Intersection of Med-Legal

MEDICAL ISSUES IN WORKERS’ COMPENSATION: LEGAL PERSPECTIVES

Understanding the AMA Guides

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

Terminology Nuances

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

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

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

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

Regional Versus Whole Person Impairments.

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

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

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

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

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

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

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

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

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

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

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

Relapse Rate

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

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

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

Communicating with Physicians

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

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

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

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

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

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

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

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

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

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

Cross-examining the RME

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

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

Treatises, Periodicals

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

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

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

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

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

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

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

Calculating the Value of a Claim

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

 

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

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

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

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

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

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

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

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

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

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

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

Appellate Case Review

Heart and Hypertension Cases aka Heart or Hypertension *

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

* See Holston v. City of New Haven below

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

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

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

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

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

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

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

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

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

Coming & Going Cases

Place of Abode

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

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

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

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

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

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

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

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

PRECLUSION AND POTTED PLANTS

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

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

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

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

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

 

Stipulations and Vocational Rehabilitation (by Andrew Salerno)

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

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

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

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

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

Elias Shymidt V. Eagle Concrete, LLC

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

-Caelan Kerin

Wendell Bond V. Lee Manufacturing INC

The issue in contest is the denial of the claimant’s request to reopen a stipulation, which encompassed a number of separate injuries. The claimant explained that he did not have the capacity (partially due to medications he was taking) to attend his settlement on April 13 th , 2012. Additionally, the claimant argued that the three grounds to reopen a stipulation under 31-315 were applicable. Commissioner Vargas found that, not only was the evidence supporting his absence insufficient, but the grounds on which to reopen were inapplicable. Upon the finding and dismissal, the claimant filed a petition for review. However, this motion was not filed within the allotted 20 day period after the commissioner’s decision, making the jurisdiction of the tribunal in question, inadequate. Even if the claimant had filed in a timely fashion, a petition to review cannot be enlisted as a method to contest factual findings, previously found. The precedent in Macon v. Colt’s Manufacturing is dispositive of these issues. This emphasizes the difficulty to reopen a stipulation or a voluntary agreement once its been entered into.

-Caelan Kerin

Nilda Rivera V. Patient Care of Connecticut Employment

The claimant, Nilda Rivera, is a CNA who was a personal care assistant for a disabled person. The claimant fell down a flight of stairs, injuring her right foot, while in the home of a patient. Nevertheless, some questionability is held in two other injuries that were unearthed after the accident. The claimant first explained pain in her left foot as a direct causal effect of the injury she sustained in her right foot, which, was disputed by the RME, Dr.Sella. Upon this finding, the claimant proceeded to seek treatment for pain in her right shoulder (which turned out to be a torn rotator cuff) which was also found to be unrelated to her initial lower right extremity injury by several RME’s. When questioned during two separate hearings, the claimant gave two separate causes of her right shoulder injury, creating a morass of ambiguity unsurpassable by Commissioner Dilzer. After the denial of her Motion to Correct, the claimant appealed on three grounds, all of which were denied. The fact that the claimant had already reached MMI (maximum medical improvement) in her right lower extremity dictated against a finding of compensability.

-Caelan Kerin

Doreen Camp v. Lupin Pharmaceuticals, Inc., Co. 5936 CRB-6-14-5

Summarized by Frank Kachmar; Legal Intern

While traveling between two meetings for Lupin Pharmaceuticals, Inc., on January 5, 2010, the claimant was injured when snow fell off the roof of a fast food restauraunt, and fell down onto her head, back and neck with a strong force.

The trial commissioner dismissed these claims after finding several inconsistencies with the claimant’s narrative, namely that the claimant had sustained serious prior injury to her cervical spine region.

During the claimant’s testimony of the 2004 car accident, the claimant testified that she sustained injuries to her right hip, back, neck, and one of her shoulders, which prompted a cervical fusion in 2007 and a subsequent need for physical therapy. After the claimant’s work injury, the claimant underwent a corrective surgery in August of 2011, but the surgery performed by Dr. Aferzon only made things worse.

When the commissioner reviewed the video which showed the referenced incident at the McDonald’s drive-thru lane, she stated that, “This video showed a minimal amount of snow falling from the roof onto the claimant’s vehicle.” Upon review of the video, the commissioner dismissed the medical testimony by Dr. Karnasiewicz, in which she noted that his opinion was, “reliant on the accuracy of the narrative of the mechanism of injury.”

