CT Workers' Compensation Law Blog

Compensation hearings come in three categories or tiers. Ordinarily, the first tier of hearings is called an “informal hearing”. Realistically, the only thing that can be accomplished at an informal hearing is the administrative law judge, known as the commissioner, can make non-binding recommendations to resolve an issue. Inevitably, if the parties cannot agree upon the disputed issues, even with the commissioner’s assistance, the matter moves to the next tier, the preformal. Normally the preformal is another opportunity for the parties to resolve their differences short of a trial, but failing an agreement, the parties will report to the commissioner the exact issue or issues to be tried, how long the proceeding is expected to take, and what witnesses will testify. Next comes the trial before the commissioner, also known as the formal hearing. Eventually the commissioner’s decision at the formal hearing may be appealed by either party, necessitating a hearing by an appellate tribunal such as the Compensation Review Board, the Appellate Court or the Connecticut Supreme Court.

Your employer cannot fire you or otherwise discriminate against you at your place of employment because you have exercised your rights under the Connecticut Workers’ Compensation Act. This means that an employer cannot fire you because you have filed a workers’ compensation claim alleging you were injured on the job. However, your employer does not have to keep your job open for you for any mandated period of time. Therefore, if you are injured on the job, and are out for a period of time beyond which the employer is not willing to wait for you to return to work, the employer is free to terminate your employment. (The only exception to this rule of “employment at will“, is when you have a contract with your employer that provides for additional rights.)

If you feel that you have been terminated because you have exercised a right under workers’ compensation, you may bring a claim against your employer for a wrongful termination. This can be done within the context of the workers’ compensation commission, or it may be done at the superior court level. There are pros and cons to each jurisdiction, including the remedies that are available. You should discuss the advantages and disadvantages of each forum with your attorney very carefully. In general, these claims are very difficult to prosecute because there is rarely ever direct evidence that the employer fired you as a result of your having filed a workers’ compensation claim. Instead, you must rely on indirect evidence such as the proximity in time between your injury and your termination; how long you worked for the employer (the longer the better); what your work history has been with that employer including job reviews, and the like.

The challenge of prevailing in such a claim is also made more difficult by a current economic downturn which provides a legitimate basis for any employer to let go of any employee.

If a claimant who wants to settle his case has applied for social security disability benefits, or will be entitled to Medicare benefits within 30 months of the date of the settlement of a workers’ compensation claim, or intends to become a beneficiary of Medicare within 30 months to the date of the settlement of the claim, and if the settlement is for $250,000.00 or more, the federal law requires that the interests of Medicare must be taken into consideration in settling the case. Simply stated, if there are future medical needs that are reasonably anticipated at the time of settling a case, including the cost of prescriptions that the claimant will need in the future, then these are costs that must be set aside in an MSA. Further, the parties should submit to the administrator for Medicare, namely CMS, the proposed MSA prior to stipulating the case by way of a final settlement.

If the parties fall to make any provision for the future medical treatment of the claimant who could reasonably expect to become a beneficiary of Medicare within 30 months or the date of the settlement, CMS can assume that the entire amount of the settlement should be used for future medical treatment, and effectively require the claimant to pay out the total amount of his or her settlement before Medicare will pay dollar one on any future medical treatment related to the body parts from which the settlement was derived.

There are a number of vending companies and attorneys within the State of Connecticut who specialize in pricing out medical set asides. The typical cost of hiring such company to do so is between $1,000.00 and $2,000.00. Once the proposal has been submitted to CMS, it typically takes between three and four months for CMS to respond. In the event that it accepts the proposal, the parties can then proceed to a final settlement. In the event that CMS puts a higher value on the amount of the proposal, then the parties will have to see whether they can renegotiate the settlement.

