State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Grillo v. Prestige Enterprises, Inc. et al.

CASE NO. 1704 CRB-1-93-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 25, 1995

JOSEPH GRILLO

CLAIMANT-APPELLEE

v.

PRESTIGE ENTERPRISES, INC.

EMPLOYER

and

JAKE’S RESTAURANT

EMPLOYER

and

COMMERCIAL UNION INSURANCE

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Angelo Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095.

The insurer was represented by Matthias DeAngelo, Esq., Cooney, Scully & Dowling, Hartford Square North, 10 Columbus Blvd., Hartford, CT 06106-1944.

Neither the employers nor the Second Injury Fund were represented at oral argument.

This Petition for Review from the April 16, 1993 Finding and Award of the Commissioner acting for the First District was heard May 20, 1994 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Nancy A. Brouillet and Michael S. Miles.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The respondent insurer has petitioned for review from the April 16, 1993 Finding and Award of the Commissioner for the First District. The insurer claims on appeal that the commissioner improperly ordered it to pay concurrent employment benefits to the claimant pursuant to § 31-310 C.G.S., and improperly awarded attorney’s fees to the claimant’s counsel. We affirm the trial commissioner’s decision.

The claimant suffered an injury at work to his left hand on February 10, 1990, while working part-time at Jake’s Restaurant. At the time of the injury, the claimant was also employed at Prestige Enterprises, Inc. In a Finding and Award dated August 10, 1992, the claimant was found to be entitled to the maximum compensation rate of $693.00 per week based on an average combined weekly wage of $1033.74. The precise benefits to be awarded had not yet been determined. In the subsequent Finding and Award on appeal here, the commissioner noted that the insurer had made payments based on its pro rata liability only, as the insurer contended that the Second Injury Fund was responsible for the share of the benefits arising from the concurrent employment. The commissioner found that the insurer had not complied with the procedure for invoking the liability of the Second Injury Fund, however, and ordered the insurer to pay the claimant at his full compensation rate. The commissioner also imposed sanctions and attorney’s fees against the insurer for unduly delaying the payment of compensation in violation of §§ 31-288 (b) (1) and 31-300. The insurer appeals from that decision.

At the time of the claimant’s injury, § 31-310 provided in relevant part that the wages of an injured employee with multiple employers shall be calculated upon the basis of wages earned from all of his employers, but “the employer in whose employ the injury occurred shall be liable for all medical and hospital costs [and] a pro rata portion of the compensation rate based upon the ratio of the amount of wages paid by him to the total wages paid the employee in such average week . . . . The remaining portion of the applicable compensation rate shall be paid from the second injury and assurance fund.” The insurer argues that the language of this statute does not make the employer or its insurer liable for concurrent employment benefits, and that it was improper for the commissioner to assess liability for such payments against the insurer regardless of its failure to obtain a Form 44 order from the Workers’ Compensation Commission. The commissioner specifically found that Form 44 was applicable to the instant claim, that the form required the insurer to have issued a voluntary agreement, a copy of which would then be attached to the form, and that the insurer’s failure to issue a voluntary agreement precluded it from securing apportionment or reimbursement from the Second Injury Fund.

We do not think that the language of § 31-310 mandated a contrary result from that reached by the commissioner. “Payment of an award from a special fund such as the second injury and compensation assurance fund . . . should be made only in accordance with express statutory authority . . . in order to protect that special fund and prevent unwarranted diversions of it from the specific purpose for which it was created.” Going v. Cromwell Fire District, 159 Conn. 53, 61 (1970) (citations omitted). In furtherance of this policy, the Connecticut Workers’ Compensation Commission has in this instance devised Form 44 as a mechanism by which an employer or insurer may invoke the statutorily created liability of the Second Injury Fund for concurrent employment benefits. The form, entitled “Order to Custodian of Second Injury and Compensation Assurance Fund,” must be issued by a Workers’ Compensation commissioner after the “computation of the Prorated Share of the ADJUSTED TOTAL WEEKLY BENEFIT on attached voluntary agreement has been checked for accuracy” by the commissioner. The use of this procedure allows the commissioner to supervise the payment of concurrent benefits to the claimant and order either reimbursement of the employer’s insurer for payments already completed or direct payment by the Second Injury Fund to the claimant. The form clearly contemplates the possibility that the employer’s insurer shall be ordered to pay the claimant the full compensation due him under the voluntary agreement, with reimbursement for the prorated share being provided by the Second Injury Fund upon presentation of proof that full benefits have indeed been paid by the insurer.

