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Medical Marijuana and the Connecticut Workers' Compensation Commission

Ever since Connecticut passed legislation allowing for the use of medical marijuana for qualifying patients, those of us in the workers' compensation bar knew it was not a matter of "when" not "if" the issue would come up in the Commission.

Less than two weeks ago, the initial policy appears to have been set: medical marijuana can be a compensable treatment for certain conditions. Though not quite yet available on the WCC's website,  the Compensation Review Board decided on May 12, 2016 in favor of the claimant in the case of Petrini v. Marcus Dairy, Inc.

In short, the case revolved around a claimant that continued to suffer debilitating back pain following a surgery.  The claimant appears to have gone through the proper medical protocols to obtain medical marijuana, and by his own testimony received great benefit from its use, especially when compared to the side effects from his prescribed narcotics.  In July 2015, Commissioner Cohen found it Mr. Petrini's favor, confirming that his medical marijuana reasonable and necessary (amongst other things). This employer's insurance company appealed, but the CRB confirmed Commissioner Cohen's decision, and in so doing created a helpful blueprint for future claims on the issue.

Our firm has had direct contact with the issue. We have several clients in both the Torrington and Waterbury jurisdictions that use medical marijuana. From my non-empirical evidence, I would say it's been a positive experience if for no other reason that it has allowed people to substitute marijuana for prescription narcotics, a generally more addicting and damaging treatment for chronic pain.

I have a couple of takeaways from Pertrini for those interested in seeking medical marijuana on a similar basis:

1.       You'll need doctor support, and not just the presciber. The claimant in this case had serious support from his pain management specialist.

2.       It needs to be helpful. In this case, the claimant was not only able to titrate down on narcotics, but he experienced increased ability in his activities of daily living. It's a hard case to make before marijuana is started, however.

3.       You'll need to be credible. I don't have a transcript of the original hearing, but it's clear that Commissioner Cohen found the claimant credible. From the few excerpts I got, he sounds like an intelligent individual. Bottom line: don't expect to roll up to your hearing looking like Shaggy from Scooby Doo.

I do expect more development on this issue over the next several years, so stay tuned. 


 
 
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"Beware of little expenses. A small leak will sink a great ship." While this analogy was proposed by our thrifty forefather Benjamin Franklin regarding financial vigilance, you can-and-should apply this lesson to an application for social security disability benefits. Put another way, the little mistakes you make at the beginning paperwork  can eventually sink the big ship of your claim.

First, some background. When you initially files for disability benefits, the SSA will ask you about your activities of daily living (or ADLs), your past work, and more. This, unfortunately, is a laborious questionnaire, one to which oral surgery is probably preferable. However completing these initial forms with accuracy and proper detail is vital can be vital to your claim's outcome. The subjects in these forms mostly concern what you do at home during the day, who takes care of your kids, who takes care of your animals, whether you can handle money, whether you can drive, and many more questions like this.  You can find a copy of this form here.

So, what can you do to make these banal explanations more favorable to your claim? The simple answer is answer them, fully and with details.  

Let me give you an example: one of the questions ask whether the claimant (you) can do laundry at home. Frequently, I come across surveys where in my client has said that yes, in fact the he/she can do laundry, usually denoted by a simple "yes." However, when I ask my client how he/she performs laundry with his/her physical maladies, the "whole story" is much different. In example, there are actually only a few days a month when they can actually do laundry. Truthfully, they don't do the whole task that involves laundry, but really they just turn on the machine and fold laundry once it's out, without carrying anything actually down to the washer and dryer. That, as you might guess,  is a very different answer.

