Don Summers vs. R.R. Donnelley Printing Co.5914CRB-1-14-2

This was an appeal of the claimant’s bid for sanctions against the respondents for unreasonable delay. The claimant argues that the trial commissioner had pre-judged the motion for sanctions and denied a motion to depose the claim’s adjuster, which made it impossible for him to prove his case. The claimant argued that the commissioner had stated prior to the opening of the record that he would be “hard pressed to issue a finding of unreasonable contest/unreasonable delay and a fight on credibility.”

The CRB discussed the extraordinary remedy of recusing a trial commissioner. Citing a decision in Martinez vs. McCord, the CRB reiterated that “since the early days of Workers’ Compensation in Connecticut, the recusal of trial commissioners has been disfavored except for circumstances under which a trial commissioner determined on his or her own that their impartiality was at issue.” The CRB found in this case that the trial commissioner’s comments prior to trial that it would be an uphill battle to convince him to issue sanctions was not so prejudicial as to require a recusal. According to the Supreme Court’s dicta in State vs. Rizzo303Conn72(2011) “…opinions that judges may form as a result of what they learn in earlier proceedings in the same case ‘rarely’ constitute the type of bias or appearance of bias that requires recusal…To do so an opinion must be ‘so extreme as to display clear inability to render fair judgment.’” The CRB held that the information upon which the trial commissioner had developed his bias was not outside the record, but was based on a recitation of the facts prior to going on the record at trial. For this reason, the CRB found no error from the trial commissioner’s refusal to recuse himself in this matter.

However, when his refusal to recuse himself was added to the trial commissioner’s refusal to allow a deposition of the claims adjuster, which arguably would have been essential to proving the undue delay portion of this claim, the CRB held that the trial commissioner had abused his discretion in failing to allow the claimant every opportunity to adduce any relevant evidence on the issue of sanctions. “We are simply not persuaded that the claimant was availed of every opportunity in this case to rebut the evaluation as to the merit of sanctions the trial commissioner publicly stated at the commencement of this case prior to hearing any testimony on the record.”

As a consequence, the CRB vacated the trial commissioner’s dismissal of the sanctions issue and remanded it to a new trial commissioner for a de novo hearing, who was charged with determining whether to allow the deposition and then issuing a ruling on undue delay. Query whether the CRB had implicitly determined that the trial commissioner should have recused himself by awarding a de novo trial by another commissioner, ie, the CRB easily could have remanded the case back to the original trial commissioner with instructions to reconsider the request for deposition.

The Intersection of Rule 4.2 and the Spirit of the Act: A Heavenly Mansion or a Foul Sty?

I met the Bishop on the road
And much said he and I…
“Live in a heavenly mansion,
Not in some foul sty.” (said the Bishop)
“Fair and foul are near of kin,
And fair needs foul,” I cried…
“For nothing can be sole or whole
That has not been rent.”

Excerpted from “Crazy Jane Talks with the Bishop,” by W.B. Yeats

Several issues ago, Attorney Douglas Drayton penned an article in which he sternly reminded claimant’s counsel that Rule 4.2 of the Rules of Professional Conduct applies even to our parochial corner of the world.  The essence of the rule is that “thou shalt not communicate with a represented party,” and more specifically, with adjusters.  Like Yeats’ pious Bishop exhorting the lowly sinner to look heavenward,  Attorney Drayton warned that such communication, without consent from respondent’s counsel, constitutes a per se violation of the commandment.  As with many rules of professional responsibility, the academic pronouncement of the standard is as clear and shiny as a quarter flickering in the deep end of a pool, but just as elusive when you dive into the real world to wrap your hand around it. This article will examine some of the murkier scenarios that make a strict application of this rule difficult, and will attempt to harmonize the letter of Rule 4.2 with the spirit of our Workers’ Compensation Act using real world examples.

Our Act creates a statutory system of informal dispute resolution. The spirit of the Act fosters efforts to resolve issues without resort to the hearing process and the intervention of commissioners.  The Chairman’s office, in consultation with some of the more erudite members of our bar, promulgated “The Payor and Medical Provider Guidelines…” which reiterates this spirit in its Introduction section several times.  “The purpose of the Workers’ Compensation Act is to provide the timely and efficient delivery of monetary benefits and medical treatment to workers who have sustained injuries that are causally related to their employment…Communication, especially as it relates to medical treatment, is the key to ensuring the system’s goals are achieved…Timely decisions and effective communication provide an optimal outcome for all workers’ compensation stakeholders.”

For better or worse, our workers’ compensation is a world unto itself, separate and distinct from that of civil litigation.  As Justice Borden stated when he appeared before our section in 2009 at the CBA’s Annual Meeting, our practitioners enjoy a “shared understanding of the Act,” one which he conceded, frequently has caused members of the Supreme Court to scratch their heads at how our system works. Neither the Rules of Evidence nor the Practice Book applies, but somehow we manage nicely without either.  Hearsay admissions are commonly allowed, but go to the weight of the evidence, subject to due process concerns. Because there are only 16 commissioners in the state, two per district, the fact finder trying a formal has almost certainly presided over one or more informals, quite possibly including the pre-formal leading up to the trial, often meeting the claimants face-to-face, and presumably, forming opinions about the credibility of the claimant.  While there are so many potential conflicts in that scenario that you need a diagram to keep them straight, as a bar, we accept these inherent conflicts, because that’s how we roll in comp. Such conflicts do not exist in Superior Court because the number of judges allows for insulation between the judiciary, members of the bar, and most importantly, the parties.

