Byars v. Whyco Chromium Company

CASE NO. 1257 CRD-5-91-7

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MARCH 10, 1993

DENNIS BYARS

CLAIMANT-APPELLANT

v.

WHYCO CHROMIUM COMPANY

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Scott Williams, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601.

This Petition for Review from the July 1, 1991 Finding and Award of the Commissioner for the Fifth District was heard May 29, 1992 before a Compensation Review Board panel consisting of then Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Michael S. Sherman.

OPINION

JOHN ARCUDI, COMMISSIONER. In this pro se appeal claimant contests the Fifth District July 1, 1991 decision awarding some and denying other claimed benefits. Claimant’s presentation on appeal does not conform to the technical requirements of the statutes and regulations, but as with all pro se claimants, we have permitted a wide latitude in the prosecution of the appeal.

The only evidentiary record before us are the documentary exhibits submitted at the formal hearing held at Waterbury April 29, 1991. Claimant argues (1) Dr. Arlen Lichter, M.D., should have been found to be an authorized treating physician, (2) the trier erred in approving respondents’ Form 36, notice to reduce or discontinue benefits, and (3) claimant who appeared pro se without an attorney should nevertheless have been awarded attorney’s fees since interest at the rate of twelve (12%) percent was granted.

Authorization of a particular treating physician under Sec. 31-294 is largely a factual determination within the trial commissioner’s discretion. Marzano v. Luis, 10 Conn. Workers’ Comp. Rev. Op. 129, 1181 CRD-5-91-2 (1992); Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 1160 CRD-7-91-1, 1240 CRD-7-91-5 (1992); Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 890 CRD-4-89-6 (1991); McConnell v. Hewitt Associates, 8 Conn. Workers’ Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990). We have no evidential transcript from which to discover evidence indicating the commissioner may have abused his discretion in this regard. Therefore his decision must stand.

Similar evidentiary considerations apply to a commissioner’s decision approving respondents’ Form 36. Respondents filed a Form 36 in the Fifth District office September 7, 1989. At the April 21, 1991 hearing they presented documentary exhibits to support the filing. Respondents’ Exhibit C, Dr. Myron Shafer’s August 15, 1989 report stated claimant could perform selected work. Their Exhibit D, Dr. Robert W. Feraro’s November 21, 1990 report indicated claimant had a work capacity. Therefore there was evidence to support the commissioner’s conclusion terminating temporary total benefits rafter February 9, 1990, the date of an informal hearing before a commissioner at large.

As to the claim for attorney’s fees, Sec. 31-300 provides:

In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.

Imbrogno v. Stamford Hospital, 28 Conn. App. 113 (1992) held that Sec. 31-300 is to be so construed that an award for interest must be accompanied by an award for attorney’s fees. “We read the words of Sec. 31-300, ‘may include in his award interest ... and a reasonable attorney’s fee,’ to allow a discretionary award of both interest and attorney’s fees or neither, but not to allow an award of one and not the other.” Id. at 125.

It does not appear from the fragmentary record before us that the claimant was represented by counsel, but if he was for any part of the proceedings below, then as the commissioner awarded interest, Imbrogno requires that a reasonable attorney’s fee also be awarded. The matter needs to be remanded for the commissioner to make that determination.

The commissioner denied claimant’s request to submit new evidence. The evidence in question was a letter from respondents’ claims adjuster. Administrative Regulation Sec. 31-301-9 and the case law give the trier considerable latitude in deciding whether to admit new evidence. See e.g., Spataro v. Mattioli Construction, 8 Conn. Workers’ Comp. Rev. Op. 41, 784 CRD-4-88-10 (1990). We see nothing in the record to demonstrate that the Commissioner abused his discretion in denying the request to submit new evidence.

The matter is affirmed in part and remanded in part.

Commissioners Gerald Kolinsky and Michael S. Sherman concur.