Here's how that lazy, quick "yes" answer can haunt you down the road, particularly at the Administrate Law Judge hearing. Basically, if an ALJ wants to make an unfavorable decision on your claim, these initial forms will provide "evidence" in support their negative finding. Using our example from above, if an individual says during her hearing that she cannot, in fact, do laundry, the ALJ will then use this prior answer on the survey to show that the claimant has not been consistent (liar!) with answering questions, thus putting the credibility of the claimant into question. Alternatively, the ALJ will use this information in a vacuum to say that the claimant clearly capable of doing laundry (she admitted it!), therefore she must be capable of doing other tasks. It's not fair, but believe me—it happens in many cases.

The same thing can occur with your records regarding past work. If you incorrectly put that you didn't lift even 10 pounds on the job, that is something that the ALJ and vocational witness are going to take seriously later on down the line, and that analysis can impact your claim.

So, what some best practices for filling out initial paperwork? 
  • Make sure you fill out each question with proper detail to understand your situation. This means "yes" or "no" answers should be avoided if they don't tell the whole story.
  • Remember: you can't take this stuff back. Once you submit it, it's part of the record, so put some effort into your initial application documents.
  • Make sure you make a copy of any and all paperwork you filled out for Social Security because they will ask you to fill out a similar survey later on in the claim. This way, you  can check against your previous paper work to show that you have answered consistently across the board and/or make changes where appropriate.
  • Consult the "the Sequential Evaluation Process for Assessing Disability" (the "Five Step" process)—see the government's slide show here—to make sure you're not accidentally proving the case against you with your own answers.
  • Consult your friends and family that get to observe your capacities. Many times, my clients are too proud or want to keep a positive mindset; they don't want to admit that they can no longer take care of themselves. Your husband/wife, brothers, sisters, mothers/fathers, and friends can be more objective about your true limitations.
As always, if you have more questions or are having trouble getting through the initial paperwork, consult with a law office on your best way to proceed. Good luck! 

 
 
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There's a well-documented link between distracted driving and increased motor vehicle crashes: according to distraction.gov, the "Official US Government Website for Distracted Driving," 3,154 Americans perished in 2013 as a cause, with another 424,000 injured.  Even worse, its estimated that "[a]t any given daylight moment across America, approximately 660,000 drivers are using cell phones or manipulating electric devices while driving . . ."  In reaction to this, distracted driving has become a big target in the personal injury bar—just Google "distracted driving personal injury" and stare in awe—for good reason. We already routinely ask motor vehicle collision victims if the other party was using a phone or other device. Many attorneys subpoena phone records, too.   

Well, a new study shows distraction injuries caused by electronic devices aren't just limited to your car: they are on the rise for pedestrians (walkers), too!  This probably isn't surprising to any city-dwellers or university-attendees were these things are most common. There were actually a couple students killed (one by bus, one by car) while I was in law school that were linked to distracted walking.

What's worse is that these injuries are more likely to be serious, and that makes sense. In a car crash, you have multiple safety mechanisms to minimize damage, but when you walk into a wall/trip over a bench/get nailed by a car, it's just your body versus the concrete.  The problem is so bad the American Academy of Orthopedic Surgeons even has a "digital deadwalker" campaign (and a sweet Youtube video) to warn the public about these kind of dangers.

So, how does this play-out in the personal injury context, you ask? Hey, thanks for the question!  First, distracted walking by the injured individual is obviously unhelpful for a claim. While it's not necessarily fatal, I can't see potential jurors having a ton of sympathy for the person too busy playing Candy Crush to watch out for that sidewalk deformity.  Second, numbers and awareness like this could end up changing building codes or store design. Take, for instance, a woman who sued Apple after face-planting into a glass wall.  In that case, Apple was already (allegedly) putting markings on the glass to draw people's attention, but more might be necessary to save the public from themselves (ala seatbelt laws).  Third, distracted walking on the part of the injurer will have to be pursued more energetically by a good plaintiffs' lawyer. If my client gets plowed-into-and-injured by someone Joe-Schmoe trying to Periscope his walk home, you best believe that's a fact I'm going to use to my advantage. There are probably tons more implications, but three points is a nice, tidy number so I'll stop there.

