Workers' Compensation Developments 2009

• Publication year: 2021
• Pages: 137

Connecticut Bar Journal Volume 84.

84 CBJ 137. WORKERS' COMPENSATION DEVELOPMENTS 2009

Connecticut Bar Journal
Volume 84, No. 2, Pg. 137
June 2010

WORKERS' COMPENSATION DEVELOPMENTS 2009

By Robert J. Enright and John P. Clarkson(fn*)

I. INTRODUCTION

A.Scope of This Article

This article continues to trace the evolution of workers' compensation law through appellate cases. Whereas its predecessor(fn1) analyzed cases that were decided roughly between 2007 and 2009, this article focuses on decisions from 2009. It discusses, whether briefly or in considerable depth, most if not all Connecticut Supreme Court and Appellate Court cases from the year 2009. In this article the writers have sought to refine, where appropriate, their analysis of cases from the predecessor article. They have also interpolated discussion of cases that were decided in the early months of 2010. The writers have tried to offer dispassionate analysis that is oriented to practitioners. The article does not warrant that every appellate case from 2009 is identified. And, while the writers stand by their analysis, practitioners must read every case themselves and exercise independent judgment.

B.Sources of Law

The predecessor article included a short introductory section about the genesis and administration of the Act. In this article the writers have seen fit to include a short summary of sources of workers' compensation law, for the purpose of encouraging practitioners to explore the place of "new" developments on a long and volatile continuum of legal and legislative changes.

The most obvious source of law to consult at any given moment is Volume 14 of the General Statutes Annotated; it contains Chapter 568 of Title 31: the "Act." On a weekly basis practitioners must check the Connecticut Law Journal for appellate decisions that deal directly with workers' compensation issues. Practitioners should remain alert to the fact that, occasionally, cases that do not directly decide workers' compensation appeals nevertheless intersect with some aspect of workers' compensation law.(fn2)

Practitioners must read the opinions of the Compensation Review Board (CRB), the appellate tribunal of the Workers' Compensation Commission. By now the Compensation Review Board has generated an immense corpus of law. The Connecticut Trial Lawyers Association collects and summarizes these opinions. Until recently, the Commission promulgated supplements to its biannual statute bulletins that organize and summarize all decisions of the Compensation Review Board and Compensation Review Division (the Board's predecessor). The Commission discontinued publication of these bulletin supplements, the last of which was the Supplement to Bulletin No. 47 which was published December 31, 2006. The best source of the opinions is now the Commission's website.

Practitioners should also consult, on a weekly basis, the Connecticut Law Reporter for Superior Court decisions that involve an interplay between civil litigation and workers' compensation issues. Such interplay arises, for example, in the context of subrogation and exclusive remedy issues.(fn3)

The Workers' Compensation Section of the Connecticut Bar Association has, for many years, published Compensation Quarterly, which features scholarly articles on not only legal, but medical topics. It also includes astute summaries of appellate decisions, from all levels.

Finally, practitioners have recourse to no less than two formidable treatises on Connecticut workers' compensation law.(fn4) The appearance of these treatises over the last several years forces practitioners to recognize both the depth and amplitude of their subject; these treatises put the seal on recognition of workers' compensation law as a distinct and significant area of practice.

II. IS THIS THING CALLED "COMP" A "CIVIL ACTION"

The predecessor article posed this somewhat facetious question: What is this thing called "comp"? Whatever definition one might wish to attach to a proceeding before the Workers' Compensation Commission, it is not a "civil action."

