Is an employee who is injured while driving a truck through the State of Connecticut covered under the Connecticut Workers’ Compensation Act? It depends.

Example: An out-of-state resident who is employed by a Arkansas trucking firm is injured while driving his truck through the State of Connecticut. He is making a delivery to a national hardware store which has locations throughout the State of Connecticut. His delivery route is from Virginia through Maine. He spends approximately one day a week in the State of Connecticut making deliveries.

In that illustration, Connecticut does not have jurisdiction. In order for Connecticut to have jurisdiction under Connecticut General Statutes §31-275(9)(vi) the employer must have a facility in the State of Connecticut at which the employee spends at least 50% of his employment time, or in the alternative, the employee works for an employer pursuant to an employment contract to be performed primarily in this state, in order for Connecticut to jurisdiction over this employee. Otherwise, he is not defined as an employee in Connecticut.

If the employer had a hub facility in which the employee was loaded with materials in Connecticut, or if the employee spent 2½ days per week or more delivering his materials in Connecticut, then arguably, Connecticut would have jurisdiction over this employee and employer.

So if you are injured on the job while passing through Connecticut, you should consult with competent legal counsel for a fact specific determination as to whether you are considered an “employee” under the Connecticut Workers’ Compensation Act.

Often clients come to me because they are just tired of having to deal with insurance companies either paying them their indemnity benefits on a habitually- late basis, or failing to pay them at all for long periods of time. In Connecticut, there is, for all intents and purposes, no action of bad faith against a workers’ compensation insurance company unless the conduct is intentional. This is a nearly impossible burden to prove, and has eliminated almost all claims of bad faith against insurance companies in the realm of workers’ compensation.

Therefore, the claimant must utilize the penalties within the workers’ compensation system. Perhaps the best weapon in the claimant’s arsenal is §31-288b, which provides that an insurance company can be held liable up to $1,000.00 for each instance in which it unduly delays the adjustment of a workers’ compensation claim. Arguably, this means that in the situation in which an insurance company fails to pay your temporary total check for 3 weeks in a row, you can ask for a determination that the respondent insurer owes the claimant $3,000.00 ($1,000.00 for each of the 3 weeks). The commissioners are receptive to undue delay requests in instances where the claimant can prove that the respondent’s failure to pay was based on more than a mere oversight due to the adjuster’s intervening vacation, or a computer glitch known in the industry as “falling off repetitive pay” or some other unintentional reason. Where the claimant can demonstrate that the insurance company has failed to pay benefits over a significant period of time, or, over a lesser period of time, but on repeated occasions, then the claimant has a better chance of getting the commissioner to order undue delayed penalties.

The additional benefit of getting the commissioner to order such penalties is that this penalizes the adjuster because these penalties must be paid from a separate fund other than the “reserve” fund that the adjuster sets to approximate the total exposure at the outset of a case. Rather, the company must pay such penalties out of a general fund which, in theory, will reflect negatively on the adjuster.

A moratorium is a credit given to the employer for any future benefits it may have to pay in the future. It is an agreement between the claimant and the respondent, usually a following the conclusion of the negligence action which gave rise to the workers’ compensation claim, ie a car accident which happened on the job, in which the parties agree the claimant shall forgo all benefits up to a certain dollar amount. By way of example, if a claimant is injured in a third party motor vehicle accident, and the claimant receives $10,000.00 in his pocket following the conclusion of that case, the respondent will seek to have a moratorium or credit in the amount of $10,000.00 for any future medical or indemnity benefits that would otherwise be payable to the claimant following the conclusion of the negligence claim.

The philosophy behind this moratorium is that the claimant should not be able to reap the benefits of a recovery against the third party, and then double-dip, by later requiring the workers’ compensation insurance company to pay for future benefits for which the claimant has already been compensated in the third party claim. In essence, the claimant has already recovered $10,000.00 for any future medical benefits or wage loss and should not be entitled to get another bite of the apple from the workers’ compensation carrier.

The amount of the moratorium is not set in stone, but rather, can be negotiated between the parties depending upon the circumstances. The moratorium agreement should be memorialized in writing and then approved by the workers’ compensation commissioner at a hearing.