Moral of the story: be careful out there, folks, it's a distracted world we're livin' in.  Take it away, Sir Paul. 


02/22/2016 POSTSCRIPT: the Wall Street Journal published a story in February 2016 detailing the problems of distracted walking as well. You can check that out here
 
 
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If you couldn't tell by some of my previous posts, I tend to be a bit of a futurist.  One of the things I'm particularly excited for is the self-driving car, a reality that seems to be inching closer every day.  Check out Google's video of their car here.  Over the weekend,  I got to thinking about how the development of these vehicles might impact our industry.  The writing is on the wall, and it doesn't appear to be in our favor in the long run.

For background, personal injuries come in all shapes and sizes, from slip-and-falls to dog bites to car crashes. I don't have hard stats to back up my argument, but I'd bet the house that motor vehicle collisions account for a significant share of many law firms' revenues, doubly so for personal injury firms.  In short, losing motor vehicle injury cases would be bad for lawyers and the legal industry.  I'm obviously not the first person to prognosticate on this scenario and you can find other good takes here, here, here, here, and here.  Most of these posts feature the obvious—albeit necessary—questions:  How accurate/good will the self-driving car be? Will it make mistakes? How do you question the "driver" if there's an accident? How much human control will be involved?  How can we legislate this?

Here are my thoughts:

First, there will initially be a veritable bonanza of personal injury claims related to self-driving cars. In the beginning, human-driven cars will intermingle with the machine-driven vehicles and it will not be pretty. Humans are unpredictable and—at least in Connecticut—the experience of driving requires much more than just binary sensory detection: it takes instinct. You give more room to the rusty Cabriolet without brake lights that's spewing black smoke. You don't drive on New Year's Eve or in Vegas if you can avoid it. Ever see a Roombah battle a dog? Yea, there are collisions galore. Not to say that these collisions will necessarily be the fault of the machine-driven cars, and these other factors are something the creators seem aware of. However, an injured flesh-and-blood human is going to garner a lot more sympathy from a human jury than a cold, novel, lifeless machine ever will.  We'd all better brush up on our code, just in case.

Second, suing for injuries when a machine-driven car is involved will be a lot more painful. Initially, you'll be suing owner of the self-driving car just like you would today. However, the crashes caused by self-driving cars are really more like products liability cases, which means you'll end up suing the software company (i.e., Google) or the manufacturer (i.e., Toyota). With deep pockets, an army of corporate lawyers, and zero incentive to admit that their products are defective in any way, it has all the makings of a legal bloodbath. You'd better just hope your search history doesn't get leaked! 


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Third, this landscape will change with time. The 1000-megapixel-camera equipped machine-driven vehicles will have overwhelming proof of competence to push the worst drivers off the road. The machine-driven vehicles' convenience and utility is undeniable. They have Google, Apple, and the car companies in their corner. Eventually, we'll get to the place where machine-driven cars are the norm and not the exception.  That day, my friends, is when the personal injury bar will really be in trouble.

However, don't start tap-dancing on our graves just yet.  Personal injury lawyers will adapt just as they always have.  People will continue acting negligently/recklessly, probably even more so given all the idle time they'll have whilst not driving.  Personally, I plan to specialize in light saber and hover-board injuries.  So, see us in 2065 and let us get the genetically-selected-prior-to-birth-to-be-ruggedly-handsome-and-yet-refined-Grey-Hair (trademark pending). 


 
 
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I read an interesting article posted by one of my former law school associates (shout out Goodnewt!) concerning the terminology surrounding motor vehicle collisions that I had to share.  You can find that article here

Though the context of the article isn't necessarily directed are the personal injury arena, the point of the piece is that calling motor vehicle collisions "accidents" is a misnomer that can be damaging in the urban planning (AND personal injury) context. Its a tacit victory for the offender to call all motor vehicle collisions "accidents." The term presumes that the person committing the act had no control over what happened; it implies that nothing could be done about the situation. 


