Development in Connecticut Workers' Compensation Law May, 2015- May, 2016

WORKERS' COMPENSATION REVIEW  May 13, 2015 - May 15, 2016

 ROBERT F. CARTER           

INDEX.............................................................................................................i 

LEGISLATION..................................................................................................1

Public Act No.16-10..........................................................................................1

CASES............................................................................................................1

CONNECTICUT SUPREME COURT

Hart v. Federal Express Corp., 321 Conn. 1 (4/19/16).........................................2

Lawrence v. O and G Industries, Inc., 319 Conn. 641 (11/24/15).........................3

McCullough v. Swan Engraving, Inc., 320 Conn. 299 (2/2/16)..............................1

APPELLATE COURT

Conroy v. City of Stamford, 161 Conn. App. 691 (12/15/15)..................................................................................6

  Dickman v. University of Connecticut Health Center, 162 Conn. App.441 (1/19/16).................................................6

Hadden v. Capitol Region Education Council, 164 Conn. App. 41 (3/22/16)..............................................................3

Lazzari v. The Stop and Shop Supermarket Co., 162 Conn.  App. 769 (2/2/16)........................................................6

Lucenti v. Laviero, 165 Conn. App. 429 (May 10, 2016)........................................................................................5

MacDermid, Inc. v. Leonetti, 158 Conn. App. 176 (June 30, 2015).........................................................................5

Rodriguez v. Clark, 162 Conn. App. 785 (Feb. 2, 2016)........................................................................................5

Staurovsky v. City of Milford Police Department, 164 Conn. App. 182 (3/29/16)......................................................4

Story v. Woodbury, 159 Conn. App. 631 (9/15/15)..............................................................................................6

COMPENSATION REVIEW BOARD

Balloli v. City of New Haven Police Department, 5950 CRB-6-14-7 (7/1/15).........................................................10

Callaghan v. Car Parts International, LLC, 5992 CRB-1-15-3 (3/2/16)..................................................................7

Corbin v. St. Mary’s Hospital, 5965 CRB-5-14-10 (7/7/15).................................................................................8

Frantzen v. Davenport Electric, 5990 CRB-7-15-2 (2/24/16)..............................................................................12

Geraldino v. Oxford Academy of Hair Design 5968 CRB-5-14-10 (1/20/16)..........................................................10

Nails v. Freddie’s U.S. Mail, Inc., 5982 CRB-7-15-1 (12/8/15)............................................................................12

O’Brien v. City of Stamford, 091115 CTWC, 5945 CRB-7-14-7 (9/11/15)..............................................................9

Petrini v. Marcus Dairy, Inc., 6021 CRB-7-15-7 (May 12, 2016)..........................................................................8

Pisaturo v. Logistec, USA, Inc., 5979 CRB-03-14-12 (9/23/15)...........................................................................7

Ramsahai v. Coca Cola Bottling Co., 5991 CRB-1-15-2 (1/26/16).......................................................................9

Shymidt v. Eagle Concrete, LLC, 6018 CRB-7-15-6 (May 3, 2016).....................................................................13

Sneed v. PSEG Power LLC of CT et al., 5988 CRB-3-15-2 (2/18/16)....................................................................7

Zbras v. Northeast Mortgage Corp., 5997 CRB-5-15-3 (3/29/16)......................................................................13

SUPERIOR COURT

Aitken v. Kroll, CV14-6008251S, (Windham JD at Putnam 7/16/15), 41 CLT Issue 33 at 20 (8/17/15) ......................................................16

Cavanaugh v. Suburban Sanitation Service, CV14-6049408 (Hartford 11/23/15), 41 CLT No. 52 at 17 (12/28/15)......................................19

Dinino v. Federal Express Corp., HHD CV 136040890 (Hartford 12/18/15), 61 Conn. L. Rptr. No. 12, 449 (3/7/16).......................................................................................................................................................................................15

Ducharme v.Thames Printing Co., KNL CV-09-6001312-S (Sup. Ct. New London 5/5/15), 60 Conn. L. Rptr. No. 19 (10/26/15).....................17

Elisea, Administratrix, v. CFC Stillwater, LLC, CV-14-6044056-S (New Haven 9/15/15), 61 Conn. L. Rptr. No. 4, 162 (1/11/16)....................14

Gonzalez v. Lecoq Cuisine Corp., CV-13- 6037490-S (Bridgeport 4/8/15), 60 Conn. L. Rptr. No. 6, 208 (7/27/15).....................................................................................................................................................................................18

Kos v. Lawrence & Memorial Hospital, CV 13-6019304 (New London 12/16/15), 61 Conn. L. Rptr. No. 12, 483 (3/7/16)..............................13

Lagerberg v. Armstrong International, Inc., CV11-6023127 S, (Bridgeport 10/9/14), 59 Conn. L. Rptr. No. 4, 131 (1/26/15)........................19

Lund v. Milford Hospital, AAN CV 114 60154442 S (Milford 3/13/15), 60 Conn. L. Rptr. No. 3, 120 (7/6/15)................................................16

Murray v. Town of Stratford, CV 13-6038783 S (Bridgeport 7/17/15), 60 Conn. L. Rptr. No. 18, 694 (10/19/15)..........................................18

Meyers v. Curtin Motor Livery Service, CV15-6026407 (Waterbury 10/1/15), 41 CTL No. 41 p. 18 (10/12/15).............................................20

Nagy v. Arsenault, CV 14 6007793 (Putnam 5/21/15), 60 Conn. L. Rptr. No. 10, 389 (8/24/15).................................................................15

Pothitay v. Assembly & Automation Technology, Inc., CV-14-6025888-S (New Britain 4/27/15), 60 Conn. L. Rptr. No. 10, 360 (8/24/15)........17

Sepega v. DeLaura, CV15-6013298 (Middletown 10/29/15), 61 Conn. L. Rptr. No. 5, 197 (1/18/16)...........................................................16

Stanley Black & Decker, Inc. v. Krug, CA 14-6027247 (New Britain 5/7/15), 60 Conn. L. Rptr. No. 9, 311 (8/17/15).....................................18

MEDICARE AND ERISA

Benoit v. Neustrom, 10-cv-1110 (USDC, Western Dist. of Louisiana, 4/17/13)...................................................................................................................................................................................................21

Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, ___U.S.____, 136 S.Ct. 651 (U.S. Sup. Ct. Jan. 20, 2016)........20

 LEGISLATION

 Firefighters get a cancer bill passed

                Public Act No.16-10, effective Feb. 1, 2017, establishes a “firefighters cancer relief program” to provide wage replacement benefits for firefighters with a “cancer affecting the brain, skin, skeletal system, digestive system, endocrine system, respiratory system, lymphatic system, reproductive system, urinary system or hematological system that results in death, or temporary or permanent total or partial disability.”  The cancer must be “known to result from exposure to heat, radiation or a known carcinogen as determined by the International Agency for Research on Cancer or the National Toxicology Program of the United States Department of Health and Human Services.”  The amount of the benefits will be determined by a committee of the Connecticut State Firefighters Association that will contain firefighters and a member of the Connecticut Conference of Municipalities; the committee will review the claims. The subcommittee “may determine the weekly wage replacement benefits provided to a firefighter in accordance with the provisions of chapters 104 and 568 of the general statutes.” (Meaning?) The fund will be held and invested by the state Treasurer.  Firefighters may not concurrently receive workers’ compensation or unemployment benefits, and benefits will be capped at the average weekly wage of all state workers during the year of diagnosis.  Other employer-provided employment benefits (presumably retirement benefits?) plus the cancer fund benefit may not exceed the firefighter’s pay rate at the time of diagnosis. Firefighters who are no longer employed as firefighters may file a claim within five years of the last date of employment as a firefighter and must undergo annual physical examinations while and for five years after being a firefighter.  Benefits can be paid for a period up to 24 months.  While benefits are paid the employer or former employer must provide equivalent accident, health or life insurance benefits or union welfare fund contributions (presumably the same as are being paid currently for active firefighters.) 