As the Supreme Court has more elegantly stated, our bar is a specialized bar able to understand the nuances in the practice of workers’ compensation. “We recognize that workers’ compensation law is practiced to a large extent by a specialized bar—both claimants’ and insurers’.  Legislative changes are often made at the behest of the principal economic constituencies which are the principal participants in the system-labor unions and the business and insurance community.  Moreover, the commissioners, both at the hearing and the appellate levels, who adjudicate workers’ compensation disputes, have by virtue of their day-to-day experience, a large measure of legal expertise in the area.”  Enquist v. General Datacom, 218 Conn 19, 26-27, footnote 7.

Our rules are different. Respondents still pay for the cost of deposition transcripts if they have noticed the deposition, because they are better able to bear the cost. Discovery is voluntary, and such things as the production of videotape surveillance is largely at the discretion of respondent’s counsel, subject again to due process concerns.  We do not have a pleadings practice in which we have to while away our Monday mornings, and sometimes afternoons, making arcane arguments about how a defendant’s response to a Request to Admit is unresponsive, or why we should not have to make a perfectly clear complaint more specific. We gratefully embrace an informal arena in which we are unfettered by the mundane and methodical formalities of Superior Court, one in which our 15 minutes before the commissioner allows us to transact business in an efficient, effective manner calculated to insure that the best interests of both parties are being addressed promptly.

It is one thing to say the Rules of Evidence and the Practice Book do not apply in workers’ compensation:  it is quite another thing to suggest that one of the canons of our ethical code is exempt from the Act.  It is not, and  those who ignore Rule 4.2 do so at their own peril.  But should the rule be applied in the same manner and with the same degree of force when the represented party is an adjuster? The purpose of the rule, as Attorney Drayton noted in his reference to one of the Supreme Court decisions that focused on the application of Rule 4.2, albeit not in a case involving contact with an adjuster, is “to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer.”  Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236 (1990)

Who is the adjuster that needs the full force and protection of Rule 4.2?  The adjuster is a skilled, sophisticated business person (or at least experienced) who handles hundreds of cases at a time, makes daily decisions as to whether and when a claimant will be paid benefits, whether a recommended medical procedure will be authorized, or whether an RME will be required.  Before either side retains counsel the adjuster typically will have had repeated interactions with the claimant, a situation not encountered normally by their counterparts in civil matters.  After counsel is retained, an adjuster acts collaboratively with respondent’s counsel day to day and week to week over the course of a long claim.  Therefore, the adjuster is not a meek sheep about to be slaughtered by a lawyer with superior knowledge and skills.

However to argue that an adjuster cannot be protected by Rule 4.2 is as inane as arguing that Yeats’lascivious and promiscuous Crazy Jane could not be protected under the rape statutes; their relative skills do not disqualify them from being victimized. In response to the concerns raised in Attorney Drayton’s article, and in an effort to maintain the delicate balance between compliance with this onerous ethical edict and adherence to the spirit of the Act, (not to mention providing effective counsel to fickle clients, who may be unable to resist the constant barrage of billboards, buses and television commercials importuning them to get immediate results with their firms)  I have drafted a check-in-the-box letter to respondent’s counsel in cases where an appearance has been filed.  The consent form set out below, is not unlike a Chinese take-out menu asking counsel to select the allowable instances in which I can communicate with an adjuster running the gamut from perfunctory discussions about checks or rides to an RME, to more substantive areas like settlement of cases.

After sending out hundreds of these letters, I have observed that they are widely ignored by opposing counsel.  In the four months that I have been sending them out, only about 30% have been answered.  The responses I have received vary from no contact to carte blanche communication.  Even in the instances I do receive a response from respondent’s counsel, there is the logistical problem posed when my conversation with an adjuster strays from the approved topic of a late check to a proscribed area, such as settlement.  As Attorney Drayton warns in his article, “permission for one communication…is not permission to communicate on any other issues.”

Based on this anemic response, I suspect most attorneys do not care one way or the other about this tempest in a teapot.  I have informally polled a number of respondents’ attorneys who said they just do not want to be embarrassed by not having been privy to ex parte communications.  A luminary of the respondent’s bar recently told me that on more than one occasion he has appeared at a settlement hearing offering the maximum authority provided to him by the adjuster, only to learn that unbeknownst to him, the adjuster made a higher offer to claimant’s counsel in a prior discussion, causing much consternation and confusion at the hearing.  Many respondents’ counsel have opined that the amount of latitude they give to claimant’s counsel to communicate with the adjuster is directly proportionate to their degree of trust in that particular lawyer. Some attorneys will acknowledge that you are doing them a favor and saving a lot of time by running down these pedestrian issues without their involvement, while other attorneys, indeed two entire law firms by my count, that allow no contact once their firm has filed an appearance.

Are there circumstances in which the letter of the rule should yield to the spirit of the operation of the Act?  Attorney Drayton argues, “There are no exceptions to the rule and only if respondent’s counsel consents to such communication is there no violation.”  He suggests that claimant’s counsel could avoid violation of the rule by obtaining prior written approval from counsel, or in the event of a call from the adjuster, by conferencing in the other attorney.  The impracticality of this proposal was highlighted by an adjuster who called me last week, asking for an update on my client who had just had a spinal stimulator implanted.  The adjuster wanted to know whether and when a follow up appointment had been scheduled, and what his work status was because she was not going to keep paying him indemnity benefits without the benefit of a current work status report.  I, in turn, needed to ask her if she would provide authorization for a new medication the doctor had recommended.  My secretary, newly sensitive to this ethical quandary, scrambled to find the consent form in the file while I stalled the adjuster, reading her salient excerpts from Attorney Drayton’s article.  She told me she had no idea this rule existed, although she was refreshingly aware of the prohibition for her to talk to represented claimants. Upon confirmation that her attorney had failed to complete the consent form, I notified the adjuster that I could not talk to her, but that I would contact counsel for consent.  That provoked a geyser of laughter.  “Good luck trying to get him on the phone.  I can never get him.”

