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Dalling v. Dalling Hauling, Inc.

CASE NO. 3615 CRB-04-97-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 26, 1998

KEITH DALLING

CLAIMANT-APPELLANT

v.

DALLING HAULING, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

CROSS-APPELLANT

and

SECOND INJURY FUND

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Paul Ganim, Esq., Ganim, Ganim & Ganim, 4666 Main St., Bridgeport, CT 06606.

The respondent employer was represented by James Sullivan, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

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

This Petition for Review from the May 16, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard January 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 16, 1997 Finding and Award of the Commissioner acting for the Fourth District. In that decision the trial commissioner concluded that the claimant sustained compensable injuries to his head, neck, and back on June 3, 1993. The trial commissioner further determined that the respondent employer failed to have workers’ compensation insurance on that date. The trial commissioner awarded the claimant four weeks of temporary total disability benefits pursuant to agreement of the parties, payment of certain medical bills, and attorney’s fees. In support of his appeal, the claimant contends that the trial commissioner failed to address numerous issues raised during the formal hearing.

Initially, we note that the respondent employer filed an appeal on May 28, 1997, more than ten days following the Finding and Award. The employer’s appeal was not filed within the time limit prescribed by § 31-301(a) C.G.S., which states that “[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the compensation review board by filing in the office of the commissioner . . . an appeal petition . . . .” The employer’s appeal is thus dismissed as untimely. See Cioffi v. Trumbull Marriot, 15 Conn. Workers’ Comp. Rev. Op. 297, 2209 CRB-4-94-11 (June 20, 1996); Corona v. Uniroyal Chemical, Inc., 9 Conn. Workers’ Comp. Rev. Op. 105, 987 CRD-5-90-3 (March 13, 1991).

In support of his appeal, the claimant contends that issues had been properly raised during the formal hearing which the trial commissioner failed to address in her Finding and Award. Specifically, the claimant requests that the following issues be addressed: (1) the employer’s failure to carry workers’ compensation insurance; (2) award of reasonable medical costs; (3) the claimant’s request for reimbursements of payments which the claimant alleges he will owe under his automobile insurance policy and for payments which he has paid under a third party settlement; (4) the basis for the trial commissioner’s award of less than the full amount of attorney’s fees requested by the claimant.

We will first address the claimant’s request for a ruling regarding the employer’s failure to carry insurance. The trial commissioner specifically found that the employer failed to have workers’ compensation insurance on the date of injury, June 3, 1993. (Finding No. 2). Pursuant to § 31-284(b) as it existed on the date of injury, an employer is required to be properly insured under the Workers’ Compensation Act, and if an employer “wilfuly fails” to have insurance “he shall be fined not more than one thousand dollars for each failure.”1 Accordingly, this issue is remanded to the trial commissioner in order to make findings and to consider a fine against the employer for failure to comply with § 31-284(b).

As set forth in Finding No. 7, the claimant requested payment of health insurance co-payments ($1,872.57); prescription drugs ($10,051.28); settlement disbursement ($6,838.03); and repayment under a no-fault insurance contract ($5,000.00). The trial commissioner awarded payment of the first two items listed above. The claimant contends that the Finding and Award does not address the medical bills submitted as Claimant’s Exhibit “A” at the formal hearing, which total approximately $70,000.00. As there are no findings of fact regarding these medical bills, we must remand this issue to the trial commissioner.2 As to the claimant’s request for payment for “settlement disbursement” and reimbursement for payment made under the claimant’s automobile insurance, these payments are not provided for under our Act. The claimant may seek payment of medical costs as provided under the § 31-294d, but may not seek costs associated with contracts which are not made under the Workers’ Compensation Act.

As to the claimant’s contention that the award of attorney’s fees3 pursuant to § 31-300 in the amount of $4,350.30 was insufficient, 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.” Grillo v. Prestige Enterprises, Inc., 13 Conn. Workers’ Comp. Rev. Op. 311, 315, 1704 CRB-1-93-4 (April 25, 1995) (quoting Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179-80, n. 8 (1974)). In the instant case, the findings of fact do not directly address the issue of whether the respondent employer’s conduct constituted unreasonable delay or unreasonable contest pursuant to § 31-300, and therefore we must remand this issue.4

The case is remanded to the Fourth District for a determination of the issues set forth in the above decision.

Commissioner Donald H. Doyle, Jr., concurs.

MICHAEL S. MILES, COMMISSIONER, CONCURRING. I concur with the majority opinion. However, I write separately in order to reiterate my opinion that the language of § 31-300 should be interpreted to allow discretion to the trial commissioner to award either interest or attorney’s fees, or both, based upon the circumstances of each case. See Kilton v. Cote & Sons, Inc., 15 Conn. Workers’ Comp. Rev. Op. 199, 2178 CRB-7-94-10 (April 23, 1996) (Miles, dissenting), dismissed for lack of final judgment, A.C. 15936 (9/19/96).

1 The legislature subsequently increased the fines and added criminal liability pursuant to § 31-288 as amended by P.A. 96-216. BACK TO TEXT

2 We note that during the formal hearing, the claimant’s attorney and the employer’s attorney appeared to have agreed to submit a stipulation of facts to the trial commissioner regarding these bills. (11/15/95 TR. at p. 26-27). BACK TO TEXT

3 We note that the Fund correctly argues that when it pays this claim under § 31-355, the Fund may not be held liable for the award of attorney’s fees or interest. See McGloin v. Gateway Industries, 5 Conn. Workers’ Comp. Rev. Op. 148, 618 CRD-1-87 (July 26, 1988). BACK TO TEXT

4 The Connecticut Appellate Court has stated: “We read the words of § 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.” Kilton v. Cote & Sons, Inc., 15 Conn. Workers’ Comp. Rev. Op. 199, 2178 CRB-7-94-10 (April 23, 1996) (Miles, dissenting), dismissed for lack of final judgment, A.C. 15936 (9/19/96), quoting Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992). Accordingly, this matter must also be remanded as the trial commissioner awarded only attorney’s fees without awarding interest. BACK TO TEXT

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