DEFINITIONS

Employer

Proof that the injured person worked for a person or entity qualifies as an employer is necessary to invoke the subject matter jurisdiction of the Worker’s Compensation Commission. CGS §31-275(10) defines an employer as any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer. The statute then goes on to elaborate on the presumption that all parties to the claim will accept and be bound by the provisions of the chapter, and lays out protocol for proper withdrawal of such acceptance. It should be noted that the Mashantucket Pequot Tribal Nation is not an employer within the meaning of the statute. Bardales v. Christi Cleaning Service Corp., 5053 CRB-2-06-2 (December 21, 2006)

“In determining whether an employment relationship exists between an injured worker and a putative employer, the Worker’s Compensation Commissioner must decide whether the putative employer had the right to control the means and methods used by injured worker in the performance of his or her job at the time of the injury.” Connecticut Worker’s Compensation After Reforms, Third Edition, Volume I, (Release No. 4) pp. 525-36, Angelo Paul Sevarino, Esq., citing Puchala v. Connecticut Abatement Technologies eta l., 3859 CRB-04-98-07(Sept. 27, 1999); Hanson v. Transportation General, Inc., 245 Conn. 613 (1998).

Statutory Employer

Connecticut does not legislate, nor define the issue or concept of “statutory employer”. That being said, it is a pervasive concept within our case law. Merriam-Webster’s defines a statutory employer as “one who employs another (as a contractor) to perform work in the course of a business and who is liable for workers' compensation according to a statute establishing such an employment relationship or liability.”Merriam-Webster's Dictionary of Law ©1996. “A statutory employer is a master who is not a contractual or common law one, but is made by the Act.” Peck v. Delaware County Board of Prison Inspectors, 814 A.2d 185 (PA 2002) This is most typically found in general contractor and subcontractor claims in the construction industry.

For the purposes of touching on this issue as it exists under Connecticut law, we look to §31-291, which reads: “When any principal employer (general contractor) procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor. The provisions of this section shall not extend immunity to any principal employer from a civil action brought by an injured employee or his dependent under the provisions of §31-293 to recover damages resulting from personal injury or wrongful death occurring on or after May 29, 1988, unless such principal employer has paid compensation benefits under this chapter to such injured employee or his dependent fort the injury or death which is the subject of the action.

This section is primarily intended to protect workers against the possibility that their “direct employer”, the subcontractor, may not be complying with the statutory requirements regarding carrying worker’s compensation insurance. This allows the injured worker to pursue a claim directly against the general contractor (if the subcontractor is uninsured), as though he was directly employed by the general contractor (providing the statutory provisions are met). If the subcontractor is properly insured, this opens up the possibility that the injured worker can proceed in negligence against the general contractor, thereby maximizing recovery and creating subrogation potential. Conversely, if the general contractor is forced to pay worker’s compensation benefits for an injury to an employee of the subcontractor, the general contractor may proceed at law to recoup expenses paid on behalf of the uninsured subcontractor.

The test for whether an employer will qualify as a primary employer is comprised of four parts:

1. Does the alleged principal employer qualify as an employer under §31-275(10)?

2. Did the principal employer procure work to be done by a contractor, or though it by a subcontractor?

3. Was the work performed on or about premises controlled by the principal employer? (For the purposes of this test, “control” is merely descriptive of the work area, and emphasis is on a limitation of the area within which the accident occurred.” Connecticut Worker’s Compnesation After Reforms, Third Edition, Volume I, (Release No. 4) pp. 525-36, Angelo Paul Sevarino, Esq.)

4. Is the work a part or process in the trade or business of the employer?

•       Note that it is possible to have multiple principal employers, providing they all pass the test as laid out above.Palombo v. Fuller Co. 99 Conn. 353 (1923)

Employee

Proof of this element is also necessary to invoke the subject matter of the Worker’s Compensation Commission. “Employee” is essentially synonymous with “servant”, and the elements of determining whether a worker will qualify as an employee is largely one of control. The difference between an employee and a true “independent contractor” will revolve primarily around the worker’s autonomy or lack thereof. Yurevich v. Logvinski, 5013 CRB-7-05-10 (September 22, 2006), also, Altieri v. R & M Builders, 3647 CRB-5-97-7 (December 18, 1988).

§31-275(9)(A)(i) – (viii) provides specific definitions of what constitutes an employee for the purposes of the act. The burden is on the claimant to prove that he is an employee. Employees include:

- Any person who has entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state;

- A sole proprieter or business partner in compliance with §31-275(10). There are several distinctions within this category. For instance, a sole proprietor is automatically excluded from coverage unless he specifically opts for it, whereas corporate officers are automatically included unless specifically opting out. Partners, (including an LLP) are also automatically included unless the partners en masse jointly agree to waive coverage as employees. The legislature has made an even more nuanced distinction with the LLC. In a single member LLC, the member/manager is presumed to be excluded, whereas in a multiple member LLC, the members are presumed to be included unless they specifically elect not to be ; Connecticut Worker’s Compensation After Reforms, Third Edition, Angelo Paul Sevarino, Esq., P. 489

- An elected member of the State General Assembly;

- A salaried or paid member of any police or fire department

- A volunteer police officer whether special or auxiliary Netto v. Derby, 4535 CRB-4-02—6 (July 2, 2003) (active members of volunteer fire departments and volunteer ambulance companies may be included under specified circumstances Rothholz v. The Chesterfield Fire Company, Inc., 4827 CRB-2-04-7 (August 12, 2005);

- An elected or appointed official or agent of any municipality;

- An active member of the National Guard called into active duty and performing their active duty service; and

- Elected probate judge.

Specifically excluded from the definition of “employee” are:

- A person given articles or materials to be treated in any way on premises not under the control or management of the person who gave them out (bailee/bailor scenario);

- A “casual employee”. This involves a two prong test: (1) he employment is not regular, and (2) not for the usual purposes of the employers trade or business Mangual v. Andrew LeBlanc d/b/a Express Tiles, 4957 CRB-1-05-6 (April 26, 2006) also Vanzzant v. Hall, 8 Conn. Worker’s Comp. Rev. Op. 122, 820 CRD-1-89-1 (July 6, 1990) Rev’d, 219 Conn. 674 (1991).

- A member of the employer’s family residing in the employer’s house, unless, the family member/worker is included on the payroll that the insurance premium is based on;

- Any person performing a service in or around a private dwelling who is not regularly employed by the owner or occupier over 26 hours a week. (This would largely include repair persons, landscapers, nannies, housekeepers, etc.) Smith v. Yorkovsky, 4324 CRB-3-00-12 (December 12, 2001), Aff’d and remanded with direction, 265 Conn. 816 (2003).

- A corporate officer who specifically elects to be excluded from coverage by providing written notice to his employer and the commissioner ; Hanson v. Transportation General, Inc., 16 Conn. Workers’ Comp. Rev. Op. 57, 3001 CRB-3-95-2 (October 18, 1996), aff’d, 45 Conn. App. 441 (1997), aff’d, 245 Conn. 613 (1998), Spiwak v. Daniel Gassner d/b/a DGC, 3760 CRB-4-91-1 (April 5, 1999), also Altiere v. R & M builders, 3647 CRB-5-97-7 (December 18, 1998), and

- A non-resident injured in the state unless the injured worker’s employer maintains a place of employment or a business facility within the state at which the injured worker is employed for 50% of his work hours, or the injured worker is employed pursuant to an employment contract to be performed primarily within this state. It should be noted that this exclusion is intended to be more loosely interpreted than the other exclusions to allow the act to accomplish its humanitarian intent.Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998)

Borrowed Employee

Or “lent employees” as they are known in Connecticut, are typically considered to be employees of the person or entity with whom they have their primary employment contract. §31-292 states that “when the services of a worker are temporarily lent or let on hire to another person by there person with whom the worker has entered into a contract of service the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.Dengan v. Employee Staffing of America, Inc., a/k/a Labor Force of America, 4580 CRB-3-02010 (October 27, 2003), also Nadeau v. J.H. Scelza, Inc., 3903 CRB-4-98-12 (January 13, 2000).

Independent Contractor

As indicated above, this is question of control and relationship. An independent contractor is typically considered to be one who contracts to do a specific task under his own control with the exception of the end result of the task that he was hired to perform. Sevarino, p.534, citing to Nelson v. Deb’s, Inc., 2228 CRB-3-94—12 (June 20, 1996), 45 Conn.App. 909 (1997), cert. granted 242 Conn. 912 (1997); cert denied 244 Conn. 349 (March 31, 1998); Chute v. Mobil Shipping, 10 Conn. Worker’s Comp. Rev. Op 183, 1321 CRD-7-91-10 (September 1, 1992) aff’d, 32 Conn. App. 16 (1993) cert. denied 227 Conn. 919 (1993); Tyson v. Southport Manor, 5 Conn. Workers’ Comp. Rev. Op. 84, 475 CRD-4-86 (1998). The question of control is one of fact, and is left to the discretion of the Worker’s Compensation Commissioner. The burden of proof to show employee status is that of the injured worker.Hanson, supra.

There are two tests used to determine the issue of control Sevarino, p.536. The first being the “relative nature of the work test”, and the second being the “right to control test”. Connecticut uses the “right to control test”, exclusively.

The case law on the “right to control test” is well established. It focuses on the alleged employer’s right to control how, when, and where the claimant’s work is performed. If the claimant sets his own hours, uses his own tools, employs and his own methods for completion of the hired task, these all way in favor of the claimant being an independent contractor. Other factors such as tax filing status, insurance, method of payment and name of the business are also factors to consider. That being said, the issue of the alleged employer’s control and the extent thereof will be the dispositive issue of fact for the commissioner to decide. For a comprehensive discussion, see Sevarino’s, “Connecticut Worker’s Compensation After Reforms”.