                The fund will be paid for by diversion of money from the 9-1-1 emergency telephone call program, which is paid for at least in part by the federal government, and the establishment of the fund is dependent on the permissibility of the diversion under federal law.  Benefits would be available beginning July 1, 2019.

   CONNECTICUT SUPREME COURT

 Separate Surviving Spouse Claim Unnecessary

McCullough v. Swan Engraving, Inc., 320 Conn. 299 (2/2/16)

                Firmly correcting twenty two years of erroneous holdings by the CRB, the Supreme Court in McCullough finally held that where a timely claim has been filed previously, a surviving dependent need not file a separate timely notice of claim.   Here, a timely claim was filed prior to the death of the injured employee from his work-related pulmonary fibrosis.  The widow filed a separate claim fifty-five weeks after his death, and the CRB held the widow’s claim to be time-barred, under the rule invented by the Hon. Jesse Frankl, that a separate claim for a surviving spouse must be filed within a year from the date of death of the employee. The CRB invented this rule in Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 1422 CRB-8-92-5 (1994), and it took this long for the issue to be presented to the Supreme Court.  The Court pointed out there is no basis for such a requirement in the statute or in precedent prior to the Sellew decision.  Unfortunately, benefits have been denied to many surviving spouses during this period. 

                The Court did not face the issue when it decided Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, (Conn. 2003), which affirmed the dismissal of the widow’s claim as untimely.  As the Court noted at the time, the plaintiff’s attorney simply did not raise the issue that the Sellew rule was not the law.   The McCullough holding thus obviates the erroneous pronouncement in Tardy v. Abington Constructors, Inc., 71 Conn.App. 140, 144, 801 A.2d 804 (2002), that the Sellew rule is the law. 

                Thank goodness this long, sorry chapter in our workers’ compensation law has been concluded with a happy ending.  The CTLA filed a brief as amicus curiae.  The McCullough decision of course has had immediate results: see, e.g., Quinn v. Stone & Webster Engineering Corp., 6016 CRB-8-15-5 (3/31/16), where an otherwise doomed widow’s claim was saved.

 Psychological condition arising from physical dysfunction caused by  psychological and physical stress is compensable         

Hart v. Federal Express Corp., 321 Conn. 1 (4/19/16)

                A period of extreme and impossible time pressure on a Fed Ex employee, who couldn’t get his deliveries along the Boston Post Road done on time even when he didn’t stop to eat, drink, or go to the bathroom, resulted in potassium depletion, dehydration and atrial fibrillation.  On the day the condition developed, the claimant noticed the fluttering in chest and shortness of breath, and after a delivery to a firehouse, he got a fireman to check him out.  His heart rate was 200 bpm and he was taken to hospital.  “Having always worked hard to be a model employee,” according to the commissioner and the Court, the claimant was also under severe psychological stress during this time, and feared for his continued employment.  At the hospital the claimant was medicated and kept overnight, and was kept out of work for ten days; he saw a cardiologist who kept him out of work until testing with a heart monitor could be completed.  Following the episode the claimant developed signficant anxiety and depression with numerous manifestations, sleep disturbance and flashbacks to the fearful episode; and eventually crippling PTSD, for which his doctor kept him out of work, although he was physically capable of working (although still at risk for psychologically mediated cardiac disturbances).    He was eventually fired by Fed Ex. After the initial episode on Sept. 15, 2009, the claimant’s acute heart symptoms subsided but he continued to show occasional atrial fibrillation with some (undisclosed) ventricular response, presumably the tachycardia.  The claimant’s tendency to atrial fibrilation was agreed likely to have been preexisting, and he had hypertension.       

                The Court upheld the commissioner’s finding that the PTSD was compensable, as arising from physical dysfunction.  The commissioner had concluded that the “physical trauma...and ensuing emergency treatment” caused the PTSD.  Thus the mental imperative of getting the job done caused the claimant to have to (physically) run himself ragged, resulting in a transient physical impairment (dehydration, potassium depletion, fibrillation and tachycardia) and treatment, which freaked the psychologically stressed claimant and resulted in real and awful PTSD.  Mental-physical-mental injury, perfectly consistent with the law.  What is interesting is that the physical condition giving rise to the psychological condition and impairment clearly need not need be permanent or even hugely significant, if it scares one hugely, and leads to real psychological impairment.

 Kleen Energy perps not liable for lost earnings

Lawrence v. O and G Industries, Inc., 319 Conn. 641 (11/24/15)

                When the gas explosion blew up the Kleen Energy plant, lots of construction workers lost their jobs.  However, tort recovery by these victims for their lost earnings was held to be barred in Lawrence, since the Court by its “public policy” has limited tort recovery to damages caused by injury to one’s person or property, and the Court therefore held that the arguably negligent defendants who blew up the plant had no duty to protect the workers from the consequences of their alleged negligence.  Thus the injured workers couldn’t sue because of the exclusivity doctrine which protects principal employer who pay for the workers’ compensation insurers of the subcontractors, Gonzalez v. O&G Industries, Inc., X04-HHD-CV-10-6034672-S (Hartford 2014), 58 Conn. L. Rptr. No. 2, 42 (2014), and the employees who lost wages couldn’t sue, period.  The Court cited unemployment insurance.

 APPELLATE COURT

 Effects of preexisting multiple sclerosis are compensable

Hadden v. Capitol Region Education Council, 164 Conn. App. 41 (3/22/16)

                The claimant, a physical education teacher, was punched in the jaw and fell back and hit her head when breaking up a fight between scholars at the “Metropolitan Learning Center for Global International Studies” (sic), a public school in Bloomfield.  She spent nine weeks in the hospital afterwards, intubated.  The charming employer sought to deny total disability benefits on the basis that the claimant had preexisting multiple sclerosis and that her total disability wasn’t caused by the blow to the head but by the preexisting disease.  The commissioner, on the basis of the medical evidence, found that the blow to the claimant’s head had caused a traumatic brain injury and was a substantial factor in her continuing total disability.   (This despite the assurance from the respondent’s reliable neuropsychologist, Dr. Kimberly Sass, that the claimant’s head injury was inconsequential, caused no brain injury, and certainly had nothing to do with her having worsened MS symptoms!)  Why appeal?  The respondent also asked for reduction of benefits under CGS Sec. 31-275(1)(D), despite Cashman v. McTernan School, 130 Conn. 401 (1943) and, most recently, Sullins v. United Parcel Service, Inc., 315 Conn. 543 (2015).   

