Lost Preemployment Physical in Heart and Hypertension Case

Posted on February 25, 2011 by Mike

In Lembrick vs State of Connecticut/ Dept. of Corrections 5543CRB-1-10-4 (February 10, 2011) the issue was whether the claimant, a correction officer, should be barred from receiving benefits pursuant to §5-145 where neither party could locate a copy of the claimant’s pre-employment physical. The CRB found that there was credible evidence in the form of the commissioner’s examination, (which attributed the claimant’s hypertension to a combination of heredity, obesity and workplace stress, without being able to quantify the relative importance of each function), to conclude that the claimant was entitled to §5-145 benefits.

The CRB emphasized that an expert witness does not have to use the magical term “substantial” “significant” or “major” to characterize the impact of the workplace stress on the claimant’s hypertension, but rather the trial commissioner must apply his/her discretion as to whether he/she believes the totality of evidence supports compensability.

The CRB also emphasized the strength of the statutory presumption of compensability stating that if the statutory prerequisites are met the employer must prove lack of causation.

Bringing An Undue Delay Claim

Posted on February 23, 2011 by Mike

“The one great principle of the English law is, to make business for itself. There is no other principle as distinctly, certainly, and consistently maintained through all its narrow turnings.” Charles Dickens, “Bleak House.”

“The era of procrastination, of half measures, of soothing and baffling expedients, of delays, is coming to a close. In its place, we are entering a period of consequences…”Winston Churchill

The Connecticut Supreme Court announced in De’Oliveira v. Liberty Mutual Insurance 273 Conn. 487, 870 A.2d 1066 (Conn. 2005) that it would not countenance any bad faith insurance claims against insurance carriers in the world of workers’ compensation. “We agree with the California Supreme Court that ‘injuries arising out of and in the course of the workers’ compensation claims fall within the scope of the exclusive remedy provisions because this process is tethered to a compensable injury. Indeed every employee who suffers a workplace injury must go through the claims process in order to recover compensation.’” Id. p. 503. Whatever redress the hapless claimant can seek will have to come in the form of the remedies available in Chapter 568 of the Connecticut General Statutes. Only in instances where the conduct is “so egregious that the insurer no longer could be deemed to be acting as an agent of the employer …” can a bad faith claim now be asserted. Id. p. 507
Until that 2005 decision, the superior courts had been divided as to whether or not there was a right to directly prosecute a civil claim against an insurer who engaged in conduct that would constitute undue delay. See Spencer v. Health Direct, Inc., Superior Court, judicial district of New London, Docket No. 544356, 1999 WL 30589 (January 8, 1999) (23 Conn. L. Rptr. 675) (listing decisions on both sides of the issue); see generally Brosnan v. Sacred Heart University, Superior Court judicial district of Fairfield, Docket No. 333544, 1997 WL 678197 (October 21, 1997) (20 Conn. L. Rptr. 509) (discussing at length arguments on both sides of the issue). The sword of Damocles that had been suspended above the heads of claims adjusters by that fine thread of horse hair finally snapped and clanged harmlessly at their feet, arguably emboldening some claim representatives to adjust claims with less than their characteristic alacrity. Now, in the post DeOliveiran era, it is settled law the unscrupulous conduct of a claims adjuster cannot be scrutinized in a civil forum with its more formidable remedies. This author has inquired of the Chairman’s office as to whether statistics are kept regarding the number of undue delay claims brought pre and post DeOliveira. The number of hearings per year calendared per year following the Supreme Court’s 2005 decision in DeOlivera has increased exponentially, as illustrated in this graphic.
2003 278 hearings
2004 267 hearings
2005 392 hearings
2006 473 hearings
2007 432 hearings
2008 772 hearings

