Current Claimant Issues in Connecticut Workers' Compensation

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 78 Pg. 231
Pages231
Connecticut Bar Journal
Volume 78.

78 CBJ 231. CURRENT CLAIMANT ISSUES IN CONNECTICUT WORKERS' COMPENSATION

CONNECTICUT BAR JOURNAL
VOLUME 78, NO. 3

CURRENT CLAIMANT ISSUES IN CONNECTICUT WORKERS' COMPENSATION

BY KENNETH G. BARTLETT*

I. INTRODUCTION

This article is intended to provide an overview of several significant issues in the complex field of workers' compensation law, which, it is hoped, will be of use both to workers' compensation practitioners and to attorneys whose practice in this area of law is infrequent. It is emphasized that treatment herein is of selected aspects of workers' compensation law, which are believed to be of particular practical importance to attorneys handling workers' compensation cases, whether on a regular or infrequent basis. No attempt is made to provide a comprehensive discussion of all aspects of the field. Those seeking such comprehensive treatment are directed to the standard treatise by Severino.(fn1)

Practitioners should be aware that there is a wealth of helpful information now available on the State of Connecticut Workers' Compensation website.(fn2) Of particular importance are the features permitting the downloading of necessary forms, and that permitting the electronic filing of claims.(fn3)

The Commission's continued emphasis on developing practical and helpful resources through its website has made it easier for the legal practitioner to access recent rulings, Commissioner Directives and whether a given employer has

* Of the New Haven Bar; certified as a civil trial advocate from the National Board of Trial Advocacy and faculty member of the CBA Connecticut Trial Advocacy Institute.

1 ANGELO P. SEVARINO, CONNECTICUT WORKERS' COMPENSATION AFTER RE-

FORMS (3d ed., rev. 2005) (hereinafter Sevarino).

2 http://wcc.state.ct.us.

3 Attention is called to the Chairman's explanation of the manner in which EDI (Electronic Data Interchange) Claims Reporting functions in Connecticut. See http://wcc.state.ct.us/wcc/ edi3.htm. Also of great importance to the practitioner is the website feature containing links to over 1,500 Compensation Review Board (CRB) opinions, from October 1, 1994 to the present. See http://wcc.state.ct.us/crb/ menus/crb-opin.htm. Workers' compensation administrative decisions (from 1995) are alternatively available at http://www.ct.bar.org.

an approved PPO medical plan, discussed later. There is a wealth of standardized forms available in either a fillable or PDF format, with the goal of efficiency and standardization.

II. PRACTICAL CONSIDERATIONS

It is important that the potential client bring a recent pay stub with him or her to the initial interview. This obvious yet surprisingly overlooked document immediately establishes the correct legal name for the employer, rate of pay, etc. It is equally important to devote the time necessary to obtain a thorough medical and employment history. The recent enactment of HIPAA(fn4) has made the release of routine medical records even more time-consuming than in the past. While workers' compensation is exempted from that Act, much confusion has ensued, often resulting in delay in receiving key medical records. To address this concern, the Commission has recently established a standard medical authorization, which has been approved by the Connecticut Hospital Association. This standard medical release should now be used for all medical records requests in Connecticut. During the initial client interview, have your client sign several of these undated Commission-approved releases of medical/hospital records, so you can use them as needed. A more restrictive medical authorization is required for the release of medical records that contain HIV, illicit drug, or mental health patient information. If one or more of these issues arise in the course of your interview, your prospective client should sign a HIPAA release with this more restrictive language.

During the course of the initial interview, it is crucial that you find out the extent of previous injuries. Basic claim information for this prior injury can be obtained with a telephone call to the compensation office, including its date, the injuries claimed and maybe even the name of the claimant's treating physician. If it is the same body part, you should have your prospective client sign a medical authorization and request to examine the compensation file, if for no other rea-

son than finding out what ratings were assigned your client's prior injury.