EXCLUSIVE REMEDY

General Rule

§31-284 provides the general rule that Worker’s Compensation is the exclusive remedy for employees (or their dependents) of employer’s complying with §31-284(b) who are injured or killed in the course and scope of their employment. The requirements of §31-284(b) are fairly simple. The employer must:

a. Provide proof of his insurance to the Worker’s Compensation Commission;

b. Providing proof to the Worker’s Compensation Commission of solvency and financial ability to pay directly to the employees or their dependents; or

c.Any combination of these methods.

Failure to carry worker’s compensation insurance is a Class D Felony, punishable by up to 5 years in prison. There are also penalties that can be requested by the Attorney General’s Office and ordered by the Commissioner that allow for fines for every day that the employer is non-compliant with the statutes. The employer may also be found liable to and forced to reimburse the State for any benefits (medical or indemnity) paid by the State as a result of the employer’s failure to carry the proper insurance.

Recognized Exceptions

There are several recognized exceptions to the exclusivity of this rule. This includes: “willful and serious misconduct”; intoxication (drugs or alcohol); horseplay; suicide, wilful and serious misconduct on the part of the worker and the exceptions outlined in §31-293(a).

a. “Wilful and serious misconduct” as it pertains to the employer, requires that the employer’s behavior rise to the level of recklessness. Simple negligence on the part of the employer that causes injury to the claimant, will not allow the claimant to circumvent the exclusive remedy provision. Reckless misconduct refers to highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. This requires a conscious decision with knowledge of the serious danger it poses to others. The intentional tort standard was memorialized in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994), and Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698, A.2d 838 (1997). To satisfy this exception, the claimant (or their estate) must provide evidence sufficient to support an inference that the employer deliberately instructed the injured worker to engage in behavior that or acts where injury was substantially certain to follow. Sevarino at 707-709, Gulden v. Crown Zellerback Corp., 890 F.2d 195, 197 (9th Cir. 1989)

b. Intoxication is exactly what it sounds like. If the claimant intentionally ingests drugs or alcohol, and the same is related to the claimant sustaining injury, then this is a bar to recovery under both §31-275(1)(C)and §31-284(a). This is an affirmative defense, and it requires the employer to meet a two-prong test: (1) the intoxication must be proven by reliable evidence; and (2) the injury must have been caused by the intoxication Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 1030 CRD-5-90-6 (October 31, 1991). Note that intoxication does not have to be the sole proximate cause of the injury Sevarino at 664.

c. Horseplay, once again, is fairly self explanatory. A worker will not be compensated for injuries that he sustains while instigating or participating in activities that are a departure from his duty Id., at 660. The exception here would be if the employer was aware of, encouraged, condoned, participated in, or did nothing to stop the activity.Rego v. A1 Auto Detailing, 4704 CRB-8-03-7 (August 5, 2004)

d. Suicide is typically not considered to be a compensable injury for which the claimant’s dependents can recover. The exception would be if the suicide was somehow substantially related to the claimant’s work injury, (e.g. pain from the injury leading to severe depression) Wilder v. Russell Library Co., 107 Conn. 56 (1927)

e. Wilful and serious misconduct of the worker is also a bar to recovery under §31-284(a). This also an affirmative defense to be raised by the employer. Sevarino (p.654), defines “wilful misconduct” as either intentional misconduct that is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself or herself by him or her who is guilty of it.” Once again, this requires meeting the standard of either intentional or reckless. This requires meeting a three part test: (1) the nature of the misconduct, and (2) the injured worker’s appreciation of the risk to which they are exposing themselves in engaging in the improper conduct; and (3) the mental state or intent of the injured worker in engaging in the misconduct Sevarino at 656. Interpretation of this is a question of fact for the commissioner Nolan v. Brennan Concrete Corp, 11 Conn. Workers’ Comp. Rev. Op. 224, 1362 CRD-47-91-12 (November 4, 1993), and will be interpreted under the substantial factor test Burse v. American International Airways, Inc., 3986 CRB-02-99-03 (March 3, 2000).

f. §31-293(a) allows for an employee who was injured in the course and scope of his employment to bring a third party action is his injuries were sustained as a result of the actions of a person other than the employer. This is most commonly found in motor vehicle accidents, premises liability accidents, and intentional torts. The section allow for the claimant to proceed directly against the tortfeasor in civil court. The claimant must provide written notice of the suit to his employer (or the Second Injury Fund), who will then have 30 days to intervene as a plaintiff. Failure to intervene timely will cause abatement of the employer’s (or the Second Injury Fund’s) rights to recover unless they provide written notice of the lien. The intervening plaintiff employer is entitled to recover up to 2/3 of their lien, and their claim shall take precedence over that of the claimant. The employer (or the Second Injury Fund), is not required to wait for the claimant to bring suit, as they may also bring a direct action against the tortfeasor to recover benefits paid as a result of the tortfeasor’s actions.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Worker’s Compensation Commission has jurisdiction of all claims arising out of the course and scope of employment in Connecticut with a few basic exceptions, including those outlined in §31-275(9)(B). Another exception is that there is no jurisdiction over claims arising out of injuries occurring on the lands of the Mashantucket Pequot Tribal Nation, or for federal employees. The basic rule is that Connecticut will have jurisdiction over all claims stemming from injuries that occur in the state for persons fitting the statutory duty of “employee” as laid out above and in §31-275(9), with the obvious exception of the enumerated exclusions. This will be expanded on below.

Extraterritorial Jurisdiction

The Commission’s jurisdiction can extend to claims occurring outside of the state, and out of state claimants as well. Limitations were placed on the compensability of claims of non-residents who are employed by an out-of-state employer who are merely “passing though the state”. This was the result of P.A. 93-228 Section 1(9 ) Sevarino at 502.2, and effort to ease the burden on the in-state businesses who were burdened by these claims that ultimately became the responsibility of the Second Injury Fund if they were found compensable. Connecticut has foregone the “Choice of Law” and “Interest Analysis” approaches to determining jurisdiction in favor of the “Significant Contacts”Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 588 A.2d 1994 (1991) analysis, and made Connecticut a viable jurisdiction if it was the place of the injury, the place of the employment contract, or the place of the employment relation Sevarino at 510. While this is not an exhaustive list, it is the crux of the analysis. This is an area of law with an enormous amount of case law and seemingly inconsistent findings. The analysis is a question of fact, but the facts considered in the analysis and the methods of analysis are subject to appellate review Springer v. J.B. Hunt Transport, Inc., 145 Conn. App. 805 (2013)

Time Limitations

Time limitations for filing claims are listed in §31-294c.

a. As a standard rule of thumb, claims must be filed within one year of the date of the accident. This is for accidental injuries that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment §31-275(16)(A). (There are separate rules for occupational diseases, and death claims which will be discussed below.) The appropriate filing form is the Form 30C .

b. For occupational diseases (defined in §31-275(A)(15)), the notice must filed within three years from the first manifestation of a symptoms. The three years begins to run when the symptoms of the occupational disease manifest and when the claimant knew or should have known that their occupational disease was related to their employment. The determination of when the manifestation of symptoms occurred and when the claimant knew or should have known of the relationship of the disease to his or her employment is a question of fact for the commissioner to determine. An occupational disease is defined to include any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment. The appropriate filing form is the Form 30C .

c. For repetitive trauma claims, the claimant essentially has their choice of dates of injury during the trauma period up to the last date of injurious exposure. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 613 (April 4, 2000), supports the position that the “lack of a precise date of injury is not fatal to a notice of claim Sevarino at 569. While the last date of the exposure to the “trauma” is most commonly used when filing the notice, it is not the only date that can be used for filing purposes. The clock doesn’t start “ticking” for notice purposes until the last date of injurious exposure, regardless of the claimant’s knowledge that his occupation may be contributing to or causing his condition Sevarino at 569, citing to Borent v. State of Connecticut, 10 Conn. Workers’ Comp. Rev. Op. 219, 1302 CRD-2-91-9 (Dec. 17, 1992), aff’d., 33 Conn. App. 495 (1994).The time limit from the last date of injurious exposure is one year. The proper filing form is the Form 30C.

d. Death claims provide dependent with if death has resulted within two years of the date of the accident or first manifestation of a symptom of the occupational disease, the estate, dependents or representative can bring the claim within the two year period or within one year from the date of death, whichever is later. In the event that the claimant was receiving disability benefits at the time of his/her death, the employer is compelled via §31-306b to send written notice (within 30 days of discontinuing benefits) by registered or certified mail to the last address to which the claimant’s benefit checks were mailed that the claimant’s dependents may have a claim for benefits subject to the filing requirements. The appropriate filing form is the Form 30D .

Notice

Notice of claim may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident. The time limitations are set forth above.

a. Constructive notice

§31-294c(c) provides for five methods of constructive notice, which will allow the Worker’s Compensation Commission to waive the written notice requirement.

1. There has been a Worker’s Compensation hearing within the statutory periods, and the employer was notified;

2. A written request for a hearing was made within the statutory periods, and the employer was aware;

3. A hearing is assigned within the statutory periods, and the employer was aware;

4. A voluntary agreement is submitted within the statutory time period and the employer is aware; and

5. The employer furnishes medical treatment for the injury (not including a Respondent’s Medical Exam).

b. Denial of claim

§31-294c(b) details the respondent’s obligations if they intend to defend the claim. The respondent must, on or before the twenty-eighth day after receiving notice of the claim, file a Form 43 with the Worker’s Compensation Commission (or a letter in accord with a Form 43), stating that the right to compensation is contested. The name of the claimant, employer, the date of the alleged injury/death and the specific grounds on which the right to compensation is contested must be included within the form. The notice shall be sent in accordance with §31-321. An employer can have up to one year to contest a claim if they advance benefits (medical and/or indemnity) on a without prejudice basis within the first twenty-eight days.

COMPENSABILITY

General Rule

Per §31-275, for an injury to be considered compensable in Connecticut, it must have arisen out of and in the course of employment. This is defined as an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer.