                The only redeeming value of this otherwise irritating appeal is the reminder it provides us of what the Court kindly pointed out in Sullins last year: that the effects of preexisting conditions are compensable even if they arise from a preexisting but progressive disease.     

Cardiac-related disability must appear while claimant  for benefits under § 7-433c is still employed

Staurovsky v. City of Milford Police Department, 164 Conn. App 182 (3/29/16)    

                The policeman retired and a week later had a heart attack while shoveling snow.  At the time of his heart attack he was determined to have coronary artery disease and he filed a timely claims for heart and hypertension benefits under CGS § 7-433c.  The award of benefits was reversed by the Court on the ground that the claimant’ heart condition did not cause any temporary or permanent disability within the period he was employed as a police officer.  The statute requires that the claimant suffer either death or a “disability” partial or complete, temporary or permanent, while he or she is “on duty or off duty,” which has been construed to mean while employed by the relevant employer.  The coronary artery disease certainly existed prior to the officer’s retirement, and in retrospect could have been assigned a permanent partial disability rating (asymptomatic coronary artery disease can be rated at 11% permanent partial impairment under the AMA Guides 6th Edition Sec. 4.3a, Example 2; and see Table 4-6, as modified by the Corrections and Clarifications supplement to the 6th Edition at p. 7.) The claimant would still have been the same person whom the Court characterized as having no disability during his period of employment, but he would have been identified as having had a permanent disability during the period of employment.  Is the Court saying that if someone qualifies medically as having a permanent impairment during the period of employment that is not enough to satisfy the “disability” requirement of the  statute?  Maybe not: although the treating physician reported that the claimant had a permanent partial impairment of his heart from the CAD prior to his heart attack, the trial commissioner dismissed this claim as speculative.  Maybe the plaque lesions in his coronary arteries grew there in a week?   

Negligent operation of a motor-vehicle window not  negligent operation of the vehicle  

Rodriguez v. Clark, 162 Conn. App. 785 (Feb. 2, 2016)

                The Appellate Court in Rodriguez affirmed the dismissal of the complaint in a case we discussed last year, where the complaint alleged that the defendant fellow police officer negligently left his police dog in a running police cruiser and the dog leaped out of the window and bit the plaintiff, who was subduing a suspect.  The motor vehicle exception to the exclusive remedy provision of the Act did not apply because negligence in failing to secure the dog was not an activity incident to the movement of the cruiser from one place to another.

 Interminable Leonetti saga continues

MacDermid, Inc. v. Leonetti, 158 Conn. App. 176 (June 30, 2015)

                 Mr. Leonetti got hurt at work.  After 28 years of employment he signed a severance agreement and received more than $70,000.  The provision in the severance  agreement which purported to settle his workers’ compensation case was invalid because it was not approved by a commissioner.  Leonetti v. MacDermid, Inc., 310 Conn. 195 ( 2013).  The company sued its employee for theft, fraud, etc. for robbing them of the severance money (although the claimant of course gave up many other rights at the time.)  Mr. Leonetti counterclaimed for retaliation under CGS Sec. 31-290a based on the frivolous litigation of the theft action (“litigation misconduct”).  The Appellate Court held that the counterclaim should be dismissed as premature until the suit by the employer for theft, etc., was concluded (as in vexatious litigation.)  Bleak House all over again. 

 Employer must believe its conduct is substantially certain to injure

Lucenti v. Laviero, 165 Conn. App. 429 (May 10, 2016)

                In Lucenti, the plaintiff’s civil claim on intentional injury by the employer was lost on summary judgment where there was insufficient evidence offered that the employer  believed that its conduct was substantially certain to harm the employee.   Here the plaintiff claimed that the employer’s intentional refusal to repair a broken excavator created a condition which was substantially certain to cause his injuries, and did.  The Court reviewed the case law, which is dismal from the point of view of injured employees.

Less interesting appellate court cases     

Diagnosis of hypertension required to start clock on SOL            

Conroy v. City of Stamford, 161 Conn. App. 691 (12/15/15)

                The rule invented by the Court in Ciarlelli v. Hamden, 299 Conn. 265 (2010), that the non-claim period under CGS §7-433c begins when the claimant is informed by a medical professional that he or she has been diagnosed with hypertension at least has calmed the waters and given commissioners something to work with.  Parties, as in Conroy, will continue to dispute facts and courts will continue to uphold the commissioners’ rulings in cases ambiguous as to when the magic moment occurred, when high blood pressure turned into hypertension and when the doctor told the patient.  Hypertension of course means high blood pressure, and in the medical world, when chronic high blood pressure becomes “hypertension,” is hit-or-miss; prescribing the pills at least is a marker.

 Appeal requires formal hearing

Lazzari v. The Stop and Shop Supermarket Co., 162 Conn.  App. 769 (2/2/16)

                The Appellate Court in Lazzari held that no appeal could be taken from a commissioner’s letter (which apparently told the pro se claimant that he had to submit to a deposition) unless there was a formal hearing.

 Denial of retaliation claim sustained   

Dickman v. University of Connecticut Health Center, 162 Conn.App.441 (1/19/16)

                A medical technician claimed constructive discharge from retaliatory harassment and failure to accommodate egonomically her fibromyalgia-related back pain.   Although the commissioner found she made a prima facie case, her claim was dismissed based on the employer’s evidence that she was a bad employee and that it had made reasonable efforts to accommodate her infirmity.  The Court dismissed the appeal by the plaintiff.

 Hearing loss award affirmed

Story v. Woodbury, 159 Conn. App. 631 (9/15/15)

                The Appellate Court in Story simply affirmed the award of hearing loss benefits where evidence in the record supported the claim that the hearing loss arose from trauma to a police officer who was hit by an automobile while directing traffic.            

   COMPENSATION REVIEW BOARD

 Domestic Partner May Proceed in Claim for Benefits as  Dependent in Fact

Sneed v. PSEG Power LLC of CT et al., 5988 CRB-3-15-2 (2/18/16)

                In Sneed, the domestic partner of a dead employee was allowed to proceed to a formal hearing to present evidence that she qualified for benefits as a dependent in fact under C.G.S. § 31-275(7), but with the constraint that she must prove she was a member of the employee’s “family” under § 31-275(6).  The respondents had argued that an unmarried domestic partner could never qualify for benefits as a dependent in fact, but the CRB and the trial commissioner held that “family” has not been so limited.  

 Reduced portion employer’s lien in resolved civil action  revived as moratorium by CRB: employer gets the money after all

Callaghan v. Car Parts International, LLC, 5992 CRB-1-15-3 (3/2/16)

                Where the respondent’s lien in the claimant’s third-party civil action was reduced by one third, or $22,020.67, by the statutory reduction of CGS Sec. 31-293(a), “which reduction,” according to the statute, “shall inure solely to the benefit of the employee,” nevertheless the employer is entitled to a moratorium on paying further benefits to the claimant until it recovers the $22,020.67.   The CRB relied on the lack of any explicit legislative history addressing the moratorium (an oversight by the CTLA you might think) and the notion that the statute was intended mainly to help settle lawsuits (i.e. to help the lawyers and court, but not to provide any real relief to injured employees.)  This decision has reportedly been appealed.

