Opinion
No. CV 03-0824499-S
April 4, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#123)
In her complaint, the Plaintiff, Kimberly Lesnewski, alleges three causes of action: breach of the covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act and negligent infliction of emotional distress, against her employer's workers' compensation insurance carrier, the Defendant General Casualty Company of Wisconsin. The Plaintiff claims that the Defendant failed to authorize surgery in a timely manner, failed to properly calculate and timely pay certain benefits, and failed to communicate with her doctor regarding the surgery. The Defendant has moved for summary judgment claiming that, based on recent Supreme Court decisions, the Plaintiff's action is barred by the exclusivity provision of the Workers' Compensation Act. The Plaintiff objects to the motion on the grounds that an issue of material fact exists as to "whether the defendant's conduct by failing to authorize surgical intervention in a timely manner, amounted to a Breach of the Covenant of Good Faith, a violation of the Connecticut Fair Trade Practices Act, negligent infliction of emotional distress, and/or that the defendant's conduct was so egregious that the insurer no longer could be deemed to be acting as an agent of the employer."
Objection to Motion for Summary Judgment.
The standards for granting summary judgment are well settled. "Practice Book § 17-49, provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. The test is whether a party would be entitled to a directed verdict on the same facts." (Internal citation and quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31 (2006).
In DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 504 (2005), our Supreme Court held that "we must construe the exclusionary provision's (§ 31-284[a]) of the Workers' Compensation Act) prohibition on damages actions for injuries `arising out of and in the course of . . . employment' to include injuries arising out of and in the course of the workers' compensation claims process." The Court went on to conclude that
the "fault or neglect" language in the provisions addressing improperly delayed or denied payments; General Statutes §§ 31-288(b) and 31-300; is broad enough to encompass the bad faith processing of a workers' compensation claim. See Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 342 (Ky. 1986) ("allegation that the benefits have been unpaid, whether negligently, recklessly or intentionally constitutes a denial without reasonable ground"); Kelly v. Raytheon, Inc., supra, 29 Mass.App. 1002 (noting with respect to statutory penalty for failure to pay without justification that, "to say that the failure to pay was `vexatious,' or not in good faith, or intentional, or negligent, or unfair, adds nothing of substance to the claim that the delay was not justified"). Indeed, the presence of penalties in the act reflects the legislature's cognizance of wrongful, not merely negligent, conduct.
Id. at 506. Subsequently, in Almada v. Wausau Business Ins. Co., 274 Conn. 449, 457 (2005), the Supreme Court agreed with Wausau "that, as a matter of law, the plaintiff's claim for negligent infliction of emotional distress, which arose out of and in the course of the workers' compensation claim process, is barred by the act, and, therefore, that the plaintiff's remedies are limited to those afforded under the act." (Footnote omitted.)
However the Court in DeOliveira did note that: "We recognize that there could be an instance in which an insurer's conduct related to the processing of a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer and, thus, a claim arising from such conduct would not fall within the scope of the act. Some other jurisdictions have recognized such a limitation. See, e.g., Unruh v. Truck Ins. Exchange, 7 Cal.3d 616, 620-21, 498 P.2d 1063, 102 Cal.Rptr. 815 (1972) (insurer's agent misrepresented identity to claimant, caused her to become emotionally involved with him and induced her to engage in unusual activities beyond her normal physical capabilities while another person filmed her, resulting in aggravation other physical injury and physical and mental breakdown requiring hospitalization upon claimant discovering deceit); Young v. Hartford Accident Indemnity Co., 303 Md. 182, 193, 492 A.2d 1270 (1985) (plaintiff who suffered emotional trauma after being assaulted at work alleged that carrier, in attempt to reduce its monetary exposure, insisted on psychiatric examination with deliberate intent that plaintiff either commit suicide or drop her claim, and plaintiff thereafter attempted suicide)." DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 507 (2005).
The Plaintiff claims here that she suffered injury as a result of delays in the payment of her workers' compensation claim as well as delay in the authorization of her surgery which caused her added pain and suffering.
It is clear that any claim based on delays in payments are barred by the exclusivity provisions of the Workers' Compensation Act pursuant to the Court's decision in DeOliveira. As to the alleged delay in authorizing the surgical procedure, the undisputed facts are that the Plaintiff's doctor recommended surgery on April 4, 2001 but the Plaintiff wished to obtain a second opinion before proceeding with the surgery. She was seen on April 12, 2001 for the second opinion. On April 25, 2001 she requested that the defendant approve her request that the surgery be performed. Plaintiff filed her claim for workers' compensation benefits on April 26, 2001. On May 14, 2001, the Plaintiff's doctor provided a written request to the Defendant for authorization to perform the surgery. The Plaintiff's symptoms continued to worsen during this time. On June 25, 2001, the Defendant authorized the surgery and on July 13, 2001 the surgery was performed.
