Category Archives: Uncategorized

Sullins v United Parcel Service Inc., Do We Really Take Our Claimants As We Find Them?

Posted on by
Reply

In Sullins v United Parcel Service Inc., 5611 CRB -1-10-12 (January 6, 2012) a workers’compensation claimant had been previously diagnosed with a diabetic neuropathy, and subsequently he sustained compensable injuries to his bilateral upper extremities and bilateral hands. The treating physician offered deposition testimony that the claimant had suffered a 10% permanent partial functional impairment of each upper extremity based on his cubital tunnel injuries, including the neurolysis of his ulnar nerve, and a 10% impairment for each hand   based on the carpal tunnel releases. He further stated that the claimant was entitled to an additional 20% attributable to the diabetic neuropathy, which was an independent nonoccupational disease.

 

The trial Commissioner, relying upon the Supreme Court’s holding in Deschenes, determined that the claimant’s permanent partial disability rating must be apportioned between a pre-existing non-compensable condition and  his more recent compensable injury.  The CRB upheld the trial Commissioner, reciting the holding in Deschenes wherein “apportionment of a permanent partial disability benefits is appropriate when a respondent employer is able to prove that: (1) a disability has resulted from a combination of two concurrently developing disease processes, one that is non-occupational, and the other that his work-related; and (2) the conditions of the claimant’s occupation have no influence on the development of the nonoccupational disease.

The CRB further provided that since there was no evidence that the claimant’s nonoccupational ailment caused  a work related injury  (as in the Blakeslee case, where the claimant’s epileptic seizure was the proximate cause behind his orthopedic injuries that he sustained when he was restrained) and further, there was no evidence that the work-related injury exacerbated the claimant’s nonoccupational ailment, the trial Commissioner was correct in apportioning the disability between the nonoccupational and occupational ailment. “If the two elements act independently to disable the claimant, we believe this is ‘the gap’ the Supreme Court intended the  Deschenes case to address. “

 

This Sullins decision is troubling in several respects.  CGS  Sec.  31 – 349 provides in relevant part: “if an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability cause by both the previous disability in the second injury which is materially and substantially greater than the disability that would’ve resulted from the second injury alone, he shall receive compensation…”  The statute seemingly embodied the concept that we take our claimant’s as we find them.  The Deschenes decision provided an exception in the situation in which the claimant was suffering from an occupational disease, namely, asbestosis, as well as lung disease from cigarette smoking. The Deschenes decision was, for the most part, a name only uttered on the asbestos docket.  It was widely thought to be limited to occupational disease cases.  The Sullins case may represent a further incursion into the previously established law that we take our claimant’s as we find them. 

Many of us have cases in which the claimant has a compensable back injury superimposed upon pre-existing degenerative disc disease.  We also have compensable knee injuries superimposed upon pre-existing osteoarthritic disease.  In light of the Sullins decision, we can now expect an apportionment argument by respondents’ counsel, who will argue these are separate, concurrent disease processes.  The take away from this case (for claimants’ counsel) is that the treating physician will need to say that the compensable injury has exacerbated the pre-existing disease.  Undoubtedly, respondents’ counsel will be coaching their RMEs to state that the compensable injury does not exacerbate pre-existing injury. Stay tuned.

Sabrina M. Monaco – Selmer vs. Total Customer Services and Travelers Indemnity Company (What Constitutes Commencement of Payment to Toll Preclusion under 31-294c(b)

Posted on by
Reply

.

In this case the claimant filed a 30C on April 13, 2010 and the respondent’s failed to file a Form 43 until June 3, 2010, more than 28 days after the Form 30C had been filed. The respondents claim that because they had made two payments of $150.00 for two weeks within the period prior to filing the Form 43, that they had met the statutory threshold stated in §31-294c(b). The trial commissioner held that the because the respondents had failed to calculate an average weekly wage pursuant to the Administrative Regulation §31-296-2 or to provide the claimant with any written explanation as to how they arrived at the $150.00 payments that they made during that period of time, they had not “commenced” payment within the 28 day period so as to toll their obligation to file a disclaimer. The CRB found that the respondents apparently interpreted the word “commence” to mean that any payment to the claimant following the service of a Form 30C serves to toll the remedy of preclusion. Citing Harpaz, the CRB held that a “respondent enjoys safe harbor from preclusion not by virtue of making a single payment in lieu of filing a disclaimer, but may only preserve its rights if ‘it timely paid compensation.’”