Injury Defined

§31-275(16)(A) states that an injury includes, in addition to accidental injury that may be definitely located as to the time when and the place where the accident occurred, an injury to an employee that is causally connected with the employee’s employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease. §31-275(16)(B) clarifies what shall not be construed to be a compensable injury:

a. An injury to an employee that results from the employee’s voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity;

b. A mental or emotional impairment, unless such impairment (I) arises from a physical injury or occupational disease, (II) in the case of a police officer, arises from such police officer’s use of deadly force or subjection to deadly force in the line of duty, regardless of whether such police officer is physically injured, provided such police officer is the subject of an attempt by another person to cause such police officer serious physical injury or death through the use of deadly force, and such police officer reasonably believes such police officer to be the subject of such an attempt, or (III) in the case of a firefighter, is diagnosed as post-traumatic stress disorder by a licensed and board certified mental health professional, determined by such professional to be originating from the firefighter witnessing the death of another firefighter while engaged in the line of duty and not subject to any other exclusion in this section. As used in this clause, “police officer” means a member of the Division of State Police within the Department of Emergency Services and Public Protection, an organized local police department or a municipal constabulary, “firefighter” means a uniformed member of a municipal paid or volunteer fire department, and “in the line of duty” means any action that a police officer or firefighter is obligated or authorized by law, rule, regulation or written condition of employment service to perform, or for which the police officer or firefighter is compensated by the public entity such officer serves;

c. A mental or emotional impairment that results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination; or

d. Compensable injuries include injuries to employees of local or regional boards of education resulting from participation in a school-sponsored activity but do not include any injury incurred while going to or from such activity.

Types of Injuries

Repetitive Trauma

Unlike specific injury that occurred at a fixed time and date, the worker also has the right to file for compensation for a “repetitive trauma” type of injury. This is an injury that is causally related to the claimant’s employment and is the direct result of repetitive trauma or repetitive acts incident to their employment Sevarino at 563. Pursuant to §31-299b, the last carrier for the last employer during the trauma period will be responsible for administering the claims Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). Benefits (medical and indemnity) can be apportioned among the other carriers and employers within the trauma period. This is typically distributed on a prorated basis based upon a conclusive medical opinion, or alternatively, prorated based upon the number of years (or months, days, weeks), worked for each employer while expose to the trauma or hazard.

Infectious Diseases

Unlike an occupational disease (which requires manifestation), exposure to an infectious disease (HIV, tuberculosis, etc.), is compensable without development of symptoms, as is the treatment necessary to prophylactically treat and possibly save the claimant’s life in the event of exposure. A four part test Sevarino at 554-555 has been established for these claims, and the claimant will meet their burden upon showing:

-       They were significantly exposed to hazardous materials as a result of their work environment;

-       As a proximate result of the exposure they suffer a significantly increased risk of contracting a serious latent disease;

-       The increased risk makes regular medical monitoring and treatment reasonably necessary; and

-       The monitoring and treatment make early detection and/or prevention of the disease possible Jackson Township Volunteer Fire Co. v. Workmen’s’ Compensation Appeal Board (Wallet), 594 A.2d 826 (1991).

Heart

Connecticut has multiple codifications of the various heart and hypertension claim protocols and benefits. Often, the type of benefits and protocol for reporting are contingent upon the injured worker’s occupation. Many of these are codified within §5-145a-c. These deal primarily with hazardous duty personnel and certain state employees. State Police and volunteer first responders also have protection under §29-4a, §7-314a(d) respectively Sevarino at 404.

Psychological Injury

This is legislated and defined under §31-275(16)(B)(ii).

a. “Physical-mental” claims can be compensable. If a compensable physical injury causes a mental stress condition, such as depression, the mental condition can be compensable if supported by credible medical evidence. If the claimant had a pre-existing mental disorder and the work injury was a substantial factor in making it worse, the resulting aggravation can be compensable.

b. “Mental only” claims are not compensable. This refers to a purely mental or emotional condition that a claimant alleges was caused by work conditions. Typical physical manifestations of mental conditions, such as digestive problems or headaches caused by anxiety or stress, would not be compensable “injuries”.An exception to this rule is for police officers, effective July 1, 2005, may be entitled to benefits for a psychological injury after using deadly force in the line of duty or if they were subjected to deadly force in the line of duty, even if they did not suffer a physical injury. (example: involved in a shoot out with perpetrator, but not actually wounded by such event)

c. “Mental-physical” claims can be compensable. An example would be an allegation that work related stress caused a heart attack. The burden of proof is the same as other claims, i.e., the claimant must prove by credible medical evidence that the work related stress was a substantial contributing factor in causing the heart attack. Like all cases, there will be substantial investigation into the claimant’s pre-existing medical condition and other contemporaneous factors that could have caused the heart attack.

d. Occupational Stress Claims – not compensable if mental only claims.

Occupational Diseases

Per §31-275(15), this is defined as any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment”. This is most commonly seen in asbestos workers, sewage treatment, boilermakers, mechanics and other occupations where the claimant’s are exposed to fumes, vapors or dust. As indicated above, the claimant has a three year statute of limitations. The three years begins to run when the symptoms of the occupational disease manifest and when the claimant knew or should have known that their occupational disease was related to their employment. The determination of when the manifestation of symptoms occurred and when the claimant knew or should have known of the relationship of the disease to his or her employment is a question of fact for the commissioner to determine.

EXCLUSIONS AND DEFENSES

Arising out of employment

An injury is compensable in Connecticut if it “arises out of and in the course of employment”. CGS 31-275(1) sets out the statutory requirements for course of employment. “Arising out of and in the course of employment” means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs b the direction, express or implied, of the employer. “Arises out of employment” refers to the origin and cause of the accident.

Engaged in furtherance of Employer’s Business

If the injury occurs while the employee is furthering the employer’s business, and if the injury meets all statutory requirements, it will be compensable.

Not in furtherance of Employer’s Business

An injury caused by an activity not in furtherance of the employee’s business will not be compensable, such as injuries caused by the intentional act of the employee, “horseplay” activities, injuries caused by the intoxication or use of narcotic drugs as designated by the Commissioner or Consumer Protection, CGS 21a-243(c), or injuries due to the weakened resistance or lower vitality of the employee. An example of weakened resistance is an employee who suffers a heart attack or seizure while at work, and as a result, falls and injures themselves further. This generally is considered personal in nature and neither the underlying medical disorder or the injury(ies) sustained as a result, will be deemed compensable. Exceptions to this would include employees whose work places them at an increased risk of danger or serious injury, such as working at heights, near moving equipment or operating motor vehicles or heavy equipment. In those cases, the resulting injuries from the fall could be deemed compensable, but not the treatment for the heart attack or seizure itself.

Traveling Employees

Employees whose entire job requires them to travel with no fixed location of work, are generally within the course of their employment from the time they leave their home on a business trip to the time they return home. Labadie v. Norwalk Rehabilitation Services, Inc., 4529 CRB-7-02-5 (June 3, 2003), 84 Conn.App. 220 (August 3, 2004), cert. granted 271 Conn 925 (2004), aff’d, 274 Conn 908 (July 5, 2005), citing Arthur Larson, The Law of Workmen’s Compensation sec. 16.01 (1996) (home health care workers are “traveling employees” for the purpose of workers’ compensation)

Commuting

Whatever the means of transportation, personal auto or mass/public transportation, a worker on the way to or from work is subject to the same risks as the general public, and therefore, injuries sustained while commuting are generally not deemed to be in the course of employment. True v. Longchamps, Inc., 171 Conn. 476, 370 A.2d 1018 (1976)

No fixed Place of Work Exception

This is fact based, and there are no bright line rules, but in general, if an employee is traveling from location to location for work, injuries sustained while engaged in such travel will be compensable. If the injury occurs while the employee is traveling from home to his first stop, or while the employee is traveling home from this last stop, in general will not be compensable unless they satisfy other exceptions.

Transportation Included in Employment Exception

Where the employer contracts to furnish or does furnish employee with transportation to and from work. It is necessary to establish that the conveyance was being used exclusively for the purpose at the time of the accident, as an accident with an employer provided vehicle will not be deemed to arise out of and in the course of employment when the injured worker is on a personal excursion that did not benefit the employer. Another exception exists for police officers and firefighters who are covered “portal to portal”. However, one must always examine the facts to confirm the injury did not occur during a personal excursion en route to or home from work.

Special Missions, Assignments or Circumstances Exception

When the terms of the employment subject the injured worker to emergency calls, injuries sustained while responding to such calls in general will be compensable. Or, when the employee is injured while using a highway, is doing something incidental to his regular employment, for the joint benefit of the worker and the employer, and with the knowledge and approval of the employer.

Premises and Parking Lot Cases

An employer parking lot, whether owned by the employer or not, but maintained for the convenience of the employer and injured worker, is considered an extension of the employment premises.

In the course of employment

Whether an injury occurred “in the course of employment” focuses on the time and place of employment and the specific activity involved. In order to be considered in the course of employment, an injury should be: 1) within the period of employment; 2) at a place where the worker might reasonably be; and 3) while the worker is reasonably fulfilling the duties of employment or something incidental to it. In Brown v. UTC/Pratt & Whitney, the Compensation Review Board reversed the trial commissioner in finding the employee’s injuries “incidental” to employment. The employee in Brown was injured while on her lunch break, on the employer’s property, and taking a walk which by her own testimony was for her own health. The employee’s activity of walking, while acquiesced by the employer, did not benefit the employer, and therefore, was not compensable.

Intentional acts by claimant causing injury or death

If the employer can prove that the injured worker acted intentionally in causing his/her own injury or death, it would be an affirmative defense to the compensability of the claim. The employer has the burden to prove the alleged intentional actions by the claimant were a “substantial contributing factor” in producing the injury or death. An intentional act by the claimant causing his or her own injury or death would not be an act, “arising out of and in the course of employment.”

