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McMullen v. Haynes Construction Co.

CASE NO. 3657 CRB-05-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 12, 1998

JAMES MCMULLEN

CLAIMANT-APPELLEE

v.

HAYNES CONSTRUCTION CO.

EMPLOYER

and

ATLANTIC MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The employer and Atlantic Mutual were represented by James Moynihan, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The employer and Aetna were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 17, 1997 Finding and Award of the Commissioner acting for the Fifth District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and Atlantic Mutual (hereinafter “respondents”) have petitioned for review from the July 17, 1997 Finding and Award of the Commissioner acting for the Fifth District. In that decision the trial commissioner found that the claimant sustained a compensable injury to his back on November 28, 1995. In addition, the trial commissioner concluded that Atlantic Mutual had unreasonably contested liability and thus awarded attorney’s fees and interest pursuant to § 31-300. In support of their appeal, the respondents contend that the record does not support the trial commissioner’s determination of unreasonable contest, and that it was improper to award interest.

The trial commissioner found that the claimant, a carpenter, sustained a compensable injury to his back while working for the respondent employer on November 28, 1995. On that date, the claimant was carrying plates which weighed approximately one hundred pounds each. During lunch time on November 28, 1995, the claimant felt increased pain and asked his foreman, John Martin, if he could use the trailer telephone to call his wife. The claimant then called his wife to refill a prescription medication for his back pain. The claimant continued to work, but at a slower pace, and he unbuckled his tool belt in order to take pressure off of his back. The claimant did not tell Martin on November 28, 1995 that he was experiencing back pain, but assumed that Martin was aware of his problem. At the end of the day, the claimant asked co-workers to help him carry his tools to his vehicle.

On November 29, 1995, because it was snowing, the claimant telephoned the Martin’s home to determine whether he should report to work. The claimant spoke to John Martin’s brother because John Martin was not present, and was told that only a few employees would be needed that day primarily to shovel snow. The claimant testified that he advised John Martin’s brother that he injured his back at work on the previous day. The claimant testified that he reported to work on November 30, 1995, and that the work load on that day was very easy. The claimant was given permission by Martin to leave at 3:00 p.m. in order to go to an appointment with Dr. Rosenberg. On Monday, December 1, 1995, the claimant telephoned the owner of the respondent employer, Paul Haynes, and advised him that he sustained a work-related injury to his back which may have caused a disc problem.

The claimant was referred by Dr. Rosenberg to an orthopedic surgeon, Dr. McCarthy, who opined that the claimant sustained a disc herniation which was caused by his work activities on November 28, 1995 together with a pre-existing condition of his spine. Dr. McCarthy attributed sixty percent of the claimant’s condition to the work activities of November 28, 1995 and forty percent to the pre-existing condition. At the request of the respondents, Dr. Yannopoulos conducted an independent medical evaluation of the claimant. Dr. Yannopoulos opined that the claimant sustained a lumbar strain together with degenerative changes. He concluded that the claimant had a ten percent permanent impairment, specifically five percent caused by his work activities of November 28, 1995 and the remaining five percent caused by his pre-existing degenerative condition.

During the formal hearing, the respondents’ sole defense to compensability was that the claimant continued working and did not report his injury on the day that it occurred to either his foreman, John Martin, or the project supervisor, Roger Johnson. However, that the claimant notified the employer regarding his injury on December 1, 1995 was not disputed. Moreover, the medical evidence, including that of the respondents’ independent medical examiner Dr. Yannopoulos, indicated that the claimant had sustained an injury to his back on November 28, 1995. Accordingly, the trial commissioner concluded that the respondents’ contest of the claim constituted unreasonable contest pursuant to § 31-300.

Section 31-300 C.G.S. provides in relevant part:

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. . . . In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.

In support of their appeal, the respondents contend that it was not unreasonable to contest liability in the instant case. We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner. Ruiz-Dugue v. Greenwich Hospital, 16 Conn. Workers’ Comp. Rev. Op. 208, 3267 CRB-7-96-2 (May 22, 1997); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). In the instant case, the trial commissioner specifically found that the claimant’s alleged delay in notifying his employer regarding the November 28, 1995 until December 1, 1995 was not a reasonable basis for contesting liability. (Finding G). Significantly, the trial commissioner found that even the respondents’ independent medical examiner attributed fifty percent of the claimant’s permanent partial disability to the November 28, 1995 workplace injury. Accordingly, we find no error in the trial commissioner’s conclusion that the respondents’ contest of compensability of the injury constituted unreasonable contest.

In further support of their appeal, the respondents contend that § 31-300 allows only for attorney’s fees in cases of unreasonable contest, but does not allow for interest. Based upon the findings of fact, it appears that the trial commissioner concluded that the respondents’ unreasonable contest resulted in an undue delay of payments to the claimant, and thus the trial commissioner awarded interest. We note that in some cases where unreasonable contest occurs, the claimant has nevertheless been paid benefits pursuant to § 31-301(f), and thus no interest may be awarded because no undue delay of payments results. In the instant case the trial commissioner made a specific finding of fact which indicates that the claimant has had to rely upon monetary aid from his friends and family. (Findings No. 58). A reasonable inference is that the respondents have failed to pay benefits, and thus that an unreasonable delay has occurred which supports an award of interest.

The trial commissioner’s decision is affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: June 29, 2005

Page URL: http://wcc.state.ct.us/crb/1998/3657crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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