Chair Column: What's next? A Prospective Glimpse at the Commission and the Workers' Compensation Act

The party is over. The first one hundred years of the Workers' Compensation Act are tallied and in the books. All of those old statute books that look like replicas out of something from the Constitutional Era are now back in the archives. We stare at the mustard-colored Bulletin No. 50, or more likely our iPad screen with that weird glare, and peruse through the seemingly dull text of what was the last 100 years of legislative thrust and parry formalized in the Workers' Compensation Act.

What's next? A phrase my late father seemingly had ready for me during various and unsuspecting stages of my journey - whether after crashing my Camaro into a parked car during a snow storm when my mother insisted I stay at home, after moving to Connecticut and graduating from law school or following the birth of my third child - mostly in times that I didn't really want to ponder the deeper fascinations of my place in the universe

I'm sure now doesn't seem like a good time to think about the next 100 years of the Workers' Compensation Act or the Commission within which we practice. We still have a nicely carved out practice area (not within the Department of Labor) with a set of well-established legal principles that have balanced the interests between injured worker and employer for the last century. What's next? Let me take a shot at what may be the burgeoning areas to affect our practice for better, worse or somewhere in between:

I. Technology and the Commission
I guess the good news is that the Chairman has confirmed that state funds have been allocated to upgrade the Workers' Compensation Commission's technology within the Commission offices. What this will entail remains to be seen. Will e-filing of forms be part of the project? Will law firms be required to take place in this process? The real issue is whether the workers' compensation practitioner will embrace these changes within our current "battle of the forms" forum.

I consider myself a "tweener" when it comes to the modern technological office structure - meaning in between someone who has no clue about how to scan in a document and email it and someone who has an online firm management program stored in the cloud on an app within on their mobile device with military grade encryption and the instant ability to Face Time, Skype or chat with a client via some other electronic method besides old school telephone. That said, I think that a majority of members within our Section, myself included, are a bit behind the times in this department. E-filing in Superior Court is custom. The compensation system has chipped away at this technological ice sculpture with the Commission's issuance of email hearing notices and delivery of CRB decisions by way of email as well. If we are motivated by efficiency in the mobile world, why are we attending hearings (e.g. in Stamford) that can be resolved via text message in three texts or less? We are only as good as we make use of the technology in front of us. Let's hope that future of technology brought to our system assists the lawyers at the controls to strive toward responsible practice and resolution of pending issues.

Our Section will be active on this front. We have initiated the Technology Committee which sounds way too ominous and two co-chairs have already been appointed (thank you Maribeth McGloin and Jeremy Brown). Reaching our Section members in today's mobile and digital world is a challenge we must meet. Hopefully, as a Section, and in conjunction with the Commission's evolution, we can flourish in this instant info era together. Maybe take a selfie or two along the way...

II. Anticipated (or not anticipated) Legislation
Sometimes you don't see it coming. I'm not sure that the Legislature or any statistician (NCCI comes to mind) predicted the impact of the Legislative reform packages installed by House Bill 7172 and made effective on July 1, 1993 - later referred to as simply the "'93 Reforms." Is there something brewing now for future legislative review that could substantially impact the way business is done by employers and insurers within the construct of the Workers' Compensation Act? I'm not sure the filing of a Form 36 to discontinue medical treatment would qualify as something in the significant category.

I haven't seen an injured workers' lobby to push legislation for the benefit of the injured worker since becoming a champion for the claimant. However, legislation often appears in spurts to protect the interest of the injured worker (e.g. elimination of Social Security offset, penalties revised subject to C.G.S. §31-288(b) to pay claimant directly for instances of delay). There seems to be a curious balance that has kept the injured worker and the employer walking the tightrope for the first hundred years of the Act. Interestingly, the Commission has been privy to several tragic events with significant losses sustained by injured workers and insurers over the past half century. A quick list version: The L'Ambiance Plaza (1987), Connecticut Lottery shooting (1998), World Trade Center bombings (1993), Terrorist Attacks of September 11, 2001, Kleen Energy explosion (2010), Hartford Distributors shooting (2010), Sandy Hook Elementary shooting in 2012. While providing focus on potential losses, none of these tragic events or the cumulative effect of them appear to have upset this balance over the long haul.

Ultimately, the answer as to what legislation may affect our system over the next one hundred years rests on Connecticut's economy. I'm looking for an economic reason or reasons for a shift of the pendulum in the other direction from the '93 Reforms. According to a recent presentation by NCCI State Relations Executive, Laura Backus Hall at our Symposium, our current "loss costs" are modest based on our northeastern sister states (i.e. +3.2% in Connecticut as of 1/1/14 as opposed to New York approaching a +10%, New Jersey at +8.3% and Rhode Island at +7.4%). Could all of this relatively benign economic data mean a status quo for Connecticut employers in the workers' compensation arena for the foreseeable future? I am sure each of you has thoroughly read the Affordable Healthcare Act and can report its effects on the state's economy in 30 words or less. Perhaps the ACA is something to keep an eye on as Connecticut employers continue to fight to manage the high costs of doing business within the state and beyond.

Maybe I'm seeking too drastic a result. There is the possibility that health care reform could better the picture for both the injured worker and the employer. Although the impact of reform is uncertain, the costs of generic drugs and the Chairman's issuance of the pain management protocols might actually reduce the costs of prescription medications over the long term. Technology and wellness initiatives may also be factors in reducing the incidence and duration of workers' compensation claims.

III. CMS: Increased focus on MSA's
We already know that workers' compensation settlements meeting certain qualifications must adequately consider Medicare's interests and be approved by CMS. But the overlap of "Big Data" and the difficulty of resolving claims given projected medical costs remain problematic for our practice.

IV. The Sitting 16
Wasn't that Section meeting/Retirement celebration of Commissioner Vargas a great sendoff? Well, we may have a few more lined up in the (near) future as you look at that list of presiding Commissioners on page (i) of your Bulletin. We cannot be certain what may occur behind closed doors at Commissioner Meetings, but you have the feeling that this group is on the same page. There was a recent reassignment of Commissioners in January and there will be an adjustment period for both Commissioner and practitioner. But the hearing process itself seems to have become more efficient and the Commissioners appear to be enjoying a period of stability. Credit for this stems from the Chairman's leadership and ability to draw all parties toward reasonable tact. Perhaps this is one time we can defy the phrase - don't know what you got until it's gone. We know and it's a good thing.

Editor's note: Attorney Lawrence Morizio is a partner in the firm Cousins, Desrosiers & Morizio and is the Chair of the Workers' Compensation Section of the Connecticut Bar Association.