The Supreme Court held that in workers’ compensation occupational disease claims, the occupational disease does not become manifest and require the claimant to notify the employer of a workers’ compensation claim until the claimant learns that there is a causal connection between his disease and his employment as opposed to when the claimant is first diagnosed with the disease.

Deschenes v. Transco, Inc., 284 Conn. 479, 935 A.2d 625 (2007)

The Respondents were not responsible for the portion of permanent partial disability impairment that was related to a cigarette smoking disease when the respondent employer was able to prove that the claimant’s permanent partial disability resulted from the combination of two concurrently developing disease processes, one that is non-occupational and the other that is occupational in nature, and the conditions of the claimant’s occupation had no influence on the development of the non-occupational disease.  The claimant’s Motion for Reconsideration, which has been joined by multiple amici curiae, has been granted by the Supreme Court.  It is anticipated that re-argument en banc by the court will result in reversal of the initial decision.

Chambers v. Electric Boat Corp., 283 Conn. 840, 930 A.2d 653 (2007)

The Supreme Court affirmed the dismissal of a widow’s claim in the workers’ compensation forum as the claim was not timely filed.  The claimant had filed a workers’ compensation claim under the federal longshore act for his occupational disease in 1979.  The claimant died in January of 1999.  In March of that same year, the widow filed a claim for the first time in the state workers’ compensation forum.  The court articulated that a timely filing of a notice of claim by a claimant is a prerequisite to a widow’s claim for benefits.

Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 927 A.2d 811 (2007)

The Supreme Court held that when a permanent partial disability from a prior workers’ compensation injury is a substantial cause of the loss of earning capacity that the claimant suffers after a second workers’ compensation injury, the commissioner may consider both permanent partial disability awards in determining entitlement to and duration of C.G.S. §31-308a post-specific benefits.  The court implied that the second employer/insurer will be responsible for the entire payment of post-specific benefits and does not articulate which injury compensation rate is to be used or what would happen if the statutes regarding the indemnity benefits were different for the separate dates of injury.

Appellate Court

Arborio v. Windham Police Dept., 103 Conn. App. 172, 928 A.2d 616 (2007)

The Appellate Court held that two doctor’s office visits showing high blood pressure readings, a stress test and the claimant’s awareness that “he had a potential hypertension problem that may require medication” were not sufficient to establish manifestation of hypertension under the heart and hypertension statute.

Dagraca v. Kowalsky Bros., Inc., 100 Conn. App. 781, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007)

Fiduciaries of deceased employees’ estates brought wrongful-death actions against employer and related individuals, seeking recovery regarding work-related incident in which employees were asphyxiated after descending into manhole.  The Appellate Court held that employees’ deaths were not substantially certain to occur when they descended into untested manhole without safety equipment to seal sewer pipe intake and outflow openings, and thus the intentional-tort exception to the exclusive-remedy provision of the Workers’ Compensation Act did not apply.

Superior Court

Rudy’s Limousine Service, Inc. v. Aspinwall, 2007 WL 2743442 (Sept. 6, 2007)

In this case, the employer had filed valid lien letters, pursuant to C.G.S. §31-293, in the claimant’s third party action to recover moneys paid in the workers’ compensation forum.  The third party case was settled, but the workers’ compensation lien was not satisfied.  The employer brought an action for declaratory relief and common-law conversion against the claimant and his attorneys.  The defendants sought to dismiss the action as they alleged that court did not have jurisdiction over workers’ compensation matters.  The trial judge found that these causes of action were not enumerated among the commissioner’s powers under the workers’ compensation act and were properly brought before the superior court. 

Compensation Review Board

Houlihan v. Waterbury Police Dept., 5141 CRB-5-06-10 (Sept. 26, 2007)

The Compensation Review Board found that a compensable workers’ compensation injury occurred when a claimant was injured in a motor vehicle accident while traveling between his home and a medical appointment to treat an earlier compensable injury.  The Board based its decision on the fact that traveling to the medical appointment was a mutually beneficial activity for both the claimant and respondents as the claimant was attending “reasonable and necessary” medical care that the employer was statutorily obligated to provide and which the claimant had to attend to prevent a revocation of his workers’ compensation benefits.