In the event that the parties do settle the case, an MSA can be self-administered, meaning the workers’ compensation carrier sends the claimant a check for the amount of the medical set aside that CMS has approved, which the claimant shall keep a discrete interest-bearing account that is to be used exclusively for any medical treatment and/or prescriptions arising out of the specific body part that is the subject of the final settlement. The claimant is expected to keep records of each such expenditure and, on an annual basis, to provide a summary to CMS of any such expenditure. Again, to the extent that the claimant cannot substantiate such expenditures, or uses the proceeds from the MSA for some other unrelated purpose, Medicare will treat any such amounts as a future deductible on that body part.

There are some insurance companies which annuitize the MSA proceeds so that they pay a seed amount to start the MSA, and then will pay an annual amount each year thereafter for the expected life (in accordance with the mortality tables,) of the claimant. For example if the parties agree to a $40,000.00 MSA which CMS approves, and the claimant has a 30 year life expectancy, the insurance may seed the initial MSA amount with $10,000.00, and then pay the claimant $1,000.00 for each of the successive 30 years in order to fund the total amount of $40,000.00. Often the insurance carrier will state that in the event that the claimant dies before the 30 years of his expected life, there will not be any monies paid to his estate and the insurance company will have to make no further payments. In that case, if there was any money in the account when the claimant died, that would inure to the claimant’s heirs.

Also, some MSA vendors are willing to guarantee that the amount that they have allotted for the MSA proceeds will be approved by CMS, without having to wait the three to four months for CMS approval. In the event that the MSA vendor is incorrect and CMS comes back with a higher number required to fund the MSA, the vendor will agree to pay the extra amount.

Often, it is a tie-breaker. In the situation in which there is a difference of opinion between the treating physician and the independent medical examiner, otherwise known as the Respondent’s Exam, the Commissioner has the discretion to have the claimant examined by a physician of his/her own choice. A typical scernio is as follows: the claimant suffers degenerative disc disease in the lumbar spine. The treating physician has provided an opinion that a one level fusion with instrumentation is reasonably and medically necessary. The workers’ compensation carrier has obtained an opinion from their respondent’s examiner stating that such surgery will not be beneficial, and is therefore not recommended. The parties address this with the commissioner for a resolution.

Each commissioner has his or her own favorites which he or she will call upon to use as a commissioner’s examination. It is critical for the claimant’s attorney to know, going into the hearing, who the commissioner is, and whom she is likely to select for her commissioner’s exam. A good workers’ compensation attorney will “know the book” on each of the potential commissioner’s physicians. The claimant’s attorney must factor into his strategy in going to the informal hearing, the most likely outcome of the commissioner selecting the physician of her choice. For example in Connecticut, there is one widely-chosen commissioner’s physician who has testified repeatedly that he does not believe in the usefulness of a multi-level fusion in the lumbar spine. Therefore, if you are going into a hearing in which the commissioner is likely to select this physician, and if it is your position that you want to advance the surgery for your client, you will try to steer the commissioner away from a commissioner’s examination and try the case on the two opinions that already exists, rather than introducing the foregone conclusion of the commissioner’s position. Some commissioners are more deferential in ordering the commissioner’s exam based on counsel’s arguments. Other commissioners will order a commissioner’s exam almost automatically.

The significance of the commissioner’s exam is that it carries more weight than either the treating physician or the respondent’s examination. In general, once a commissioner’s examination has been completed, the commissioner will adopt that opinion unless there is overwhelming evidence from one of the other two physicians which would provide a basis for the commissioner to ignore the commissioner’s examination.

In many cases, if the commissioner’s physician agrees with the treating doctor on an issue, the respondent will throw in the towel. If the findings by the commissioner’s physician are more closely aligned with the IME than the treating physician, the claimant must give some serious consideration to a compromise, or risk losing the case.

Once the claimant has reached maximum medical improvement, a condition which is, in the opinion of the treating physician, achieved when the claimant can no longer reasonably be expected to improve substantially or deteriorate substantially in his overall condition, the physician may render an opinion as to whether or not he has fallen short of a full recovery. If the claimant has not returned to his or her baseline prior to the date of injury, the physician will assign a permanent partial impairment.