Employee’s violation of the law, intoxication and illegal use of drugs

If it is proven that the injured worker’s intoxication, illegal use of drugs or violation of the law was a “substantial contributing factor” in causing the injury to the worker, it can be a bar to compensation for said injury. It is an affirmative defense that must be proven by the employer to the satisfaction of the trial commissioner. CGS 31-275(1)(C) and (F)

Employee’s violation of positive work orders of employer

If the employer can prove that the injured worker violated a positive work order by the employer causing his/her own injury or death, the employer could assert this was an intentional act by the injured worker and could be an affirmative defense to the compensability of the claim. The employer has the burden to prove the alleged violation by the claimant was a “substantial contributing factor” in producing the injury or death. The premise would be the violation of the work order and resulting injury or death did not, “arise out of and in the course of employment.”

Hostile Acts

If the employer can prove that the injured worker acted in a hostile manner causing his/her own injury or death, it would be an affirmative defense to the compensability of the claim. The employer has the burden to prove the alleged hostile actions by the claimant were a “substantial contributing factor” in producing the injury or death. A hostile act by the claimant causing his or her own injury or death would not be an act, “arising out of and in the course of employment.” (note, in Connecticut, this term is not commonly used, but rather just the allegation that the claimant’s actions were intentional or in some purposeful way not within the course and scope of employment.

Retirement

Retirement of the injured worker does not in and of itself affect the claim. If the claim has not been settled, the injured worker is still entitled to reasonable and necessary medical treatment that is curative, not palliative, and that is related to the compensable injury claim. As for indemnity benefits, the retired injured worker is still entitled to temporary total disability benefits and permanent partial disability benefits. If the retired worker is only partially incapacitated, the employer will object to payment of benefits on theory that the injured worker has voluntarily removed himself or herself from the workforce, and their employment status is not related to the compensable claim.

BENEFITS

Calculation of Average Weekly Wage - - 31-310

In Connecticut, the average weekly wage is based on the maximum of 52 week prior to the date of injury. It can include wages from concurrent employment if the injured worker was concurrently employed as of the date of injury. Exceptions to this would be concurrent employment for employers outside the definition of employer in Connecticut who participate under Chapter 568 of the General Statutes. Examples would be concurrent employment for the federal government, out of state employers, or self employment when the injured worker is considered an independent contractor or elects not to insure himself or herself with workers’ compensation insurance.

CGS 31-310 : Determination of average weekly wage of injured worker. Concurrent employment. Payments from Second Injury Fund. Publication of wage tables. (a) For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service the employee is injured during the fifty-two calendar weeks immediately preceding the week during which the employee was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer, but, in making the computation, absence for seven consecutive calendar days, although not in the same calendar week, shall be considered as absence for a calendar week. When the employment commenced otherwise than at the beginning of a calendar week, that calendar week and wages earned during that week shall be excluded in making the computation. When the period of employment immediately preceding the injury is computed to be less than a net period of two calendar weeks, the employee's weekly wage shall be considered to be equivalent to the average weekly wage prevailing in the same or similar employment in the same locality at the date of the injury except that, when the employer has agreed to pay a certain hourly wage to the employee, the hourly wage so agreed upon shall be the hourly wage for the injured employee and the employee's average weekly wage shall be computed by multiplying the hourly wage by the regular number of hours that is permitted each week in accordance with the agreement. For the purpose of determining the amount of compensation to be paid in the case of a minor under the age of eighteen who has sustained an injury entitling the employee to compensation for total or partial incapacity for a period of fifty-two or more weeks, or to specific indemnity for any injury under the provisions of section 31-308, the commissioner may add fifty per cent to the employee's average weekly wage, except in the case of a minor under the age of sixteen, the commissioner may add one hundred per cent to the minor's average weekly wage. When the injured employee is a trainee or apprentice receiving a subsistence allowance from the United States because of war service, the allowance shall be added to the injured employee's actual earnings in determining the average weekly wage

Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ the injured employee was injured, as determined under the provisions of this section, are insufficient to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, the injured employee's average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs and a portion of the compensation rate equal to seventy-five per cent of the average weekly wage paid by the employer to the injured employee, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contribution Act made from such employee's total wages received from such employer during the period of calculation of such average weekly wage, but not less than an amount equal to the minimum compensation rate prevailing as of the date of the injury. The remaining portion of the applicable compensation rate shall be paid from the Second Injury Fund upon submission to the Treasurer by the employer or the employer's insurer of such vouchers and information as the Treasurer may require. For purposes of this subsection, the Second Injury Fund shall not be deemed an employer or an insurer for any claim brought on behalf of an insolvent insurer and shall be exempt from liability, unless such claim is brought not later than thirty days after a determination of such insurer's bankruptcy. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years from the date on which the employer or its insurer paid such benefits in accordance with this subsection. In cases which involve concurrent employment and in which there is a claim against a third party, the injured employee or the employer in whose employ the injury was sustained or the employer's insurer shall advise the custodian of the Second Injury Fund if there is a third party claim, and the employee, employer or employer's insurer shall pursue its subrogation rights as provided for in section 31-293 and shall include in its claim all compensation paid by the Second Injury Fund and shall reimburse the Second Injury Fund for all payments made for compensation in the event of a recovery against the third party.

Total Disability - 31-307

If due to the compensable injury, the injured worker is totally disabled from performing “any” type of work, not just the type of work being performed at the time of compensable injury, the injured worker will be eligible to receive temporary total benefits pursuant to CGS 31-307. Pursuant to CGS 31-307 (a), if any injury for which compensation is provided under the provisions of Chapter 568 results in total incapacity to work, the injured worker shall be paid a weekly compensation equal to seventy five (75%) percent of the injured worker’s average weekly earnings as of the date of the injury, calculated pursuant to CGS 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the Federal Insurance Contributions Act made from such employee’s total wages received during the period of calculations of the employee’s average weekly wage pursuant to section 31-310.

Other considerations that could increase the rate paid for temporary total disability or render an injured worker totally disabled by statute, are:

(b) Notwithstanding the provisions of subsection (a) of this section, any employee who suffers any injury or illness caused by the employer's violation of any health or safety regulation adopted pursuant to chapter 571 or adopted by the federal Occupational Safety and Health Administration and listed in 29 CFR, Chapter XVII, after the violation has been cited in accordance with the provisions of section 31-375 or the provisions of the Occupational Safety and Health Act of 1970, 84 Stat. 1601 (1970), 29 USC 658 and not abated within the time fixed by the citation, provided the citation has not been set aside by appeal to the appropriate agency or court having jurisdiction, shall receive a weekly compensation equal to one hundred per cent of the employee's average weekly earnings at the time of the injury or illness.

(c) The following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (1) Total and permanent loss of sight of both eyes, or the reduction to one-tenth or less of normal vision; (2) the loss of both feet at or above the ankle; (3) the loss of both hands at or above the wrist; (4) the loss of one foot at or above the ankle and one hand at or above the wrist; (5) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (6) any injury resulting in incurable imbecility or mental illness.

(d) An employee who has suffered the loss or loss of the use of one of the members of the body, or part of one of the members of the body, or the reduction of vision in one eye to one-tenth or less of normal vision, shall not receive compensation for the later injury in excess of the compensation allowed for the injury when considered by itself and not in conjunction with the previous incapacity except as provided in this chapter.

Partial Disability - 31-308

Prior to the injured worker reaching maximum medical improvement, if a qualified medical professional opines that the injured worker is not capable of returning to his or her usual occupation, but has the ability to work in a lesser capacity, “light duty work”, the injured worker will be eligible for temporary partial benefits. An employer is not obligated to create a job to fit the injured worker’s doctored prescribed restrictions. However, if they have such work available, the employer is encouraged to make it available to the injured worker. If no such work is available, the injured worker will be eligible for benefits pursuant to CGS 31-308(a). Although not controlled by statute, it is the customary practice in Connecticut for a Commissioner to order the injured worker to perform weekly “job searches”, usually 3 – 5 per week, within the same locale and for jobs that are reasonably attainable by the injured worker, given their medical restrictions. If performed, the respondent insurance carrier for the employer, will pay temporary partial benefits as follows:

31-308. Compensation for partial incapacity

(a)       If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except that when (1) the physician or the advanced practice registered nurse attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section. Compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, and shall continue during the period of partial incapacity, but no longer than five hundred twenty weeks. If the employer procures employment for an injured employee that is suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of the employment.

Impairment Rating - 31-308(b)

Once the injured worker is determined to be at maximum medical improvement (“MMI”), their treating doctor will typically assess them for a permanent partial disability rating (“PPD”). The employer also has the right to have the injured worker examined by a physician of its choosing for similar assessment. If the two doctors render different opinions as to MMI and/or PPD, and the parties are not able to resolve the difference between them, the Commissioner presiding over the case can order the injured worker to be examined by a physician of the Commissioner’s choosing for similar assessment. The opinion of the Commissioner’s doctor will carry the most weight and typically be the one that controls. (The respondent employer or its insurance carrier will pay for the cost of the Commissioner’s Exam) In Connecticut, doctors are NOT required to follow the AMA Guidelines. The doctor’s opinion can be based on their own training and experience or customary practices within the locale. Furthermore, in Connecticut, “whole body’ ratings are not allowed. The PPD rating must be to a specific body part or organ, and it must be a specific body part or organ enumerated within CGS 31-308(b), otherwise, the benefits are not payable. See CGS 31-308(b) for a complete schedule of covered body parts and applicable maximum number of weeks of compensation available for each.

Vocational Rehabilitation

Once an injured worker reaches MMI, if permanent work restrictions prevent him or her from returning to their usual and customary occupation at time of the injury, the State of Connecticut has a division of Rehabilitation that is available at no cost to the injured worker. The injured worker will meet with a vocational counselor, who will interview the injured worker to assess their skill set, interests, medical restrictions, etc, and an aptitude test will be administered. The injured worker will then be counseled on possible vocational, technical or college courses that can assist them to be trained in a new field. If the injured worker qualifies for said program, the State of Connecticut will pay for said training, including materials, books or other equipment required, for up to two years of schooling. Note: the employer is not responsible for providing retraining to the injured worker.

