Recently Michael Tedesco wrote an article that appeared in the Connecticut Mirror entitled “It’s time to fix the broken workers’ compensation system in Connecticut.” His premise is that insurance companies plot to “starve” claimants by summarily denying claims in derogation of their right to due process afforded by the 14th Amendment and that the Workers’ Compensation Commission is ineffective in protecting injured workers from such inequities.
He further claims that a task force which was established by the governor in June of 2019, to address potential remedies for unreasonably contested or delayed claims, has not produced changes.
Far be it for the authors of this article (one of whom is an attorney representing employers and insurance companies, and the other of whom is an attorney representing injured workers) to let the truth get in the way of Tedesco’s story, but the facts do not line up with the dismal portrait that he has drawn. If sunshine is the best disinfectant, as Justice Brandeis has suggested, then let’s pull back the curtains and lift up the shades.
Let’s take the due process argument first. While insurers often deny claims initially to allow for an investigation of the claim and the collection of medical records necessary to evaluate a claim, insurers are required to do so under existing case law which requires that the insurer/employer either accepts or denies the claim within 28 days of a claim having been made. The failure of an employer/insurer to make a timely denial may preclude it from denying the claim after that 28-day period has expired.
As a practical matter, medical providers are often unable to respond to a request to forward medical records by one of the parties within this 28 day time frame. The standard authorization approved and promulgated by the Workers’ Compensation Commission is a useful tool, but some of the providers now require their own authorizations. The difficulty obtaining medical records and other information necessary for the insurance adjuster to determine whether a claim is compensable is compounded if there are numerous providers and/or past injuries to the same body part. Frequently, an insurer/employer will advance benefits on a “without prejudice” basis during the initial period when it is investigating the claim, to mitigate the hardship.
How has the workers’ compensation system fared in the face of the pandemic? Essentially, it has not skipped a beat. Workers’ Compensation commissioners and staff continued to show up every day during the past year in order to conduct business. This was not the case with Superior Court or many other of the state agencies where business has been put on hold and in some instances has come to a standstill.
Jury trials are still postponed for the indefinite future based on the most recent reports. The Workers’ Compensation commission has remained fully operational, scheduling first hearings in an average of 22.8 days after formal notice of a claim is made by an injured employee. Hearings are being held via telephone and using TEAMS. In 2020, there were a total of 47,812 hearings that went forward, down only slightly from the 51,405 heard the year before the pandemic.
Cases continue to be settled (3,136 stipulation hearings in 2020, down only 10% from the preceding year), 350 formal hearings (administrative trials) were heard, and appeals continue to be argued before and decided by the Compensation Review Board. In contrast to Tedesco’s dire characterization of a curtailment of the 14th Amendment, the facts demonstrate that injured claimants have had their claims addressed expeditiously.
The Workers’ Compensation System has been committed to hearing and moving cases for injured workers and employers. In fact, the “broken” compensation system continues to be a shining example of getting more done with less even in this unparalleled time. During these most trying of times, counsel on both sides of the table have come together in an unprecedented spirit of cooperation to navigate these unchartered waters, and to do our part to make sure the system continues to work for all parties.
Are there inefficiencies in our system? Some may argue that that is the case. Should they be examined and eliminated? To the extent they exist, yes. Are there claims that move more slowly than we would all like, perhaps. Are there claimants whose actions and behavior serve to delay the processing of their own claims? Yes. Should additional legislation be considered to deal with perceived abuses in undue delay cases? A review of the current statutes will illustrate that such remedies already exist.
However, whether legislation should be considered to deal with perceived abuses or undue delay is where the authors must part company, each guided by his or her own perceptions of abuses that have occurred while representing his or her respective clients. But even if the authors disagree on this point, we are unified in putting off such a discussion before the legislature until such a time as the pandemic has passed, allowing a full and fair deliberation on this important issue. When this storm has passed, there will be plenty of time to devote to arguing the pros and cons of legislative reform, to make an already well-functioning machine even more efficient, not to fix a broken system.
Attorneys Colette Griffin and Michael Kerin are board-certified workers’ compensation specialists who have practiced before the Connecticut Workers’ Compensation Commission for more than three decades each.