An impairment is the measurable loss of function which a physician ascribes to the injured worker. It is on a scale of 0 to 100%. In Connecticut, pursuant to CGS §31-308a, each body part is assigned a certain number of weeks. By multiplying the percentage of impairment by the number of weeks allowed for that body part, one will derive the total number of weeks for which a claimant is entitled to be paid in the specific award. This award is typically paid on a weekly basis. By way of example, 31-308A allows for a total of 374 weeks for the lumbar spine. By multiplying 374 by 10% you derive an award of 37.4 weeks of compensation for a 10% permanent partial impairment.

This “impairment rating” is often used interchangeably with the term “disability,” even in the statutes, but the two terms mean two different things. An impairment measures the loss of function of a body part, whereas a disability describes the way in which an injury affects a person’s ability to accomplish his daily activities. By way of example, a plumber who has suffered an amputation of the distal portion of his little finger may be entitled to a 5% permanent partial impairment of his hand. However, this may result in no disability to him because it will not interfere with his day-to-day activities. A concert pianist who suffers the same amputation of the distal portion of his little finger will end up with the same permanent partial impairment of 5%. However, he may have a 100% disability because he can no longer play the piano.

Yes. Prior to 1993, an injured employee could get an unlimited wage loss differential between what he used to be able to make and what he can currently make post-injury, subject to the commissioner’s discretion. When the comp laws were revised in 1993, this benefit was capped by the total number of weeks for which the injured employee had specific award benefits. Now, if the injured employee receives a 20% permanent partial impairment of his lower back, which translates to 74.8 weeks, an injured employee may seek wage differential up to the total number of weeks he has gotten for his specific award, or in the example above, 74.8 weeks. The claimant must be paid his entire specific before he can request the wage differential benefits from the comp commissioner. These benefits are discretionary benefits, meaning that the claimant must persuade the commissioner that he no longer has the same earning potential that he did prior to the injury, and that this differential was created as a direct result of the injury.

It is helpful in convincing the commissioner that a wage loss exists if the claimant can demonstrate he has attempted to seek other employment within his restrictions.

In a contested case, i.e. where some aspect of the case is not accepted (typically, compensability), an insurance company attorney will conduct a deposition. This is a question and answer session which is completed in your attorney’s office and which is conducted under oath. The purpose of the deposition is to draw out all the information possible from a witness, and then lock the witness into his testimony so that he cannot offer inconsistent testimony at trial. Because there is no commissioner present in the deposition, only the court reporter, you and the lawyers, we typically agree that there shall be no objections except to the issue of form. This means that unless the question is vague, calls for more than one answer, or is unintelligible, then the witness must answer it. Often, witnesses feel that exploration into there life decades prior to the date of the accident is irrelevant or unfair: however, once you have asserted a workers’ compensation claim, every aspect of your life is fair game and the inquiry from opposing counsel can be far and wide-reaching.

There are basic rules that must be adhered to when your deposition is being taken. First, only one person can speak at a time. A deposition is not a casual conversation in which the attorney and the deponent (you) can have a free exchange of ideas. It is a rigid, formulaic question and answer period. The attorney must ask the question and the deponent must provide an answer, each allowing the other to complete his statement prior to responding. If you don’t know the answer to a question, you should not guess. If you have some reasonable basis for articulating an answer, then answer.

You should allow opposing counsel to ask her question in full rather than trying to anticipate what the question may be since you will be stuck with your answer. Further, you should listen to the question being asked rather than answering the question you think you heard. While you will have an opportunity to correct yourself at trial, should the same question be asked, it is better to answer it right the first time then to subject yourself to a cross examination at trial that could be embarrassing.