As practitioners, we do have a number of arrows within our quiver that we can deploy to deal with cases in which an adjuster has not paid indemnity benefits and/or medical bills in a timely fashion. The scope of the materials today includes a brief review of those statutory remedies, as well as some of the case law which has provided the contours of the landscape evolving in this area.
CGS Sec 31-288(b)(1) provides in relevant part: “Whenever through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, such employer or insurer may be assessed by the commissioner hearing this claim a civil penalty of not more than one thousand dollars for each such case of delay, to be paid to the claimant.” It further allows for the commissioner to award a civil penalty up to five hundred dollars per hearing for each hearing the completion of which is unreasonably or unduly delayed. Further, C.G.S. §31-300 provides, in relevant part: “In cases where, through the fault or neglect of the employer or insurer…payments of compensation have been unduly delayed…the commissioner may include in the award in the case of undue delay in payments of compensation, interest at 12 per cent per annum and a reasonable attorney’s fee.”
The CRB has held that for a respondent to be penalized for undue delay under this statute, the trial commissioner must determine the action or inaction by the respondent “unduly delayed” benefits due the claimant. The trial commissioner must further find these delays were due to “fault or neglect.” These are factual questions which places the determination within the discretion of the trial commissioner. Kuhar v. Frank Mercede and Sons, Inc. 5250 CRB-7-07-7 (2008). When such a determination is reached the reviewing tribunal must extend “every reasonable presumption in favor of the action.” Daniels v. Alander, 268 Conn. 320, 330 (2004). The extent of that presumption was outlined in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).
Further, the CRB and the Appellate Court have affirmed an award of $500.00 for each of 18 instances in which the respondents failed to make payments for benefit amounts which were undisputed, and eight instances in which the respondents unduly delayed payment to the claimant, pursuant to the then-existing version of Sec 31-288b, (at which time the maximum penalty was $500.00 per instance of undue delay). Hummel v. Marten Transport, LTD 5080 CRB-5-06-4 (2007); affirmed, 114 Conn. App. 822, 970 A.2d 834 (2009).
A finding of unreasonable contest is required in order for an award of attorney’s fees. Haugh v. Leake & Nelson, 1421 CRB-2-92-5 (March 15, 1994); C.G.S. §31-300. An attorney’s fee award for unreasonable contest is made when, after hearing the parties’ arguments and reviewing the evidence, the Workers Compensation Commissioner decides that the employer or insurer lacked a reasonable basis upon which to contest the injured workers’ request for benefits. Connecticut Workers’ Compensation After Reforms, Third Edition, Sevarino, 2008, citing Hicking v State of Connecticut/Department of Correction, 5026 CRB-2-05-11 (November 3, 2006)
If the claim continues to be delayed despite your reasonable efforts to rein in the wayward adjuster, then at some point you must request a hearing on undue delay. The nature of the delay can take one or more of many permutations: the claimant hasn’t received his weekly check because he’s fallen off repetitive pay; medical bills haven’t been paid; mileage hasn’t been reimbursed; a medical procedure hasn’t been approved, despite the fact that there is no respondent’s exam to contradict the treating physician’s recommended procedure. It is difficult to articulate a hard and fast rule as to when an employer or a carrier has irrevocably crossed over the line into the netherworld of the undue delay. Personally, I like to allow three strikes, but often the financial or health exigencies of the claimant dictate the speed with which I must file an undue claim. One can allow significantly more latitude in an adjuster’s failure to pay outstanding medical bills than in his/her failure to approve a three level lumbar fusion.
A strategical decision is whether you need to call the claims examiner as a witness. If so, how do you get the adjuster to testify in a deposition or at trial? There are at least two schools of thought in this regard. The first school of thought is that less is more. If the issue is failure to make timely indemnity payments you should be able to prove your case with a print out of the payment history from the adjuster. In that instance, just multiply the number of late checks, or unpaid medical bills, non-reimbursed mileage, etc times $1,000.00. In that scenario, the fault or neglect in the undue delay is so obvious as to speak for itself, res ipsa loquitur. In addition, if there were some reasonable explanation for the delay, presumably the respondent would have the claims representative testify. The trial commissioner may draw an adverse inference by the claims adjuster’s failure to testify. The Secondino rule, requiring an adverse inference as to the party failing to call a witness within the party’s power to call, and a witness who would naturally have been called to testify, has been legislatively overruled by CGS§52-216c which states: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause maybe drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments … that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.” Therefore, it is clearly proper to argue to a commissioner that a witness’s failure to appear before the tribunal deserves an adverse inference.
On the other hand, delving into the life of an adjuster in a deposition to be used at trial can be quite enlightening. Recently, I took an adjuster’s deposition in a case in which she candidly testified that she had no system for calendaring when a claimant was about to fall off of repetitive pay. She would pre-program the claimant for 2 months at a time, then unless she happened to be in a particular file to set the reserves, there would be no way for her to know the repetitive pay was about to end, other than when she got the call from my office. She conceded that there were several instances of undue delay in this case. The downside to taking the deposition is that it can be expensive, and I’m not aware of any mechanism to recoup this expense.
Is the Respondent liable under 31-288b for every TT or TP check that is mailed late? There is certainly a good argument to be made that every such late check is subject to a penalty. The Respondent should not be held accountable for the vagaries of the US mail if a check is sent out in a timely fashion. But if a claimant falls off repetitive pay, the reality is that because of the mind-numbing complexity of ordering and mailing a check, the claimant is almost guaranteed that he will not receive his check for more than a week.