After review of these facts, and the evidence presented, the trial commissioner concluded that, “the claimant sustained significant injuries from her 2004 motor vehicle accident and while she testified she had recovered from those injuries by 2008 she continued to treat for those injuries until the January 2010 incident.” Therefore, the trial commissionerconcluded that, ‘the claimant’s testimony as to recovering from a prior injury was not credible.” As a result, the commissioner also dismissed the claim that the claimant’s hip injury was a result of withdrawal from pain medications. The trial commissioner found the medical testimony by Dr. Becker credible, which stated that it was unlikely that the claimant’s injuries were a result of pain medication withdrawals, prescribed to treat symptoms caused by snow falling on her. The commissioner did not find any other medical testimony to be credible as it was based on an erroneous narrative.

The claimant continued to argue that she was not granted due process, and that she suffered a compensable injury on January 5, 2010. However, upon review of the proceedings the CRB concluded that, “the claimant never sought any ruling from the trial commissioner on the issue of preclusion, and indeed, was put on notice at the formal hearing that the respondents were contesting compensability.”  The initial Form 43 was received by the Commission on April 5, 2010, and at that time the claimant had yet to fill a Form 30C initiating the claim. Thus, this was a, “pre-emptive disclaimer” similar to the disclaimers that the CRB deemed effective in Negron v. CVS Caremark Corporation, 5870 CRB-4-13-8 (July 17, 2014), appeal pending, AC 37062. The claimant wrongly believed that the disclaimer, “amounted to an admission of compensability”, but the CRB believes it was, “incumbent upon her to raise this issue with the trial commissioner at the point when it became evident the respondents were contesting compensability.” The claimant sought preclusion, yet she filed no Motion to Preclude. In response to this argument, the CRB cited Haines v. Turbine Technologies, Inc., 5932 CRB-6-14-4 (March 9, 2015) which stated, “It is black letter law that a party may not raise an issue on appeal to the CRB that was not adjudicated by the trial commissioner.” Upon review of the transcript of the initial trial commission, the claimant failed to object to her attorney at the formal hearing to the statement’s presented by her counsel. Therefore citing precedence in Paige v. Hartford Insurance Co., 4954 CRB-2-02-12 (January 9, 2004), suggests that, “there has been no error, as it is the claimant’s prerogative to raise an objection to her counsel.”

Jose Ricardo Lopez v. Louis Pannone, Indiv. Co. 5933 CRB-7-14-5

Summarized by Frank Kachmar; Legal Intern

The appeal as filed by the respondent, “focused on a single question: does the statutory exemption in Chapter 568 for part-time household employees (31-275(9)(B)(iv) C.G.S.) cover workers on residential real property that the respondent uses as rental property and does not use as their residence?” The trial commissioner concluded that the statute did not apply, when, “the claimant was injured while repairing a house that the respondent did not occupy and subsequently used as a rental property” The respondent appealed, while arguing that the statute in question makes the injury noncompensable. In affirming the trial commissioner, the CRB rejected the respondent’s interpretation of that statute, as they deemed it, “inconsistent with the plain meaning of the statute and would lead to absurd or unworkable results.” (1-2z C.G.S)

On June 8, 2010, the claimant arrived at a vacant residential property at50 Middlebury Street, Stamford, CT via bus after picking up his tools at the respondent’s garage. Upon arrival, the respondent, an individual whom the claimant worked for previously at an Old Greenwich pizzeria, and frequently as a “casual employee” on various rental properties, directed the claimant to wash the rear of the house. While washing the rear of the house, the claimant fell off a ladder and sustained significant injuries to his neck and back. After the fall, the respondent’s brother transported him to the hospital in his personal automobile and let him stay at his home for two weeks, offering to pay him $200 per week, as well as transported him to and from medical appointments.

The conclusions reached by the trial commissioner focused around the, “applicability of the respondent’s defense that the claimant’s injury was statutorily deemed noncompensable.” The commissioner found that the, “twenty-six (26) hour rule” of employment embodied in the provisions of Conn. Gen. Stat. Sec. 31-275(9)(B)(iv) does not apply to the circumstances of the claim, regardless of the respondent’s original intent. Additionally, the Commissioner found that the respondents were in the business of commercial property management, and therefore could not deprive the claimant of employee status under the provisions of Conn. Gen. Stat. sec. 31-275(9) (B) (ii), by claiming that the employment of the claimant was “casual”, or that it was, “other than for the purposes of the employer’s trade or business.”

In reviewing this appeal, the CRB cited State v. Kevalis, 313 Conn. 590 (2014) in stating the appropriate standard for interpreting a statute. In said case, the Supreme Court stated the court, “must first consider the text of the statute and its relationship to other statutes to determine the meaning”, and that, “the test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” Derrane v. Hartford, 295 Conn. 35 (2010) was also cited interpreting the terms of Chapter 568, in which it was stated that, “When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment.” These rulings come into play, because the appellant selectively chose to incorporate the definition of a “private dwelling” from a statute entitled, “Discriminatory Housing Practices: Definitions”, which would have absolved him from providing compensation to the claimant. Therefore, the CRB rejected that claim in favor of court precedence and conformity in the context of statutes passed by the legislature, and stated that acceptance of the respondent’s interpretation would have led to the invalidation and to, “absurd or unworkable results.”