In a small number of cases, you will find that the prior claim has actually been settled on a full and final basis. This is commonly known as a stipulation. A prior stipulation doesn't prevent a new claim from being pursued, even if it is for the same body part (e.g., lumbar spine), as long as the claimant sustained his new injury with a new employer. In all cases where there is a prior injury to the same part of the body, it is a hard and fast rule that any ratings given must be obtained.

Serious consideration should be given to having the claimant return to the physician who treated him or her for the earlier claim. This may not be possible if the physician is not in the new employer's preferred provider plan (PPO) or if the physician has retired. If a new physician is to start treatment, the complete medical records for the prior injury should be promptly obtained, including any reports of CT or MRI scans. Ratings assessed by prior physicians, mentioned above, should also be sent.

The 30c(fn5) form should be filed as promptly as possible. The better practice is to file a 30c on virtually every claim, even if compensability is not likely to be disputed. This filing must list the parts of the body that are claimed to have been injured. It is also necessary that a written fee agreement be prepared and signed by the client.(fn6)

Another threshold issue is ascertaining whether the

5 CONN. GEN. STAT. § 31-294c. Notice of claim for compensation. Notice contesting liability.

(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury.

6 As a general rule, an attorney is prohibited from charging a legal fee unless there is a written fee agreement setting forth the terms of the agreement between the attorney and client. See Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, cert. denied, 239 Conn. 938 (1996), overruled in part on other grounds, Gagne v. Vaccaro, 255 Conn. 390, 408 (2001). Our Appellate Court held that CONN. GEN. STAT. § 52-251c(a) "clearly requires that all contingency fee agreements be reduced to writing." 43 Conn. App. at 189. The court in Silver also expressly rejected the enforceability of an oral contingency fee agreement as being violative of the public policy of this State. Id. at 190.

claimant's employer has an approved PPO for medical treatment, as defined in General Statutes Section 31-279c.(fn7) If the employer has such a plan, the employee's medical options are severely limited. With limited exceptions, the employee is required to select a physician within the plan for medical treatment. Approved employer PPO plans are listed on the workers' compensation website.

While practicing law in this area clearly has its adversarial component, it is often beneficial to allow insurance claim representatives to take the claimant's written or recorded statement. Even the best of memories dull over the passage of time, so it makes sense to have any important factual information reduced to writing sooner rather than later.

One benefit from being less adversarial in approach is that you may have an increased role in the selection of treating and referred physicians. Networking with other attorneys will assist in identifying those local physicians who are actively engaged and thus are familiar with the medical/legal nuances of compensation.

Early on, you also should send a letter of representation to the treating physician, requesting a copy of all office notes as they are generated, along with the previously mentioned signed release of medical authorization. It is advisable to indicate clearly that this is a work-related injury claim, so that it is initially and correctly coded by the physician's billing department. This will minimize delay in obtaining records.

The best compensable claim can be seriously compromised if the treating physician can not be bothered with providing timely copies of office notes. Specific state regulations have been enacted by the Board of Compensation Commissioners, setting forth the basic obligations of the attending physician treating injured employees under Chapter 568.(fn8) These obligations include, for example,

"keeping the employer or insurance carrier advised of any significant (medical) development in the course of his treatment"(fn9) and making himself available as a medical witness.(fn10) Repeated violations of these provisions may result in that physician's being removed from the list of approved physicians.(fn11) Historically, there has been a reluctance on part of the Commission to remove physicians who have been chronic violators of the basic compensation requirements. A physician who provides medical services is obligated to fulfill these basic compensation requirements, even if that physician is not in the employer's health care plan.(fn12)

During this initial stage, the attorney should also thoroughly investigate the potential for a third-party tort claim. The most prevalent claim is the negligent use of a motor vehicle by a fellow employee under General Statutes Section 31-293a.(fn13) The only way to rule out the existence of the third-party claim definitively is to...

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