If, during the course of the deposition, you wish to take a break, or consult with your attorney, the rule is that you answer the pending question before taking such a break. You should expect the opposing attorney to ask whether you have prepared for the deposition in any way. In most cases, your attorney should have reviewed the salient facts of the case with you a day or so before the deposition in order to refresh your memory and to grapple with any difficult issues ahead of time. This is perfectly legitimate, and good lawyering. While the other attorney cannot ask you for the particulars of the preparation, he can ask you whether you met with your attorney to prepare for the deposition. You should answer truthfully. He can also ask you what documents you reviewed, and again, you should answer truthfully.

Finally, you will be asked at the beginning of deposition whether your wish to review the transcript of the deposition that will be created following your deposition. While you cannot change the substance of your answers, you can correct misspellings or clerical errors made by the court reporter. I recommend that people do this as it can clear up misunderstandings that might otherwise stand uncorrected.

In Connecticut, the employer may require the injured employee to pay for her own health insurance benefits during the period of time that she is out of work as a result of her work-related accident. While there is a statute in Connecticut that states that the employer must continue to pay for medical benefits during the pendency of the injured worker’s illness that keeps her away from work, that statute has been construed by the Connecticut Supreme Court to relate only to municipalities, or in cases where there is a contract requiring health benefits to be continued, usually when the employee is a member of a union. Therefore, unless the injured claimant works for a city or has health benefits that are guaranteed to be paid through a contract, the employee will have to pay her share of the health benefits while she is out of work.

Of course an employer may continue to pay health benefits on behalf of its injured employee: but it is not obligated to do so, barring the circumstances described above

If an employee is injured in the year 1990 when the comp rate was $275 per week, and then sustains a relapse, or re-injury, of the same body part in the year 2005, and that employee now has a comp rate of $550, is the claimant stuck with the old, or lower rate? The answer is provided by Connecticut General Statutes §31-307b which provides that the claimant may choose the old comp rate or the new rate for the relevant recurrent period, whichever is greater.

There are instances in which the earlier rate was a much higher rate because the employee was a police officer or fire officer earning the maximum rate, but then as a result of permanent injuries, he was not able to return to his regular employment again, and had to accept a much lower paying job. In those cases, he/she will wish to choose the old rate, which is much higher. This is not true if there is a new, separate injury. The key is whether the recent injury is a relapse, or a new injury, which is sometimes the subject of a great deal of litigation, especially if there is a new workers’ compensation carrier on the risk. If it is a new injury, then you are stuck with the new rate.

The answer depends. It depends upon whether the employer has a preferred plan organization (PPO) or a medical care plan or some similar type of plan that is filed with the Chairman’s Office in Hartford. If this is a specific plan which has been properly filed, such plan allows the employer to negotiate with a particular group of doctors and to require the injured employee to treat within that group. This information can be ascertained by calling the Chairman’s Office in Hartford and providing the name of employer and the date of injury. It may take a day or so for the office to get back to you, but they will let you know whether there is such a plan, in which case the injured employee is obligated to treat with one of the doctors specified in the plan.

Should the employee treat outside of that plan, the employer may suspend all of the employee’s workers’ compensation benefits, including any temporary total or temporary partial. Further, the employer is not obligated to pay for any such medical bills since the medical providers are outside of its plan.

If the carrier fails to issue a Voluntary Agreement within 28 days of filing the Form 30C, or if the respondent denies the claim, then the injured employee may treat wherever she wishes. If, subsequently, the respondent accepts the case, a good argument can be made that the claimant should be able to continue treating with the original, out-of-network, treater since the claimant has developed a relationship with the physician and it would be unfair to wrest her away from the original treater at this later date.

Another situation which frequently arises is where a treater within the PPO or managed care plan refers the claimant to a specialist outside of the PPO. Very often the claimant is unaware of the existence of the managed care plan, and the claimant should not be punished if she treats with the out-of-network new physician that was referred to her by the treating physician, if that treater is not within the managed care plan.

There are particular requirements each plan must meet concerning the number of physicians not associated within the same medical group offered in each specialty area, as well as how the existence of the plan must be made known to each employee prior to the date of injury for such plan to be valid.