In retrospect, the way to have handled that call would have been to provide the adjuster with the information she was looking for, then to document the conversation in an email to the attorney.  Is it a violation of Rule 4.2?  Yes.  Does the need to resolve these issues quickly and efficiently, thereby honoring the spirit of the Act, trump the ethical issue, especially when respondent’s counsel has ignored my efforts seeking consent?  I hope so.

There are other frequent scenarios in which the strict application of Rule 4.2, as it relates to adjusters, begs for mitigation.  Often claimant’s counsel shows up at a hearing in which no attorney has filed an appearance on behalf of either the employer or the insurance company.  The commissioner notes that Attorney Jones, who is either staff counsel for this insurance firm, or frequently represents the carrier, is in the building. Attorney Jones sits in on the hearing, has no file, but dutifully promises to follow up on the benefits owed or the authorization sought, especially in light of the commissioner’s strong recommendation to get the matter quickly resolved.   Can claimant’s counsel still contact the adjuster to convey the commissioner’s recommendation?  Does it matter if respondent’s counsel fails to file an appearance following this hearing?

What about the adjuster who calls claimant’s counsel in response to counsel’s demand letter addressed to respondent’s counsel, staff counsel, advising that she negotiates all of her own settlements?  Is claimant’s counsel really expected to rebuff this contact by telling the very person who controls the purse strings that he cannot talk to her directly until he has cleared it with opposing counsel? As difficult as it is to get in touch with adjusters, (even Attorney Drayton obliquely references the byzantine communication system in which an email can ricochet back and forth across the United States several times before arriving in an adjuster’s email bin) it is even more difficult to get a response from many respondent’s counsel, as adverted to above.

And if the issue is as banal as a delayed periodic payment or authorization for a procedure, is it exalting form over substance to waste a week or two it will inevitably take to get counsel’s permission to discuss the matter directly with the adjuster, then to get a call back from the adjuster?  Is it efficient use of time to tell the adjuster, who may well be ready to issue the late check or provide the procedure ordered by the doctor, that you will have to consult with opposing counsel first?

Clearly, there are instances when it is improper for claimant’s counsel to communicate with an adjuster.  If the case has taken an adversarial turn such that you are contemplating an undue delay claim, or if there is a contested component of the case, one would be well served to refrain from communication with the adjuster.  If the other attorney has advised you that you are to deal directly with her, then I believe you must honor that request. If the commissioner has made a recommendation at a hearing, which the attorney has to filter through the adjuster, you should not call the adjuster directly as a shortcut, and you should certainly never represent that a commissioner’s “recommendation” at an informal hearing was an “order”.   If you are not sure whether your proposed communication with an adjuster is harmless or egregious, you should refrain from the communication.  If you do communicate with the adjuster directly, copy counsel on the letter, or email a summary of the telephone conversation.  If the attorney finds this communication offensive, he will undoubtedly ask you to desist.

How about the law of unintended consequences?  An adjuster recently called me on a case while the ideas for this article were percolating through my head, to discuss settlement of a workers’ compensation claim on a third party claim I had handled.  Four months earlier, I had sent a letter to counsel proposing a resolution of the lien, along with my consent form, both of which went unanswered.  I told the adjuster I could not discuss settlement with her because she was represented by counsel.  She told me to check my email in 15 minutes, after which time she thought I would no longer have an ethical dilemma. Sure enough, soon there was an email from her enclosing a copy of her letter to the attorney asking him to close his file and submit the bill.  When I called her back, she explained that she had provided authority to settle the case in accordance with my proposal two months earlier.  It gave me no pleasure to learn that this attorney had been terminated in part because of my attempt to comply with Rule 4.2.

And if the garden variety contact with an adjuster is truly not allowable, then how is it that nurse case managers, who are often thinly veiled double agents, having direct communication with the claimant, and the treating physician, and often in the sanctity of the examination room, are able to act as conduits of such communications to the adjusters, and ultimately, respondent’s counsel?  Is it a grievable offense for these agents of the insurance company, and therefore, ultimately agents of respondent’s counsel, to have such communication with claimants?

Perhaps the best approach in terms of communication with an adjuster is the one my daughter uses when she wants to pet an unfamiliar dog.  She asks the owner if it’s okay.  Ask the attorney at the outset of the case whether, and under what circumstances, it is acceptable to communicate with the adjuster.  Know whom you are asking.  If you fail to ask the other attorney, then you cannot justifiably complain when you are bitten.  And to the Bishops of our bar, I would ask that you continue to exercise sound discretion in allowing communication that honors the spirit of the act.  If our (claimant’s counsel) pedestrian gaze strays too far from the commandment, tell us: a word to the wise is superfluous.There are no easy answers, no clear lines to be drawn in our world of workers’ compensation.  As Attorney Drayton pointed out, there appears to be no case law in this regard.  Perhaps that is a compliment to all of us who toil every day in this mansion of messy conflicts that we have pitched.

The Question of Pre-Existing Conditions (Hadden vs Capital Region Education Council)

The CRB affirmed the trial commissioner’s finding that an assault against a teacher by a student was a material and substantial contributing factor to the teacher’s disability even though the claimant/teacher had a pre-existing condition.

In the case of a teacher who was injured by a student while trying to break up a hallway fight, the question was posed as to whether or not the claimant’s subsequent need for treatment and inability to work was truly the responsibility of the comp carrier, or whether it was the sequelae of her pre-existing multiple sclerosis.

