CRB Case Annotations re: Section 31-293

CRB reversed denial of medical treatment, noting that commissioner misstated “reasonable or necessary” medical treatment standard, pursuant to § 31-294d, as “reasonable and necessary” and denied three-level fusion on basis that medical evidence demonstrated recommended surgery was reasonable but not necessary. CRB affirmed decision to allow RME after commencement of formal proceedings and denial of claimant’s second motion for extension of time to file motion to correct on basis that §§ 31-278 and 31-298 afford commissioners wide discretion relative to conduct of hearings and submission of evidence. CRB declined to reach claim of error alleging deprivation of due process arising from denial of opportunity for claimant to submit rebuttal evidence following RME. CRB affirmed denial of deduction from respondents’ moratorium certain medical expenses and costs associated with claimant’s bankruptcy filing, noting that claimant failed to establish that said expenses and costs constituted “reasonable and necessary expenditures” as contemplated by § 31-293 (a). CRB affirmed denial of motion to correct, noting that proposed corrections reiterated arguments made at trial which were ultimately unavailing. CRB denied respondents’ motion to dismiss given that motion was not filed until after expiration of ten-day deadline which began to run when claimant failed to timely file her reasons for appeal. CRB found respondents waived any alleged defect and failed to demonstrate that claimant’s late filing had prejudiced their ability to defend claim. See also, Lionetti, § 31-278, § 31-294d, § 31-298, § 31-301 Factual findings, § 31-301-2, § 31-301-4.

Letaj v. ATMI, Inc., 6186 CRB-5-17-4 (January 11, 2019), appeal pending, A.C. 42541 (January 30, 2019).

Claimant filed suit against third-party tortfeasor and respondent-insurer sent lien letter regarding advanced compensation benefits to defendant’s attorney. Case settled and insurer sought payment of lien. Claimant argued that failure to notice the tortfeasor negated the lien letter as they claimed the statute required respondent to serve notice on a “party”. Trial commissioner accepted this position and denied enforcement of lien. On appeal, CRB reversed. Schreck v. Stamford, 250 Conn. 592 (1999), stands for proposition that notice served on a party’s attorney serves as notice to a party. Failure to honor lien would result in an impermissible double recovery to the claimant.

Claimant settled tort action regarding compensable injury and moratorium put in place for workers’ compensation. She argued that either expenses paid by group health carrier for surgery or in the alternative her group health premiums should be credited against the moratorium. Trial commissioner denied this bid and CRB affirmed denial; citing Bilodeau v. Bristol Assn. for Retarded Citizens, 4245 CRB-6-00-5 (May 29, 2001), appeal dismissed, A.C. 22031 (2002) and Gallagher v. John A. Dudley, D.M.D., 5067 CRB-4-06-3 (March 20, 2007).

Claimant settled suit versus third party tortfeasor and pursuant to Public Act 11-205, retained 1/3 of net settlement exclusive of lien from worker’s comp. carrier. When claimant sought additional treatment, carrier sought a moratorium for this expense against claimant’s tort settlement. Trial commissioner agreed with this interpretation. On appeal, CRB affirmed decision. Review of PA 11-205 indicates it was intended to promote settlements of cases where a large lien exceeded settlement amount. Claimant in this case in same position that in absence of PA 11-205 he would have been with large tort award; carrier still had moratorium rights against net proceeds as legislative history does not evince an intent to modify judicial interpretation of the moratorium statute. Supreme Court reversed. Claimant settled suit versus third party tortfeasor and pursuant to Public Act 11-205, retained 1/3 of net settlement exclusive of lien from worker’s comp. carrier. When claimant sought additional treatment, carrier sought a moratorium for this expense against claimant’s tort settlement. Trial commissioner agreed with this interpretation. On appeal, CRB affirmed decision. Review of PA 11-205 indicates it was intended to promote settlements of cases where a large lien exceeded settlement amount. Claimant in this case in same position that in absence of PA 11-205 he would have been with large tort award; carrier still had moratorium rights against net proceeds as legislative history does not evince an intent to modify judicial interpretation of the moratorium statute. Supreme Court however inferred legislative intent to extend protection against future treatment expenses.