When addressing the other part of the appeal regarding incorporation of the 26 hour rule, the CRB stated that in Smith v. Yurkovsky, 265 Conn. 816 (2003), the legislative history of the passage of the 26-hour rule trumped a verbatim reading of it in a selective context. That case instead cited the 1961 Public Acts which including exemptions for those working on the “premises” of a private dwelling for less than 26 hours or 3 days per week. The CRB further validated its claim of “premises” by citing Perun v. Danbury, 5651 CRB-7-11-5 (May 15, 2012), in which the word “abode”, and “premises”, were deemed congruent with “curtilage.” Thus, the line of demarcation for injuries sustained, “at or about a dwelling,” now included the yard or other structures on the property. Lastly, the CRB proved that the injuries in fact occurred at a commercial property, and not a private dwelling as claimed by citing precedent in Davis v. Edward J. Corrigan, 4024 CRB-2-99-3(July 20,2000) in which the claim that the site of the injury was a, “private dwelling”, was denied, because the CRB found that, not unlike the respondent, “the employer is an experienced businessman and real estate developer, who would purchase dilapidated buildings with the intent to refurbish them.” Therefore, the respondent’s appeals were denied, the statutory exemption for Chapter 568 was not granted, and the original finding was upheld in which the respondents were ordered to pay the Award to the claimant.

Peter J. Zezima v. City of Stamford Board of Education Co. 5198 CRB-7-14-3

Summarized by Frank Kachmar; Legal Intern

This was an appeal in which the claimant wanted to reverse the trial commissioner’s dismissal arguing that it was, “against the weight of medical evidence.”

At trial, the Commissioner found a substantial number of inconsistencies in the medical evidence that the claimant provided. The discrepancy arose when it came to light that a January 13, 2009 automobile accident may have caused the claimant’s injury rather than a work-related injury as the result of an assault, which occurred on February 11, 2009. The Commissioner discredited the medical evidence provided by Dr. Moy, Dr. Kavookjian, Dr. Plancher, Dr. Fusco, Dr. Rago and Dr. Dowdle,because the claimant failed to make any of his doctors aware of his prior automobile accident which severely injured his left index finger, the same body part the claimant was claiming as compensable. Therefore, the Commissioner ruled that these statements had to be rejected as incomplete, because during their depositions it was made clear that the claimant withheld information of an automobile accident from his doctors, who had identified the source of the claimant’s injuries otherwise, without a complete medical history.

Curiously, Dr. Fusco testified during his deposition that the letter that he submitted identifying the claimant’s work-related injuries as the cause of degenerative joint disease and worsened osteoarthritis in his left index finger, was actually drafted by the claimant and not by him. Following this revelation, Dr. Fusco’s testimony was disregarded.

In the absence of credible and available medical information, the trial Commissioner considered the medical evidence and testimony of Dr. Tross, the respondent’s medical examiner. The Commissioner found Dr. Tross’s findings as credible, as he was fully aware of the claimant’s medical history, and independently and transparently conducted said examination. The Commissioner also found Dr. Tross’s examination as persuasive, having stated that the, “claimant’s need for surgery was not related to his February 11, 2009 work injury,” and rather that there was significant reason to believe his need for surgery was related to his January 2009 injuries sustained in a personal automobile accident. Therefore, the Commissioner ordered the claim, denied.

On appeal, the CRB extended deference to the decision made by the trial commissioner, citing Daniels v. Alexander, 268 Conn. 320,330 (2004). The CRB also stated that they could not overturn the ruling of a trial commissioner unless they are, “without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inference.” Kish v. Nursing and Home Care, Inc., 207 Conn. 535, 539 (1988).The CRB also upheld the Commissioner’s original review by citing, “The commissioner’s findings of basic facts and his finding as to whether those facts support an inference that the plaintiff’s injury arose from his employment are subject to a highly deferential standard of review.” Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 253-254 (2006). (Emphasis in the original.)

The CRB also drew many parallels between this case, and those that had been recently litigated. Such a case includes, Camp v. Lupin Pharmaceuticals, Inc. 5936 CRB 6-14-06 (April 24, 2015), in which, “The primary focus of the case lay not in whether or not the claimant was involved in an incident while working…rather it was whether the impact of the incident had any material effect which caused or exacerbated the various ailments the claimant had associated with that incident.” The CRB also upheld the ruling of the Commissioner’s original finding by stating that it is “black letter law that it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). The CRB also stated that if the commissioner found Dr. Tross’s opinion as more credible and persuasive than any of the opinion’s offered by the claimant’s witnesses, than she was, “entitled to rely on this opinion.” Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006).