While it is true that the claimant had been diagnosed in 2001 with MS, the disease had been progressing very slowly; with periodic check-ups and MRI’s, she was able to continue her teaching duties as a physical education teacher at full capacity, and did not have to alter her active lifestyle. The only concession was the occasional use of a cane. On the morning of the date of the injury, October 8, 2010, she was cane-free, and had gone up and down the staircasewithout trouble. Her fellow teachers testified that she had been physically fine that morning before the incident.

After a fight broke out between two students, the claimant was hit in the jaw, which was dislocated, causing her to fall backward, hitting her head. She was taken by ambulance to the hospital, where she remained for nine weeks.Following the incident, she continued to suffer from headaches, blurred and double vision, a loss of balance, difficulties with her left arm and left foot which cause her to be unable to walk, and a decrease in her cognitive function that interferes with her ability to maintain an independent lifestyle. Unlike her previous MS exacerbations, which always came on gradually, and often waned, these symptoms come on instantaneously after the assault, and have not abated.

While the initial assault and hospitalization were deemed compensable, the carrier’s argument against continuing to pay TT was that the claimant’s current symptoms were all a result of her pre-existing MS. In fact, the carrier’s doctor testifiedthat he did not believe the claimant had sustained a traumatic brain injury during the assault of October 8, 2010, and instead pointed to treatment she had undergone in 1986 or 1987 for a traumatic brain injury, which he claimed had caused an impact to her cognitive abilities long before the incident. He did not offer an explanation of how she had continued to work with no change in her teaching duties, butconceded that the work-incident most likely exacerbated her pre-existing dystonia, a neurological disorder that causes muscle contractions and twisting. He argued that the work-injury, while unfortunate, was not the cause of her current symptoms, but that they were the result of the standard progression of MS, and that had the assault never occurred, she would still have suffered the same decline.

In contrast, two other medical experts, one of them the claimant’s treating physician since 2009, testified that her condition had been “relapsing/remitting” since diagnosis, but that since the injury, was now “clearly progressive.”His medical opinion was that the incident of October 8, 2010 was, and is, a substantial contributing factor in her “disabilities over and above her pre-existing Multiple sclerosis.” This opinion was bolstered by the testimony of another medical expert that a stressful event can lead to an exacerbation of multiple sclerosis.

The commissioner agreed, and ruled in favor of the claimant, concluding that the work-incident made the claimant’s condition “materially and substantially worse” and was therefore responsible for her having been deemed totally disabled from gainful employment. The CRB wrote that on a continuum, it was difficult to show precisely where the symptoms of the pre-existing condition ended and where the symptoms of the assault began. We take our claimants as we find them: this claimant was more likely to be susceptible to becoming disabled by an assault than another claimant.

The CRB also rejected the respondents’ argument that under CGS §31-275(1)(D), the trial commissioner should have apportioned the two injuries, because the claimant’s pre-existing condition, multiple sclerosis, was not an occupational illness, and therefore, could not be apportioned.

Dr. Jerrold Kaplan’s Interview

Pain Management From a Physiatrist’s Perspective

An Interview with Dr. Jerrold L. Kaplan

Dr. Jerrold L. Kaplan is attending physiatrist and medical director at Gaylord Hospital, as well as assistant clinical professor of orthopaedics at Yale University School of Medicine.

Interviewed by Michael R. Kerin, Esq.

CQ:     What is a physiatrist?

Dr. Kaplan: A physiatrist is a physician who specializes in physical medicine and rehabilitation. Our perspective is to look at a person’s functional status and to get the patient to his or her highest possible functional ability.

CQ:     How does your perspective differ from that of a surgeon?

Dr. Kaplan: I look at the person as a whole person, not just at the back or just at the disc or a ligament or a muscle. I try to put many different pieces together. The literature supports that in the vast majority of pain management cases, especially when we get into the realm of chronic pain management which is defined as more than six months of pain, we need to look at the whole person to be as successful as we can. As a physiatrist dealing with pain management, my first objective is to try to diagnose the source of the pain. Where is it coming from? In order for me to have an appropriate treatment plan, I am going to treat this specific type of pain with the intervention or interventions that I think are going to be most successful.

CQ:     Are there other less comprehensive approaches to pain management?

Dr. Kaplan: The narcotic-based pain management approach is to minimize the individual symptoms so that it’s more of a “shotgun” approach. If you give enough narcotic pain medications, hopefully you will be able to decrease the pain, but you are really not treating the underlying source of the pain. You are really just being completely symptom-based, and if you require higher and higher dosages of narcotics, the narcotics themselves can cause secondary problems, whether there are dependency issues or whether there are physiological problems. A classic example is something as simple as constipation. If you have a patient with a disc herniation that you start giving narcotic medication to and the patient starts getting more constipated from the narcotics and you don’t effectively deal with their regimen, that’s all you’re dealing with: the symptom of pain. You are going to have increased constipation; the patient will be straining more which will increase the pressure on the discs, which causes them to have more pain, to potentially be on higher dosages of narcotics and all of a sudden you are getting into this vicious cycle with narcotics: more constipation; more straining; more pain; and more narcotics.

CQ:     When a patient comes into your office, what do you do?

Dr. Kaplan: I have to get the right diagnosis and then once I have the diagnosis, I determine what treatment combination is going to be most effective for the individual. I would do a pain management assessment which would involve reviewing medical records, interviewing the patient and performing a comprehensive physical examination. If he or she has a family member with them, I also talk to the family member. Finally, I review any diagnostic studies, MRI, x-rays, EMG nerve connection studies or other test reports if available.