Here, no Form 44 was issued, for no voluntary agreement was reached. As the required procedure for assessing liability against the Fund was not followed, the commissioner properly refused to enter an award against the Fund. We do not think that the general language in § 31-310 has any bearing upon the authority of this commission to protect the interests of the Second Injury Fund by requiring that a Form 44 order be entered by the commissioner before Fund liability ensues. We note that the legislature has had many opportunities to pass upon the propriety of that requirement, but has done nothing to contradict it, even though one of the options available to the commissioner in making a Form 44 order is to require the employer or insurer to provide the initial outlay of concurrent benefits.1 We thus uphold the applicability of Form 44 to this case.

The question now becomes upon whom the hardship related to concurrent employment benefits must fall. The purpose of § 31-310 is to “protect the concurrent employee such as a wage earner having more than one job who, for instance, might lose his earnings from his principal job because of an injury occurring on another job with a low compensation rate.” Going v. Cromwell Fire District, supra, 159 Conn. 56. The legislature also recognized in passing this provision that it would be unfair to force a part- time employer to pay benefits calculated on the basis of an employee’s total wages. Id., citing 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4040-41. As it was the employer’s insurer who failed to take advantage of its opportunity to reach a voluntary agreement with the claimant in this case, however, we think it most consistent with the spirit of the Workers’ Compensation Act that the burden fall on the insurer to assume liability for the claimant’s concurrent employment benefits. Compare Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 748 (1992) (case seeking recovery of benefits by injured worker distinguished from case seeking allocation of liability between insurer and Second Injury Fund). Indeed, the commissioner found that the insurer had unduly delayed the adjustment and payment of compensation to the claimant; we will not reward such dilatory tactics by relieving liability for the payment of benefits.

Because we hold that the insurer was liable for concurrent benefits due to the claimant, the insurer’s objection to the “unreasonable contest” sanctions imposed by the commissioner under § 31-288 (b)(1) on the ground that benefits were improperly awarded is rendered moot. As to its argument that there was no evidence to support the award of attorney’s fees made under § 31-300, we note that “where attorney’s fees are properly awarded, their reasonableness depends upon many factors, including the amount of preparation required, the novelty of the questions presented and the intricacy of the case, customary charges for similar services, and the results actually obtained.” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179-80 n. 8 (1974). Here, the commissioner awarded attorney’s fees of $14,602.94, which sum corresponds to 20 percent of $73,014.69, the estimated lost wages of the claimant provided by claimant’s attorney in a letter that had been introduced into evidence. The guidelines issued by the chairman of this commission pursuant to § 31-380 (b) (11) have established twenty percent as the maximum fee payable by a claimant for legal services rendered by an attorney in connection with workers’ compensation proceedings. This evidence is sufficient to refute the insurer’s contention that the commissioner abused his discretion in awarding attorney’s fees to the claimant under § 31-310.

The trial commissioner’s decision is affirmed.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

1 Indeed, subsequent to the date of the claimant’s injury, the legislature added to § 31-310 a provision stating that the Second Injury Fund was liable for concurrent benefits “upon submission to the treasurer by the employer or the employer’s insurance carrier of such vouchers and information as the treasurer may require.” Given the pro-claimant purpose of this statute discussed below, a change of this nature is clearly inconsistent with the position that the Second Injury Fund is automatically the sole party liable for any concurrent benefits due the claimant. BACK TO TEXT

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