 A binocular permanency rating can’t be applied to a single injured eye

Pisaturo v. Logistec, USA, Inc., 5979 CRB-03-14-12 (9/23/15)

                In a good decision which will require facing a recurring problem, the CRB held that a binocular vision loss rating cannot be applied to supply a permanency rating under CGS § 31-308(b) where only one of the claimant’s eyes was injured (in this case, badly.)  The treater had assessed 30% permanent partial impairment (also apparently a a binocular assessment) and the employer’s examiner, by a stretch, assessed 7.5% binocular impairment of the claimant’s vision, as corrected by glasses.   The commissioner awarded 7.5% loss of vision in one eye.   The CRB held that the commissioner’s decision to award 7.5% permanency to one eye was not supported by the record, which of course it was not, and remanded for a determination of “the appropriate methodology to convert a permanency rating predicated on the AMA Guides (which just give ratings based on both eyes as best as they can be corrected by prostheses) to one that properly reflects the provisions of § 31-308(b) C.G.S. (i.e. where one eye is damaged, only one eye must be rated.)   Getting the doctors to get their noses out of the AMA Guides and follow the law will take some doing, but dodging the problem, as here, is clearly unjust.   Further, the CRB pointed out that the law is that  visual ratings should be on the basis of uncorrected vision (or hearing, or legs or arms.) Carlson v. Bic. Corp. 4364 CRB-3-01-2 (1/29/02), 2002 WL 1277864; 4 A. Larson and L. Larson, Workers’ Compensation Law (1999) § 86.04[6].   Thanks to Dave Kelly, who represented the claimant, for getting some light shed on this irritating problem.  Next work on the lungs? Although single-lung injuries are rare. 

 Medical marijuana use authorized

Petrini v. Marcus Dairy, Inc., 6021 CRB-7-15-7 (May 12, 2016)

                In Petrini, medical marijuana use was authorized and the employer ordered to pay for it.  The CRB upheld the commissioner’s authorization for the treatment as reasonable or necessary (although the CRB continues to call it “reasonable and necessary” despite the statute, which is “reasonable or necessary”).  The CRB made it clear that FDA approval is unnecessary and that “off-label” uses are at the discretion of the trial commissioner.   And despite the employer’s hollering of “palliative,” the CRB held that if the treatment improved the claimant’s condition it was within the commissioner’s discretion to find it reasonable.  Interestingly, the claimant was totally disabled from back pain, and the marijuana (2.5 ounces per month were prescribed, and the claimant brewed a tea from it) had allowed the claimant to discontinue several of the many medicines prescribed for his back pain, including opiates; he was weaning himself further, and the quality of his life had improved greatly.   Good for the commission and even better for the claimant: the medical  story is more interesting than the legal story here, and suggests to me that maybe marijuana would be worth trying for some of our unfortunate clients. 

 Commissioner may order taxi for claimant to get to doctor,  where family car is unavailable

Corbin v. St. Mary’s Hospital, 5965 CRB-5-14-10 (7/7/15)

                Where the family car was used by the claimant’s husband to get to his demanding job, the commissioner could order the employer to arrange and pay for taxi service to take her to her medical appointment with a biofeedback therapist recommended by a commissioner’s examiner.  No one else in the family was available to take the claimant to her appointments, there was no feasible public transportation, and the claimant was financially unable to pay for the round trip taxi fare.  There was no medical need for the claimant to go by taxi; she just needed to get there.  The commissioner did direct the parties to cooperate on finding the best feasible means, but held that the claimant could not be asked to use an infeasible means of transportation or front the money for it and then seek reimbursement.  Although CGS §31-312(a) states that the employer shall furnish transportation or “reimbursement for the cost of transportation used,” where the  claimant can’t afford the pay the initial cost, the employer must furnish it.     

Is Cardiac Arrhythmia Heart Disease?

O’Brien v. City of Stamford, 091115 CTWC, 5945 CRB-7-14-7 (9/11/15)

                Recall the Hart case we just discussed concerning the psychological effects of atrial fibrulation.  The claimant in O’Brien filed a claim for a ventricular arrhythmia which the trial commissioner held was timely but found there was no evidence that the arrhythmia was caused by a heart disease, based on the statutory language of Sec. 7-433c that the “condition or impairment of health” must be “caused by hypertension or heart disease.”  There was, however, evidence that the ventricular arrhythmia (which itself should be considered a heart disease) was caused by misfunction of the electrical system, and the CRB remanded for another look at the evidence. 

                The ventricular arrhythmia here was inconsequential, simply benign premature ventricular contractions, but the legal issues may not be.  One certainly would not want to make every potential PVC-suffering officer have to file and prove a claim within a year of having been discovered to have episodic or chronic PVCs.  Lots of people do, without consequence.  The danger, however, is that if a such a person years later, for whatever reason, developed acute and serious electrically based ventricular arrhythmia which caused death or real damage, that a history of inconsequential PVCs could be used to bar the death claim as untimely, when the two processes are likely wholly unrelated.   The assymetric response of the heart to a flood of adrenergic-nervous- system-mediated electrical stimulation is increasingly implicated in sudden cardiac death, with or without coronary artery disease.   This process is quite different from occasional benign PVCs.  

  Dubious requirements for proof of depression

Ramsahai v. Coca Cola Bottling Co., 5991 CRB-1-15-2 (1/26/16)

                Where the learning-disabled claimant suffered severe compensable and totally disabling polyarthritis, his rheumatologist noted that he suffered psychological depression arising from his physical condition and recommended treatment by a psychologist.  The contested polyarthritis was held compensable and the respondents were ordered to pay for medical treatment of the disease and the reactive depression, as well as to pay total disability benefits.  The CRB, however, held that the evidence from the rheumatologist (the claimant in the contested case had not been treated by a psychiatrist or psychologist) would provide a basis for a “referral for the claimant to obtain treatment from a psychologist,” it was insufficient to establish that the claimant “presently suffers from compensable depression.”  The CRB thus remanded for further proceedings “so that the respondents may offer a defense should they choose to do so.”  This remand seems to me to be beyond the power of the CRB to interfere with the commissioner’s discretion.  First, the rheumatologist, as any doctor, is trained in medical school to recognize psychological depression in patients, especially those suffering from seriously disabling conditions, and is qualified to diagnose it and recommend treatment. Second, if the evidence authorized medical treatment of the depression, the psychiatrist or psychologist is perfectly able to say whether the claimant is depressed, if the claimant chooses to make an appointment.   Third, since the issue was before the commissioner, if the respondents wanted to put up a defense, the time to do it was when the case was being tried.   The remand seems gratuitous, since the ultimate outcome, getting the claimant’s psyche finally checked out, seems merely delayed.