Hodio v. Staples, Inc., 5152 CRB-3-06-10 (Oct. 3, 2007)

The Compensation Review Board found that it was permissible for a trial commissioner to order the respondents to “pay all related workers’ compensation benefits due as a result of the injury” as the totality of benefits the claimant may be entitled to was not ascertainable at the time of the Formal and hearing and further proceedings could be brought regarding any disputes over specific treatment or bills.  The Board also upheld the trial commissioner’s order that the respondents should pay temporary total disability benefits “for as long as the Claimant continues to be temporary totally disabled” as the evidence before the commissioner established that the claimant was totally disabled as on the date of the hearing and would remain totally disabled until he received treatment.  Additionally, they noted that it is the respondent’s obligation to monitor the claimant’s condition and file a Form 36 when the claimant obtains a work capacity or lacks proof of his total incapacity.

DiLeone v. DMR Southbury Training School, 5147 CRB-5-06-10 (Oct. 5, 2007)

The Compensation Review Board affirmed the trial commissioner’s denial of the claimant’s claims for temporary total disability benefits from March 28, 1995 to September 19, 2005 when a Form 36 was approved on March 28, 1995 indicated that the claimant has a light duty work capacity as of August 1, 1994 on the basis of a Functional Capacity Evaluation and a Form 36 that was approved on February 2, 2001 establishing that the claimant was at maximum medical improvement based on the report of Dr. Fredericks, a board certified neurologist.  The Board held that parties were given notice that the trial commissioner was taking administrative notice of all documents in the workers’ compensation file, including the Form 36s and the attached medical reports.  This put the parties on notice that they needed to procedurally pursue the cross-examination of any of the doctor’s whose reports were included or the parties effectively waived their right to cross-examination of the doctor.  Additionally, other medical evidence was put into evidence without objection that verified that the claimant had a work capacity.  The Board did caution of the potential dangers that could occur when taking administrative notice of documents.

2007 LEGISLATIVE CHANGES

§7-433b - Senate Bill No. 845

§31-69a(a) - Senate Bill No. 931

• Labor Commissioner will be given the authority to investigate and determine violations, issue stop work orders, hold hearings, determine compliance and adopt regulations.

§31-276(d) - Senate Bill No. 1108

• The period of time which the Judiciary Committee has to approve an INTERIM nomination of a Workers' Compensation Commissioner changes from 10 days to 45 days.  The bill further provides the Judiciary Committee the ability to extend the investigation period an additional 15 days upon notice to the Governor.  Failure to take action to approve shall be deemed to be an approval (note: this amendment is effective July 1, 2007).

§31-280(b)(11) - Senate Bill No. 1378

• The Workers' Compensation Commission will be authorized to develop the physician fee schedule using Medicare's resource-based relative value scale (RBRVS).

§31-284(b) - Senate Bill No. 931 

• Fines under §31-69a(a) will be increased to include an additional penalty of $1,000 per day for each day the stop work order is violated. 

§31-288(b) - Senate Bill No. 1036

• Workers' Compensation Commissioners will be able to assess a civil penalty from a maximum of $500 to a maximum of $1,000 TO BE PAID TO THE CLAIMANT whenever a payment of compensation is unduly delayed.  Previously this sanction was paid to the Second Injury Fund.

§31-288(g) - Senate Bill No. 931 

• §31-288(g) will now include violations of §31-284(b) and increases the existing punishment of a class D felony: punishable by up to five years in prison, a fine of up to $5,000 and a civil penalty from the Labor Department of $300 for each violation, by requiring the Labor Commissioner to issue a stop work order in accordance with §31-76a.   

§31-296(a) - Senate Bill No. 1036

• The time frame during which an employee can  challenge a Form 36 (Discontinuance or Reduction of Benefits) will be extended from 10 to 15 days. 

§31-301(a) - Senate Bill No. 1378

• The 20 day period for filing an appeal of an award/order by the WCC Commissioner in cases where a post-award/order motion has been filed will not begin until the date of the decision by the WCC on the motion.