If you’re seeing a patient soon after the injury and it is a relatively simple muscular sprain/strain, then the patient may not need to lose any time from work. Educational training is provided to help him or her get over this acute phase so that they can stay at work and get back to functioning. On the other hand, you may have a chronic pain patient that you are seeing six months down the line who has a lot of these chronic pain behaviors that have now kicked in. You may now need to deal with other issues such as nutrition, psychological problems, and medication dependency. By having the rehabilitation physician as the first step in your pain assessment, you may be able to avoid having the acute pain patient turn into a chronic pain patient.

CQ:     If you determine a person may not be a surgical candidate, what treatments do you offer?

Dr. Kaplan: As a physiatrist, before I would consider surgery or anything else, I would do what I call a functional spinal stabilization. I would see if I could work with the individual and get his or her back as strong as possible using his or her own body and his or her own muscles to do what a surgeon would do with bone grafts and rods. The nice thing about that approach is you have not destroyed any anatomy; you have not put any foreign hardware in there and if you are successful for that individual, you are going to not only get them over this particular pain episode, but hopefully you are going to prevent a future injury.

In contrast, if you immediately jump to a surgical intervention, for example, a fusion at the L4-5 level, you are going to put an increased force and pressure on the disc level above and below. You may have fixed the problem at L 4-5, but now you have increased irritation and increased pressure at L 3-4 and L5-S1. Guess what happens? For a number of years the person is successful. They get back to work, they do things, and they put more force and more pressure on the fused joint. Now you have destroyed the underlying anatomy during the surgical procedure and you are causing more irritation and more pressure above and below the level where you have done the fusion. In contrast, if I am doing my functional spinal stabilization, I have made all the muscles stronger, not just at the L4-5 level, but above and below as well.

CQ:     What other techniques are used in functional spinal stabilization?

Dr. Kaplan: The individual is taught posture, body mechanics, safe lifting techniques, and pacing techniques. We also use various other rehabilitation techniques. The most common is land-based physical therapy. We also use aquatic physical therapy, which is especially helpful for those individuals who might not be able to tolerate a land-based physical therapy program. The patient can do stretching and gentle strengthening exercises, and slowly try to improve their condition without putting a huge amount of force on their back. Then we can gradually add various weight belts and more advanced exercises to build them up. Aquatic physical therapy is an excellent tool to use for posture, body mechanics, and strengthening exercises for the pain patient.

CQ:     Do you include the use of medications in the functional spinal stabilization?

Dr. Kaplan:   It is not that I am opposed to medications; I just want to use as specific a medication as possible. If the pain is coming from nerve irritation, I’m going to use a medication that is geared toward neuropathic type pain. If pain is coming more from spasms, I am going to use medication that is more helpful for muscle spasms. If pain is coming from acute inflammation, then I am going to use an anti-inflammatory medication. In many cases, it is a combination of several different things, so I might use a neuropathic medication as well as a muscle relaxant medication. I am going to be careful to monitor medication benefits, side effects, and drug interactions.

CQ:     Do you prescribe narcotic medications?

Dr. Kaplan: A patient who has had major trauma may have a severe pain issue and may need narcotic pain medications, either for the acute episode right after the major trauma or on a long-standing basis. A spinal cord injury patient who has bone fragments that are pinching his or her nerves has a good objective reason for serious pain. That type of injury may well receive long-term narcotic use, but that is quite a bit different than back strain patients.

CQ:     Do you ever prescribe sleeping medication?

Dr. Kaplan: If an individual doesn’t sleep at night, he or she can never get the proper rest for his or her muscles. The muscles are always going to be fatigued which may cause the patient to either get reinjured or delay their recovery. I want to make sure the patient has appropriate sleep hygiene before I give them sleeping medications. I will also look at their nutritional status. Is this an individual who has three cups of caffeinated coffee at eight o’clock at night? The patient is going to have trouble sleeping. At Gaylord, we have a sleep medicine program, so we have expertise in a whole variety of sleep disorders. Sometimes we use sleep medicine services in conjunction with managing our chronic pain patients. Patients need to get a full night’s sleep if they are going to recover effectively.

CQ:     Does nutrition, and specifically weight gain, factor into treatment?

Dr. Kaplan:   Nutrition is an important issue related to the patient’s overall recovery especially as we are talking about chronic pain. If you have a patient who has had an injury and now has gained 50 pounds, the patient is putting more pressure on the related body part. This can cause a marked increase in pain, especially for back pain patients.

CQ:     A claimant who suffers from chronic pain often suffers from resulting depression. How does depression factor into a pain management treatment plan?

Dr. Kaplan:   When I deal with the issue of chronic pain, I need to deal with the associated psychological issues as well. Many individuals develop reactive depression. That is a depression related to changes in their circumstances, because they can’t do what they used to be able to do. Depending upon how severe that reactive depression may be, it can interfere with their ability to participate in their rehabilitation program. If someone is depressed to the point that they don’t want to participate and are not listening to instructions about exercises or weight loss, then the prognosis for recovery, unless you deal with the depression, is poor.

CQ:     Are there instances when the depression may interfere with your treatment?

Dr. Kaplan: Sometimes I’ll get an individual referred to me for pain management assessment and I’ll need to say unless the psychiatric issues are treated, I can’t help this individual. That individual needs a full psychological or psychiatric assessment to determine the other issues impacting their ability to participate in a functionally based rehabilitation program.

CQ:     Are there some claimants who are depressed before they are injured, but for whom a new injury exacerbates their depression?