I'm an offender myself. "Accident" is shorthand, common parlance to explain the typical car crash situation. The article argues for the word "crash" to be used instead, which is probably a more accurate term anyway. After reading this article, though, I know I'll be more conscious of my terminology going forward.

10/06/2015 addition: Wired magazine recently published an article on the same subject, Stop Calling My Daughter's Death a Car Accident

 
 
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Social Security is turning 80! Since the retirement program was enacted in 1935, it has expanded in important ways. The disability component, introduced later, is now a critical piece of Social Security, and it ensures that those who aren't able to work have a small measure of protection and stability. Now is the time to ensure that the Social Security programs remains strong for our future. I'm joining with other NOSSCR members in honoring this anniversary and calling for the program's protection in the future. 

 
 
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Last Thursday, like many Connecticuters, I was completing a run in the oppressive summer humidity. Once finished, I, like an ever increasing amount of people, I looked down at my Fitbit Charge HR to see how it had gone. 

That's when the idea struck me: wearable technology could be a great tool in our practice. Just imagine the anecdotal power of showing a graph of what an injured person's activity levels were like before and after a car accident. When my social security client says "I can't walk more than 100 steps at a time," I have the data to back that up!

We've seen this before. Now that everyone is constantly carrying around a camera (via phone), we get loads of helpful pictures of accident scenes, injuries, and documents that just weren't available before said proliferation. It makes my life a lot easier.

Like all my ideas, greater minds (or just professional legal writers—you decide!) had already done some soul searching on this topic.  One story told me how Fitbit data had already been used to support a personal injury claim.   Another showed how Fitbit data was used to disprove a criminal allegation.  Pretty cool stuff!

At this point, I think any attorney who isn't asking clients about their potential data footprint and preparing them for questions along these lines could be performing a disservice. Whether your data works for or against your potential claim, it's always better to know something and prepare for it than to be blindsided.

And if this just seems too futuristic for your tastes, I'm already bracing for the "hackers crashed my car, not me" defense


 
 
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The following post was contributed by Jeffrey C. Nicholas as a reflection on his 25 years of  legal practice:

I opened the Nicholas Law Firm in October of 1989. I was 28 year old. Initially, the office was a cramped one room space in a building on Mason Street here in Torrington; Suite Sixteen at 30 Mason Street next to Attorney Tom Hogan's office, to be specific. At first it was just a family business. My sister Judy worked as a part time secretary and my mother Edna was my part time bookkeeper. I signed up to do whatever State-appointed wok was available: I was a public defender for juvenile clients, a Receiver for corporations in receivership, and I argued contempt motions for indigent clients facing incarceration. The previous fall, I was the Democratic Candidate for State Representative against the popular Joe Ruwet in a Presidential election year. While I came up short, we did run a positive issue oriented campaign that excited voters. As I built on that success, clients slowly began to come through the doors. Thankfully, Judges Pickett Jr., Dranginis, and Gill were very generous in appointing me to different cases, and the judges' secretary, Barbara Bongiolatti, was instrumental in keeping my younger self busy. Those first few months were scary to say the least.

       Later, I inherited Louis Erteschik's law practice when he accepted a position with Hawaii Democratic State Senate Majority Leader Tony Chang in 1990. Lou's practice was unorthodox. He accepted and handled cases for the underprivileged, often on  barter terms. No other attorney would help Lou's clients as they had very little money for retainers, and their smaller legal disputes were unlikely to yield profitable work. I was happy to have them. I did a great deal of pro bono work in the early years, and the folks I worked for appreciated the help. They could typically scrape enough money together to pay me so I could keep the lights on in my office. I even made my own letterhead and pleading paper. On the upbeat side, word spread as I achieved positive results. I received more calls from folks with the familiar rejoinder, "My friend said you could help me." These people really appreciated that someone would listen to them and give them the time of day. For me it was easy. I was brought up to treat people with dignity and respect; because I did, they sent their friends. These friends were in accidents and had work injuries and in those cases they didn't need money for retainers. Those cases I could handle on a contingent fee basis. 

