NUZZO & ROBERTS NEWSLETTER

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1 NUZZO & ROBERTS NEWSLETTER October 2013 WORKERS COMPENSATON UPDATE THRD QUARTER 2013 SUPREME AND APPELLATE COURT DECSONS Timely Denial of the Claim n Dubrosky v. Boehringer ngelheim,corp, 145 Conn. App. 261 (2013), the claimant alleges he was injured in January Although he notified the employer of the alleged injury, he did not immediately seek medical attention, and he did not miss any time from work. The claimant filed a Form 30C on February 18, 2009 and pursued medical treatment on February 27, On June 1, 2009, the employer received and paid the newly submitted medical bills. The respondents did not file a Form 43 to contest the case until October The trial commissioner and the Compensation Review Board ruled that while the employer could not have paid the bills within 28 days of the receipt of the Form 30C, as no bills were received during that time, it could have filed a Form 43 to contest the claim. The Appellate Court has reversed that judgment and concluded that it was not reasonably practical for the employer to file the Form 43 or pay the medical bills within 28 days of the filing of the Form 30C. Consequently, pursuant to Connecticut General Statutes c(b), the respondents properly contested the claim within one year when it filed the Form 43. n reaching its conclusion, the Appellate Court stated that the Form 43 provided by the Workers Compensation Commission is essentially defective. Specifically, the Form 43 does not include a space for employers who initially accept liability, but after investigation and within one year of the date of injury decide to contest the extent of liability. A Form 36 May be Approved by Commissioner Before a Formal Hearing n Pagan v. Carey Wiping Materials Corp., 143 Conn. App. 413 (2013), the employer filed a Form 36 to discontinue the claimant s benefits based on the treating physician s conclusion that the claimant had reached maximum medical improvement. At an informal hearing, the commissioner approved the Form 36 retroactive to the date it was received by the Workers Compensation Commission. The claimant appealed the granting of the Form 36 to the Compensation Review Board. The Compensation Review Board

2 remanded the matter for a formal hearing regarding the approval of the Form 36 and stated that until the formal hearing decision is issued, the granting of the Form 36 would remain in effect. n the appeal to the Connecticut Appellate Court, the claimant argued that her due process rights were violated by the granting of the Form 36 without a formal hearing. The Connecticut Appellate Court concluded that the trial commissioner s approval of the Form 36 terminating workers compensation benefits prior to the evidentiary hearing did not violate due process. Please note that if after a formal hearing the trial commissioner determines the Form 36 should not have been granted, the claimant s benefits can be retroactively reinstated. Jurisdiction n Springer v. J.B. Hunt Transport, nc., 145 Conn. App. (2013), the Connecticut Appellate Court reversed and remanded the decision of the trial commissioner and the Compensation Review Board that the Workers Compensation Commission did not have jurisdiction over this matter. The claimant was a Connecticut resident and truck driver who died while driving through West Virginia for his employer. The claimant had recently been hired to make deliveries from Virginia. The claimant s widow had sought dependency benefits pursuant to Connecticut General Statutes The trial commissioner concluded there was no jurisdiction because Connecticut was not the place of the claimant s employment relationship with the employer. The Appellate Court pointed out that in reaching her decision, the trial commissioner failed to take into account that allegedly 56 percent of the claimant s driving occurred to, from, and through Connecticut. The trial commissioner also mistakenly considered the amount of revenue generated by this employer in Connecticut when deciding there was no jurisdiction. By improperly considering these factors, the commissioner failed to apply the tests set forth in Cleveland v. U.S. Printing nk, nc., 218 Conn. 181 (1991) and in the Workers Compensation Act. The case has been remanded to the trial commissioner to address the amount of Connecticut related miles which the claimant traveled and was paid to travel, and to determine whether the facts pertinent to the decedent s employment relation with the defendant establish a sufficiently significant relationship between the decedent s employment relation and Connecticut to warrant awarding the plaintiff dependent s benefits under the act. 2