Dr. Kaplan: Sometimes I see the individual who was just barely making it at their job. Then a relatively minor injury occurs and the individual is now out of work and has symptom magnification. They are expressing themselves out of proportion to the objective physiology that I see. I need to determine if there are other factors interfering with their ability to participate and their desire to return to work. Maybe they’ve had some type of stressful situation at work that they don’t want to confront. There are factors other than the work injury that are interfering with their ability to return to the workplace.

CQ:     Are epidural injections generally effective as a tool in pain management?

Dr. Kaplan: At times, an epidural is the best treatment, if done in conjunction with the rehabilitation program. You can do an epidural and give the individual significant pain relief. Epidural injections should be done with fluoroscopic guidance that allows the physician to visualize where the needle is in relation to the rest of the anatomy. This is critical to ensure the medicine is injected into the correct location.

Spinal injections can often be diagnostic as well as therapeutic. If someone has significant pain and you inject medication into that area, if they have a great result, there is a good likelihood that this is at least one of the causes of their pain.

CQ:     What does the ideal pain management candidate look like for you and when can you best help the patient?

Dr. Kaplan: The ideal candidate is the patient who is referred shortly after their injury and can tolerate a conservative functionally based program. The individual should not have any acute neurological changes that would require an urgent surgical intervention.

CQ:     Does pain management necessarily mean pain elimination?

Dr. Kaplan: A successful pain management outcome has to have improvement in function, as well as a lowering of the pain. It may not be the complete elimination of the pain. The pain should be brought to a more manageable level so the person can have the best possible function. If all the pain management program is doing is slightly decreasing pain and not changing the person’s functional ability at all, it is not really a successful outcome.

CQ:     What training exists for physicians in the realm of pain management?

Dr. Kaplan: Many disciplines have pain management training as components of the training. In physical medicine and rehabilitation, there is training that includes aspects of pain management. Various other specialties have different degrees of pain management training during residency.

CQ:     Are there any professional conversations between the surgeons and the physiatrists, in terms of what might be the most effective therapy prior to and after surgery?

Dr. Kaplan: Absolutely. The way the system works best is for the conversation to take place. I do an initial pain management assessment and if I have a patient who I feel needs a surgical intervention or at least an evaluation to determine that aspect of care, I am going to refer them to the surgical specialists. In other cases, if the patient is not a surgical candidate and needs a conservative approach, the surgeon refers the patient to me. I also see patients who do a pre-operative conditioning program in an effort to have a more successful outcome after surgery.

CQ:     Is there any nationally accepted consensus for the treatment of chronic pain?

Dr. Kaplan: There are various protocols in place. The problem is most of the protocols are for acute injury management. For chronic pain, which is defined as greater than six months of pain, there are many differences of opinion and no clear protocols.

CQ:     What is the ideal window of time for you to treat a patient?

Dr. Kaplan: I would ideally like to see the patient within a few days of their acute injury. Certainly within the first few weeks to have the best chance for that positive outcome. Can you be successful if it takes you months to see the individual? You can but your chances are best before they become a chronic pain patient.

CQ:     Within your practice have you observed shortfalls in the workers’ compensation system in Connecticut?

Dr. Kaplan: I think you hit on one already – the timing. The longer it takes to get a patient in for services the harder it is to get a positive functional outcome. Anything that can be done to speed up the referral approval process so that the treatment can be started sooner would be most beneficial.

The other aspect is that once the treatment has started, as long as there are good objective outcomes that are being achieved, it’s very difficult to stop the program in the middle. We should be able to complete the therapy program. If a patient is successfully treated for thee weeks and needs one to two weeks more to complete their treatment and I do not have authorization to continue the program then there is a gap in treatment. I sometimes have to wait weeks to months for approval of continued services. The patient may have to start over again in many cases. We need clear guidelines for objective improvements. Improvement in these two areas would greatly enhance the workers’ compensation system.

LEADING EDGE OR BLEEDING EDGE? CRB ADOPTS DAUBERT IN “EXPERIMENTAL” SURGERY CASES by Michael R. Kerin

If we continue to develop our technology without wisdom or prudence our servant may prove to be our executioner. Omar N. Bradley

Be not the first by whom the new are tried, nor yet the last to lay the old aside.” Pope, Alexander, Essay on Criticism, Part II, Line 126

When you’re living on the bleeding edge, you should not be surprised when you do, in fact, bleed. Unknown

History is replete with examples of the law scrambling to adapt to the unforeseen consequences of emerging technologies; allowing enough of the genie out of the bottle to do its good work, but not so much that the technology can run roughshod over its user. The internet has afforded many recent examples of legislators and jurists grappling with new challenges foisted upon them by the arrival of this new technology. Existing laws have not proven elastic enough to encompass the novel challenges posed by a technology which made it possible freely to download pirated music or child pornography, so new laws have been promulgated in an effort to establish the delicate balance necessary to allow the benefits of the new technology’s leading edge but to minimize the lacerations of its bleeding edge.
The world of workers’ compensation is not exempt from the difficulties presented by technological advances outpacing the law. Recently the CRB had several opportunities to wrestle with the issue of emerging technology in the context of reviewing trial commissioners’ decisions in cases involving an unconventional surgical procedure, namely a multi-level disc replacement. In Vannoy-Joseph vs. State 5164 CRB-8-06-11 (1-29-2008), the legal issue before the CRB was a determination of what scientific evidence is required for a trial commissioner to find that a new medical procedure is reasonable and necessary in accordance with C.G.S. § 31-294d, which provides in relevant part: “The employer shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid…as the physician or surgeon deems reasonable or necessary.”  Id.