The take away in this case is that if the respondent is going to commence payments within the 28 day period, it must articulate a basis for its payments, and make them consistently.

Refusal to Submit to Respondent’s Medical Exam

Posted on by
Reply

In Jane Bailey v. Greater Hartford Community College, the CRB recently decided (October 5, 2011) that where a claimant had repeatedly failed to respond to discovery requests and to appear for an respondent’s medical exam, that the Trial Commissioner’s dismissal of her case was appropriate. The CRB had heard a version of this case four years earlier when the Trial Commissioner had dismissed the claim based on the claimant’s failure to appear for a respondent’s medical exam. The CRB gave the claimant another chance by finding that the more appropriate remedy would be to suspend her benefits, effectively giving her another opportunity to submit to the respondent’s medical exam. However, the CRB had clearly cautioned that in the event that the claimant continued to obstruct the discovery requests that the respondents had made, the respondents could renew their motion to dismiss the claim.

The case was remanded, but the claimant continued to refuse to respond to written interrogatories or to undergo an examination by the respondent’s expert. As a consequence, the Trial Commissioner dismissed the claim and the CRB upheld the dismissal.

Scars Don’t Count Unless They’re on the Head, Face or Neck (Mc Clain v. Market Star Corporation 5604 CRB – 4– 10 – 11)

Posted on by
Reply

The Compensation Review Board (CRB) recently reversed a trial Commissioner who had awarded benefits to a claimant who had suffered scars to her shoulder, wrist, and arms following a work related motor vehicle accident. At issue was an interpretation of Connecticut Gen. Statutes Sec. 31 – 308 (c) which provides in relevant part that a workers compensation commissioner may award scarring benefits to any claimant who sustains a permanent significant scar on “the face, head or neck, or any other area of the body which handicaps the employee in obtaining or continuing to work.”

 The claimant testified at trial that the scars on her arms were distracting to employees that she was required to train as part of her job. She further testified that customers and representatives of her employer questioned what happened causing a distraction because they focused on her arm rather than the training materials. However, she further testified that not only had her employer continued to give her work, but had actually given her a raise since the date of the accident.

 The CRB could not uphold the scarring claim when the sole basis presented by the claimant for a scarring award was her own subjective fear as to the impact that it might have on her employment. It is incumbent upon the claimant to produce evidence at the formal hearing that the scars suffered have hindered her work performance or impeded a job search or limited an identifiable job opportunity. While the CRB’s decision seems to make sense under these facts, query whether there would be a different result if the claimant were employed by a model agency or even a strip club. Under those facts, the claimant’s ability to obtain or continue such work might be impaired.

SUPREME COURT PROVIDES BRIGHT LINE TEST IN HEART AND HYPERTENSION LAW

Posted on by
1

Under Connecticut Law, CGS §7-433c a uniformed member of a paid fire department or regular member of the paid police department who passed a pre-employment physical which demonstrated no evidence of pre-existing heart disease enjoys a presumption under the law that his heart disease is work-related. It should be noted that this statute does not apply to any injured workers who began employment on or after July 1, 1996.

The question that has always been mired in controversy is: when does the injured worker have to file a claim for his heart and hypertension benefits. Until quite recently, the compensation review board had interpreted the relevant statutes to require a claimant to file a notice of injury within one year of the date the claimant had notice of prior high blood pressure readings. In Ciarlelli v. Town of Hamden, the Supreme Court in Connecticut set aside the existing law and stated that the one year clock only begins to start ticking once the injured employee has a formal diagnosis of hypertension or heart disease communicated to him. The Supreme Court further stated it was “particularly inappropriate to expect a patient to discern that he or she suffers from that condition (heart disease) in the absence of a diagnosis by a professional with medical training and expertise.” In effect the Supreme Court stated that it would not be up to the subjective determination of the claimant as to whether or not a history of periodic high blood pressure readings which might have been the result of a “white coat effect,” constituted heart disease. Instead, this determination has be to be made by the doctor. Once the worker has been told by the healthcare provider that he has heart disease, the one year statute begins to run.