Payor-Provider Guidelines

Posted on September 20, 2010 by Mike

Connecticut has issued new guidelines regarding the various obligations and interaction between insurance carriers and medical providers, effective July 1, 2010. The goal of these new Guidelines is to provide “timely and efficient delivery of monetary benefits and medical treatment.” Often there is an unnecessary lag between the date of injury and the administration of effective medical care because of the confusion in communication that exisits between claimants, insurance company payors and the medical professionals. The lack of clarity in the respective obligations of each party has “fostered an acrimonious relationship among the injured worker, medical provider, employer, and insurance payor…Communication, especially as it relates to medical treatment, is the key to ensuring the system’s goals are achieved.” CBIA News, September 2010. The Guidelines can be viewed and downloaded at: http://wcc.state.ct.us/download/acrobat/payor-provider-guidelines.pdf

Can My Employer Cut Off my Health Insurance?

Posted on September 17, 2010 by Mike

YES.
One would think the answer could be found in the statute entitled “Employer to Continue Insurance Coverage …For Employees Eligible to Receive Workers’ Compensation.” Connecticut General Statutes §31-284b provides in relevant part: “In order to maintain…the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee…shall provide to the employee equivalent insurance coverage…while the employee is eligible to receive or is receiving compensation pursuant to the statute…”

That statute could not be clearer. And between 1982 when the statute was enacted and 1993, that was the law. However, in 1993, it was determined that because federal law (Erisa) prohibits requiring a private employer to maintain health insurance, this statute was preempted by federal law, at least as far as private employers are concerned. The statute now applies only to state and municipal employees. So the answer is unless you are a state or town employee, your employer may cut off your health insurance, so long as it provides you with the proper notification pursuant to COBRA.

But the Commissioner Said…

Posted on September 14, 2010 by Mike

At an informal hearing, the Commissioner’s role is that of an impartial mediator. She may make suggestions which the parties can adopt or ignore. Typically, in a contested case in which the respondents disclaim liability on the basis that they are awaiting more proof that the injuries sustained by the claimant are job-related, the Commissioner may “recommend” or “strongly recommend” that the insurance company pay six weeks of benefits, on a “without prejudice” basis. This is the Commissioner’s attempt to maintain the status quo by keeping the claimant financially afloat while the respondents conduct their investigation of the claim. It gives the claimant some financial breathing room, while allowing the respondents to maintain their denial of the claim, thus, on a without prejudice basis. It is typically six weeks between hearings, so if the claimant has established a connection between the injury and his workplace, the commissioner will recommend that the carrier pay the claimant while the respondents investigate the claim, as the claimant’s bills do not stop coming in the interim.

Claimants who attend such hearing often believe that because the commissioner has strongly recommended the payment of these benefits, that the respondents are required to make such payments. The commissioner has no authority at an informal or a preformal to make such a ruling. And the respondents are under no obligation to follow such recommendations. It is only at a formal hearing, or trial, that the commissioner has the authority to make such a binding ruling. The best that respondent’s counsel can do is to pass along the commissioner’s recommendation to the adjuster handling the file.

In the event the commissioner has made recommendations to pay indemnity benefits, especially if such recommendations are made in consecutive hearings, and if the claimant can establish that the respondents had no reasonable basis for continuing to contest payment of these indemnity benefits, then the claimant can push for undue delay penalties and attorney’s fees. A record of several informal hearings in which the commissioner has recommended payment of benefits will be helpful in prosecuting such claims.

Workers’ Compensation Hearings

Posted on June 27, 2010 by Mike

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.

Can I Get Fired?

Posted on May 19, 2010 by Mike

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.

Need for Medical Set Asides (MSA’s) in Settlements

Posted on May 12, 2010 by Mike

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.

What is a Commissioner’s Exam?

Posted on May 4, 2010 by Mike

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.

CT Workers Compensation Law

Workers Compensation Information for Connecticut