Respondents sought repayment of allegedly overpaid compensation to the claimant, citing in part moratorium from third party action and prior orders in the case. Trial commissioner denied claim for reimbursement. On appeal, CRB remanded matter. Record indicated that trial commissioner could have reasonably found respondent’s evidence as to amount sought unpersuasive, but the “law of the case” required implementing certain prior findings barring a change in circumstances. See also, Barichko, § 31-296; § 31-298; § 31-301 Factual findings; § 31-301(g).

Lubrano v. Mohegan Sun Casino, 5560 CRB-2-10-6 (June 3, 2011), aff’d, 138 Conn. App. 812 (2012), cert. denied, 307 Conn. 942 (2012).

Claimant, rendered quadriplegic following workplace neck injury, and spouse settled third-party lawsuit in which award was almost evenly split between claimant and spouse’s loss of consortium claim. Respondents challenged trier’s determination that he lacked jurisdiction to review reasonableness of settlement or reallocate spouse’s portion. CRB affirmed based on holding of Soracco v. William Scotsman, Inc., 292 Conn. 86 (2009) in which Supreme Court held that because rights of an employer in third party action are defined by § 31-293(a) C.G.S., employer does not have standing to challenge allocation of settlement proceeds between claimant and spouse and courts do not have authority to dictate terms of such settlements. Respondents also challenged trier’s determination that respondents were not seeking repayment of workers’ compensation benefits paid to claimant. CRB affirmed, noting counsel for respondents had specifically stated same at trial. CRB also affirmed trier’s denial of respondents’ Motion to Correct. See also, Lubrano, § 31-301-4.

Claimant, the estate of a Connecticut resident who sustained injuries in a motor vehicle accident in New York while en route to a business meeting at his employer’s headquarters in New Jersey, appealed trier’s dismissal of claim for lack of subject matter jurisdiction. Although claimant presented evidence attesting to existence of a residential home office, claimant’s decedent had been a salesperson whose assigned territories were in New York. Trier ultimately determined that claimant had failed to show a significant relationship between Connecticut and the employment relationship consistent with the three pronged test set forth in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991) and Burse v. American International Airways, Inc., 262 Conn. 31 (2002). CRB affirmed, rejecting claimant’s argument that Jaiguay v.Vasquez, 287 Conn. 323 (2008), which assessed merits of a lawsuit filed in Connecticut pursuant to § 31-293a C.G.S. (“exclusivity provision”), set forth an “expansion” of Cleveland test which trier failed to apply. See also, Baron, § 31-278, § 31-301. Factual findings.

Claimant, who sustained injuries when struck by a motor vehicle and ultimately entered into a third party settlement, appealed trier’s findings relative to disposition of credit/moratorium due State of Connecticut. CRB determined remand for clarification was necessary given that trier appeared to reach two mutually inconsistent conclusions as to whether state’s lien had been satisfied or remained outstanding. Evidentiary record was also inconclusive because neither party provided documentation memorializing final disposition of lien, although claimant did offer correspondence provided by Attorney General’s office setting forth its intent to waive lien in exchange for credit against future workers’ compensation benefits. CRB determined trier’s failure to grant corrections sought by claimant likewise constituted reversible error. See also, Gage, § 31-301. Factual findings, § 31-301-4.

CRB reversed trial commissioner’s holding that respondent who sent a lien letter to a claimant involved in a third party action was only entitled to recover the amount declared in the lien letter. CRB held lien protections afforded by § 31-293(a) permits a respondent reimbursement for sums paid pursuant to chapter 568 and a credit for future payments.

Trial commissioner awarded claimant an offset against the amount of her third party moratorium to reimburse her for group health insurance premiums. Respondents appealed and CRB reversed this portion of the Finding and Award. U.S. Supreme Court precedent has been applied to pre-empt this type of relief, District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 127 (1992). CRB has applied this precedent to bar reimbursement of insurance premiums, Luce v. UTC/Pratt & Whitney, 3080 CRB 1-95-6 (December 16,1996) aff’d, 47 Conn. App. 909 (1997) (per curiam), aff’d, 247 Conn. 126 (1998). See also, Gallagher, § 31-294d, § 31-301. Factual findings.

Williams v. Merestone Construction, 4436 CRB-4-01-9 (July 3, 2002), appeal dismissed, A.C. 23281 (October 24, 2002), A.C. 24164 (March 25, 2004), cert. denied, 269 Conn. 905 (2004).