The Supreme Court in Ciarlelli went on to clarify that while a claim could be made for heart disease on a repetitive trauma basis, i.e. the claimant had been subject to series of events over the course of his employment that caused his heart disease, such employee could not assert a claim under §7-433c because he would unfairly be getting the benefit of the presumption of that statute which does not require the claimant to prove causation. In other words, if the claimant wants to get the benefit of the presumption in §7-433c, he cannot also extend the statute of limitations through the use of the repetitive trauma claim, which extends the statute until the last day that the claimant worked on that particular job, otherwise known as the last date of injurious exposure injurious exposure.

COMP COMMISSIONER HAS NO AUTHORITY TO REINSTATE STATE MARSHAL TO FULL TIME EMPLOYMENT UNDER CGS §5-142.

Posted on by
Reply

KENNETH RAMSONE VS. STATE OFCONNECTICUTAND GAB ROBBINS

A State Marshal was injured by a prisoner who assaulted him during a transport. He sustained an accepted injury to both knees and underwent multiple surgeries. He was deemed temporarily and totally disabled and collected temporary total benefits under CGS §5-142, which allows for the injured state employee to receive the full salary that he was receiving at the time of injury, as well as any annual adjustments for up to a period of five years, if such employee was engaged in hazardous duty at the time of his injury.

The claimant was released to full duty approximately three and a half years after the date of the accident. The state refused to reinstate the claimant to his previous position, asserting that the claimant had been separated from state services in good standing once the claimant had reached light duty status, pursuant to CGS §5-244. The claimant argued that under CGS §5-142 the state was required to restore the claimant to full time employment and full wage benefits as of the date that he had been eligible to returned to work without restrictions, pursuant to his treating physician.

The Compensation Review Board rejected this argument for two reasons:  first the CRB held that the Workers’ Compensation Commission had no statutory jurisdiction which would enable it to require an employee to be returned to work by the State of Connecticut; and second, the claimant’s interpretation of this statute would allow an injured hazardous duty officer to be entitled to full salary for five years after the date of injury irrespective of his recovery and work capacity. Because this would lead to a bizarre or unreasonable result, the CRB rejected this interpretation of the statute and found that the trial commissioner had properly dismissed this case.

Mileage Reimbursement For Snowbirds Returning To Connecticut For Medical Treatment

Posted on by
1

John Evensen v. City of Stamford, et al.,  5541CRB-7-104 (March 31, 2011) 

A Stamford police officer retired to Florida after having suffered numerous compensable injuries.  The trial commissioner awarded mileage reimbursement for three trips in which he had driven back to Connecticut for medical treatment, subject to proof that he had attended such visits, and further, the respondent was directed to pay for prospective trips using the most inexpensive mode of transportation available. 

The CRB vacated the award with regard to the past trips holding that the claimant is entitled to return to Connecticut for medical care under §31-312 if such treatment is reasonable and necessary, but the claimant must seek the approval of the respondents or the commissioner prior to embarking on the trip.  The CRB upheld the trial commissioner’s ruling concerning prospective trips so long as the claimant and respondent coordinate the trip for reasonable and necessary treatment prior to the commencement of travel.

A Specious Defense of Temporary Total Benefits, and Sua Sponte Sanctions

Posted on by
Reply

LEE VS. CULTEC, INC. CASE NO. 5546 CRB-7-10-4 (FEBRUARY 25, 2011) In a case in which the respondent originally accepted a cervical injury, but ignored the treating physician’s recommendation for a referral to a spine specialist, during which period of time the claimant was deemed to be totally disabled by the treating internist, the respondent could not cry foul when its belated-RME determined that the claimant had a work capacity for some indeterminate period prior to his examination. Respondent conducted an RME only after the respondent claimed that the trial commissioner did not have  competent evidence upon which to determine that the claimant was temporarily and totally disabled for the period of time between the injury and the date of the finding and award, almost a year later. Using unvarnished language, the CRB characterized the respondent’s arguments as specious, finding that there was plenty of evidence in the record to sustain the commissioner’s decision that the claimant was totally disabled. Further, the CRB determined that having limited the claimant to treating with general practitioners, the respondent could not then fairly criticize the opinion from such physicians.