Return to Work with Loss of Earnings - 31-308(a) or 31-308a

If the injured worker returns to work prior to MMI with a loss of earnings attributable to the compensable injury, they are eligible for temporary partial disability differential benefits pursuant to CGS 31-308(a). The benefits will be calculated in similar manner, using the injured worker’s actual reduced earnings as a parameter to calculate the differential owed.

If after reaching MMI, the injured worker returns to work with a loss of earnings attributable to the compensable injury, they will be eligible for discretionary “post specific” benefits pursuant to CGS 31-308a. “post specific” refers to after the “specific” award of PPD benefits. A Commissioner will examine the facts, and if the loss of earnings is reasonable attributable to the compensable injury, and not due to the general economy or actions by the injured worker, an award of “post specific” benefits will be issued, which are capped, at a maximum number of weeks that were similarly awarded for the PPD benefits. If the injured worker is not actively working after receipt of full PPD benefits, “post specific” benefits can be awarded at the discretion of the Commissioner. These benefits are finite in nature, and the Commissioner can choose the reduce the rate paid to less then the injured worker’s full benefit rate as determined in CGS 31-308(b), assigning an earning capacity they believe the injured worker is capable of. Similar to CGS 31-308(a) benefits, it is typical for the Commissioner to order the injured worker to perform weekly “job searches” in order to receive said benefits.

Earning Power Assessment

This is not a formal part of the process in Connecticut. A Commissioner will use their best judgment regarding earning power, when a decision regarding “post specific” benefits is being made concerning benefits pursuant to CGS 31-308a. An injured workers’ attorney may decide to pay for a formal earning power assessment or vocational assessment as further evidence of the injured workers’ inability to work. This can be used to assert the person is not at MMI and should continue to receive temporary total or temporary partial benefits, or to use for leverage in settlement negotiations. Employers and their insurance carriers rarely have such assessments done, because the motive for said assessments is largely to benefit the injured worker’s case.

Employer Job Offer

In Connecticut, an employer is not required to create a job to fit the injured worker’s medical restrictions as a result of the compensable injury. However, if such job exists, the employer is encouraged to make the work available to the injured worker, with the expectation that with continued time and rehabilitation, the injured worker will be able to return to his or her usual and customer work prior to the work injury. If the employer makes a bona fide job offer to the injured worker that complies with the treating doctor’s medical restrictions, and the injured worker refuses such work, the employer can seek to discontinue the injured worker’s weekly indemnity benefits. It is advisable that such job offer be made in writing to the injured worker, outlining the offer, job requirements and hours/days of week to be worked. In order to do so, a properly filed Form 36 must be approved by a Commissioner prior to benefits being terminated. Once the injured worker reaches MMI, the employer is not required to continue to accommodate the light duty work restrictions.

Vocational Expert

These are not often used in Connecticut cases, nor are they required by either party. In some circumstances, claimant’s attorney’s will retain one to rebut medical reports that assign a light duty ability to work for the claimant, but the claimant’s attorney believes that all factors being considered, such as the age, transferable skills, and medical limitations, essentially make the claimant unemployable. It is rare that employers will engage one, relying more on credible medical opinions that the claimant can work.

Amputation or Loss of Use

This is controlled byCGS 31-308(b). Once an injured worker reaches MMI, the treating doctor, and often times a Respondent’s Medical Examiner, will assess the injured worker for MMI and PPD. Ratings for loss of use must be to a specific body part or organ, and not “whole person” ratings. Opinions do not have to be based on the AMA Guidelines. Amputations of a limb likely result in a 100% PPD rating for that assigned body part. The following amputations of partial digits or limbs are controlled by statute as follows:

The loss or loss of use of one phalanx of a thumb shall be construed as seventy-five per cent of the loss of the thumb.

The loss or loss of use of one phalanx of a finger shall be construed as fifty per cent of the loss of the finger. The loss of or loss of use of two phalanges of a finger shall be construed as ninety per cent of the loss of the finger.

The loss or loss of use of one phalanx of a great toe shall be construed as sixty-six and two-thirds per cent of the loss of the great toe. The loss of the greater part of any phalanx shall be construed as the loss of a phalanx and shall be compensated accordingly.

If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in the commissioner's discretion, in lieu of other compensation, award to the injured employee the proportion of the sum provided in this subsection for the total loss of, or the loss of the use of, the member or for incapacity or both that represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in the commissioner's discretion. Notwithstanding the provisions of this subsection, the complete loss or loss of use of an organ which results in the death of an employee shall be compensable pursuant only to section 31-306.

Disfigurement/Scarring 31-308(c)

This is left to discretion of the commissioner pursuant to CGS 31-308(c). The commissioner will personally view the scar and make an award as to how many weeks of compensation the injured worker is entitled to, paid at the same rate as calculated per CGS 31-310. Almost entirely, awards are limited to scars on the face or neck of the injured worker, or if the scar itself hinders or prevents the claimant from working or continuing to work.

CGS 31-308(c)

In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner, not earlier than one year from the date of the injury and not later than two years from the date of the injury or the surgery date of the injury, may award compensation equal to seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's average weekly wage pursuant to said section 31-310, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, for up to two hundred eight weeks, for any permanent significant disfigurement of, or permanent significant scar on, (A) the face, head or neck, or (B) on any other area of the body which handicaps the employee in obtaining or continuing to work. The commissioner may not award compensation under this subsection when the disfigurement was caused solely by the loss of or the loss of use of a member of the body for which compensation is provided under subsection (b) of this section or for any scar resulting from an inguinal hernia operation or any spinal surgery. In making any award under this subsection, the commissioner shall consider (1) the location of the scar or disfigurement, (2) the size of the scar or disfigurement, (3) the visibility of the scar or disfigurement due to hyperpigmentation or depigmentation, whether hypertrophic or keloidal, (4) whether the scar or disfigurement causes a tonal or textural skin change, causes loss of symmetry of the affected area or results in noticeable bumps or depressions in the affected area, and (5) other relevant factors. Notwithstanding the provisions of this subsection, no compensation shall be awarded for any scar or disfigurement which is not located on (A) the face, head or neck, or (B) any other area of the body which handicaps the employee in obtaining or continuing to work. In addition to the requirements contained in section 31-297, the commissioner shall provide written notice to the employer prior to any hearing held by the commissioner to consider an award for any scar or disfigurement under this subsection.

Loss of Sight

This is controlled by CGS 31-308(b) regarding award of PPD benefits, but also CGS 31-307(c )(1): Total and permanent loss of sight of both eyes, or the reduction to one-tenth or less of normal vision will render an injured worker totally disabled from work.

Loss of Hearing

Controlled by CGS 31-308(b) regarding an impairment rating, but does not specifically render an injured worker totally disabled per statute.

Penalties

Penalties can be assessed pursuant to CGS 31-295(c) against the respondent employer for failure to timely pay PPD benefits after the injured worker reaches maximum medical improvement. Said benefits must be initiated within 30 days of the injured worker reaching maximum medical improvement or the employer faces a penalty of ten percent (10%) per annum on said sum or sums from the date of maximum medical improvement. The employer shall ascertain at least monthly if the injured worker is entitled to compensation because of loss of wages as a result of the injury and, if there is a loss of wages, shall pay the compensation.

The commissioners also have discretionary powers to issue a penalty to either party for failure to attend a properly noticed hearing.

Interest

Pursuant to CGS 31-296, if a Commissioner determines that an employer discontinued or reduced payments for total or partial incapacity without the approval of the commissioner, the commissioner shall order the employer to pay the total amount the compensation was reduced, to the employee, and shall be required to pay interest to the employee at a rate of one and one quarter percent per month or portion of a month on any payments so discontinued or on the total amount by which such payments were reduced, plus a reasonable attorney’s fee incurred by the employee in relation to such discontinuance or reduction.

Pursuant to CGS 37-3a, if through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed by CGS 37-3a and a reasonable attorney’s fee.

Upon full and final settlement of a claim, referred to as a Stipulation, if payment of the stipulated settlement is not received by the injured worker or their attorney within twenty (20) days after approval of the Stipulation by a Commissioner, an interest penalty of twenty percent (20%) of the Stipulated amount can be assessed against the employer. This penalty is paid to the claimant. C.G.S. § 31-303

Within twenty days (20) after a decision by a trial commissioner after a Formal hearing, if no appeal is taken, payments ordered in the trial decision must be paid, or a 20% interest penalty can be assessed against the employer.

Costs

In general, each side is responsible for its own litigation costs. If a litigated matter is determined at a Formal Hearing, and if the injured worker prevails, he/she can ask for the trial commissioner to order the employer to reimburse him or her for their costs of prevailing, such as medical report fees, deposition fees or expert witness testimony fees. In this writer’s opinion, it is rare that a commissioner orders such payments to be made.

Counsel Fees

In general, attorneys for injured workers’ represent their clients on a contingency fee basis. The standard legal fee in workers’ compensation matters is twenty percent (20%) of contested benefits procured as a result of the attorney’s efforts, 20% of the PPD or scar award, or 20% of the stipulated settlement. If the case is litigated to a Formal Hearing (trial equivalent) and if the injured worker prevails, their attorney can ask the commissioner to approve a 25% legal fee on the benefits obtained or eventual settlement.

Attorney fees can also be awarded pursuant to CGS 31-296(b) if the employer reduces or discontinues total or partial incapacity benefits. Also, pursuant to CGS 31-300, in cases where an injured worker prevails at a Formal Hearing, a trial commissioner may award an employee reasonable attorney’s fees if the trial commissioner finds that the employer unreasonably contested liability in the case.