See, Williams, § 31-301. Appeal procedure, § 31-355(b).

Claimant received settlement in third-party action, and respondent insurer was entitled to credit of $33,562.63 against future benefits. Compensation for temporary partial disability benefits was presently terminated. Claimant then underwent surgery on cervical spine. Respondents initially declined to accept liability, and after finally doing so over a year later, declined to offset medical costs in order to shorten moratorium. Instead, insurer applied full value of credit against award of cervical spine permanency benefits. Trier found that, pursuant to Pokorny v. Getta’s Garage, 219 Conn. 439 (1991), credit could not be reduced by neck surgery payments that had been made by claimant’s group health carrier, and that had not been repaid to group insurer by respondents. CRB affirmed. Claimant’s strategy for reducing moratorium presumed group health insurer could be made to assume ultimate liability for neck surgery. Health insurer possesses reimbursement rights under § 31-299(a) and § 38a-470 against employer or workers’ compensation insurer when it pays benefits pursuant to health insurance policy for medical treatment later shown to be related to compensable injury. Under Pokorny, issues regarding obligations to pay for such bills lie between respondents and medical insurance carrier. If all parties availed selves of their rights, no one party would be left with a windfall. See also, Bilodeau, § 31-299a, § 31-300.

Schreck v. Stamford, 3322 CRB-7-96-4 (May 17, 2001), rev’d on other grounds, 72 Conn. App. 497 (2002).

Trier found that respondent’s failure to strictly adhere to § 31-293’s provisions was due to reliance on representations of claimant’s counsel, and held that it still held a right to a credit against third-party proceeds. CRB affirmed. Factual grounds existed to establish basis for respondent’s belief that counsel was keeping it apprised of third-party action. As claimant had already paid respondent over $50,000 as reimbursement for lien, respondent had reason to expect that the remainder of its credit/moratorium right would also be honored. See Longo v. Leibovitz, 3464 CRB-3-96-11 (Jan 15, 1998), infra. Employer retains continuing right to credit for present worth of probable future payments, either known or unknown, to extent that there are excess proceeds from third party recovery. CRB also held that respondent was not entitled to take credit for an amount that claimant collected pursuant to an underinsured motorist policy owned by the company whose vehicle he was driving at the time of his automobile accident, following Matteo v. Alvarez, 53 Conn. App. 452, 454-55 (1999). See also, Schreck, § 31-300, § 31-301. Appeal procedure. Prior decision at Schreck, 3322 CRB-7-96-4 (September 23, 1997) (dismissal order), rev’d, 51 Conn. App. 92 (1998), rev’d on different grounds, 250 Conn. 592 (1999), appeal reinstated, 3322 CRB-7-96-4 (July 21, 2000), § 31-301. Appeal procedure.

Motion for Reconsideration granted February 14, 2000. Board affirmed trial commissioner’s decision that the Fund was entitled to a credit for the claimant widow’s settlement of a third party suit, and that said credit applied to the widow’s recovery for wrongful death but not to her recovery for loss of consortium. CRB discussed claim for loss of consortium and policy of preventing double recovery. Additionally, board found that trier erroneously failed to allow credit under § 31-293 for wrongful death recovery which was paid to children, as the children were to be recipients of benefits under § 31-306. In support of her Motion for Reconsideration, the claimant argued that the entire wrongful death recovery allocated to the children is not appropriately a credit because the children’s interest will soon terminate under § 31-306(5). The board agreed with the claimant’s argument that the trial commissioner upon remand should reconsider the credit, taking into account the children’s entire wrongful death recovery.

Trier found that respondents were entitled to credit for future compensation benefits against claimant’s portion of third-party settlement. Claimant argued that language of release between respondents and third-party defendants waived right to reimbursement. CRB affirmed. Release was drafted for signature of civil suit defendants, not claimant, and its language did not necessarily waive entitlement to an offset.

