NUZZO & ROBERTS NEWSLETTER

Transcription

1 NUZZO & ROBERTS NEWSLETTER January 2011 WORKERS COMPENSATON UPDATE FOURTH QUARTER 2010 SUPREME AND APPELLATE COURT DECSONS When Does a Claimant s Right to PPD Benefits Vest? n Churchville v. Bruce R. Daly Mechanical Contractor, 299 Conn. 185 (2010), the Connecticut Supreme Court concluded that a claimant s right to permanent partial disability benefits, and the surviving spouse/presumptive dependent s right to the same benefits, vests when the claimant reaches maximum medical improvement, even if the claimant did not make an affirmative request for the benefits. n 2007, a physician determined that the claimant had reached maximum medical improvement and the respondents subsequently filed a Form 36. Based on the results of a Commissioner s Examination, the commissioner denied the Form 36 at an informal hearing. The claimant was still receiving temporary total disability benefits when he died in At that point claimant s counsel withdrew the Objection to the Form 36 and the commissioner approved the Form 36 retroactive to the date it was filed, finding that the claimant had a 10% permanent partial disability of the shoulder and a 32% permanent partial disability of the lumbar spine. The commissioner ordered the balance of the permanent partial disability benefits to be paid to the claimant s estate. On appeal the Connecticut Supreme Court concluded that the widow (the dependent pursuant to Connecticut General Statutes ) was entitled to the permanent partial disability benefits. This case essentially changes the previously applied rule that permanent partial disability benefits did not vest until requested by the claimant. Now the issue that must be resolved to determine if there is an entitlement to permanent partial disability benefits is whether the claimant reached maximum medical improvement. When Does the Statute of Limitations Begin for Heart and Hypertension Cases? n Ciarlelli v. Town of Hamden, 229 Conn. App. 265 (2010) the Connecticut Supreme Court addressed the issue of when the one-year statute of limitations begins to run for Connecticut General Statutes 7-433c, Heart and Hypertension claims. n this matter the claimant, a police officer, was hired in From 1996 to

2 2004 the claimant was repeatedly told by his primary care physician that his blood pressure was borderline for hypertension. n 2000 the doctor told the claimant to monitor his blood pressure at home and to diet. n 2004 the claimant went to the emergency room for abnormally high blood pressure and was prescribed antihypertension medication. Mr. Ciarlelli filed a Heart and Hypertension claim on May 20, The claimant testified at a formal hearing that he did not know he was hypertensive until May 11, f this allegation was correct then he had properly filed his claim within the one-year statute of limitation. However, after the Town s cardiologist stated that the claimant had several hypertensive blood pressure readings starting in December 2000, the trial commissioner ruled that the notice of claim was not timely and dismissed the claim. The Compensation Review Board in a split decision affirmed the trial commissioner s conclusion. The Connecticut Supreme Court reversed the trial commissioner and Compensation Review Board s decisions. They concluded that the one-year statute of limitations applies but that it did not start to run until 2004 when the claimant was informed by a medical professional that he suffered from hypertension. When is an Appeal Untimely? n two recent cases the Connecticut Supreme Court addressed the timeliness of appeals. Dechio v. Raymark ndustries, 299 Conn. 376 (2010) and Stec v. Raymark ndustries, 299 Conn. 346 (2010) App. 81 (2009), are occupational disease asbestos death claims. n each matter the trial commissioner issued a finding of compensability in September/October 2005 and held that the injurious exposure to asbestos ended during a period when the employer was self-insured. After the last date of injurious exposure the self-insured employer went into bankruptcy. n the fall of 2006, after the bankrupt selfinsured employer failed to pay benefits for either claim, the Second njury Fund was ordered to pay benefits in lieu of the self-insured employer pursuant to Connecticut General Statutes After the issuance of the Connecticut General Statutes Order the Second njury Fund appealed the trial commissioner s September/October 2005 findings. The appeals were filed one year after the original findings. n Dechio the respondents filed a Motion to Dismiss within 10 days of the filing of the appeal stating that the Second njury Fund s appeal was untimely because it had not been filed within 20 days of the original Finding and Award. n Stec, the respondents filed a Motion to Dismiss 22 days after the appeal making the same argument. n both matters the Compensation Review Board granted the Motion to Dismiss because the appeal was untimely. 2

