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Thaller v. Albert Philopena, Inc.

CASE NO. 3477 CRB-08-96-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 18, 1998

JOSEPH THALLER

CLAIMANT-APPELLEE

v.

ALBERT PHILOPENA, INC.

EMPLOYER

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.

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

This Request for Sanctions based upon the withdrawal of a Petition for Review from the November 6, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has requested the imposition of sanctions against the Second Injury Fund for its filing of an allegedly frivolous petition for review from a November 6, 1996 Finding and Award by the Commissioner acting for the Eighth District. The commissioner ordered the Second Injury Fund to pay total disability benefits to the claimant pursuant to that Award, and the Fund took an appeal from that decision. The Fund then successfully moved for extensions of time to file its Reasons of Appeal and a Motion to Correct, as portions of the record were still being awaited. On April 22, 1997, the claimant filed a Motion to Dismiss the appeal on the ground that the Fund had received all of the medical exhibits at the December 4, 1995 formal hearing, and that the transcript was available on January 9, 1996. Counsel noted that the claimant had not received any benefits during the pendency of the appeal.

When the Second Injury Fund did not file a brief with this board by the due date of June 20, 1997, the claimant moved that the appeal be dismissed and the matter remanded to the trial commissioner for an award of interest on all benefits owed pursuant to Practice Book § 4184B.1 One week after that motion was filed, the Second Injury Fund withdrew its appeal. The Second Injury Fund did not explain the reason for withdrawing its appeal, nor did it ever file a brief. At oral argument, the Fund’s counsel stated that he initially believed that the appeal had merit, but due to time constraints, he was unable to pursue the matter with enough diligence to make a successful appeal likely. He admitted that the appeal should have been withdrawn sooner.

We have recently issued two decisions that concerned delays in the processing of appeals caused by internal miscommunication on the part of the Second Injury Fund. Schiano v. Bliss Exterminating, 16 Conn. Workers’ Comp. Rev. Op. 189, 3315 CRB-4-96-4 (decided May 16, 1997); Pearston v. Carrier Corp., 15 Conn. Workers’ Comp. Rev. Op. 196, 3167 CRB-8-95-9 (April 19, 1996). In both of those cases, the Fund represented that it needed extensions of time to file documents because transcripts had not yet been received, when in fact they had simply been misplaced by the Fund. We awarded costs both times. This matter appears to be similar to those cases; not only was the appeal prosecuted in a dilatory fashion, but it appears probable that the delay was caused by the appellant’s inability to keep its records straight. As we stated in Schiano, it is unfair for a claimant to be denied the payment of benefits because of circumstances like this.

Section 31-301c(b) states that an employer or insurer who unsuccessfully appeals a commissioner’s award shall have interest assessed against any portion of the award that remained unpaid pending appeal at the rate prescribed in § 37-3a C.G.S (which is ten percent per annum). We will not allow the Fund to avoid the application of this statute by withdrawing its appeal, especially where it was done in such a belated manner. We therefore grant the claimant’s motion for interest under § 31-301c(b) in the amount of ten percent per year on the unpaid portion of the November 1996 award.

We also award the claimant’s counsel $500 in attorney’s fees. The Fund’s attorney conceded that its petition for review should have been withdrawn much sooner, and it would be inequitable to force the claimant to absorb the costs of defending this particular appeal. See Schiano, supra; see also § 31-298, § 31-301c(a); Practice Book § 4184B. The $500 amount, which is based upon a very conservative estimate of time that counsel spent defending this appeal, was agreed to by the claimant’s attorney. Thus, a remand for a hearing under § 31-327(b) is not necessary in this case.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Practice Book § 4184B states in part that “[a]ctions which may result in the imposition of sanctions include, but are not limited to, the following: (1) Failure to comply with rules and orders of the court. (2) Filing of any papers which unduly delay the progress of an appeal. . . . (5) Presentation of a frivolous appeal or frivolous issues on appeal. . . . (9) Repeated failures to meet deadlines. Offenders will be subject, at the discretion of the court, to appropriate discipline, including . . . costs and payment of expenses, together with attorney’s fees to the opposing party.” BACK TO TEXT

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