 CRB attempts further to shrink “portal to portal” coverage

Balloli v. City of New Haven Police Department, 5950 CRB-6-14-7 (7/1/15)

                The policeman claimed a back injury when he was extracting his keys from under his car to leave for work; he was in the street outside his house, by the street-facing driver’s door.   Policemen going to and from work are covered for work-related injuries by CGS 31-275(1)(A)(i); and they are on duty then.  The CRB upheld a holding that the claim was barred because he had not yet made his “departure from such individual’s place of abode” as required by the statute.  In CGS Sec. 31-275(1)(F), “place of abode” includes, in addition to the house, “driveways, walkways and the yard.” However, the CRB relied not on the actual statute, but on its own regulation, where, after mirroring the statutory driveways, walkways and yards, the Commission’s drafter stuck in “is not limited to.” 

                If the claimant had been crossing his street, walking to work, and was hit by a Mack truck or struck by lightning  in exactly the same spot out in the street where he hurt his back reaching under his car, would the CRB still have been able to avoid the liability?  The legislature has in fact told us what it meant by abode, and it didn’t say “by the way, sort of close to the yard also might not count if the commissioner doesn’t want it to count.”  Dave Morrissey appealed the decision, which will be decided by the Supreme Court.

 Employer after preclusion may appeal evidentiary basis of award  

Geraldino v. Oxford Academy of Hair Design 5968 CRB-5-14-10 (1/20/16)

                For the first time, the CRB in Geraldino held that an employer may appeal a commissioner’s ruling on the merits at a formal hearing after a claimant’s motion to preclude has been granted. The claimant, in addition to back and neck injuries, claimed injuries to her hands (carpal tunnel) and legs (venous insufficiency).  The commissioner, on the basis of the claimant’s evidence, granted benefits with respect to her back and neck, but found the evidence unclear with respect to the claimed injuries to her extremities and held that more hearings might be necessary to render a decision  “on the extent of injury” to the claimant’s hands and legs, and ordered no benefits with respect to these body parts.  The employer appealed, seeking dismissal of the extremity claims because of insufficiency of the evidentiary basis, which the claimant opposed on the grounds that the statute and case law prohibit contest of the factual evidence by the respondent.  Previously, appeals in preclusion cases have been almost completely limited to contest of the commissioner’s jurisdiction (employment relationship, timeliness of claim) and the mechanics of the notice-of-claim process.  The  CRB, however, allowed the appeal on the merits, and remanded the case “for an articulation as to what conclusion he [the commissioner] reached on the claimant’s bilateral hands injuries and what further actions, if any, are required to reach a resolution.”  This may be not much different from what the commissioner intended, but the fact that the commissioner stated additional hearings, if any, would be directed at extent of injury rather than compensability, implying that compensability had been granted by implication, triggered the remand.  The CRB stated that while commissioners are free to require additional hearings and additional evidence, “the trial commissioner should provide a definitive rationale for such hearings,” an apparently novel requirement. 

                For the proposition that the employer could contest the evidence on appeal, the CRB relied on Wikander v. Asbury Automotive Group, 137 Conn.App. 665 (2012) and Mehan v. Stamford, 127 Conn. App. 619 (2011).  Wikander however, was a jurisdictional challenge based on timeliness of claim, not a contest on the merits.  In Mehan the employer’s challenge to the evidence was entertained by the Court, but the claimant made no claim that the contest to the evidence on appeal was barred by the preclusion precedent: the issue was therefore not before the Court.          

                Strangely, the CRB in Geraldino also stated that “we conclude that the trial commissioner did not sufficiently identify the factual basis in the record for various findings he reached in the Finding and Orders” and it appeared to rely on this conclusion for its remand.  In context, the statement may make some sense, if the CRB is complaining that the commissioner’s holding concerning the extremity injuries is unclear.  On its face, however, a requirement that the commissioner recite the evidence relied on is contradicted by many decades of case law and the commission’s own regulation § 31-301-3, mirroring the case law, which directs the commissioner to include only the relevant and material facts found, his conclusions, and the claims of law made by the parties.  If there is a basis in the factual evidence in the record to support the facts found and conclusions made, the determinations made by the commissioner (as with a judge) are sustained.  The commissioner need not cite the evidence on which he or she relies, and is directed by precedent and the regulations not to cite the evidence.  

 For restoration of benefits, detoxification and treatment  specifications required by commissioner

Nails v. Freddie’s U.S. Mail, Inc., 5982 CRB-7-15-1 (12/8/15)

                While cutting off the claimant’s benefits for refusal of reasonable medical treatment, as conditions for restoring claimant’s benefits for his compensable injury, the trial commissioner also ordered not only the inpatient narcotic withdrawal recommended by the employer’s physician, but also ordered the authorized treating physician, as a condition of continued treatment, to produce a written “opioid agreement.”  The CRB, although dismissing the appeal as untimely, went on to discuss and approve the commissioner’s orders (which discussion presumably would not be subject to appellate review.)  In the case upon which the CRB relied, the Court allowed a commissioner to deny benefits based on the claimant’s refusal to undergo surgery, but there the surgery had been recommended by the treating physician.  Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684 (1953).  The other case on which the CRB relied, Cervero v. Mory’s Association, Inc., 122 Conn. App. 82 (2010), merely illustrated the trial commissioner’s authority to deny surgery recommended by the treating physician. 

                The commissioner’s authority to impose as a condition precedent to receiving benefits a particular treatment  which is recommended only by an employer’s physician, as well as to require the treating physician to practice medicine as directed by the commissioner in order to continue being authorized, is not altogether clear to me.  But I may be overstating the case here: the inpatient drug withdrawal program was also recommended by a psychologist identified only as Dr. Robert Tepley, “a neuropsychologist,” who might or might not have been retained by the employer.   And in any case, CGS § 31-294d(c) gives the commissioner the power to change the authorized treating physician at the request of the employer as well as the claimant.   See also, Jodlowski v. Stanley Works, 5976 CRB-6-15-1 (8/12/15), which is similar.

 Trial commissioner has jurisdiction to divide attorneys’ fee  between successive claimant’s attorneys

Frantzen v. Davenport Electric, 5990 CRB-7-15-2 (2/24/16)

                The claimant was represented by the first attorney for six years with minimal fee generated and with significant and successful effort expended to establish compensability.  After the claimant fired the first attorney, the second attorney ultimately got the case settled.  The first attorney requested a determination by the commissioner on the division of the substantial fee.  The second attorney maintained that the commissioner lacked jurisdiction to apportion the fee between the attorneys; the trial commissioner held that there was jurisdiction under C.G.S § 31-327 and divided the fee.  The first attorney appealed.  The CRB held that the commissioner has full authority to determine all fees, even after the case is settled, but remanded for a full evidentiary hearing on the merits, in consideration of the appellant’s claim that the formal hearing was noticed only on the issue of jurisdiction and that this limited scope of the hearing was discussed by the parties and the trial commissioner.  

