Michael Tedesco recently wrote an article in the Connecticut Mirror entitled “It’s Time to Fix Connecticut’s Broken Workers Compensation System.” Its premise is that insurance companies plan to “starve” applicants by rejecting claims contrary to their right to due process afforded by the 14th Amendment and that the Workers Compensation Commission does not effectively protect injured workers from such inequalities .
He goes on to claim that a task force set up by the governor in June 2019 to review possible remedies for unreasonably controversial or late claims did not produce any changes.
Far from the fact that the authors of this article (one being a lawyer representing employers and insurance companies and the other being a lawyer representing injured workers) let the truth get in the way of Tedesco’s story, but the facts do does not match the somber portrait he drew. If sunshine is the best disinfectant, as Justice Brandeis suggested, we’ll pull back the curtains and raise the blinds.
Let us first take the due process argument. While insurers often reject claims first to allow an investigation of the claim and the collection of medical records necessary to evaluate a claim, insurers must do so under current case law which requires the insurer / employer to either accept the claim contained therein accepts or rejects 28 days after making a claim. Failure by an employer / insurer to reject it in a timely manner may prevent it from rejecting the claim after this 28-day period has expired.
In practice, medical providers are often unable to respond to a request from either party to forward medical records within this 28-day period. The standard approval approved and promulgated by the Workers’ Compensation Commission is a useful tool, but some providers now require their own approvals. The difficulty of obtaining medical records and other information the insurance provider needs to determine if a claim can be compensated is compounded when there are numerous providers and / or previous injuries to the same body part. Often an insurer / employer will advance the benefits in the first phase of the investigation of the claim “without prejudice” in order to reduce the hardship.
How has the employee compensation system developed in the face of the pandemic? In essence, it didn’t skip a beat. Over the past year, workers’ compensation commissioners and workers continued to show up to do business. This has not been the case with the Supreme Court or many other government agencies that have ceased operations and in some cases have stalled.
Legal proceedings are being postponed indefinitely based on the latest reports. The Workers Compensation Commission remains fully operational and plans to have its first hearings an average of 22.8 days after an injured worker formally reports a claim. The hearings take place by telephone and with TEAMS. A total of 47,812 hearings were held in 2020, a slight decrease from 51,405 in the year before the pandemic.
Cases continue to be resolved (3,136 hearings in 2020, only 10% fewer than last year), 350 formal hearings (administrative proceedings) were heard, and complaints continued to be discussed and decided by the Compensation Review Board. In contrast to Tedesco’s horrific characterization of a curtailment of the 14th Amendment to the Constitution, the facts show that injured applicants have processed their claims quickly.
The employee compensation system has committed itself to hearing and postponing cases for injured employees and employers. In fact, even in these unprecedented times, the “broken” compensation system is an excellent example of how more can be achieved with less. During these toughest times, lawyers on both sides of the table have come together in an unprecedented spirit of collaboration to navigate these uncharted waters and do our part to keep the system working for all parties.
Are there inefficiencies in our system? Some may argue that it does. Should they be investigated and eliminated? If available, yes. Are there any claims moving slower than we might all like? Are there applicants whose actions and behavior serve to delay the processing of their own applications? Yes. Should additional legislation be considered to address perceived abuse in cases of unreasonable delay? A review of the current statutes will show that such legal remedies already exist.
However, whether or not legislation should be considered to deal with perceived abuses or unreasonable delays is a point at which writers need to part, each basing on their own perception of abuses that have arisen in representing their respective clients are. But even if the authors disagree on this point, we agree that we should postpone such a discussion before the legislature until the pandemic is over, which allows for full and fair advice on this important issue. When this storm is over, there will be plenty of time to look at the pros and cons of reforming the law to make an already well-functioning machine even more efficient and not to fix a broken system.
Attorneys Colette Griffin and Michael Kerin are employee compensation professionals who each served before the Connecticut Workers’ Compensation Commission for more than three decades.
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