No error in commissioner’s finding that the claimant did not prove that the amount of the respondents’ moratorium should be reduced because a third party settlement was made on account of wife’s loss of consortium claim rather than claimant’s lawsuit for personal injuries. Much of claimant’s argument was addressed in a prior CRB decision, and panel refused to readdress those matters. Subsequent decision in Schiano, 4104 CRB-4-99-8 (February 21, 2001), rev’d, 260 Conn. 21 (2002), § 31-278 , § 31-303, § 31-300. Prior decisions at Schiano, 3315 CRB-4-96-4 (May 16, 1997), § 31-301. Appeal procedure; Schiano, 1852 CRB-4-93-9 (December 7, 1994), aff’d, 57 Conn. App. 406 (2000), § 31-293, § 31-301. Appeal procedure.

The board affirmed the trial commissioner’s conclusion that the insurer did not forfeit its right to reimbursement pursuant to § 31-293. Where the claimant specifically negotiated with the insurer regarding reimbursement from a $100,000 settlement, it would not be reasonable to expect that insurer to file its own cause of action against the third party tortfeasor when the claimant’s attorney had agreed that the insurer had a right to reimbursement from said settlement. A reasonable inference is that the insurer’s failure to strictly adhere to the provisions of § 31-293 resulted from its reliance on the agreement which was signed by the claimant.

Trial commissioner ruled that respondents were entitled to offset against widow’s benefits any amounts recovered by claimant as a result of third party claims against asbestos manufacturers. Held: § 52-572r(c) was in effect on the date of the injury (12/14/90), and Krampetz v. Uniroyal Chemical, 11 Conn. Workers’ Comp. Rev. Op. 293, 1367 CRD-5-92-1 (December 8, 1993), held than that statute prohibits an employer from having a lien on any judgment received in a product liability claim, or a corresponding right of subrogation. No reason to overrule that doctrine here. Also, no evidence was offered regarding the parties’ compliance with the requirements of § 31-293.

Second Injury Fund need not receive notice before liability accrues for benefits. See also, Petraroia, § 31-352 for complete discussion of case.

Libby v. Goodwin Pontiac, 13 Conn. Workers’ Comp. Rev. Op. 182, 1637 CRB-2-93-2 (March 21, 1995), aff’d, 42 Conn. App. 200 (1996), aff’d, 241 Conn. 170 (1997).

Employer accepted injury as compensable; subsequently, claimant reached settlement with third party tortfeasor. Respondents were not involved in settlement, were not promised money from recovery, and did not file suit against third party under § 31-293. Held, employer forfeited right to reimbursement by failing to enforce its rights as prescribed by statute.

Schiano v. Bliss Exterminating, 13 Conn. Workers’ Comp. Rev. Op. 45, 1341 CRD-4-91-11, 1852 CRB-4-93-9 (December 7, 1994), aff’d, 57 Conn App. 406 (2000).

Where claimant recovers an amount in a third party action that is less than an employer’s lien, the employer may still take credit for the amount of the settlement against future payments due to the claimant. Testimony supported commissioner’s finding that Second Injury Fund and claimant agreed to a “moratorium” amounting to a credit rather than a postponement of benefits, which is consistent with § 31-293. No authorization in statute for commissioner to enforce credit against permanent partial disability benefits rather than temporary total disability benefits, however. Commissioner improperly found that moratorium applied to entire recovery made by claimant and his wife without first determining how much, if any, of the settlement was received for loss of consortium claim. Statute does not extend to settlements for consortium claims. Remanded. See also, Schiano, § 31-301. Appeal procedure. Subsequent decisions in Schiano, 3315 CRB-4-96-4 (May 16, 1997), § 31-301. Appeal procedure; Schiano, 3436 CRB-4-96-10 (April 8, 1998), aff’d, 57 Conn. App. 406 (2000), § 31-293; Schiano, 4104 CRB-4-99-8 (February 21, 2001), rev’d, 260 Conn. 21 (2002), § 31-278, § 31-303, and § 31-300.

Casman v. Lego Systems, 12 Conn. Workers’ Comp. Rev. Op. 178, 1520 CRB-3-92-10 (May 2, 1994).

Claimant is bound by the rules which govern proceedings within the workers’ compensation act where employer intervenes in third party tort claim in superior court. Both actions proceed independent of each other. See also, Casman, § 31-294f.

Although respondent employer timely intervened in a third party action and that action was settled, employer must file a Form 36 and obtain commissioner approval before discontinuing benefits. See, Mulligan v. Hall, 32 Conn. App. 203 (1993). See also, Mulligan, § 31-296.

