NUZZO & ROBERTS NEWSLETTER October 2003 WORKERS' COMPENSATON UPDATE: THRD QUARTER 2003 SUPREME AND APPELLATE COURT CASES A Claim for Connecticut General Statutes 31-306 Dependent Benefits Must Be Filed Separately from the Underlying Workers' Compensation Claim. n Kuehl v. Z-Loda Systems, 265 Conn. 525 (2003), the Connecticut Supreme Court affirmed the decision that the widow was barred from seeking survivor benefits pursuant to Connecticut General Statutes 31-306, because she failed to give timely notice of her claim pursuant to 31-294c(a). The decedent employee was the president and sole shareholder of Z-Loda Systems, and the widow/claimant was the secretary and treasurer of Z-Loda Systems. On June 26, 1991, the decedent was in a motor vehicle accident that he claimed arose out of his employment, but at the time of his death, the compensability of his claim remained unresolved. On November 1, 1992, the decedent and the plaintiff filed a thirdparty action against the driver of the vehicle involved in the June 26, 1991 accident. On November 14, 1992, the decedent died of an aortic aneurysm. The lawsuit was then amended to claim that the death was caused by the motor vehicle accident. Z-Loda was sent a copy of the amended complaint and moved to intervene pursuant to Connecticut General Statutes 31-293. On July 22, 1998, the widow requested a hearing for survivor benefits pursuant to 31-306, although she had not previously filed a notice of a claim for survivor benefits. The Supreme Court in affirming that her notice was late, stated that Z-Loda's receipt of the amended complaint did not serve as notice of the intent to seek survivor benefits. Furthermore, although the widow was serving as the company's manager at the time of her husband's death, Z-Loda's knowledge of her intent to bring a claim for survivor's benefits should not be imputed. nstead written notice was required pursuant to 31-294c(a). When is a Worker Considered "Regularly Employed" and Entitled to Benefits Pursuant to Connecticut General Statutes 31-275(9)(B)(iv)? n Smith v. Yurkovsky, 265 Conn. 816 (2003), the claimant was home health aide who argued she was a "regularly
employed" domestic worker pursuant to 31-275(9)(B)(iv). The claimant alleged she worked more than 26 hours per week for 10 of the 16 weeks prior to the date of injury. The Supreme Court remanded this case to determine whether the claimant was an employee within the meaning of the statute. The Court held that in order to be a "regularly employed" within the meaning of the Workers' Compensation Act, the term "employee" does not include a person engaged in any type of service in or about a private dwelling if she is not regularly employed by the owner over 26 hours per week. The person must work more than 26 hours per week during a majority of the 52 weeks preceding the date of injury. Averaging the number of hours worked each week is not appropriate to determine if the claimant was regularly employed 26 hours a week. On remand the trial commissioner was directed to determine whether the claimant was regularly employed more than 26 hours per week during the majority of the 52 weeks before the injury. The Social Security Offset is not Retroactive to njuries Occurring Prior to July 1, 1993. n Esposito v. Waldbaum's nc., 79 Conn. App. 472 (2003), the Connecticut Appellate Court addressed the retroactivity of Connecticut General Statutes 31-307(e), the old age Social Security offset that went into effect on July 1, 1993. The Appellate Court affirmed the finding of the Compensation Review Board that the date of the injury and not the date of disability is the controlling date to determine if the statute should be applied. Therefore, if the claimant's injury occurred before July 1, 1993, the employer is not allowed to reduce the compensation rate once the claimant starts to receive old age Social Security benefits. f Scarring is not Allowed by Statute in a Workers' Compensation Claim, can an Employee File a Negligence Lawsuit Against the Employer in Superior Court? n Mello v. Big Y Foods, nc., 265 Conn. 21 (2003), the claimant sustained a burn injury to her right foot and ankle during the course of her employment. However, because the scars were not to her face, neck or head, she was not entitled to scarring benefits pursuant to 31-308(c). The claimant subsequently filed a negligence action against the employer for her scarring, but the Connecticut Supreme Court ruled that action is not allowed. The Court concluded that the claimant could not "unbundle" her claim for the non-compensable scarring to her foot and ankle from the foot injury claim and from other scarring for which she could have received benefits. Therefore, her negligence claim for permanent and significant scarring to her foot and ankle was barred. The Court stated that "because the legislature has limited the 2