  Where insurer kept paying for medical treatment without protest   it may not recover the “overpayment”

Zbras v. Northeast Mortgage Corp., 5997 CRB-5-15-3 (3/29/16)

                In Zbras, the insurer, seeking to quit paying for pain medicine for the claimant, made a deal that the claimant would wean herself off narcotics by June 1, 2009.  The claimant was unable or unwilling to do so, and the insurer kept paying for the medicines until at least Aug., 2010.  On April 11, 2012, the insurer a Form 43 denying further such treatment and claimed reimbursement.   After a formal hearing the trial commissioner held that treatment was unauthorized and ordered the claimant to reimburse the insurer $133,806.44.  The CRB held that there was no evidence that the insurer had “paid without prejudice” or made any effort to cease paying for the treatment after the agreed deadline of June 1, 2009.   Since the insurer had not acted on the provision in the termination agreement which specified for the insurer a mechanism for discontinuing approval of the medication, the CRB held there was insufficient evidentiary support for the commissioner’s holding that the continued payments were not voluntary by the insurer, and that the respondents waived their claim that the further treatment after June 1, 2009, was unauthorized when in fact they had authorized it themselves.  

 Acceptance of accident and payment of benefits protects against preclusion

Shymidt v. Eagle Concrete, LLC, 6018 CRB-7-15-6 (May 3, 2016)

                Preclusion did not lie where the employer accepted the accident as compensable and paid all indemnity benefits and paid medical benefits for the treatment of the claimant’s foot.  The employer’s filing of a disclaimer with claimant’s claimed shoulder injury within a year from the date of the injury was therefore held timely.  It was not clear to me whether the claimant had received any medical treatment for his shoulder injury or whether the employer had declined to pay for shoulder treatment prior to the filing of the disclaimer.

  SUPERIOR COURT

 Existence of Surveillance Evidence Must Be Disclosed Prior to    

Deposition of Party Subject to Surveillance

Kos v. Lawrence & Memorial Hospital, CV 13-6019304 (New London 12/16/15), 61 Conn. L. Rptr. No. 12, 483 (3/7/16)           

                Pursuant to Connecticut Practice Book § 13-3(c), existence of a surveillance tape of a party must be disclosed to the party prior to the deposition of the party, and must be produced within thirty days following the date of the deposition.  The Court’s holding here was apparently the first clarification of the new rule.  The Court in interpreting P.B. § 13-3(c) relied on the principle that discovery should be freely available in order to avoid “trial by ambush.”  The holding is in stark contrast to the common practice countenanced in workers’ compensation cases, where the surveillance evidence and its existence is kept secret from the party until after the deposition.   Section 13-3(c), which became effective Jan. 1, 2014, provides:

 A party may obtain, without the showing required under this section, discovery of any recording, by film, photograph, video tape, audio tape or any other digital or electronic means, of the requesting party and of any recording of any other party concerning the action or the subject matter, thereof, including any transcript of such recording. A party may obtain information identifying any such recording and transcript, if one was created, prior to the deposition of the party who is the subject of the recording; but the person from whom discovery is sought shall not be required to produce the recording or transcript until thirty days after the completion of the deposition of the party who is the subject of the recording or sixty days prior to the date the case is assigned to commence trial, whichever is earlier; except that if a deposition of the party who is the subject of the recording was not taken, the recording and transcript shall be produced sixty days prior to the date the case is assigned to commence trial. If a recording was created within such sixty day period, the recording and transcript must be produced immediately. No such recording or transcript is required to be identified or produced if neither it nor any part thereof will be introduced into evidence at trial. However, if any such recording or part or transcript thereof is required to be identified or produced, all recordings and transcripts thereof of the subject of the recording party shall be identified and produced, rather than only those recordings, or transcripts or parts thereof that the producing party intends to use or introduce at trial. 

The defendant in Kas claimed that it had not decided whether the surveillance tape would be used at trial; the Court however held that under such circumstances disclosure was required. 

                Prior to the adoption of P.B. § 13-3(c), some Superior Courts had held that surveillance evidence need not be disclosed until after the deposition of the party subject to the surveillance.   See, Davis V. Daddona, 1990 WL 288643 (Conn. Super. Ct. 1990). 

                Whether the Commission will follow  P.B. § 13-3 (or be obliged to follow it) has not been determined.  It should, and it would be odd if it didn’t. 

 Deponent may change deposition answers on transcript

Elisea, Administratrix, v. CFC Stillwater, LLC, CV-14-6044056-S (New Haven 9/15/15), 61 Conn. L. Rptr. No. 4, 162 (1/11/16)

                In reviewing a deposition, the deponent may mark on the deposition transcript any changes he or she wishes to make in the answers given at the deposition, including substantive changes, pursuant to P.B. 13-30(d).  Each change made by the deponent must be accompanied by a specific explanation for the change.  The changes must be made by the reporter on the original deposition transcript and be accompanied by the reason for the changes; but the original answers are also included in the transcript.  If the court determines that the changes “destroyed the usefulness of the deposition” the deposition may be reopened and the responsible party (here the deponent was the president of a defendant) must pay for its continuance.  Here, the plaintiff argued that a witness changed his answers on the errata sheet and should be stricken, but the Court allowed the changes, found the usefulness had been destroyed, and ordered the responsible defendant to pay for the continued deposition.  The learned opinion by the Hon. Robin Wilson explores federal case law on the issue; the Connecticut rule is based on the similar federal counterpart.       

Negligent Parking Held Not to be Negligent “Operation”

Dinino v. Federal Express Corp., HHD CV 136040890 (Hartford 12/18/15), 61 Conn. L. Rptr. No. 12, 449 (3/7/16)  

                In Dinino the plaintiff’s leg was injured when he was trying to unload containers from a Fed Ex tractor trailer onto a loading dock and there was allegedly a significant gap between the end of the truck and the cement dock, so that his leg went through the gap and was injured when the freight container rolled onto it.  The plaintiff’s action against his fellow Fed Ex employee was held barred, in that, in the opinion of the Court, the negligent parking of the truck did not fall within the motor vehicle exception to the exclusive remedy provision of Sec. 31-284(a) and 31-293a.  Some parking cases have gone the other way, so that there seems to be a real inconsistency in the law at this point.  See, e.g., Legere v. Reflexite Corp., 48 Conn. L. Rptr. 445, 2009 WL 3287294 (Conn. Super. Ct. 2009).

 Firefighter’s rule covers only firefighters and police officers;  paramedic may sue re defective premises

Nagy v. Arsenault, CV 14 6007793 (Putnam 5/21/15), 60 Conn. L. Rptr. No. 10, 389 (8/24/15)

                The Court here squarely held that the “firefighter’s rule”applies only to firefighters and police officers and thus did not apply to the defective premises claim of the paramedic who sued a landlord after he fell on allegedly defective steps in the course of responding to a medical emergency of a tenant.   The defendant’s motion for summary judgment was therefore denied.             

