NUZZO & ROBERTS NEWSLETTER

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1 NUZZO & ROBERTS NEWSLETTER July 2008 WORKERS COMPENSATON UPDATE SECOND QUARTER 2008 n recent months, the Connecticut Legislature has enacted new Statutes and the Connecticut Courts and the Compensation Review Board have issued several important decisions regarding workers compensation law. LEGSLATVE UPDATE The Workers Compensation Commission Must Provide a Form 30C to all Employees who File First Reports of njury n an effort to make it easier to file a timely workers compensation claim, the Connecticut Legislature passed Public Act 08-3, which amends Connecticut General Statutes b. This Public Act goes into effect on October 1, 2008 and requires the Workers Compensation Commission to provide a Form 30C to claimants within five business days after receiving the Employer s First Report of njury. The legislative intent behind this Public Act is to inform claimants of their obligations and rights and help them comply with the notice requirements of Connecticut General Statutes c. The Public Act also amends Connecticut General Statutes and addresses the procedures for filing an Employer s First Report of njury. Benefits for Cardiac Emergencies n Public Act 08-61, the Connecticut Legislature addressed benefits for paid firefighters and police officers who were hired on or after July 1, 1996 and have an injury or condition caused by a cardiac emergency while in training for or engaged in fire duties at the site of an accident and/or fire or other public safety operation. A rebuttable presumption is created that the cardiac emergency arose out of and in the course of employment. A cardiac emergency is defined as a cardiac arrest or a myocardial infarction. This law does not include hypertension, angina and cardiovascular disease. This new law will go into effect on July 1, Misclassification of Workers n Public Act , the Connecticut Legislature has established a permanent enforcement commission, on which the Workers Compensation Commission Chairman will sit, to address problems created by employers misclassification of employees. A common misclassification occurs when employers claim employees are independent contractors to avoid workers compensation and unemployment claims.

2 SUPREME AND APPELLATE COURT DECSONS Can a Self-nsured Employer Apportion Liability Against CGA? n Esposito v. Simkins ndustries, 286 Conn. 911 (2008), on the last date of the claimant s occupational disease exposure, the employer was self-insured. As the Connecticut General Statutes b insurer for an apportionment period from 1948 to 1984, the self-insured employer was attempting to apportion liability against its own insurers for the period prior to its self-insurance. Unfortunately, one of the prior insurers was bankrupt and their liability was taken over by the Connecticut nsurance Guaranty Association (CGA). When the Connecticut General Statutes b employer is insured and the insurer attempts to apportion a claim for repetitive trauma or occupational disease, if one of the prior insurers is bankrupt, then CGA does not become responsible for that period of insurance coverage. nstead, the bankrupt insurer s period is eliminated from the apportionment calculation. However, in this case, because the Connecticut General Statutes b party was the self-insured employer, the trial commissioner, Compensation Review Board, and now the Connecticut Supreme Court all agree that CGA can be apportioned against for repetitive trauma and occupational disease cases. Motion to Reopen is Appropriate at any Time When There is no Original Jurisdiction n Mankus v. Mankus, 107 Conn. App. 585 (2008), the claimant alleged that he was injured while working for his brother when he fell off of a ladder. A formal hearing was conducted and the trial commissioner found that the claimant was entitled to workers compensation benefits. Neither the alleged employer/brother nor the Second njury Fund appeared at the formal hearing. An order was then issued pursuant to Connecticut General Statutes directing the Second njury Fund to pay benefits on behalf of the uninsured employer/brother. Six years later the Second njury Fund located the brother who denied he employed the claimant on the date of injury. The Second njury Fund moved to reopen the finding of compensability based on the newly discovered evidence. The trial commissioner found that six years earlier there was no employment relationship between the brothers and for that reason the Workers Compensation Commission lacked subject matter jurisdiction over the original injury. The claimant appealed, but the Compensation Review Board and Appellate Court affirmed the trial commissioner s finding of no subject matter jurisdiction. The Second njury Fund was allowed to move to open the 2