       The firm experienced rapid growth in the early 1990s. We expanded into more office space at the Mason Street location. We hired associate attorneys, paralegals, and secretaries. We went on cable television in 1994 and were a fixture there until we went off the air in 2002. Our motto was "Let Us Get The Grey Hair," a phrase I later trademarked. I still had dark brown hair in the last commercial we ran. If you have seen me lately then you know my hair is now nearly pure white. We litigated cases in almost all of the Connecticut courts and commissions. The practice evolved to concentrate predominantly on personal injury, workers' compensation (called "workmen's compensation then!) and social security disability. We continued to do a general practice as well.  In 1995 we purchased the building at 373 Prospect Street in Torrington. This allowed us to continue our growth and to add new staff and equipment. We focused on state-of-the-art technology, old-fashioned work ethic, customer service, and attention to detail.

       We developed a very talented and professional staff. Attorney Christine Engel, who was with us from 1997-2008, was appointed to be Workers' Compensation Commissioner by Governor Jodi Rell. Attorney Mark T. Johnson, a partner for a time, has experienced success as the manager of the State Public Defender's Office in Danbury. Gregory S. Jones was with the firm from 1991-1997, after which he split off fwith the Bankruptcy and Real Estate Division and we continue to work with him in these areas. Former U.S. Congressman James H. Maloney was Of Counsel for time.

      The Nicholas Law Firm has always had a social conscience and we have been committed to public and community service as a core principle. We strive to employ environmentally sound practices. In 1990, I was appointed a Hearing Representative for the City of Torrington by Republican Mayor Dee Dunne. I also served on the Western Connecticut Area Agency on Aging Board of Directors from 1990-1992, also by appointment of Mayor Dunne. I was elected to the Board of Selectman in Bethlehem in 1997. I donated the salary back to the town for that term. After a successful two years in that position, I was elected First Selectman in 1999 and served until my term expired in 2001. Our town received a great deal of accolades, awards and recognition for the four years in the Selectman's office. Unfortunately, being involved in public service on a full time basis was not conducive to practicing law, and it also took too much time from a growing family. 

        In 2002, after much soul searching I decided to scale back on the politics and serve in a less-arduous capacity, recommitting to the practice of law. I continue to serve on the Board of Finance and several Commissions in Bethlehem. I also continue to be committed to the Red Cross through frequent blood donations; I hope to reach the 8 gallon donation level myself later this year.

       We opened an office in Waterbury in 1999, purchasing the historic H.H. Peck Carriage House in 2000. This structure was built in 1898 and is on the National Register of Historic Places. We improved and renovated the structure, and we have landscaped  the grounds over the years. It has been featured in the media on numerous occasions and we have routinely received Beautification Awards and Broom Clean Certificates from the City of Waterbury. We also adopted and maintain the Exchange Property adjacent to the office. This office is 15 feet from the Workers Compensation 5th District Office—a mere stone's throw away. This allows us to be accessible for hearings on a moment's notice from the Commission. We usually have at least four daily hearings there. We have had great success representing clients before the Workers' Compensation Commission. I have personally tried Formal Hearings to conclusion before many of the Commissioners, both past and present. I have also taken successful appeals to the Commission Review Board as well, as have the other attorneys in the Nicholas Law Firm.