Death Benefits -31-306

If it is proven that the work related injury was a substantial contributing factor in causing the injured worker’s death, the surviving spouse will be eligible for dependency benefits, payable at the rate determined pursuant to CGS 31-310. The benefits payable to the surviving spouse will be paid up to the death or remarriage of the surviving spouse, with annual cost of living adjustments (“COLAs”) determined each October 1st after the decedent’s death. If there is no surviving spouse, but surviving, dependent children, they will be entitled to dependent’s benefits until age eighteen (18) or age 22 if nmarried and a full time student. Burial allowances and further detail provided in CGS 31-306

(1) Four thousand dollars shall be paid for burial expenses in any case in which the employee died on or after October 1, 1988. If there is no one wholly or partially dependent upon the deceased employee, the burial expenses of four thousand dollars shall be paid to the person who assumes the responsibility of paying the funeral expenses.

(2) To those wholly dependent upon the deceased employee at the date of the deceased employee’s injury, a weekly compensation equal to seventy-five per cent of the average weekly earnings of the deceased calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, as of the date of the injury but not more than the maximum weekly compensation rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. (A) The weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or after October 1, 1977, shall be adjusted annually as provided in this subdivision as of the following October first, and each subsequent October first, to provide the dependent with a cost-of-living adjustment in the dependent’s weekly compensation rate as determined as of the date of the injury under section 31-309. If the maximum weekly compensation rate, as determined under the provisions of said section31-309, to be effective as of any October first following the date of the injury, is greater than the maximum weekly compensation rate prevailing at the date of the injury, the weekly compensation rate which the injured employee was entitled to receive at the date of the injury or October 1, 1990, whichever is later, shall be increased by the percentage of the increase in the maximum weekly compensation rate required by the provisions of said section 31-309 from the date of the injury or October 1, 1990, whichever is later, to such October first. The cost-of-living increases provided under this subdivision shall be paid by the employer without any order or award from the commissioner. The adjustments shall apply to each payment made in the next succeeding twelve-month period commencing with the October first next succeeding the date of the injury. With respect to any dependent receiving benefits on October 1, 1997, with respect to any injury occurring on or after July 1, 1993, and before October 1, 1997, such benefit shall be recalculated to October 1, 1997, as if such benefits had been subject to recalculation annually under this subparagraph.

The difference between the amount of any benefits that would have been paid to such dependent if such benefits had been subject to such recalculation and the actual amount of benefits paid during the period between such injury and such recalculation shall be paid to the dependent not later than December 1, 1997, in a lump-sum payment. The employer or its insurer shall be reimbursed by the Second Injury Fund, as provided in section 31-354, for adjustments, including lump-sum payments, payable under this subparagraph for deaths from compensable injuries occurring on or after July 1, 1993, and before October 1, 1997, upon presentation of any vouchers and information that the Treasurer shall require. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurer paid such benefits in accordance with this subparagraph. (B) The weekly compensation rate of each dependent entitled to receive compensation under this section as a result of death arising from a compensable injury occurring on or before September 30, 1977, shall be adjusted as of October 1, 1977, and October 1, 1980, and thereafter, as provided in this subdivision to provide the dependent with partial cost-of-living adjustments in the dependent’s weekly compensation rate. As of October 1, 1977, the weekly compensation rate paid prior to October 1, 1977, to the dependent shall be increased by twenty-five per cent. The partial cost-of-living adjustment provided under this subdivision shall be paid by the employer without any order or award from the commissioner. In addition, on each October first, the weekly compensation rate of each dependent as of October 1, 1990, shall be increased by the percentage of the increase in the maximum compensation rate over the maximum compensation rate of October 1, 1990, as determined under the provisions of section 31-309 existing on October 1, 1977. The cost of the adjustments shall be paid by the employer or its insurance carrier who shall be reimbursed for such cost from the Second Injury Fund as provided in section 31-354 upon presentation of any vouchers and information that the Treasurer shall require. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this subparagraph.

(3) If the surviving spouse is the sole presumptive dependent, compensation shall be paid until death or remarriage.

(4) If there is a presumptive dependent spouse surviving and also one or more presumptive dependent children, all of which children are either children of the surviving spouse or are living with the surviving spouse, the entire compensation shall be paid to the surviving spouse in the same manner and for the same period as if the surviving spouse were the sole dependent. If, however, any of the presumptive dependent children are neither children of the surviving spouse nor living with the surviving spouse, the compensation shall be divided into as many parts as there are presumptive dependents. The shares of any children having a presumptive dependent parent shall be added to the share of the parent and shall be paid to the parent. The share of any dependent child not having a surviving dependent parent shall be paid to the father or mother of the child with whom the child may be living, or to the legal guardian of the child, or to any other person, for the benefit of the child, as the commissioner may direct.

(5) If the compensation being paid to the surviving presumptive dependent spouse terminates for any reason, or if there is no surviving presumptive dependent spouse at the time of the death of the employee, but there is at either time one or more presumptive dependent children, the compensation shall be paid to the children as a class, each child sharing equally with the others. Each child shall receive compensation until the child reaches the age of eighteen or dies before reaching age eighteen, provided the child shall continue to receive compensation up to the attainment of the age of twenty-two if unmarried and a full-time student, except any child who has attained the age of twenty-two while a full-time student but has not completed the requirements for, or received, a degree from a postsecondary educational institution shall be deemed not to have attained age twenty-two until the first day of the first month following the end of the quarter or semester in which the child is enrolled at the time, or if the child is not enrolled in a quarter or semester system, until the first day of the first month following the completion of the course in which the child is enrolled or until the first day of the third month beginning after such time, whichever occurs first. When a child’s participation ceases, such child’s share shall be divided among the remaining eligible dependent children, provided if any child, when the child reaches the age of eighteen years, is physically or mentally incapacitated from earning, the child’s right to compensation shall not terminate but shall continue for the full period of incapacity.

(6) In all cases where there are no presumptive dependents, but where there are one or more persons wholly dependent in fact, the compensation in case of death shall be divided according to the relative degree of their dependence. Compensation payable under this subdivision shall be paid for not more than three hundred and twelve weeks from the date of the death of the employee. The compensation, if paid to those wholly dependent in fact, shall be paid at the full compensation rate. The compensation, if paid to those partially dependent in fact upon the deceased employee as of the date of the injury, shall not, in total, be more than the full compensation rate nor less than twenty dollars weekly, nor, if the average weekly sum contributed by the deceased at the date of the injury to those partially dependent in fact is more than twenty dollars weekly, not more than the sum so contributed.

(7) When the sole presumptive dependents are, at the time of the injury, nonresident aliens and the deceased has in this state some person or persons who are dependent in fact, the commissioner may in the commissioner’s discretion equitably apportion the sums payable as compensation to the dependents.

(b) The dependents of any deceased employee who was injured on or after January 1, 1974, and who subsequently dies shall be paid compensation on account of the death retroactively to the date of the employee’s death. The cost of the payment or adjustment shall be paid by the employer or its insurance carrier who shall be reimbursed for such cost from the Second Injury Fund as provided in section 31-354 upon presentation of any vouchers and information that the Treasurer shall require.

(c) (1) The dependents of any deceased employee who was injured between January 1, 1952, and December 31, 1973, and who subsequently dies, shall be paid compensation on account of the death retroactively to the date of the employee’s death. The cost of the payment or adjustment shall be paid by the employer or its insurance carrier who shall be reimbursed for such cost from the Second Injury Fund as provided in section 31-354 upon presentation of any vouchers and information that the Treasurer shall require. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this subdivision.

(2) The dependents of any deceased employee who was injured before January 1, 1952, and who died on or before October 1, 1991, shall be paid compensation on account of the death retroactively to the date of the employee’s death. The cost of the payment or adjustment shall be paid by the employer or its insurance carrier who shall be reimbursed for such cost from the Second Injury Fund as provided in section 31-354 upon presentation of any vouchers and information that the Treasurer shall require. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this subdivision.

(d) The dependents of any deceased employee who was injured in an accident arising out of and in the course of employment before January 1, 1952, and who died, as a result of those injuries, after October 1, 1991, shall be paid compensation, under the provisions of this section, effective as of the date of death of any such employee. Notwithstanding the provisions of subsection (a) of this section, the weekly compensation rate for such dependents shall equal the amount of compensation the injured employee was receiving prior to death pursuant to section 31-307. Such weekly compensation rate shall hereafter be adjusted in accordance with the provisions of subsection (a) of this section. The cost of such payment or adjustment shall be paid by the employer or the insurance carrier of such employer who shall be reimbursed for such cost from the Second Injury Fund provided for in section 31-354. No claim for payment of retroactive benefits may be made to the Second Injury Fund more than two years after the date on which the employer or its insurance carrier paid such benefits in accordance with this subsection.

Medical Benefits

In Connecticut, the injured worker has the right to choose his or her own treating physician. The employer may direct the initial medical referral after the injury is reported, but thereafter, the injured worker may elect their own treating physician. If the employer has an approved managed care plan, the injured worker must select any physician within the plan. If the injured worker elects to treat with a physician outside the approved managed care plan, the employer will not be responsible for the costs of said treatment. As soon as the employer has knowledge of an injury, it shall provide a competent physician to attend to the injured worker, along with any necessary medical aid.

(a)(1) The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider.

(2) If the injured employee is a local or state police officer, state marshal, judicial marshal, correction officer, emergency medical technician, paramedic, ambulance driver, firefighter, or active member of a volunteer fire company or fire department engaged in volunteer duties, who has been exposed in the line of duty to blood or bodily fluids that may carry blood-borne disease, the medical and surgical aid or hospital and nursing service provided by the employer shall include any relevant diagnostic and prophylactic procedure for and treatment of any blood-borne disease.

(b) The employee shall select the physician or surgeon from an approved list of physicians and surgeons prepared by the chairman of the Worker’s Compensation Commission. If the employee is unable to make the selection, the employer shall do so, subject to ratification by the employee or his next of kin. If the employer has a full-time staff physician or if a physician is available on call, the initial treatment required immediately following the injury may be rendered by that physician, but the employee may thereafter select his own physician as provided by this chapter for any further treatment without prior approval of the commissioner.