CRB affirmed trier’s finding that decedent’s date of injury of December 7, 1981 controls whether § 52-572r applies. (Note: § 52-572r(c) was in effect from October 1, 1979 through July 1, 1993). As § 52-572r applies and § 31-293 does not, respondent employer had no right to an offset against any third party product liability recovery. See also, Krampetz, § 52-572r.

Sauer v. The Day Publishing Company, 9 Conn. Workers’ Comp. Rev. Op. 182, 1021 CRD-2-90-5 (August 19, 1991).

Remanded in accordance with Supreme Court’s ruling in Love v. J.P. Stevens & Co., 218 Conn. 46 (1991) and Enquist v. General Datacom, 218 Conn. 19 (1991) whereby the Supreme Court held an employer could receive credit for future compensation payments against a third party tort recovery.

O’Donal v. West Hartford, 10 Conn. Workers’ Comp. Rev. Op. 6, 917 CRD-1-89-9 (April 15, 1991).

Discussion of § 31-293(a) language. Section 31-293(a) does not allow reimbursement from a third party damage settlement for § 31-284b benefits paid. Also, even though collective bargaining agreement obligated the town to pay full pay during police officer’s period of disability, statute does not require reimbursement to the town beyond the two-thirds wages amount required under chapter 568.

Libertino v. Lerner Laboratories, Inc., 8 Conn. Workers’ Comp. Rev. Op. 152, 838 CRD-8-89-3 (September 21, 1990).

Remanded to determine validity of insurer’s lien. Trial commissioner has jurisdiction under § 31-293 to determine if lien is proper.

Enquist v. General Datacom, 7 Conn. Workers’ Comp. Rev. Op. 8, 623 CRD-7-87 (June 20, 1989), error, remanded, 21 Conn. App. 270 (1990), rev’d, 218 Conn. 19 (1991).

Employer who properly intervenes in a third party suit pursuant to § 31-293 is entitled to reimbursement for workers’ compensation benefits and a credit for future payments. See also, Love v. J.P. Stevens & Co., infra.

Love v. J.P. Stevens & Co., Inc., 6 Conn. Workers’ Comp. Rev. Op. 56, 378 CRD-7-85 (November 10, 1988), rev’d, 21 Conn. App. 9 (1990), rev’d, 218 Conn. 46 (1991).

CRD held trial Commissioner had authority to order credit for future payments made pursuant to Act from third party suit settlement. Note: Appellate Court reversed and held that respondents not entitled to credit as they failed to preserve their right for the present value of future probable payments under § 31-293. Supreme Court reversed ruling of Appellate Court.

Pokorny v. Getta’s Garage, 6 Conn. Workers’ Comp. Rev. Op. 161, 716 CRD-7-88-3 (June 2, 1989), rev’d, 22 Conn. App. 539 (1990), rev’d, 219 Conn. 439 (1991).

CRD disallowed claimant payment of medical expenses paid by private health insurer but for which no lien was filed. See also, Pokorny, § 31-300, § 38a-470.

Latham v. Jim & Joe General Contractors, 4 Conn. Workers’ Comp. Rev. Op. 51, 304 CRD-2-84 (April 13, 1987), error, remanded, 16 Conn. App. 138 (1988).

Trial commissioner’s determination that he lacked jurisdiction to decide a Motion for Reimbursement was error. CRD held reimbursement from settlement with third party auto insurer should not be granted as neither the claimant nor the respondent instituted suit. Remanded by Appellate Court.

Conard v. Haggerty Pool Service, 3 Conn. Workers’ Comp. Rev. Op. 96, 174 CRD-7-82 (November 19, 1986).

Where employer pays benefits for surgery stemming from a work related injury and said surgery results in malpractice which necessitates additional surgery, employer is entitled to reimbursement of benefits and a credit against future benefit payouts from third party settlement.

Skitromo v. Meriden Yellow Cab Co., 3 Conn. Workers’ Comp. Rev. Op. 37, 326 CRD 6-84 (February 26, 1986), no error, 204 Conn. 485 (1987).

Where carrier fails to intervene in employee’s third party suit, no right to reimbursement or reduction against future benefits.

CRB Case Annotations re: Section 31-293

Reimbursement and third party suits.