3 SUPEROR COURT DECSONS Public Act Should be Applied Prospectively n Dwyer v. Zink, 39 Conn Law Rptr. 35 (September 2013), the plaintiff employee suffered an injury in 2007 and filed a lawsuit against the third party tortfeasor in The employer intervened to obtain reimbursement of its workers compensation lien. The workers compensation lien was $79,977. The third party case settled for $477,500. The plaintiff employee argued that pursuant to Public Act , which amended Connecticut General Statutes (a), the potential reimbursement of the workers compensation lien could only be two-thirds of lien. The court ruled that the 2011 amendment only applied prospectively and not for an injury and lawsuit that occurred prior to the amendment. Therefore, the employer was entitled to reimbursement of its entire workers compensation lien. COMPENSATON REVEW BOARD DECSONS Defective Form 43 n Beshah v. U.S. Electrical Services, nc., 5781 CRB (August 14, 2013), the claimant alleged he injured his left hand and arm at work on December 2, A Form 30C was filed on April 11, A Form 43 was filed on May 9, 2011, within the 28-day statutory period. However, the trial commissioner and Compensation Review Board both determined the Form 43 was defective. The Form 43 cited three reasons for the denial. The first ground Filing CT 43 in response to the 30C for protection of current & future defense is not a sufficient specifically substantive ground for a denial. The second ground that the claimant failed to report the incident to the employer is not a viable defense, as a First Report of njury is not a statutory requirement for filing a claim for benefits. Please note that the failure to notify the employer can still be considered by a trial commissioner with other factors when deciding if a case is compensable, it is just not a reason by itself on a Form 43. The third ground that the claimant is currently receiving benefits under two other W.C. claims, was considered irrelevant. Please note that the although the employer started to pay benefits without prejudice within 28 days of the filing of the Form 30C, the payments were discontinued before a proper Form 43 was filed 2 months later. f the employer had filed the second legally sufficient Form 43 before discontinuing indemnity benefits, they may have been able to deny the claim. Additionally, the employer did not pay for medical treatment within 28 days of receiving the Form 30C. f they had paid for the medical treatment during that period, they would have been allowed to 3

4 deny the claim when they filed the legally sufficient second Form 43. Jurisdiction n Lee v. Empire Construction Special Projects, LLC, 5751 CRB (August 8, 2013) and Michaelson v. Empire Construction Special Projects, LLC, 5752 CRB (August 8, 2013), the Compensation Review Board affirmed the trial commissioner s findings that the Connecticut Workers Compensation Commission has jurisdiction and the workers compensation policies issued to the employer covered injuries in Connecticut. Mr. Lee was an out-of-state resident and the employer was not located in Connecticut, although near the Connecticut/Rhode sland border. Mr. Michaelson was a Connecticut resident. n October 2011, Shepardville Construction, a Connecticut company performing work in Storrs, hired Empire as a subcontractor for work in Connecticut. The claimants were both injured after falling from scaffolding as they performed work for Empire in Connecticut. The jurisdiction for Mr. Michaelson is a simple issue, as he was a Connecticut resident who was injured in Connecticut. Mr. Lee was not a Connecticut resident, but the entire employment relationship he had with Empire was in Connecticut. The issue of coverage is a more complicated matter. n essence Atlantic Charter provided coverage to Empire as an assigned risk in Massachusetts, but before the work commenced for Shepardville, Atlantic Charter issued a Certificate of Liability nsurance to Shepardville, which referenced Empire s policy with Atlantic Charter and included the words Coverage in CT. Empire paid an additional $192 for this Certificate of Liability nsurance. Although Atlantic Charter argues that there is language in their original workers compensation policy with Empire limiting the coverage to Massachusetts, Shepardville in good faith relied on the Certificate of Liability nsurance when concluding that Atlantic Charter provided workers compensation coverage for Empire in Connecticut. Hatt and the Party Responsible for Ongoing Treatment n Wilson v. Maefair Health Care Centers, 5773 CRB (August 8, 2013), the Compensation Review Board affirmed the trial commissioner s finding that the later injury to the claimant s cervical spine substantially and materially increased the claimant s disability. After the first relevant injury in 2010, an MR revealed multiple levels of degenerative cervical disc disease, some stenosis at C4-5, C5-6 and C6-7 and a herniation on the left side at C6-7. 4

5 After a 7 month gap in treatment, in March 2011, the claimant reinjured her cervical spine while at work for the same employer who now had a new workers compensation insurer. The treating doctors testified that although surgery was necessary after the first incident in 2010, after the 2011 incident the claimant s symptoms became worse. Additionally, the Respondent s Examiner concluded that the second injury was at least 10 percent responsible for the immediate need for surgery. jhenke@nuzzo-roberts.com, Kristin Mullins at kmullins@nuzzo-roberts.com or Laura Kritzman at lkritzman@nuzzoroberts.com. NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT Phone: (203) Fax: (203) or n reaching her conclusion the trial commissioner stated, the proportion of responsibility between the 2 work related accidents seems dramatically skewed but that the March 2011 incident was an identifiable second injury that worsened the claimant s condition and adversely affected her ability to work. Thus, the Compensation Review Board ruled that within her discretion the trial commissioner properly ruled that the second injury under Hatt was responsible for the cervical spine surgery and related treatment. WHEN N DOUBT, CALL US We are only a phone call away. f you have any questions, call us!! Contact David Weil at dweil@nuzzoroberts.com, Jane Carlozzi at jcarlozzi@nuzzo-roberts.com, Jason Matthews at jmatthews@nuzzoroberts.com, James Henke at 5