(c) The commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of physician or surgeon or hospital or nursing service provided pursuant to subsection (a) of this section.

(d) The pecuniary liability of the employer for the medical and surgical service required by this section shall be limited to the charges that prevail in the same community or similar communities for similar treatment of injured persons of a like standard of living when the similar treatment is paid for by the injured person. The liability of the employer for hospital service shall be the amount it actually costs the hospital to render the service, as determined by the commissioner, except in the case of state humane institutions, the liability of the employer shall be the per capita cost as determined by the Comptroller under the provisions of section 17b-223. All disputes concerning liability for hospital services in workers’ compensation cases shall be settled by the commissioner in accordance with this chapter.

(e) If the employer fails to promptly provide a physician or surgeon or any medical and surgical aid or hospital and nursing service as required by this section, the injured employee may obtain a physician or surgeon, selected from the approved list prepared by the chairman, or such medical and surgical aid or hospital and nursing service at the expense of the employer.

Refusal of Medical Treatment

An injured worker’s refusal of medical treatment, or non compliance with medical treatment, can be a basis for the employer or insurer to seek to discontinue or reduce benefits pursuant to CGS 31-296. However, a commissioner must approve the discontinuance or reduction of said benefits before doing so.

SUBROGATION OR CREDIT

General Rule

Controlled by CGS 31-293. This allows for the employer to recoup benefits paid to the injured worker for medical and indemnity from the injured worker’s recovery of a civil action against a third party who was responsible for the injured worker’s injury. The employer’s recovery will be after payment of the injured worker’s attorney’s fees and costs of recovery in the third party action, and before the injured worker is paid from said proceeds. If after payment of the injured workers’ attorney’s fees and costs and the employer’s lien, the injured worker is left with a net recovery, the amount of said recovery will act as a credit to the employer, or moratorium against future rights the injured worker may claim against the employer related to his or her workers’ compensation claim. NOTE: As of July 1, 2011, if the action has been brought by the employee, the claim for the employer shall be reduced by one-third of the amount of the benefits to be reimbursed to the employer, unless otherwise agreed upon by the parties, which reduction shall inure solely to the benefit of the employee, except that such reduction shall not apply if the reimbursement is to the state of Connecticut or a political subdivision of the state including a local public agency, as the employer, or the custodian of the Second Injury Fund. This applies to new injuries as of July 1, 2011.

If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate unless the employer, insurance carrier or Second Injury Fund gives written notice of a lien in accordance with this subsection. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer's obligation to make further compensation which the commissioner thereafter deems payable to the injured employee.

Some typical examples are work related motor vehicle accidents, slip and fall accidents or product liability cases. If the injured worker is a passenger is a motor vehicle driven by a coworker, the injured worker may bring a civil action against the co-worker and owner of vehicle, even if the owner of the vehicle is the injured worker’s employer.

Attorney’s Fee

Attorney’s fees in subrogation matters are controlled by the written agreements between the parties and their attorneys. For injured workers’, attorney’s fees are contingent upon the recovery in the case, and typically 33.33% of the settlement or judgment. For the employer, attorneys are typically selected by the employer’s insurance carrier and typically work for an hourly rate agreed up between the parties. In some cases, the employer’s attorney’s fee will be a contingency fee based agreement, based on the amount of the lien recovered in favor of the employer.

Motor Vehicle Accidents

Pursuant to CGS 31-293(b): When an injury for which compensation is payable under the provisions of this chapter is determined to be the result of a motor vehicle accident or other accident or circumstance in which a third person other than the employer was negligent and the claim is subrogated by the employer or its workers' compensation insurance carrier, the insurance carrier shall provide a rate adjustment to the employer's workers' compensation policy to reflect the recovery of any compensation paid by the insurance carrier prior to subrogation.

As for rights of the injured worker, see above discussion regarding subrogation rights.

Health Benefits

CGS 38a-470 controls potential lien issue for group medical insurance carriers who pay benefits related to wholly denied or partially denied workers’ compensation benefits. The lien arises when the benefits are paid or such services rendered, but the insurance carrier must send written notice of the lien to the employee, the insurance company providing workers’ compensation benefits or the employer, if self insured, and the workers’ compensation commissioner for the district in which the claim for workers’ compensation benefits has been filed, setting forth the nature and extent of the lien allowable under section (b) of 38a-470. The lien shall be effective against any workers’ compensation award made after the notice is received.

CGS 38a-470:

(a) For purposes of this section, "controverted claim" means any claim in which compensation is denied either in whole or in part by the workers' compensation carrier or the employer, if self-insured.

(b) Any insurer, hospital or medical service corporation, health care center or employee welfare benefit plan which furnished benefits or services under a health insurance policy or a self-insured employee welfare benefit plan to any person suffering an injury or illness covered by the Workers' Compensation Act has a lien on the proceeds of any award or approval of any compromise made by a workers' compensation commissioner less attorneys' fees approved by the district commissioner and reasonable costs related to the proceeding, to the extent of benefits paid or services provided for the effects of the injury or illness arising out of and in the course of employment as a result of a controverted claim, provided such plan, policy or contract provides for reduction, exclusion, or coordination of benefits of the policy or plan on account of workers' compensation benefits.

(c) The lien shall arise at the time such benefits are paid or such services are rendered. The person or entity furnishing such benefits or services shall serve written notice upon the employee, the insurance company providing workers' compensation benefits or the employer, if self-insured, and the workers' compensation commissioner for the district in which the claim for workers' compensation has been filed, setting forth the nature and extent of the lien allowable under subsection (b) of this section. The lien shall be effective against any workers' compensation award made after the notice is received.

(d) The written notice shall be served upon the employee at his last-known address, the insurance company at its principal place of business in this state or the employer, if self-insured, at its principal place of business, and the workers' compensation commissioner, at the district office. Service shall be made to all parties by certified or registered mail. The notice shall be in duplicate and shall contain, in addition to the information set forth in subsection (c) of this section, the name of the injured or ill employee, the name of the company providing workers' compensation benefits, the amount expended and an estimate of the amount to be expended for benefits or services provided to such injured or ill employee.

(e) The insurance company providing workers' compensation coverage or the employer, if self-insured, shall reimburse the insurance company, hospital or medical service corporation, health care center or employee welfare benefit plan providing benefits or service directly, to the extent of any such lien. The receipt of such reimbursement by such insurer, hospital or medical service corporation, health care center or employee welfare benefit plan shall fully discharge such lien.

(f) The validity or amount of the lien may be contested by the workers' compensation carrier, the employer, if self-insured or the employee by bringing an action in the superior court for the judicial district of Hartford or in the judicial district in which the plaintiff resides. Such cases shall have the same privilege with respect to their assignment for trial as appeals from the workers' compensation review division but shall first be claimed for the short calendar unless the court shall order the matter placed on the trial list. An appeal may be taken from the decision of the Superior Court to the Appellate Court in the same manner as is provided in section 51-197b. In any appeal in which one of the parties is not represented by counsel and in which the party taking the appeal does not claim the case for the short calendar or trial within a reasonable time after the return day, the court may of its own motion dismiss the appeal, or the party ready to proceed may move for nonsuit or default as appropriate. During the pendency of the appeal any workers' compensation benefits due shall be paid into the court in accordance with the rules relating to interpleader actions.

ATTORNEYS

Certifying Organization

Practice Book Rule 2-3 provides for a Committee of twenty-four members charged with the responsibility of determining whether candidates are qualified to be admitted to the Connecticut bar. The Committee prepares and administers the bar examination and investigates the character and fitness of each candidate for admission. The Committee recommends to the court those who have passed the bar examination, possess good moral character, and have complied with the rules of court and the regulations of the Committee governing admission to the bar.

Attorney Oversight/Discipline

The Statewide Grievance Committee is a committee of 21 individuals, 14 of whom are attorneys and 7 of whom are not attorneys, appointed by the Judges of the Superior Court to review, investigate and adjudicate attorney ethics complaints. The Committee is assisted by the Statewide Bar Counsel and Assistant Bar Counsel in performing duties and responsibilities set forth by the rules of Court and statutes

The primary function of the Statewide Grievance Committee is the review and adjudication of complaints. Additionally, the Statewide Grievance Committee investigates reported overdrafts of attorneys' clients' trust accounts and takes action, where necessary; randomly audits attorney trust accounts; oversees the Roll of the more than 35,000 attorneys admitted to practice in Connecticut through the attorney registration process; issues certificates of good standing to the bar; oversees multi jurisdictional practices and regulates attorney advertising.

CLAIMS PROFESSIONALS

Casualty adjusters, except attorneys, must be licensed upon application (examination) and payment of the appropriate fee. For nonresident claims professionals currently licensed in another jurisdiction, the examination may be waived by the Commissioner of the Department of Insurance. Each license is effective for two years from date of issue through June 30 of the alternative odd number year. C.G.S. § 38a-792 and 38a-792-1.

LITIGATION AND APPEAL

Workers’ Compensation Commission Proceedings

The goal of the State of Connecticut Worker’s Compensation Commission is the administration the Connecticut Workers’ Compensation Act. The Worker’s Compensation Commission is currently comprised of a Chairman of the Commission and 16 Commissioners. The State of Connecticut is divided into 8 geographical districts with two Commissioners generally assigned to each District Office. Commissioners are generally assigned at the time that litigation arises but will alternate hearings depending on scheduling and the stage of litigation. The district Dereassignments are at the discretion of the Chairman.

Appointment of Workers’ Compensation Commissioners

Qualifications of WCC Commisioner

The current minimum requirements for appointment to the position of Workers’ Compensation Commissioner include that the nominee be a member in good standing of the Connecticut bar for the five years prior to the nomination.