In director of Health Affairs policy planning v. Freedom of Information commission,(fn5) the Connecticut Supreme Court addressed generally whether a proceeding before an administrative agency could be a civil action. It held that the use of the term "civil action" under General Statutes Section 19a-17b(d), which pertains to access, through civil discovery, of medical peer review proceedings, does not include proceedings before the Freedom of Information Commission.(fn6)

In analyzing the issue it noted that an appeal from a ruling by the Workers' Compensation Commissioner is not a civil action.(fn7) The opinion noted not only similarities, e.g., procedural formalities, but distinctions between civil actions and administrative proceedings, going on to state that "superficial" similarities between administrative proceedings and court actions "cannot overcome the obvious difference that the two proceedings take place within two distinct and separate branches of government."(fn8) Still, practitioners must be aware that the courts would entertain an argument that, at least for some purposes, a proceeding before the Workers' Compensation Commission constitutes a "civil action."(fn9)

III. "OCCUPATIONAL DISEASE" AS "INJURY" UNDER THE ACT

"Occupational disease" is one of the three categories of statutory injury, and its somewhat restrictive definition, which refers to disease "peculiar to the occupation" and "due to causes in excess of ordinary hazards of employment," would seem to interpose obstacles to compensability.!(fn10) To the extent that such obstacles existed, the appellate courts now appear to have put their definitive imprimatur on an "inclusive" standard of causation that eases the way toward proof of compensability of occupational disease. In Chappell v. PfIzer, Inc.,(fn11) that translated into a burden on the part of the claimant to show simply "a direct causal connection between the duties of the employment and the disease contracted."(fn12) The claimant need not show that employment entailed an "increased risk" to contract occupational disease (in this case, asthma).(fn13)

Claimant worked as a chemical operator, and that caused involvement in all aspects of the fermentation process that was part of the manufacture of antibiotics. These duties increased exposure to airborne substances that caused asthma; they were not "common occurrences in most of the working world."(fn14) Exposures from those duties were "distinctively associated" with claimant's occupation-another way of saying that there was "a direct causal connection between the duties of the employment and the disease contracted."(fn15)

The chappell opinion does review the principal Connecticut Supreme Court precedents on proof of occupational disease.(fn16) One concludes that, notwithstanding statutory language mentioned above, compensability of occupational disease is analyzed no differently than the other categories of statutory injury: namely, the condition must have arisen out of and in the course of employment, or otherwise be "distinctively associated" with the occupation.

IV. THE "PROGRESSION" OF CATEGORIES OF INDEMNITY UNDER THE ACT

Monetary compensation under the Act is typically keyed to an injured worker's progress, through treatment, toward maximum medical improvement. That is, in the immediate aftermath of acute injury, for example, an individual might remain totally disabled, i.e., incapable of work altogether, for an interval of time. As recovery continues, that individual develops a work capacity, with limitations; that constitutes, in statutory parlance, "partial incapacity."(fn17) Then, when the injured individual reaches maximum medical improvement, eligibility arises for permanent loss of function to a scheduled body part; that individual might be entitled to receive "specific" benefits.(fn18) Finally, General Statutes Section 31-308a creates potential eligibility for further compensation, based upon diminished earning capacity, once "specific" benefits, i.e., benefits for permanent partial disability, have been paid.

While that progression is indeed what practitioners typically see, "finally" is not necessarily the last word on the subject. Where does eligibility for additional compensation stand, where benefits for permanency have been paid, and the injury in question is (a) serious and (b) its sequelae constitute a problematic medical situation; could the claimant revert to total incapacity status, under General Statutes Section 31-307 or otherwise, in contravention to any putative "progression"?

Such was the case in Marandino v. Prometheus pharmacy,(fn19) a case that emerged from this factual predicate: multiple right elbow surgeries, from which developed reflex sympathetic dystrophy/chronic regional pain syndrome; voluntary acceptance of significant permanency, with concomitant payment of specific benefits; and then, upon their expiration, "application" for restoration of total disability bene-fits.(fn20) The claimant marshaled the following evidence to support her application: an opinion from an attending physician that she could not work, as a result of complex regional pain syndrome and reflex sympathetic dystrophy; an opinion from the attending orthopedic surgeon that additional surgery might be required; and an opinion from a vocational expert to the effect that she was unemployable.(fn21)

The court rejected any idea that the Act contains any "strict" progression that militated against reversion to total disability upon completion of payment of specific benefits. It acknowledged that the Workers' Compensation Commissioner possessed the discretion to reinstate temporary total disability benefits-without, incidentally, the need on the part of claimant to file a Motion to Open the Voluntary Agreement under General...