  Firefighter’s rule bars negligence claims against property owner and hospital;  separate inconsistent holding limits firefighter’s rule to premises liability

Sepega v. DeLaura, CV15-6013298 (Middletown 10/29/15), 61 Conn. L. Rptr. No. 5, 197 (1/18/16)

Lund v. Milford Hospital, AAN CV 114 60154442 S (Milford 3/13/15), 60 Conn. L. Rptr. No. 3, 120 (7/6/15)

Aitken v. Kroll, CV14-6008251S, (Windham JD at Putnam 7/16/15), 41 CLT Issue 33 at 20 (8/17/15)

                The plaintiff in Sepega v. DeLaura, a policeman, went to the home of the defendant who had locked himself inside his home and threatened to harm himself.   The defendant refused numerous requests by the policeman to allow him to enter the house or to talk with the defendant.  The policeman finally tried to kick a door in and was injured in the attempt.  The Court used the “firefighter’s rule” to strike as legally inadequate the plaintiff’s complaint, which was based on the negligence of the wholly uncooperative defendant in creating the situation that caused the plaintiff’s injuries.  The firefighter’s rule provides that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and therefore is owed a lesser duty of care than that owed to an invitee.  The Court held that the firefighter’s rule is not limited to premises liability claims, and that “fundamental concepts of justice” require that a taxpayer’s negligence should not subject him to suits by policemen.”  Period. 

                Similarly, in Lund v. Milford Hospital, a police officer brought an apparently deranged suspect  to a hospital for psychiatric evaluation after his violent resistance to arrest (attack on another driver, attempt to burn vehicle, lots of knives and psychotropic medicines, his homemade brew of Red Bull, orange juice and urine, no effect from taser).   After examination the arrestee escaped from the holding room in the hospital and in the process of subduing him the officer suffered multiple injuries.  The officer sued the hospital for negligently controlling or guarding the patient/arrestee.   The Court agreed that the firefighter’s rule was limited to premises liability cases and did not apply to claims of ordinary negligence, as here.  But, after weighing the somewhat contradictory precedents (a good review), it found a public policy rule that bars suits by police officers “whenever the officer’s injury is related to the performance of official duties.”

 So maybe policemen earn their pensions?

                   In what seems to be a contrary holding, in Aitken v. Kroll the court held that the firefighter’s rule applied only to premises liability, and thereby denied the defendant’s motion to strike in the following circumstances: an off-duty state trooper attempted to rescue an apparently unconsious driver from a locked car, whom the policeman believed had stopped breathing.  In the attempt to rescue, the police officer cut his hand, then sued the driver for negligent and reckless misconduct.  (Negligent failure to breath? Negligent failure to leave the door unlocked? Negligent failure to leave a note on the dashboard?)  The court held that since the firefighter’s rule applied only to cases brought on a theory of premises liability, the action could proceed. 

                A wiser person than I may divine the true law in this area, but if I ever pull over to take a nap I might leave a note or leave the door unlocked.

 Suarez claim survives summary judgment

Ducharme v.Thames Printing Co., KNL CV-09-6001312-S (Sup. Ct. New London 5/5/15), 60 Conn. L. Rptr. No. 19 (10/26/15)

                   Where the plaintiff was injured because of a failed safety switch in a press which the employer allegedly refused to replace, the Court in Ducharme denied a motion for summary judgment based not only on evidence that the management safety representatives refused to deal with the problem, but also on Court’s reasoning that the issue of whether the allegedly bad company guy was “part of the controlling structure” or was under orders from the top guys was an issue which could go in the plaintiff’s favor by inference from the plaintiff’s evidence: that is, that the “defendant [corporation] intentionally created, by action of intentional omission, the unsafe condition of the press, which...was bound...to result in an employee injury.”  Good work: these cases are almost impossible.

 Another Suarez case survives motion to strike      

Pothitay v. Assembly & Automation Technology, Inc., CV-14-6025888-S (New Britain 4/27/15), 60 Conn. L. Rptr. No. 10, 360 (8/24/15)

                 In a Suarez action for intentional injury by the employer, the plaintiff alleged that the employer removed the safety guard from a press and assigned two employees to push the buttons to make the press operate the machine.  The press machine was designed to be operated by one employee with a mandatory two-handed control system, which prevents hand injuries such as the plaintiff sustained here, finger amputation, etc.; using two employees allowed the employer to bypass the safety feature and speed up production.  The Court held that these objective facts, if proven, could provide proof of subjective knowledge that an injury to the operating employee was substantially certain to occur, and thus denied the motion to strike. 

 Heart and hypertension benefits count towards pension rate

Murray v. Town of Stratford, CV 13-6038783 S (Bridgeport 7/17/15), 60 Conn. L. Rptr. No. 18, 694 (10/19/15)

                Construing the pension plan and a stipulation to date in the workers’ compensation commission, the Court held that heart and hypertension benefits under CGS Sec. 7-433c received by the plaintiff in a settlement of his claim, as taxable income to the plaintiff, must be included in the earnings used to calculate the rate of the the plaintiff’s retirement benefit.  In addition to the clear terms of the pension plan and the collective bargaining agreement, the stipulation to date provided for the inclusion.    

 Failure to provide a safe workplace free of verbal abuse may  provide basis for action for intentional infliction of emotional distress

Stanley Black & Decker, Inc. v. Krug, CA 14-6027247 (New Britain 5/7/15), 60 Conn. L. Rptr. No. 9, 311 (8/17/15)

                Although CGS § 31-49 requires that an employer provide a safe workplace, including “fit and competent persons as colaborers,” the statute is not worth much without a private right of action. Here, however, the Court found that in addition to providing a physically safe place the statute requires that it also requires an emotionally safe place, where the employee is not subject to verbal or other emotional abuse.  Therefore the Court refused to strike the employee’s counterclaim for intentional infliction of emotional distress based on a bullying supervisor.  The employee did not plead § 31-49 as providing a basis for a cause of action, but rather, the Court stated, used § 31-49 merely to support her claim for intentional infliction of emotional distress. Interestingly, the Court held that because § 31-49 provided this protection against intentional emotional distress, the plaintiff need not plead a substantial risk of death, disease, or serious physical harm.  Whether this legal analysis will hold up will remain to be seen.

 “Safe workplace” under CGS §31-49 means safe from physical harm

Gonzalez v. Lecoq Cuisine Corp., CV-13- 6037490-S (Bridgeport 4/8/15), 60 Conn. L. Rptr. No. 6, 208 (7/27/15)

                Although CGS §31-49, which requires that an employer must provide a safe workplace, doesn’t provide a private right of action, its violation may conceivably provide a basis, at least in some cases, for a common-law action for discharge in violation of public policy.  Such an action devives from Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 427 A.2d 385 (1980), which allowed a common-law cause of action for wrongful discharge where the reason for the discharge involved impropriety derived from some important violation of public policy, in Sheets the plaintiff’s whistle-blowing with respect to food safety.   The comprehensive if not kitchen-sink complaint in Gonzales alleged constructive discharge arising from bad behavior by a boss, and contained counts alleging complaints of sex discrimination, negligent and intentional infliction of emotional distress, breach of contract, wrongful discharge, etc., but also contained a complaint alleging that the discharge was in violation of the public policy of §31-49 that workplaces should be safe.  The alleged abusive behavior by the boss and owner included allegations that he suggested that she help the business along by having sexual relations with representatives of some customers. 