       In 2008, after Christine Engel's departure, Attorney John B. Myer joined the firm. He is in the Litigation Department and predominantly works in personal injury and workers' compensation claims. He handles general practice issues as well. John is the former Fire Chief in Bethlehem and recently moved to Woodbury. Following Christine's departure, I assumed the handling of all the Social Security Disability claims for a couple of years. I had worked as a Claims Representative with the Social Security Administration in between college and law school, and I had gained valuable insight on the claims process. As of today, I have taken nearly 400 claims to conclusion and have a career 90.5% win rate. The firm and I have had successes at the Federal District Court level and Appeals Council level as well. In 2011, whiz kid Nathaniel D. Walden joined the firm. His technological savvy and work ethic has benefitted the firm greatly. He has assumed the role of Marketing Director and was made  Director of the Social Security Division at NLF in late 2013. Nat is a Hoosier transplant who attended Butler University and the Indiana University Law School in Bloomington. Nat is also well-known and well-received at the Workers' Compensation Commissions throughout the State of Connecticut.

       While many things have changed many have remained the same. My mom, now 88, continues to work part-time as the bookkeeper. We have added another assistant Bookkeeper, Theresa Truax, who I went to High School with at Wamogo. We continue to have very professional experienced staff with very little turnover at NLF. Paulina Losey is in her third decade here, having joined in 1997. Our receptionist, Dana Madden, is entering her 16th year with the firm. Social Security paralegal Cindy Viarengo is approaching 10 years at the law office. My wife, Yuliya, graduated magna cum laude and has joined the firm as a paralegal on a part-time basis a few years ago. Sao Milo has nearly 30 years of experience as a paralegal and has been in our Waterbury office for 5 years. Andrea Vetter is the latest addition to the firm with 3 years of service.

       As a father of eight, I expect I will need to be here working for a very long time. I still love helping people. It really doesn't  feel like work when I go into the office because I enjoy what I do. I continue to treat everyone with the dignity and respect they deserve no matter what their station in life is. I have not forgotten where I came from. I remember when a good friend of mine left the practice of law and I asked him why he had retired so young. "My give a shit monitor is broken," he replied. "I just don't care anymore." Twenty five years after we opened the Nicholas Law Firm I can say my meter is firing on all cylinders: I have the same fierce tenacity, grit and determination I had as a 27 year old neophyte lawyer, but now with 28 years of legal experience to back it up. We continue to be an experienced full service law firm that offers affordable, aggressive legal services and old-fashioned personalized commitment. If you are injured or disabled, "Let Us Get the Grey Hair." I very much appreciate the faith you have placed in me and the firm, the return business, and the kind referrals of friends and loved ones.  To the next 25 years!

 
 
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I had a chance to read a Wired article colorfully titled How China is Screwing Over Its Poisoned Factory Workers over the weekend, and couldn't help drawing some interesting links to our own workers' compensation system.

The gist of the article recounts how multiple, often prominent Chinese manufacturers are unsurprisingly less than compliant with the rules and regulations propagated by both their government and their multinational partners (read Apple/Samsung), and that their workers are suffering terrible consequences. We're talking serious neurological disorders, leukemia, brain damage—really, really horrible stuff.

Realistically and thankfully, I rarely see these type of grievous injuries and blatant departures from safety standards here in Connecticut. I would say the mesothelioma cases that are, fortunately, becoming less frequent are the closest parallel.

Reading through some of the employers' claim denial tactics, however, felt shockingly familiar. There's references to the factor workers "getting red-taped to death."  There are stories about companies starving their injured workers into cheap settlements: withholding benefits to the point where the injured will take just about anything in order to survive the next week.  And that stuff, my friends, does continue to happen even here in Connecticut with shocking regularity.  

Most of it is legal, too. An insurance company can, to the painful detriment of the injured worker, be unreasonably pedantic and demand that every "i" be dotted and every "t" be crossed even when it's plain that the injury is work related. If someone falls off a roof and then has half an ankle dangling by a thread, that person shouldn't need an orthopedist (and two or three if it's challenged!) to say that the injury is work related before payments start. Some things are just common sense.  Alas, this is the world we live in.

If you or one of your loved ones are getting red-taped to death, give us a call. We've got a nice pair of scissors. 


 
 
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The Nicholas Law Firm is proud to announce that as of today we are now a Fully Accredited business (with an A+ rating!) with the Better Business Bureau. Check us out here!