State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
Home News RSS News QUICK Find Index Search E-Mail
General Information Glossary Law CRB Opinions Workers' Compensation Commission Downloadable Forms and Publications Links

Schiano v. Bliss Exterminating

CASE NO. 3315 CRB-4-96-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 16, 1997

JAMES SCHIANO

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

BLISS EXTERMINATING

EMPLOYER

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

CROSS-APPELLEE

APPEARANCES:

The claimant was represented by Serge Mihaly, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the April 8, 1996 Supplemental Finding and Award No. 3 of the Commissioner acting for the Fourth District were heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. Both the claimant and the Second Injury Fund have petitioned for review from the April 8, 1996 Supplemental Finding and Award of the Commissioner acting for the Fourth District. The issues before this board consist of several motions filed by the claimant seeking recourse against the Fund for delays in maintaining this appeal. We dismiss the appeal, and remand this case to the trial commissioner for a determination of appropriate attorney’s fees under § 31-327(b).

The claimant was employed by Bliss Exterminating on February 25, 1986, when he was injured in the course of his employment. He has been totally disabled since October 15, 1989, as determined by prior awards. Liability was transferred to the Second Injury Fund from Aetna, the employer’s workers’ compensation insurer, on April 12, 1988. In the Finding and Award on appeal, the commissioner found that the claimant had not received temporary total benefits and a $30 weekly dependency allowance due him from October 15, 1989 to February 23, 1992. His base compensation rate is $276.07 per week. The commissioner awarded the claimant those benefits along with 10% annual simple interest, with credit given for a $3,286.70 payment made on February 7, 1992, and specific payments made during the first seven months of 1990. He found that the total due the claimant was $53,859.29. He also found that the Fund had unduly delayed payment, and awarded the claimant a $25,000 attorney’s fee, although he denied the claimant’s claim for a 20% penalty against the Fund pursuant to § 31-303 C.G.S. Both parties filed petitions for review from that decision.

The post-appeal procedural history now becomes important. The Fund’s petition for review was filed on April 16, 1996, and was soon followed by motions for extensions of time to file a Motion to Correct and Reasons of Appeal, which were both granted. The Fund indicated that it would file its Motion to Correct within 20 days after receipt of the transcript, and its Reasons of Appeal within two weeks of the ruling on its Motion to Correct. The Fund’s attorney (who is not the same person who represented the Fund at oral argument) later filed an addendum explaining that the hearing transcript originally ordered by trial counsel had been lost, and that another transcript had been ordered. The trial commissioner also denied the claimant’s motion to reconsider his granting the Fund an extension of time to file the Motion to Correct.

The claimant simultaneously filed with this board a motion to reconsider granting the Fund an extension of time to file Reasons of Appeal, alleging that the Fund indeed possessed the transcript upon which their motions for extension of time had been predicated, and that its attorney sought to delay the proceedings on the basis of a false representation. The claimant’s motion was granted on May 15, 1996 based on the facts averred and the Fund’s failure to file an objection. A motion for sanctions against the Fund’s counsel was not ruled on at that time. Meanwhile, the Fund filed its Motion to Correct, which the commissioner denied in its entirety. The claimant then moved to dismiss the Fund’s appeal for failure to file timely Reasons of Appeal on May 20, 1996. The Fund filed those Reasons of Appeal that same day, along with a motion to vacate and set aside this board’s May 15, 1996 ruling on the claimant’s motion for reconsideration. It also objected to the claimant’s Motion to Dismiss. The claimant, in turn, objected to the Fund’s motion to vacate.

Underneath all of these motions, there is somewhere buried the principle that the Workers’ Compensation Act is remedial in nature and should be construed to accomplish its humanitarian purpose. Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992). A necessary element of this principle is the idea that relief under the Act will be provided as quickly and efficiently as possible. A claimant who is disabled from employment by a work-related injury is usually in need of prompt financial attention as well as medical attention, for the inability to earn wages has an immediate negative impact on the lives of most claimants. Yet, this concept often becomes lost in the partisan battles between employers, employees, insurers, medical providers, and their numerous attorneys.

In this case, the claimant was still awaiting benefits due him as far back as 1989 when the Fund filed its appeal. With hope of a speedy resolution in this case waning, one would hope that the parties would have managed to navigate this appeal expeditiously. Instead, the Fund immediately requested extensions of time on the ground that it did not yet have the transcript. However, the record shows that an attorney from the Fund requested the transcript at the conclusion of the formal hearing (October 20, 1995 Transcript, p. 154), but misplaced or lost it after it was received. A different attorney was assigned to handle the appeal, and represented that a transcript had not yet been received. After the claimant objected, the Fund filed an addendum explaining that the transcript had been lost, and a replacement had been ordered. We also note that the Fund did not respond promptly to the claimant’s motion to reconsider granting the Fund an extension of time, instead waiting until after we granted that motion to state its case.

Although we do not believe that the Fund’s attorney is guilty of conduct warranting sanctions against him personally, it is clear that a lack of communication between attorneys at the Fund and a lack of organization in this case have contributed to the further delay of these proceedings. In Pearston v. Carrier Corporation, 15 Conn. Workers’ Comp. Rev. Op. 196, 3167 CRB-8-95-9 (April 19, 1996), this same appellant represented in a Motion for Extension of Time to file Reasons of Appeal that it had not yet received necessary transcripts, when in fact it had, but its representatives were simply unaware of what their co-workers were doing. We stated there that “representatives of government agencies must act with integrity, truthfulness, and due diligence at all times in order to uphold the public trust. The Fund’s defense of bureaucratic ‘bungling’ does not serve to exempt it from the standards of professionalism which must be met by all members of the bar.” Id., 198.

This case is very similar, and warrants a similar outcome. We thus grant the claimant’s Motion to Dismiss the Fund’s appeal for failure to prosecute with due diligence pursuant to Practice Book §4184A, and award attorney’s fees to the claimant for costs associated with this appeal. The case is remanded to the trial commissioner for a determination of those costs under § 31-327(b). We also note that motions for extension of time should seek relief only until a date certain, and not indefinitely as was requested by the Fund in this case. Time limits such as “two weeks from the date the transcript is received” can extend for months, further delaying the resolution of a case.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

Page last revised: June 13, 2005

Page URL: http://wcc.state.ct.us/crb/1997/3315crb.htm

Workers’ Compensation Commission Disclaimer, Privacy Policy and Website Accessibility

State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
Home News RSS News QUICK Find Index Search E-Mail
General Information Glossary Law CRB Opinions Workers' Compensation Commission Downloadable Forms and Publications Links