                The Court, however, held that the public policy of CGS §31-49 extended only to safety from physical harm and struck this count of the complaint.  This interesting statute and corner of the law has never gotten much traction.  See, e.g., Cantafi v. Leukemia Research, Inc., Dkt. no. CV 010805984S (Hartford J.D.), 30 Conn. L. Rptr. No. 3, 116 (Sept. 3, 2001); but see, Webster v. Pequot Mystic Hotel, LLC, Dkt. No. 556799 (Sup. Ct. New London, Jan. 9. 2002), 31 Conn. L. Rptr. No. 6, 217 (Feb. 18, 2002). In Webster, the firing of a supervisor in retaliation for her attempting to rectify unsafe working conditions on behalf of other employees gave rise to a cause of action by the supervisor against the employer.  The supervisor was allegedly trying to deal with a dangerous employee who allegedly posed a risk of physical harm to other employees, and got fired for it.  The Court there denied a motion to strike on the ground that a discharge in such circumstances would violate a strong public policy, citing C.G.S. Sec. 31-49, which requires an employer to provide a reasonably safe work place.

 Employee injured at work may sue employer for  discrimination for physical handicap under CGS § 46a-58(a)

Cavanaugh v. Suburban Sanitation Service, CV14-6049408 (Hartford 11/23/15), 41 CLT No. 52 at 17 (12/28/15)

                In addition to the protection against discrimination offered by CGS §31-290a, an injured employee may sue an employer under CGS §46a-58(a) for discrimination based on physical handicap even though the impairment arose from a work-related injury.  Here the plaintiff alleged mistreatment, including discharge, after he returned to work with a permanently partially disabled back.  The Court denied the motion for summary judgment based on the factual disputes rather than the law.   Nice work, since it’s still easy at least for me to forget CGS §46a-58(a).  And these cases, like those under CGS §31-290a are difficult factually on the issue of reasonable accommodation of a physically impaired person.   

 Employee can sue employer for off-premises negligence of employer?

Lagerberg v. Armstrong International, Inc., CV11-6023127 S, (Bridgeport 10/9/14), 59 Conn. L. Rptr. No. 4, 131 (1/26/15)

                The Court in Lagerberg suggested that an employee (here his executrix) may sue an employer civilly where the deceased employee has suffered an occupational disease caused by in-plant asbestos exposure, but has also suffered from additional exposure to asbestos negligently released by the employer into the environment nearby the plant; the injured employee lived close by the plant.  However, despite the plaintiff’s argument, the Court found no allegations actually alleging damage from the alleged environmental releases and granted the defendant’s motion for summary judgment with respect to the claims “as presently alleged” (emphasis the Court’s).

 Nice try department: acting as agent for supervisor doesn’t count for  motor vehicle exception to exclusivity

Meyers v. Curtin Motor Livery Service, CV15-6026407 (Waterbury 10/1/15), 41 CTL No. 41 p. 18 (10/12/15)

                Where the plaintiff’s carbon monoxide poisoning allegedly arose from his being ordered by a fellow employee to start and run several motor vehicles covered heavily with snow, the motor vehicle exception to exclusivity did not permit a civil action in negligence against the supervisor fellow employee on the evidence that the supervisor was in fact operating the vehicles through his agent, the injured employee.  The operator must be behind the wheel.  At least that is how I understand the holding.   Bright idea though.      

MEDICARE AND ERISA     

Employee’s general assets not attachable in ERISA reimbursement action

Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, ___U.S.____, 136 S.Ct. 651 (U.S. Sup. Ct. Jan. 20, 2016)

                The U.S. Supreme Court has again held that an ERISA plan may not attach general assets of an employee in an action for reimbursement by the plan, where the proceeds of a tort settlement have been “dissipated,” that is, spent for living expenses rather than kept intact in a separate fund.  The Court in fact held that the trial court erred in holding that the ERISA plan could recover from the defendant employee’s general assets.  The Court thus again strictly interpreted the language of 29 U.S.C. § 1132(a)(3), that the ERISA plan trustees may file a reimbursement action “to obtain...appropriate equitable relief...to enforce...the terms of the plan.”  Strictly, that is, according to the powers of a court in equity in England prior to the merger of the courts at law and the Chancery.  Justice Ginsberg dissented on the basis that the Court’s holding was nit-picking nonsense and that “equitable” has other meanings these days.  Much as I despise greedy ERISA creeps, she might have something, but this is the law for now.  In fact the injured employee had cleared $240,000 out of a $500,000 motor-vehicle-accident settlement, and the health care plan wouldn’t make a deal on its reimbursement claim for $121,000.00.  What are needed are “equitable” remedies, as in “fair remedies,” (not as in “equitable” remedies in pre-merger chancery courts): limitations on the scope of the authority of the ERISA plan to recover, and clear authority for the trial court (or workers’ compensation commissioner) to do some justice in deciding how much the plan should recover.    

Judge finds $10,000 MSA reasonable, not the $300,000 projected by vendor

Benoit v. Neustrom, 10-cv-1110 (USDC, Western Dist. of Louisiana, 4/17/13)

                 A prisoner’s case seeking damages from a prison warden for catastrophic brain damage caused by alleged medical malpractice in the prison was settled for $100,000.00 because of large legal and factual hurdles.  Of the plaintiff’s net recovery of $55,707.98, the plaintiff had to reimburse CMS for $2,777.88 in conditional expenses and $10,138.00 was allocated for the Medicare Set-Aside for future Medicare-covered medical expenses.  The MSA company had forecast about $300,000 future medical expenses.  The Court held that under the circumstances of the case the $10,138.00 adequately considered the interests of Medicare.  The Court thus recognized that cases do not settle for full value and apportioned the proceeds equitably.  The Court specifically rejected the position of CMS that its field manual, that the MSA should be the full amount of future Medicare-related medical expenses as determined by CMS in its sole discretion and without opportunity for review, and held that public policy in favor of settlement bars CMS from forcing every tort case to trial because of its unreasonable demands.  The Court also held that the CMS field manual administrative pronouncements (specifically Medicare Secondary Payer Manual, MSP Manual (CMS Pub. 100-05, Ch. 7, § 5.4.4) are unsupported by, i.e. ultra vires, the Medicare as Secondary Provider statute.  Although the Court served notice of the hearing on the Secretary of Health and Human Services, her regional counsel and the local US Attorney, no federal representative appeared.   See also, Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010).  In this MSP Manual, however, Medicare has actually represented that Medicare will recognize the allocation of liability payments to nonmedical losses (sic) is when a court reviews the Medicare recipient’s medical expenses and makes a determination of the appropriate allocation for future Medicare-related medical expenses.  But Medicare changes its manuals frequently and in any event can always challenge an allocation and withhold benefits to recipients with impunity.  

                I think it might help to have the workers’ compensation commissioner approve the MSA.  We usually do that in stipulated findings and awards.   But then we’ve never had an MSA challenged by CMS, and I am aware of only one case in Connecticut where CMS designated an amount for future medical expenses which otherwise would be covered by Medicare (i.e. after a hearing declared an amount for its own moratorium on Medicare payments), and that was in a case where no allocation at all had been made in the settlement.

Robert Carter is a partner in Carter & Civitello, in Woodbridge.  He is an author of Connecticut Workers' Compensation Law (Thomson West, Connecticut Practice Series Vol. 19 and 19A, 2008), with J. Dodge, J. Pomeranz and L. Strunk.            

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