degree or portion of compensability of one incident of a compensable injury-- i.e., scarring--that does not mean that portion of the incident deemed uncompensable automatically escapes the exclusivity provision of the act and becomes the permissible subject of a plenary action by the employee against the employer." Can the Employee of an ndependent Contractor Sue a General Contractor? n Pelletier v. Sordoni, 264 Conn. 509 (2003), the Supreme Court reconsidered its prior opinion and issued a superseding decision. The original decision (reported in the First Quarter Workers' Compensation Newsletter) held as a general rule that a general contractor is not liable for the torts of its independent subcontractors, and although there are exceptions to this rule, the exceptions do not inure to the benefit of an employee of the independent contractor, as opposed to a third person. n its new decision, the Supreme Court concluded that a plaintiff is not barred from suing a general contractor in negligence simply because he is an employee of a subcontractor. Rather, the subcontractor's employee may have a valid negligence claim against the general contractor if he can establish one of the exceptions to the general rule that general contractors are not liable, or if he can establish a direct claim of negligence against the general contractor. The exceptions to the rule that general contractors are not liable for injuries to employees of subcontractors include the following: if the work contracted for is unlawful, may cause a nuisance, is intrinsically dangerous or its nature is calculated to cause injury to others; if the general contractor reserves general control over the subcontractor and its employees, or over the manner of doing work; if in the progress of the work, the general contractor assumes control or interferes with the work; or the general contractor is under a legal duty to see that the work is properly performed. SUPEROR COURT DECSONS When is a 30-Day Notice Pursuant to 31-293 Legally Sufficient? n New Britain v. Herman Miller, nc., 9 Conn. Ops 1052, (September 1, 2003), the City of New Britain brought a products liability claim against the manufacturer and seller of a chair in which the employee was injured. After commencing the products liability claim the City, as the employer and pursuant to 31-293, sent a 30-day notice letter to the employee notifying him that he could intervene. The employee did not attempt to intervene until more than 30 days after he received notice letter. However, the court still allowed the employee to intervene because the 30-day notice letter was defective. Specifically, the notice did not 3
inform the employee that her right to bring an action against the third-party tortfeasors would be permanently lost if she did not move to intervene within 30 days. (See also Gregory v. Wainwright, 9 Conn. Ops. 1196 (October 6, 2003.) REVEW BOARD DECSONS When is Out-of-State Medical Treatment Allowed? n Kraemer v. Northeast Utilities/Yankee Gas, 4562 CRB-7-02-8 (July 29, 2003), the Compensation Review Board addressed the issue of the propriety of out-of-state medical treatment. The Board affirmed the trial commissioner's conclusion that the continuing out-of-state treatment was appropriate in part because the respondent had previously paid for an out-of-state medical provider who had recommended physical therapy. However, the Board then stated that "[t]hose who read this opinion should not interpret it as countenancing medical treatment by physicians licensed outside the State of Connecticut when such care is rendered pursuant to our Workers' Compensation Act. However, in this case there were unique factual circumstances. Primary among those circumstances were that while the claimant treated with a physician outside of the state of Connecticut, there were actions taken by the respondent from which the trial commissioner could reasonably infer the respondent's acquiescence to the claimant's conduct." Liability for Permanent Partial Disability May be Different in a Repetitive Trauma Case Than in an Occupational Disease Case. n Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003), the trial commissioner found that the claimant had a 48% permanent partial disability to his lungs. The trial commissioner also accepted the treating physician's conclusion that 32% of the permanent partial disability is the result of the claimant's work related asbestosis and 16% the result of smoking. The Compensation Review Board affirmed the trial commissioner's finding that all of the permanent partial disability should be paid by the respondents. The respondents argued that the claimant has smoking related emphysema and that disease is a separate and concurrently evolving disease with distinct etiology and lung damage that is different from the lung damage caused by the asbestosis. They also argued that the emphysema was not aggravated by the asbestosis and they should not be responsible for the portion of the permanent partial disability caused by the emphysema. The Compensation Review Board found that the respondents were not allowed to sever the portion of the permanent partial disability related to the emphysema. Specifically, the claimant only made a case for repetitive trauma exposure to asbestos and not an 4
occupational disease. f the emphysema was a pre-existing occupational disease the respondents would not have been responsible to pay for that portion of the claimant's disability. Since both conditions contributed to the overall lung disease the permanent partial disability could not be severed. 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, or Jane Carlozzi at jcarlozzi@nuzzo-roberts.com NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT 06410 Phone: (203) 250-2000 Fax: (203) 250-3131 or help@nuzzo-roberts.com 5