In order to understand the new direction charted by the CRB in Vannoy, it is helpful briefly to examine the course it has already navigated in several other decisions. In Pagliarulo v. Bridgeport Machines,  20 Conn. App. 154, 159 (1989) citing, Acquarulo v Botwinik Bros., 139 Conn. 684 (1953), the Court held:

Reasonableness of treatment goes beyond the ordinary knowledge of the trier of fact and may require expert testimony. The question is not only a medical matter but is also affected by a consideration of the surrounding circumstances as the trier of fact finds them. Such circumstances may include the claimant’s age, medical history, previous course of treatment and its success or failure and whether the proposed medical procedure involves real danger and suffering without assurance of effecting improvement or restoration of health. Id.

.      In Cirrito v. Resource Group Ltd. Of Conn  4248 CRB-1-00-6 (June 19, 2001), the CRB held that if a physician believes that a particular type of treatment is worth attempting, the Workers’ Compensation Commissioner would normally be justified in approving such treatment, even if the effective rate for the proposed procedure (a series of epidural injections) is 5% or less.

Another waypoint offering some direction in the discussion of what constitutes “reasonable and necessary” treatment is Irizzary v. Purolator Currier Corp.  4382 CRB-4-01-4 (May 2, 2002), in which the CRB held “there is nothing in §31-294d limiting ‘reasonable and necessary’ medical care to courses that will probably be successful, nor would the humanitarian spirit of the workers’ compensation act be furthered by our reading of such a limitation into a statute.”  In that case, the CRB affirmed a trial commissioner’s approval of a multi-level lumbar fusion surgery deemed a “salvage” operation by the treating physician and the commissioner’s examiner.

While these decisions may serve as an instructional guide to the case law involving reasonable and necessary treatment for widely-approved medical procedures, they do not address the issue of what standard should be employed in cases in which a claimant is requesting an experimental procedure.  The CRB was confronted with that precise issue in Jolicoeur vs. Duncklee, Inc. 5150 CRB-2-06-10 (November 2, 2007) in which it upheld the trial commissioner’s denial of a four-level disc replacement based on the commissioner’s finding that the device, which had been approved by the FDA for one level only, “involved real danger and suffering without fair assurance of improved or restored health.”  Jolicoeur, Id. The CRB relied upon the old language in Acquarulo, exhuming possible concerns the trial commissioner may have had with respect to an experimental surgical procedure, but deferred articulating a new standard for the trial commissioner’s evaluation of scientific evidence.[1]

It did not have to wait long before opportunity came knocking again. In Vannoy-Joseph, the CRB was asked to overturn a trial commissioner’s finding authorizing the treating physician to conduct a three-level disc replacement based on the respondent’s argument that the trier had exceeded his authority by finding that this surgical procedure was reasonable and necessary, since it had not been approved by the FDA and posed significant costs and risks, and further, a private health insurer would be entitled to deny this procedure as experimental.

In its carefully reasoned analysis, the CRB set a new course heading by outlining the criteria a commissioner must use in reviewing the scientific evidence in a case involving a new medical procedure.   The new standard enunciated by the CRB in this case is that when considering approval of a contested surgical procedure, the commissioner must “take steps to verify that a physician’s methodology is reliable, and relevant to the case.” Vannoy-Joseph, at 15.  In doing so, the CRB adopted the criteria of the  landmark decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) in which the Supreme Court rejected the then 70 year old Frye standard which barred an expert opinion based on scientific technique unless the technique is “generally accepted” as reliable in the relevant scientific community.

The Daubert Court ruled instead that the trier should make a determination as to whether the  testimony underlying the reasoning or methodology is scientifically valid and can be properly applied to the facts at issue. If the trier finds the methodology valid, he or she may allow the jury to consider this evidence. This relaxing of the heretofore uncompromising “general acceptance” standard was a result of the Federal Rules of Evidence, especially rule 702, which came into effect in 1975. Specifically, rule 702 assigned to the judge the task of insuring that an expert’s testimony rests on a reliable foundation and is relevant to the task at hand. The Daubert Court was quick to note that there was nothing in the text of the rule that required a “general acceptance” or Frye standard.

Instead, the Court stated that there were four non-exclusive categories under which the trier must make his/her inquiry in assessing whether the underlying methodology is scientifically valid. First, has the theory or technique been tested?; second, has it been subjected to peer review and publication?; third, what is its known or potential error rate and the existence and maintenance of standards controlling its operation?; fourth, has it attracted widespread acceptance within a relevant scientific community? The Court also emphasized that this inquiry was a flexible one and that the focus should be on the methodology and principles rather than on the conclusions that they generate. Id.

The CRB in Vannoy-Joseph also references the Connecticut Supreme Court’s adoption of the Daubert standard in State vs. Porter, 241 Conn. 57 (1997)  where the Court adopted the four criteria established in Daubert for determining whether a particular theory or technique is based on scientific knowledge.

The new Daubert/Porter standard provides a chart for practitioners to follow in navigating a course in cases involving leading edge medical procedures.  It is clear that in order for a claimant to prevail in such a case it is not enough that the treating physician testifies that the new procedure is safer, more effective and cost efficient for the trial commissioner to find that the procedure is reasonable and necessary; rather, the claimant must provide scientifically tenable reasoning in the record to support the medical evidence.  Vannoy, at 19.   When there is a dispute over a method of treatment that does not enjoy general acceptance in the scientific community, the trial commissioner “must carefully examine the methodology underlying the proponent health care provider’s opinion.” Id.at 13.