3 original finding regardless of the Connecticut General Statutes order because the commissioner never had jurisdiction when there was no employment relationship. Therefore, the claimant was never entitled to workers compensation benefits. The Entitlement to Connecticut General Statutes a Benefits n McCarthy v. Hartford Hospital, 108 Conn. App. 370 (2008), the Connecticut Appellate Court affirmed the trial commissioner s finding that the claimant s workers compensation injury caused a diminution in her earning capacity. This ruling entitled the claimant to receive Connecticut General Statutes a benefits. As a result of her injuries the claimant suffered a 15% permanent partial disability of the left foot and a 14% permanent partial disability of her left hand. After the claimant received payment for the permanent partial disability benefits, the trial commissioner awarded a period of Connecticut General Statutes a benefits. However, the trial commissioner also properly denied Connecticut General Statutes a benefits for the period when the evidence did not indicate the claimant pursued employment. n rendering their decision, the Connecticut Appellate Court concluded that the employee did not need to present medical testimony to support the claim for the reduced earning capacity. Specifically, the assignment of the permanent partial disability ratings from a medical professional prior to seeking Connecticut General Statutes a benefits established the reduced earning capacity. Chiropractic Treatment After MM may not be Appropriate n Anderson v. R & K Spero, Co., 107 Conn. App. 608 (2008), the claimant suffered compensable injuries to the lumbar spine, cervical spine and right shoulder. He reached maximum medical improvement in 1999 and in March 2002 he aggravated his back injury. Starting in 2004 the claimant began chiropractic treatment on his own initiative. A Commissioner s Examiner stated that the chiropractic treatment was not reasonable and necessary and the trial commissioner, Compensation Review Board and Appellate Court have all affirmed that conclusion. Thus, the respondents are not responsible for payment of the chiropractic treatment. When is a Personal Care Assistant not an Employee? n Muniz v. Allied Community Resources, nc., 108 Conn. App. 581, the Connecticut Appellate Court addressed the issue of whether a personal care assistant who worked less than 26 hours a week was an employee under the Workers Compensation Act. n this case, the claimant worked up to 3

4 25.75 hours per week in the residence of Gary LaChance. Connecticut General Statutes (9)(B)(iv) states that an individual is not an employee under the Workers Compensation Act if she is engaged in any type of service in or about the dwelling and work less then 26 hours per week. Therefore, the Connecticut Appellate Court affirmed the Compensation Review Board s reversal of the trial commissioner s finding and stated that the claimant was not an employee and not entitled to benefits under the Workers Compensation Act. SUPEROR COURT DECSONS When is Notice of a Lawsuit not Sufficient to Commence the 30-day Period During Which the Employer Must Move to ntervene? n McMahon v. Sodexho, nc., 45 Conn. L. Rptr. No. 9, 338 (June 9, 2008), the employee commenced a lawsuit against an alleged third party tortfeasor. The employer did not intervene within 30 days of receiving notice of the lawsuit. However, the 30- day notice that is required by Connecticut General Statutes was sent to the employer s main office and was not sent to the employer s department that was handling the workers compensation claim. The court said that the Connecticut General Statutes notice was not sufficient because it should have been sent to the department known to be handling the claim. Therefore, the 30-day period during which the employer was required to intervene never commenced. Consequently, the Motion to ntervene was granted and could not be defeated as having been filed in an untimely manner. COMPENSATON REVEW BOARD DECSONS Statute of Limitations n Veilleux v. Complete nterior Systems, nc., 5231 CRB (May 22, 2008), the employee filed a claim for a repetitive trauma cervical injury more than one year after he stopped working. The trial commissioner found, and the Compensation Review Board affirmed, that the notice of claim for a repetitive trauma claim must be filed within one year after the date of injury. They also ruled that the claimant s alleged cervical injury from work as a sheet metal installer was not an occupational disease which would have allowed the claimant a three years statute of limitations to file his claim. The trial commissioner stated that the claimant failed to submit scientific treatises that connected cervical compression to his occupation and there were no facts in the record that suggested that the claimant s cervical injury resembled an occupational disease. Please note that the claimant admitted that although his ailments did not rise to the 4

5 level of an occupational disease, for "jurisdictional purposes only", the trial commissioner was compelled to determine whether this repetitive trauma "resembled" an occupational disease. The Compensation Review Board rejected this argument. The Heart and Hypertension Act and the Start of the Statute of Limitations Period n McCarthy v. Town of East Haven, 5174 CRB (May 2008), the trial commissioner found that the claimant was not entitled to Heart and Hypertension benefits pursuant to Connecticut General Statutes 7-433c. n upholding the finding, the Compensation Review Board stated that it was reasonable for the trial commissioner to infer that, as a result of numerous high blood pressure test results, a claimant was aware that he suffered from high blood pressure more then one year prior to April 2003, when he was officially diagnosed with hypertension. 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, or Patricia Girard at pgirard@nuzzo-roberts.com. NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT Phone: (203) Fax: (203) or 5