The CRB upheld the trial commissioner’s sua sponte finding that the respondent’s egregious behavior in failing to provide appropriate medical treatment prior to the finding and award, and then formulating a defense payment of temporary total  benefits by attacking the quality of his treatment and credibility of the treating physicians, which they foisted upon the claimant, (by not allowing the referral to his spinal specialist),  merited a penalty under 31-288(b)(1). In affirming the trial commissioner’s 31-288(b)(1) penalty, the CRB indicated that 31-300 attorney’s fees sanction had been properly noticed and because of the similarity in the statutes between 31-300 and 31-288(b)(1), respondent could not claim it was deprived of due process. Specifically, the CRB stated “we do not find the two sanction statutes so dissimilar that the respondent was unable to prepare an effective defense regarding §31-288(b)(1) CGS.

(§7-308 Barring Firefighter’s From Suing Other Negligent Firefighters Operating Motor Vehicles is Constitutional)

Posted on by
Reply

Keane v. Fischetti, 300 Conn. 396, 13 A.3d 1089, (Conn. 2011

The plaintiffs, both firefighters, brought a negligence complaint against a fellow employee who was driving the fire truck. The trial court struck their complaints on the ground that §7-308 barred injured firefighters who are eligible to receive workers’ compensation benefits from bringing negligence action against other firefighters for their injuries. The plaintiffs appealed claiming that the immunity provided to firefighters by §7-308 violates the equal protection clauses of the state and federal constitutions.

In affirming the trial court’s decision, the Supreme Court first assumed that §7-308 discriminates against firefighters in favor of other municipal employees because it prevents firefighters who are eligible for workers’ compensation benefits from bringing a negligence claim against other firefighters, whereas other municipal employees are not similarly prevented The Supreme Court adopted the rational purpose standard in holding that because state law requires municipalities to indemnify their employees from liability arising during the course of their employment, there was a legitimate governmental objective. Specifically the legislature could have concluded that the litigation arising from motor vehicle accidents between firefighters poses a greater risk to municipal liability than to other municipal employees, who are less likely to be involved in motor vehicle accidents.

New Case on Survivor’s Benefits

Posted on by
Reply

A widow who failed to file a claim for survivor’s benefits within one year of the date of the decedent’s death and was thereby precluded from receiving any benefits, was able to get §31-294c amended to extend the filing date to accommodate the particular circumstances of her case. The commissioner refused to hear the matter based on his lack of subject matter jurisdiction over the case, claiming that the amended statute constituted an unconstitutional emolument. The commissioner further advised the widow-plaintiff to file an action seeking a declaratory judgment as to whether the statutory amendment was constitutional. The trial court held that it was an unconstitutional emolument which was designed to benefit the widow individually in violation of §1 of the Connecticut Constitution. The amendment allowed a widow to file a survivor’s claim 13 years after the date of death, if the decedent was injured in June 1991 and died in November, 1992.
The widow did not appeal the trial court’s finding that the amendment constituted an unconstitutional emolument. Rather she raised jurisdictional challenges based on lack of standing and failure to exhaust administrative remedies. The Supreme Court held that the plaintiff, St. Paul’s, had standing vis a vis its legal interest in being protected from having to defend against a stale claim. The high court further held that while it is generally true that the administrative agency must be given the opportunity to address the claim on its merits, it is settled law that a commissioner cannot rule upon the constitutionality of a statute; therefore, this case presents the rare exception, the futility exception, to the general rule that one must exhaust his administrative remedies before seeking judicial relief.
THE ST. PAUL TRAVELERS COMPANIES, INC. V. SLYVIA N. KUEHL, ET AL (JANUARY 5, 2011).