3 n Dechio, the Appellate Court, in a 2 to 1 decision, concluded that the original 2005 Finding and Award was a final judgment. They affirmed the granting of the Motion to Dismiss reasoning that the Second njury Fund should have appealed within 20 days of the original 2005 Finding and Award. The Connecticut Supreme Court affirmed that the Second njury Fund s appeal was untimely and the Compensation Review Board did not have subject matter jurisdiction over this claim. n Stec, the Appellate Court concluded that the Motion to Dismiss should have been filed within 10 days of the late appeal and that the timeliness of the appeal was not an issue of subject matter jurisdiction. However, the Connecticut Supreme Court overruled the Appellate Court, holding that the failure to file a timely appeal is an issue of subject matter jurisdiction and the Motion to Dismiss can be filed at any time. Therefore, as with Dechio, the Compensation Review Board does not have subject matter jurisdiction over the appeal and the Motion to Dismiss was appropriately granted. Sanctions Against CGA Are Not Allowed f Not For a Covered Claim n Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620 (2010), the Connecticut Supreme Court addressed the issue of whether the Connecticut nsurance Guaranty Association (CGA) can be assessed sanctions pursuant to Connecticut General Statutes (b) and attorney s fees pursuant to Connecticut General Statutes for unreasonable delay in processing a claim. CGA is involved in this matter because the employer s workers compensation carrier became bankrupt. The claimant underwent authorized knee replacement surgery. Thereafter CGA waited five months before it paid for treatment with the authorized physician. Another five months passed before CGA authorized tests recommended by the same physician. However, because of inadequate assurances of payment the claimant was twice turned away by the hospital when tests were scheduled. Seven workers compensation hearings followed before the commissioner concluded that the respondents had unreasonably contested and delayed medical treatment and at that time the commissioner issued an Order for attorney s fees of $8,000 and penalties of $500. This decision was upheld by the Compensation Review Board. However, the Connecticut Supreme Court has ruled that these sanctions should not have been assessed against CGA because this was not a covered claim as defined by Connecticut General Statutes 38a- 838(5) and CGA has immunity from being sanctioned in this type of circumstance. 3

4 When Does Connecticut Have Jurisdiction Over a Claim? n Healey v. Hawkeye Construction, LLC, 124 Conn. App. 215 (2010) the Connecticut Appellate Court addressed the issue whether an employment contract existed between a Connecticut resident and an out-of-state employer that would entitle the claimant to Connecticut Workers Compensation benefits. The claimant was a member of an electrical workers union in Boston. He received a call from the union hall stating that the respondent employer needed workers to travel to Florida to perform work. From his home in Connecticut, the claimant called the respondent employer and accepted the job. The claimant subsequently traveled to New York to complete his employment documents. The claimant was injured while working in Florida and filed for workers compensation benefits in Connecticut. The trial commissioner ruled that the claimant s entire employment relationship occurred outside of Connecticut and the Connecticut Workers Compensation Commission did not have jurisdiction over this matter. The Appellate Court reversed this decision stating that since the job was accepted in Connecticut and the claimant lived in Connecticut there was a significant relationship to establish jurisdiction over this claim. Thus the claimant was entitled to Connecticut workers compensation benefits. Willful Misconduct by the Claimant Prevents the Entitlement to Benefits n William v. State, 124 Conn. App. 759 (2010), the claimant was a juvenile transportation officer who participated in a basketball game with the juvenile detainees at the detention center. He knocked the ball out of the hands of the one of the detainees and when the detainee verbally responded the claimant initiated a physical confrontation that led to the claimant s injuries. The Appellate Court has affirmed the finding the trial commissioner and Compensation Review Board that the claimant s actions constituted willful and serious misconduct and pursuant to Connecticut General Statutes (a) he was not entitled to benefits. COMPENSATON REVEW BOARD DECSONS The Totality of Factors Determines if a Claimant is Totally Disabled n Romanchuk v. Griffin Health Services, 5515 CRB (October 20, 2010), the 69-year-old claimant was found to be totally disabled from all employment. n making this decision the trial commissioner considered the conclusion of Dr. Jarob Mushaweh, a neurosurgeon, the claimant s age, and the claimant s multiplelevel disc degeneration. The respondents argued that the doctor was making a 4

5 medical and vocational conclusion and that the vocational conclusion was outside of his expertise. The Compensation Review Board disagreed and affirmed the trial commissioner s finding. They stated that the trial commissioner can consider the totality of the factors when addressing the issue of temporary total disability and medical evidence by itself can support a decision that the claimant is totally disabled. The Need for Treatment Can Be a Combination of Preexisting Conditions and the Workers Compensation njury n Covaleski v. Casual Corner, 5524 CRB (December 3, 2010), the suffered a broken hip arising out of his employment. Additionally, the claimant was born with mild mental retardation, epilepsy and cerebral palsy. The hip injury aggravated the cerebral palsy which resulted in the claimant needing a cane and at times a wheelchair. The trial commissioner found that the claimant needed the services of a structured workshop because of a combination of the preexisting condition and the hip injury and determined that the services were reasonable medical care. The Compensation Review Board affirmed. A Motion to Preclude s Not Appropriate to Contest Disability n Callender v. Reflexite Corporation, 5504 CRB (October 8, 2010), the Compensation Review Board concluded that a Motion to Preclude should not be granted where the respondents have issued a timely contest of the claim (Form 43) and/or paid benefits in a timely manner. Specifically, a Motion to Preclude cannot be used where only the extent of the claimant s disability is contested. CHANGE N MLEAGE REMBURSEMENT RATE For all travel expenses incurred on or after January 1, 2011, the mileage reimbursement rate is 51.0 cents per mile. 5

6 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 6