NUZZO & ROBERTS NEWSLETTER

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1 NUZZO & ROBERTS NEWSLETTER July 2011 WORKERS COMPENSATON UPDATE SECOND QUARTER 2011 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 Amount of the Recoverable Workers Compensation Lien has been Reduced E ffective July 1, 2011, Connecticut General Statutes , the statute which governs the entitlement to reimbursement of workers compensation liens from third party tortfeasors, has been modified to create an automatic one-third reduction of the lien. Public Act changes the language of Connecticut General Statutes to state in part that: f the action has been brought by the employee, the claim of the employer shall be reduced by one-third of the amount of the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of the Second njury Fund. Whereas the employer was previously entitled to a full recovery of the lien, the lien is now automatically reduced by one-third. Prior to this amendment of Connecticut General Statutes , if the employer failed to intervene in the third party suit within thirty days of receiving notice of the lawsuit from the claimant, the employer s right to intervene in the action to obtain reimbursement of its workers compensation lien abated, or was permanently lost. However, the revision to the statute states that the right to intervene shall abate unless the employer, insurance carrier, or Second njury Fund gives written notice of a lien in accordance with this subsection. Thus, a lien letter will protect the right to the two-thirds reimbursement of the workers compensation lien even if the employer does not intervene in the third party lawsuit.

2 As this change to the law is new, it is unclear how it will be interpreted by the courts. Specifically, does this statute as amended apply to all lawsuits pending in the Superior Courts, only lawsuits that commence on or after July 1, 2011, or only to lawsuits with a date of injury on or after July 1, 2011? To protect the right to reimbursement of the workers compensation lien, we recommend that you continue to send lien letters by certified mail to the claimant, claimant s counsel, all potential defendants and the potential defendants insurance carriers for all potential subrogation actions. We also recommend that you continue to intervene in third party civil suits to fully protect your lien recovery and moratorium rights until it can be determined how the amended statute will be applied by the courts. Please read future newsletters for analysis of court opinions on the application of Connecticut General Statutes after its revision. A Consumer of Homemaker and Companion Services Can be Considered an Employer P ublic Act modifies Connecticut General Statutes Effective January 1, 2012, all homemaker and companion services registries are required to notify the consumer that they may be considered an employer under law and may be held responsible for workers compensation insurance payments and other taxes and 2 benefits. The notice must be provided within seven days after the service begins and must indicate whether the referring registry is an employer, joint employer, leasing employer, or non-employer. The notice shall also recommend that the consumer consult a tax professional if they are uncertain of their responsibility under the law. SUPREME AND APPELLATE COURT DECSONS Timely Notice of Claim n Mehan v. Stamford, 127 Conn. App. 619 (2011), the claimant, a Stamford firefighter, suffered chest pains on February 10, 2001 while fighting a fire. Following a cardiac catherization, he was informed he had coronary artery disease, which was aggravated by the heart attack he suffered on February 10, Within one year of February 10, 2001, Mehan informed his supervisor and began filling out a Form 30C. He then gave the unsigned document to the assistant fire chief. The assistant fire chief completed the form and signed it on the claimant s behalf. However, the form was never delivered to the City s human resource department. The City never filed a Form 43 contesting the claim. n October 2002 the claimant was deemed unable to continue to work due to his heart condition, and he retired When the claimant requested the payment of workers compensation benefits related to his heart condition, he also filed a Motion

3 to Preclude the City from contesting compensability because of the City s failure to file a Form 43 within 28 days of the assistant fire chief completing the Form 30C. The trial commissioner ultimately granted the claimant s Motion to Preclude because a Form 43 contesting the claim was never filed. This decision was affirmed by the Compensation Review Board and the Connecticut Appellate Court. t was determined that the Form 30C, as delivered to and completed by the assistant fire chief, was sufficient to give the City notice of the claim. Can a PPD Rating be Assigned to an Unscheduled Body Part? n Sierra v. C&S Wholesale Grocers, nc, 127 Conn. App. 78 (2011), the Connecticut Appellate Court addressed the issue of assigning a permanent partial disability rating to an unscheduled body part. Following abdominal surgery for a crush injury, the claimant s orthopedic physician assigned an 8% permanent partial disability to the lumbar spine. The claimant s general surgeon then assigned a 50% permanent partial disability to the abdominal wall. Connecticut General Statutes (b) does not include a permanent partial disability rating for the abdominal wall. Therefore, the trial commissioner denied the claimant s request for payment of the 50% permanent partial disability rating for the abdominal wall. Both the Compensation Review Board and the Appellate Court affirmed the trial commissioner s ruling. The Appellate Court concluded that although the trial commissioner has the discretion to award benefits for an injury to an unscheduled body party, the trial commissioner is not obligated to accept the rating. Consequently, the trial commissioner s decision to deny the 50% permanent partial disability rating for the abdominal wall was within his discretion. SUPEROR COURT DECSONS Does the Exception to CGS That Allows a Co-employee to be Sued for the Negligent Operation of a Motor Vehicle, Apply When the Co-employee is a State Worker? n Barichko v. Gregg, 51 Conn. L. Rptr. No. 18, 674 (June 27, 2011), the court ruled that the provision of the Connecticut Workers Compensation Act that exempts from the exclusive remedy provision actions based on [a] fellow employee s negligence in the operation of a motor vehicle (Connecticut General Statutes a), does not override the co-employee/operator s statutory immunity for claims arising out of the discharge of a state employees duties. Connecticut General Statutes 4-165(a). Therefore, a state employee may not recover from a co-employee for the negligent operation of a motor vehicle. 3

4 COMPENSATON REVEW BOARD DECSONS Does the Workers Compensation Commission have Jurisdiction over the Proceeds Recovered by the Claimant s Spouse for Loss of Consortium? n Lubrano v. Mohegan Sun Casino, 5560 CRB (June 3, 2011), the claimant suffered a compensable workers compensation claim. He and his wife also commenced lawsuits against six corporate defendants in the Mohegan Gaming Disputes Trial Court. The respondent employer intervened in those lawsuits to obtain reimbursement of its workers compensation lien. Ultimately, the claimant settled his lawsuits with all parties and obtained a net recovery of $2,190, The respondents also withdrew their intervening complaint against the defendants and waived their right to reimbursement of benefits paid to date. The claimant s wife obtained a net recovery of over $2,000, As a result of the claimant s settlement, the trial commissioner ordered that the respondents had a Moratorium of $2,190, against future benefits. Review Board affirmed that the Workers Compensation Commission does not have jurisdiction over and cannot affect [the wife s] rights with respect to the third party defendants and has no authority to dictate the appropriate terms of settlement. Thus, the proceeds from the wife s loss of consortium claim are not part of the Moratorium, and the trial commissioner has no jurisdiction to rule on this issue. Can CGS b Liability be Apportioned Against a Self-nsured Employer? n Lantieri v. Anaconda American Brass Company, 5579 CRB (June 28, 2011), the Compensation Review Board affirmed the trial commissioner s conclusion that the Connecticut General Statutes b insurer cannot apportion liability against the self-insured employer. This decision is based on the precedent in Esposito v. Simkins ndustries, nc., 5065 CRB (March 1, 2007), aff d, 286 Conn. 319 (2008). However, the respondents also wanted the trial commissioner to determine if they had the right to a higher Moratorium based on the net recovery of the claimant s wife from her loss of consortium claim. The trial commissioner determined, and the Compensation 4

5 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, Patricia Girard at pgirard@nuzzo-roberts.com, James Henke at jhenke@nuzzo-roberts.com or Laura Cummings at lcummings@nuzzoroberts.com. NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT Phone: (203) Fax: (203) or 5