The Plaintiff first argues that unlike the provisions regarding the payment of compensation benefits addressed by the Court in DeOliveira and subsequently in Almada, the Workers' Compensation Act has no provision for the imposition of penalties when an insurer fails to authorize medical treatment in a timely manner. Therefore the Plaintiff claims that a cause of action for bad faith processing of a workers' compensation claim as it relates to delay in medical treatment is not barred. This court does not agree. The Plaintiff did have a number of remedies under the Act. First, General Statutes § 31-299a(b) provides that: "Where an employer contests the compensability of an employee's claim for compensation, and the employee has also filed a claim for benefits or services under the employer's group health, medical, disability or hospitalization plan or policy, the employer's health insurer may not delay or deny payment of benefits due to the employee under the terms of the plan or policy by claiming that treatment for the employee's injury or disease is the responsibility of the employer's workers' compensation insurer." Thus the Plaintiff could have proceeded with the surgery utilizing her own insurance. The Plaintiff does not deny this was an option but her attorney claimed, at oral argument on this motion, that she was not required to utilize her own insurance. Yet the statutes specifically allow for this as an option if medical care is being denied or delayed by the workers' compensation insurance carrier.
A review of the administrative regulations and other statutory sections lends further support to our determination that it was the intent of the legislature to remove the employee completely from any responsibility for payment of medical expenses, in order to ensure that the employee receives "quick and certain compensation"; Mingachos v. CBS, Inc., supra; including medical treatment in exchange for compromising his right to sue his employer in tort. Pursuant to General Statutes 31-279, in 1973 the commission adopted regulation 31-279-9(e), which provides that "[a]ll charges for medical, surgical, hospital and nursing services, except those for expert testimony, shall be solely the responsibility of the employer or carrier, and no claim will be made against the injured employee for all or part of the fees." Therefore, under our Workers' Compensation Act the employee is relieved of any responsibility for his medical bills from the outset, leaving the employer and the provider of the medical care as the sole interested parties in any dispute concerning medical bills. In addition, General Statutes 38-174n, which permits certain medical insurance carriers that pay the medical expenses of the employee to assert a lien on the workers' compensation award, provides that the workers' compensation carrier "shall reimburse the . . . [medical insurance carrier] providing benefits or services directly, to the extent of any such lien." (Emphasis added.) General Statutes 31-299a provides that where an employer contests liability for a workers' compensation claim, the employer's health insurance carrier may not delay or deny payment of the employee's medical bills . . . The language of 38-174n and 31-299a mandating direct payment by the employer or its carrier to the medical provider, without mention of the employee, indicates that the intent of the legislature was to remove the employee completely from the arena of battle over payment of medical expenses.
Pokorny v. Getta's Garage, 219 Conn. 439, 457-58 (1991).
Second, General Statutes § 31-297 provides that:
"If an employer and his injured employee, or his legal representative, as the case may be, fail to reach an agreement in regard to compensation under the provisions of this chapter, either party may notify the commissioner of the failure. Upon such notice, or upon the knowledge that an agreement has not been reached in a case in which a right to compensation may exist, the commissioner shall schedule an early hearing upon the matter, giving both parties notice of time and place not less than ten days prior to the scheduled date; provided the commissioner may, on finding an emergency to exist, give such notice as he finds reasonable under the circumstances.
Thus, even if the Plaintiff chose not to seek coverage of the surgery under her medical insurance policy, she still could have requested an emergency hearing with the commissioner to seek an order that the Defendant immediately authorize the surgery. The Plaintiff did not avail herself of this remedy which could have eliminated the delay in the surgery.
The Plaintiff argues that her claim falls within the exception to the exclusivity provisions of the Workers' Compensation Act that the Court referenced in DeOliveira. There the court indicated that conduct by the insurer which is "so egregious" that the insurer can no longer be deemed to be the agent of the employer, may be actionable and not barred by the exclusivity provisions of the Workers' Compensation Act. The Court did not find such conduct in DeOliveira. There the insurer had failed to make disability payments as well as to pay attorneys fees owed to the Plaintiff for three years. The Plaintiff also cites Continental Casualty Insurance Company v. McDonald, 567 So.2d 1208 (Ala. 1990), in support of her claim. There the court refused to overturn a jury verdict in favor of McDonald on his claim of the tort of outrage, or intentional infliction of severe emotional distress, against his employer's workers' compensation insurance carrier. The court found that the evidence was such that "the jury could have concluded that the insurer engaged in a pattern of delays in order to cause distress to McDonald and pressure him into settling." Id. at 1212. The evidence there revealed that there had been multiple delays by the insurer in paying McDonald's health care providers to the point that they were threatening lawsuits against him and refusing to fill his prescriptions. McDonald's doctor, who had been selected by the insurer, advised the company that multiple delays in his treatment were very detrimental to McDonald's physical condition and were causing an increase in his narcotic dependency problem. Even taking the facts alleged by the Plaintiff as true, the facts here are not as the Plaintiff claims, "remarkably similar" to those in Continental Casualty. Here, the time from the date of request to the date of approval of the Plaintiff's surgery was approximately eight weeks. Such a delay does not meet the level of outrageous behavior evidenced in Continental Casualty or the egregious behavior referred to in DeOliveira.
Therefore the Defendant's motion for summary judgment is granted.