The factors which are relevant to the commissioner in making such an examination include the quality of testing and peer review given to the reasoning or technique, its known and potential rate of error, to what degree conclusions rely on subjective assessments rather than objectively reliable criteria, and the background of the doctor. Id. at.16

The CRB dismissed the respondent’s deceptively appealing argument that because the proffered procedure was not FDA approved, and would probably not be FDA approved for at least 25 years, the procedure could not be deemed reasonable and medically necessary. The CRB reasoned that just because a three level disc replacement is an “off label” use of this particular device, that does not mean that it is off limits[2]. Specifically, the CRB ruled that “the absence of FDA approval for a physician’s proposed “off-label” use of a legally marked device should not be treated as a proxy for a factual determination that the “off-label” use would be unreasonable even though the FDA-approval history in labeling of the device may in some cases provide valuable evidence or fitness of unfitness for a suggested use.” Vannoy-Joseph at 11.

The CRB was equally unpersuaded by the testimony of the treating physician who, although providing evidence supporting the validity of the proposed three level procedure, did not provide the level of scientifically sound evidence required under the new Daubert standard.  As such, the CRB remanded the case for the limited purpose of introducing scientifically competent evidence, which if adduced on remand, would strengthen the record enough to allow the authorization of the surgery.

The CRB seems to be giving something to everyone in adopting the Daubert standard. [3] No longer can the respondents simply argue “it’s too experimental.”  Neither can the claimant rely upon the unclothed opinion of the treating physician that the new procedure is the best course of action.  Nor can the commissioner deny a procedure merely by finding it’s too dangerous, or approve a procedure holding it’s reasonable and necessary.  Now the rules are clear.  Where a new procedure is in that inchoate stage between experimental and demonstrable, somewhere between the leading edge and the bleeding edge, the claimant has to offer competent scientific evidence based upon a sound and credible methodology to provide a basis for the commissioner to approve such a procedure.

[1] The term “bleeding edge” is formed as an allusion to “leading edge” and its synonym “cutting edge” but implying a greater degree of risk: the “bleeding edge” is in front of the “cutting edge”.     Although it is now in common use, the term is somewhat ironic, since the actual bleeding edge of a knife is generally the trailing edge.  Wikipedia, The Free Encyclopedia.

[2] In the spirit of full disclosure, this author represented the claimant in his unsuccessful attempt to get a four level disc replacement approved as reasonable and necessary treatment.

[3] The term “off label” usage refers to a device being used in a manner that was not envisaged by the manufacturer’s original label, as approved by the FDA, but is nevertheless allowed if the device is being used for any legitimate health care practitioner-patient relationship. Vannoy, at 10, citing 21 U.S.C. 396.

[4]  Now that the CRB has so exquisitely calibrated our compass with this decision, one hopes that several sentences of the decision do not provide a basis for a magnetic deviation that skews their course.  After referencing the criteria a commissioner should use in applying the Daubert/Porter standard, the CRB adds: “This is not a checklist. Other factors may be relevant in addition to, or in lieu of, these factors, depending on the specific context.” Id. at 15   A reader with a more jaundiced eye might conclude that this sentence provides an exception that swallows the rule, allowing the CRB the latitude to affirm a trial commissioner who can pick and choose from some, or none, of the Daubert/Porter criteria.  This seed of concern is fertilized by a second sentence in the decision as follows:  “As always, the trier of fact need not explain why one methodology is more persuasive than another. See Admin. Reg. § 31-301-3 (finding should not contain reasons for trier’s conclusions, which better suit a memorandum of decision).  If the CRB fastens upon this language in future decisions, a trail commissioner can deviate from the Daubert/Porter factors, and feel free not to explain his/her reasons for the deviation or why one methodology was more persuasive than another.

 

Honesty Is the Best Policy

While most people credit the proverb, “Honesty is the best policy” to Benjamin Franklin, Sir Edwin Sandys, the English politician and colonial entrepreneur, made use of the phrase as early as 1599. Whomever it was that imparted this wisdom to you, whether first grade teacher or grandma, it is still solid advice, and can play a pivotal role in your workers’ compensation claim.

In the case of a woman working for a food service company, there were inconsistencies from the start, including how many hours she had worked, what duties she had actually performed during the time period in question, and even in her description of symptoms. Almost every case can expect differences of opinion between claimant and respondent, and they are most often a result of misunderstanding or faulty memory, and eventually become immaterial. However, once a pattern of true dishonesty has been established, it can become very damaging, even overshadowing valid claims.

The claimant reported that during the course of her duties, which included the lifting and moving of heavy food products, the pain and swelling in her legs during a particularly busy three-day period became so intolerable that she was forced to miss work and seek medical attention. In order to corroborate her claims, video surveillance tapes were reviewed. They showed the claimant had been there, and that a lot of physical labor was performed, particularly on the first date in question. It could be argued that the fact that she did not appear to be in any particular physical distress at that time was due to it still being early in the shift, with the symptoms increasing over the course of that day and the next two days, during moments that were not caught on video. This mighthave been an argument, except for one important fact: The work in which the claimant was so diligently involved was the theft of company product. She is shown on three separate occasions carrying what look to be heavy boxes, “hipping” the door open without any apparent distress, and loading the same into her own car.

There are times when even a legitimate injury is difficult to pinpoint through diagnostic tests, and where the symptoms do not fall into a neat textbook scenario; in these instances, it is the strength of the surrounding facts that will help bolster the case. However, since the claimant’s credibility had come into question, every fact was now seen through a jaundiced eye. When the medical reports failed to spotlight a definitive injury, there was no basis for the claimant to prosecute her case.

Could there have been a legitimate injury during the course of her work for which the carrier should pay? There very well could have been. Is it fair to assume, based on one day in time caught on video, that the claimant must notbetelling the truth about her injury? Maybe not. However, once the shadow of doubt has been cast, it is hard to remove. Not surprisingly, the claimant lost both her job, and her appeal for continued benefits.

BAS, 11/10/14

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.