finding of unreasonable contest is required in order for an award of attorney’s fees. Haugh v. Leake & Nelson, 1421 CRB-2-92-5 (March 15, 1994); C.G.S. §31-300. An attorney’s fee award for unreasonable contest is made when, after hearing the parties’ arguments and reviewing the evidence, the Workers Compensation Commissioner decides that the employer or insurer lacked a reasonable basis upon which to contest the injured workers’ request for benefits. Connecticut Workers’ Compensation After Reforms, Third Edition, Sevarino, 2008, citing Hicking v State of Connecticut/Department of Correction, 5026 CRB-2-05-11 (November 3, 2006)
If the claim continues to be delayed despite your reasonable efforts to rein in the wayward adjuster, then at some point you must request a hearing on undue delay. The nature of the delay can take one or more of many permutations: the claimant hasn’t received his weekly check because he’s fallen off repetitive pay; medical bills haven’t been paid; mileage hasn’t been reimbursed; a medical procedure hasn’t been approved, despite the fact that there is no respondent’s exam to contradict the treating physician’s recommended procedure. It is difficult to articulate a hard and fast rule as to when an employer or a carrier has irrevocably crossed over the line into the netherworld of the undue delay. Personally, I like to allow three strikes, but often the financial or health exigencies of the claimant dictate the speed with which I must file an undue claim. One can allow significantly more latitude in an adjuster’s failure to pay outstanding medical bills than in his/her failure to approve a three level lumbar fusion.
A strategical decision is whether you need to call the claims examiner as a witness. If so, how do you get the adjuster to testify in a deposition or at trial? There are at least two schools of thought in this regard. The first school of thought is that less is more. If the issue is failure to make timely indemnity payments you should be able to prove your case with a print out of the payment history from the adjuster. In that instance, just multiply the number of late checks, or unpaid medical bills, non-reimbursed mileage, etc times $1,000.00. In that scenario, the fault or neglect in the undue delay is so obvious as to speak for itself, res ipsa loquitur. In addition, if there were some reasonable explanation for the delay, presumably the respondent would have the claims representative testify. The trial commissioner may draw an adverse inference by the claims adjuster’s failure to testify. The Secondino rule, requiring an adverse inference as to the party failing to call a witness within the party’s power to call, and a witness who would naturally have been called to testify, has been legislatively overruled by CGS§52-216c which states: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause maybe drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments … that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.” Therefore, it is clearly proper to argue to a commissioner that a witness’s failure to appear before the tribunal deserves an adverse inference.
On the other hand, delving into the life of an adjuster in a deposition to be used at trial can be quite enlightening. Recently, I took an adjuster’s deposition in a case in which she candidly testified that she had no system for calendaring when a claimant was about to fall off of repetitive pay. She would pre-program the claimant for 2 months at a time, then unless she happened to be in a particular file to set the reserves, there would be no way for her to know the repetitive pay was about to end, other than when she got the call from my office. She conceded that there were several instances of undue delay in this case. The downside to taking the deposition is that it can be expensive, and I’m not aware of any mechanism to recoup this expense.
Is the Respondent liable under 31-288b for every TT or TP check that is mailed late? There is certainly a good argument to be made that every such late check is subject to a penalty. The Respondent should not be held accountable for the vagaries of the US mail if a check is sent out in a timely fashion. But if a claimant falls off repetitive pay, the reality is that because of the mind-numbing complexity of ordering and mailing a check, the claimant is almost guaranteed that he will not receive his check for more than a week.

Can My Employer Make Me Clock Out?

If you have been hurt, but returned to the job, can your employer make you clock out to go to one of your doctors with whom you are treating, for the work-related accident? The answer: it depends. If you are receiving a temporary differential payment while you are at work because you are working fewer hours, or because you are earning less money due to your restrictions, then the employer can make you clock out. However, if you have returned to your regular job, at your regular pay, but you continue to need medical treatment, then your employer must pay you for the time you are away from your job, including travel time. C.G.S. §31-312 provides an employee receiving medical attention under the provisions of this chapter, and required to be absent from work for medical treatment, examination, laboratory tests or other diagnostic procedures and not otherwise receiving or eligible to receive weekly compensation, shall be compensated for the time lost from the job for required medical treatment and tests at the rate of such employee’s average earnings … Time lost … shall include necessary travel time from the plant to the place of treatment the time for the treatment …”
The statute also provides that if the visit with the doctor is outside of the employee’s working hours, you have to be paid “as though it were time lost from the job at the rate of the employee’s average hourly earning …”

Payor-Provider Guidelines

Connecticut has issued new guidelines regarding the various obligations and interaction between insurance carriers and medical providers, effective July 1, 2010. The goal of these new Guidelines is to provide “timely and efficient delivery of monetary benefits and medical treatment.” Often there is an unnecessary lag between the date of injury and the administration of effective medical care because of the confusion in communication that exisits between claimants, insurance company payors and the medical professionals. The lack of clarity in the respective obligations of each party has “fostered an acrimonious relationship among the injured worker, medical provider, employer, and insurance payor…Communication, especially as it relates to medical treatment, is the key to ensuring the system’s goals are achieved.” CBIA News, September 2010. The Guidelines can be viewed and downloaded at: http://wcc.state.ct.us/download/acrobat/payor-provider-guidelines.pdf

Can My Employer Cut Off my Health Insurance?

YES.
One would think the answer could be found in the statute entitled “Employer to Continue Insurance Coverage …For Employees Eligible to Receive Workers’ Compensation.” Connecticut General Statutes §31-284b provides in relevant part: “In order to maintain…the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee…shall provide to the employee equivalent insurance coverage…while the employee is eligible to receive or is receiving compensation pursuant to the statute…”

That statute could not be clearer. And between 1982 when the statute was enacted and 1993, that was the law. However, in 1993, it was determined that because federal law (Erisa) prohibits requiring a private employer to maintain health insurance, this statute was preempted by federal law, at least as far as private employers are concerned. The statute now applies only to state and municipal employees. So the answer is unless you are a state or town employee, your employer may cut off your health insurance, so long as it provides you with the proper notification pursuant to COBRA.