Very carefully.

Unfortunately, all too many injured workers choose their lawyers by watching a slick television advertisement, looking at a billboard on the roadside or on the side of a bus, or listening to a radio advertisement. While this may be appropriate in determining what beer to drink, it is probably not the best tool for selecting an attorney.

In Connecticut, any Connecticut attorney who has passed the State Bar Exam and is licensed to practice in the state can appear before the workers’ compensation commission. In fact, there is no requirement for the claimant’s representative to be an attorney at all.

There are 52 workers’ compensation specialists in the State of Connecticut. These are attorneys who have dedicated a substantial portion of their practice to workers’ compensation, and who have demonstrated their excellence in the field of workers’ compensation by completing a rigorous application including peer review exam, and who have passed the specialization exam. This list of attorneys’ can be found on the Connecticut Bar Association’s website, and describes which workers’ compensation specialists can be found in which locality.

You should ask the attorney you contact if he or she will attend the hearings, or if you will be pawned off on an underling. You should ask how many cases the attorney has tried, how many appeals he or she has made. You may also want to ask if the lawyer has ever been reprimanded by the Statewide Grievance Committee.

Remember, selecting the right lawyer is the most important decision you will make in your case.

Not according to the Appellate Court in Connecticut. In MARANDINO v. PROMETHEUSPHARMACY, 105 Conn. App. 669 (2008) the Court ruled that where a claimant originally sustained an accepted case involving several elbow surgeries, and then 9 months after her original injury she slipped on a flight of stairs, and used her left (uninjured) arm to grab the railing instead of her injured arm, thereby wrenching her knee, there was not enough evidence to support the Commissioner’s finding that this knee injury was a direct result of her original elbow injury. The Court found that inspite of the treating physician’s opinion that the knee injury was a direct result of the elbow injury, there was not enough competent evidence for a Commissioner to find that the claimant had met her burder of proof. In this case there was no opinion by any other doctor to the contrary, but the treating physician’s opinion was a mere legal conclusion without specific underlying facts to support his opinion that the elbow injury caused the knee injury.

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 he or she has not returned to his or her baseline prior to the date of injury, the physician will assign 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 the specific award. This award is typically paid on a weekly basis. By way of example, if a claimant is awarded a 10% permanent partial impairment of his back, the schedule under 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 your specific award.

This “impairment rating” is often used interchangeably with the term “disability,” but the two terms mean to 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.

The term “independent medical examination” is a misnomer. In Connecticut, the respondent may send the injured employee to a doctor of its choice for an examination. However, this doctor is anything but “independent”. This physician is paid by the employer’s insurance company to conduct the exam and to write a report. When the injured employee is examined by this physician the rules of patient-doctor confidentiality do not apply. The doctor is not “treating” the injured worker; he is only examining him. Typically this examination is scheduled for the purposes of determining whether the injured worker has a work capacity. A frequent scenario is when the employee’s physician has rendered an opinion that the injured work is temporarily and totally incapacitated. The respondent will schedule an IME for the purposes of trying to obtain an opinion from a non-treating physician that the claimant has work capacity.

Another scenario in which an IME is used to determined if a claimant has reached maximum medical improvement, and if so, to perform a permanent partial impairment rating. Often, the carrier will attempt to get an opinion that the claimant has reached maximum medical improvement, and therefore, is no longer entitled to either temporary total or temporary partial benefits. Another reason for sending the claimant to an IME is on the issue of causation itself. There may be a dispute with the carrier as to whether the conditions at work could have caused the injury that the claimant is alleging. In the event that the IME confirms causation, that should end the argument.

When attending an IME, the claimant should attempt to bring any copies of CD scans or films from any prior diagnostic testing for the IME to review. The claimant should keep track of how long the examination takes, as well as what questions the doctor asks and what range of motion exercises he is asked to perform. By keeping track of these items, your attorney can use this information for an effective cross-examination of the IME physician.

Under CT law, you are entitled to bring your own physician to the IME examination with you. As of matter of practicality, this is not cost effective to accomplish. The question of whether an IME examination can be tape-recorded is really up to the IME physician.

Frequently, the question arises as to whether a claimant has to attend the IME examination. The short answer is yes. The Connecticut statutes allow a respondent to suspend benefits in the event that the claimant does not submit to the IME examination. This means that if you are receiving any type of weekly indemnity benefits, they will be subject to be terminated or suspended in the event that the injured worker does not participate in the IME examination.

The short answer is YES. But not without a fight.

The term “maximum medical improvement” is music to the ears of any insurance company adjuster because it means that the injured worker is as good as he or she is going to be following the medical and surgical treatment rendered to date. It is an opinion from either the treating physician, or a physician of the insurance company’s choosing, that the claimant’s condition has stabilized to a point from which further significant improvement or deterioration cannot be expected. For the insurance adjuster, it represents an opportunity to cut off the injured worker’s temporary total or temporary partial (light duty) benefits. From the insurance adjuster’s perspective, it also means that the insurance company has no further exposure to pay for medical treatment since the claimant has reached a plateau in his or her symptoms.

It is a fallacy to argue that because a claimant has reached maximum medical improvement he or she is not entitled to any further medical care. The test is whether such care is curative or palliative in nature. If the requested care is curative in nature, it will be allowed by the Commissioner. Curative in Connecticut means either calculated to return the injured worker to gainful employment, or to allow the worker to continue at work. A classsic example is a claimant who has been rated following a back surgery, but needs periodic epidural injections to keep him or her on the job working, and without which, the claiant would be unable to continue working. Another example is where an employee has suffered an knee injury which will eventually require a knee replacement, but in the meantime will require joint-kubricating injections of Synvisc. This procedure may allow the worker to continue to be gainfully employed, and to stave off the inevitable surgery for several years. In such cases, if there is solid substantiation from the pysician, such treatment after reaching maximum medical treatment will be allowed.

If the treatment is merely palliative, that is it makes you feel better temporarily, but does not restore the worker’s health, and is not calculated to return her to work, or keep her at work, then such care will generally not be allowed.

The use or narcotics for chronic pain will be the subject of a future post.

What do you do if you think your doctor has given you too low an impairment rating? In Connecticut you have the option of getting a second opinion from another doctor. This may be viewed as “doctor shopping” which is generally frowned upon by Commissioners. However, under certain circumstances, it may be worth pursuing. A better course of action may be to have your attorney write a letter to the physician, referencing the applicable guidelines, asking the physician to reconsider his or her impairment rating in light of the facts.