Procedure

There are three types of hearings at the Commissioner level. They are the Informal Hearing, Pre-Formal Hearing and Formal Hearing. The Informal Hearing is generally the preliminary hearing utilized for managing investigation of claims and an assortment of non-litigated issues. The Pre-Formal Hearing is comparable to a pre-trial where the Commissioner attempts to narrow the issues for possible resolution or advancement to the Formal Hearing (Trial). The Commissioners are instructed by statute to conduct hearings via the rules of equity and is not bound by the common law, statute or rules of evidence. C.G.S. § 31-298.

A claim for compensation is commenced by filing a Notice of Claim, generally Form 30C or Form 30D (dependent’s benefits for death claims). That being said, there is no statutory requirement that the respective Form be used, instead, so long as notice is provided that includes the same relevant information contained on said Forms, namely the identification of the claimant and the employer, the location of the loss, the effected body part and a brief statement of how the injury occurred, the Commissioner will find that the notice was proper. This notice must be filed within one year of a specific injury or two years of the last injurious exposure for repetitive trauma, two years from the date of death and three years from the manifestation of an occupational disease. C.G.S. § 31-294c.

Upon receipt of the Notice of Claim, the employer has 28 days to issue a denial or commence payment of benefits. If benefits are commenced, the employer earns the right to investigate the claim for up to a year following the Notice of Claim. All Notice of Claim and Denials (Form 43) must be served to the Commission and the respective party, Employer and Claimant. If a denial is not issues within the 28 days, and benefits are note commenced within that period, the employer, upon motion, will be precluded from contesting liability for the injury and the claim will be, upon proof of a prima facie claim, deemed compensable. C.G.S. § 31-294c, Regulation § 31-297(b)-1.

The injured worker is known as a “claimant” in Connecticut workers’ compensation. In the event of the death of the injured work, the “claimant” will be the dependent or dependents claiming compensation pursuant to the Workers’ Compensation Act.

The Employer is the “respondent”. If insured, the employer’s insurance carrier is responsible for the administration of the claim and if known, notices for hearing are sent to the responsible insurance carrier and both employer and insurer are respondents. Insurance carriers assume the rights and responsibilities of the employer. C.G.S. § 31-287.

There are no formal rules of discovery in Connecticut Workers’ Compensation matters. The Commissioners encourage a free exchange of information. Depositions of claimants, fact witnesses and experts, including medical providers are permitted. Generally, claimant’s medical records are permitted to be entered into evidence without foundational testimony. At Formal Hearings, the claimant, the employer, any corroborating witnesses and rebuttal witnesses testify before the Commissioner. Expert witnesses, including physicians, generally testify via deposition and transcripts are admitted into evidence at a subsequent Formal Hearing.

Investigatory Powers

Commissioners have the power to compel testimony, direct the production of and examine or cause to be produced or examined, documentary evidence in relation to any matter at issue as he/ she may find proper, and shall have the power to take and order depositions. All orders of the Commissioner may be enforced by application to the Superior Court. The Commissioner is not bound by the common law, statute or the rules of evidence but is to be guided by the rules of equity. C.G.S. §§ 31-278, 31-298.

Decision Upon Formal Hearing

Upon the conclusion of a Formal Hearing, the Commissioner has 120 days to issue his/her finding and award. The decision contains the Commissioners finding of facts and awards to the claimant or respondent as the case may be. These findings of facts shall include all predict facts relied upon by the Commissioner in justifying the award. C.G.S. § 31-300.

In reaching the findings of fact, the Commissioner is the sole finder of fact and is mandated with the duty of assessing the credibility of all witnesses, live and those that testify via deposition transcript. A commissioner is free to credit all, some or none of the testimony and other evidence it considers in reaching the specific findings of fact. The credibility determinations of a Commissioner will only be overturned upon proof that the decision was arbitrary and capricious.

Following the Finding and Award, either party may file a Motion to Correct, requesting that the Commissioner revise the findings of fact and/or award as the case may be. If an appeal is not taken, the Finding and Award is treated as a judgment of the Superior Court and is executable in the Superior Court upon application. The filing of a Motion to Correct shall stay the deadline for filing an appeal until the commissioner has ruled on said motion. C.G.S. § 31-301.

Compensation Review Board

General Rule

The Compensation Review Board is charged with reviewing the appeals of decisions from the compensation commissioners. It is comprised of the Chairman of the Worker’s Compensation Commission and two other Commissioners who are appointed to a term of one year. Commissioners are prohibited from hearing appeals of decisions they rendered and a substitute Commissioner will be appointed for the claim. C.G.S. § 31-280b.

Following the Finding and Award, or a decision on a motion, either party has 20 days to provide notice of the intent to appeal. The Compensation Review Board is to issue its written decisions affirming, modifying or reversing the decision of the commissioner within one year from the filing of the Appeal. C.G.S. § 31-301.

Proceedings before the CRB are governed by Sections 31-301-1 through 31-301-11 of the regulations. Within ten days of filing the appellate petition, the appellant must file its Reasons for Appeal, setting forth the specific claims of error to be heard. Regulation §31-301-2.

Scope Of Review

“Ordinarily, appeals are heard by the compensation review division upon the certified copy of the record filed by the commissioner. In such cases the division will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.” Regulation § 31-301-8

“If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.” Regulation § 31-301-9

Appellate Review

Connecticut Appellate Court

Following the determination of the CRB, either party can elect to appeal to the Connecticut Appellate Court. The rules in workers’ Compensation appeals are the same in all other appeals unless specifically specified. Connecticut Practice Book § 76-1. The appellate petition must likewise be filed within 20 days of the issuance of the CRB decision. Connecticut Practice Book § 63-1 As in the case of an appeal to the CRB, the appellant must specify the issues to be addressed. Connecticut Practice Book § 63-4. In cases where the legal issues are matters of first impression or the CRB requires a ruling applicable to all such cases, the case can be “reserved” and referred to the appellate court for consideration. In such cases, the rules of appellate procedure apply. Connecticut Practice Book § 76-5. Each appeal is assigned to a three judge panel selected at random. Following the submittal of written briefs, a case is assigned for oral argument before the three judge panel. The Appellate Court generally must issue its decision within 180 days of the oral argument. Upon receipt of the decision a litigant can request reconsideration or hearing en banc, before all of the judges of the appellate Court. Connecticut Practice Book § 70.

On appeal, findings of fact will be affirmed if the record sufficiently shows competent evidence for the decision. The conclusions of law by the CRB are fully reviewable on appeal. The Appellate Court may affirm, vacate, modify set aside, reverse or remand any order and direct the entry of such order or request further proceedings to address the question of law or fact as needed under the circumstances.

Appeal to the Connecticut Supreme Court

Appeals to the Connecticut Supreme Court occur as a matter of discretion. Any aggrieved party may petition for review. Connecticut Practice Book § 84-1, et seq.

SETTLEMENT

Settlements are permitted under the Workers’ Compensation Act. Generally, settlements occur as full and final settlements and are intended to resolve issues with past, present and future medical and indemnity benefits for the subject claim. In certain instances, settlements are approved for indemnity benefits only, leaving the medical treatment portion of the claim open. Depending on certain factors, including the age of the claimant and the value of the settlement agreement, a Medicare-Set-Aside may be needed but pursuant to CMS regulation, Medicare’s interest must at least be considered in the prospective settlement and the settlement agreement, the stipulation, must reflect that the parties considered Medicare’s interest and how it impacts the claim.

The WCC also permits settlement of limited issues via stipulation-to-date. These agreements will generally be limited to a specific class of benefits or timeframe but do not impact the overall compensability of the claim.

Prior to a settlement being finalized, the Commissioner must review the proposed agreement and canvas the claimant regarding the prospective agreement in relation to the claimant’s injuries, treatment to date, employment status and/or outlook and what, if any, future treatment is anticipated. If the Commissioner is not satisfied that the proposed agreement fairly compensates the claimant, the Commissioner will not approve the agreement. This is especially true in cases where the claimant is self-represented. If the Commissioner is satisfied that the proposed agreement fairly compensates the claimant, the stipulation will approved and a copy of the original approval will be provided to each party.

Payment of the settlement proceeds must be received by the 20th day following the date of approval or the stipulation. If the settlement proceeds are not timely received, the respondent is responsible for the payment of a penalty equal to 20% of the overall settlement. This penalty is paid to the claimant. C.G.S. § 31-303

While there is no formal program for mandatory or voluntary mediation, there is no prohibition against the parties conducting their own non-binding mediation to either attempt to narrow the issues or resolve the claim completely.

INSURANCE

General Rule

Each employer potentially liable for the payment of workers’ compensation benefits in Connecticut must either obtain insurance from a licensed insurance carrier authorize to issue workers’ compensation insurance in Connecticut or qualify for a mutual insurer program or apply and be granted Self-Insurance status. C.G.S. § 31-284.

Particular Requirements

Whenever any employer insures its liability with any authorized compensation insurance carrier in Connecticut, the third-party beneficiary of that contract of insurance shall be any employee who sustained a work-related injury or, in the event of such injury resulting in death, for the benefit of the dependents of such employee. This requirement extends to payment of death benefits including funeral expenses. C.G.S. § 31-340.

Mutual Insurance Agreements

C.G.S. § 31-328 permits employers of the same trade or business to associate and insure their compensation liabilities.

General Rule Where Employer Is Uninsured

An employer failing to comply with the requirements of the workers’ compensation act and fails to purchase compensation insurance is subject civil and criminal penalties. The civil remedies include monetary fines and possible injunctive relief in the Superior Court. An employer failing to obtain insurance could face a fine of up to $50,000 at the discretion of the commissioner. C.G.S. § 31-288.

Second Injury Fund

The uninsured employer will be the respondent in the initial workers’ compensation hearing. If the claim is found to be compensable and the commissioner finds that the employer did not carrier compensation insurance, a finding and award will be entered as to those facts. The Second Injury Fund will then become liable for payment of the medical and indemnity benefits to the claimant. If the Second Injury Fund becomes responsible, the Fund is then permitted to pursue recovery and fines against the offending employer including suspension of business licenses and injunctive relief. C.G.S. §31-355.