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Syphers v. Dedicated Logistic Service et al.

CASE NO. 3711 CRB-01-97-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 16, 1998

KENNETH SYPHERS

CLAIMANT-APPELLEE

v.

DEDICATED LOGISTIC SERVICE

EMPLOYER

and

CRUM AND FORSTER INSURANCE

INSURER

and

CRAWFORD & CO.

INSURER

RESPONDENTS-APPELLANTS

and

ROLLINS DCS

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Douglas J. Williams, Esq., Boland, St. Onge & Brouillard, 211 Kennedy Drive, P.O. Box 550, Putnam, CT 06260.

The respondents Dedicated Logistics Service, Crawford & Company Insurance, and Crum & Forster Insurance were represented by James J. Moynihan, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent Rollins DCS was represented by Thomas A. Virgulto, Esq., Mongillo, Insler & Virgulto, P.C., 26 Elm Street, New Haven, CT 06510.

This Petition for Review from the October 17, 1997 Finding and Award of the Commissioner acting for the First District was heard May 8, 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 respondents Dedicated Logistic Services (“DLS”), Crawford & Company, and Crum & Forster (hereinafter “respondent appellants”) have petitioned for review from the October 17, 1997 Finding and Award of the Commissioner acting for the First District. In that decision, the trial commissioner found that the respondents’ refusal to authorize surgery prevented the claimant from receiving necessary surgery for his compensable ankle injury, and concluded that said conduct constituted unreasonable delay. Each of the employers was ordered to pay a $1,000 fine, and attorney’s fees totaling $1,000 were ordered to be split evenly between the respondents. In support of their appeal, the respondent appellants contend that the trial commissioner erred in finding that there was undue delay pursuant to § 31-300.

The trial commissioner found the following relevant facts. On January 30, 1996, the claimant sustained a compensable injury to his right ankle during the course of his employment with the respondent Rollins DCS. Subsequently, on December 14, 1996, the claimant sustained a second compensable injury to his right ankle and leg during his employment with the respondent Dedicated Logistic Services (“Dedicated”). The claimant was treated by several physicians, and after conservative treatment proved unsuccessful, Dr. Michael S. Aronow recommended surgery. All of the parties agreed that the claimant should undergo surgery on his ankle. (Finding No. 12; 9/26/97 TR. at 4). The claimant’s surgery was scheduled for September 11, 1997, but was “canceled as a result of the refusal of both the Respondents to authorize said surgery since there [was] no agreement as to apportionment.” (Finding No. 17). The trial commissioner found that the respondents’ refusal to authorize the surgery was “unreasonable, egregious and constitut[ed] bad faith and unreasonable delay.” (Finding No. 18). Accordingly, pursuant to § 31-300, the trial commissioner ordered the payment of attorney’s fees and fines.

Section 31-300 provides in pertinent 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 . . . 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 compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.”

Whether the respondents’ conduct constituted undue delay is a factual question for the trial commissioner. Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124-25 (1992); Sanchez v. Steben’s Motors, 3247 CRB-6-96-1 (Dec. 24, 1996). It is well settled that this board does not retry the facts because the power to determine the facts rests with the trial commissioner as the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995).

In support of their appeal, the respondent appellants contend that they advanced a good faith dispute as to the responsible party for the claimant’s surgery, and thus that the trial commissioner erred in finding undue delay pursuant to § 31-300. Specifically, the respondent appellants contend that the injury sustained while at Dedicated was not as significant as the injury sustained while at Rollins DCS. However, in the instant case the trial commissioner determined that the refusal by the respondents to authorize the surgery caused an undue delay in the claimant’s needed surgery. Specifically, the trial commissioner found that the respondents agreed that the claimant needed the surgery. Furthermore, the trial commissioner found that the claimant’s surgery was scheduled for September 11, 1997, but was “canceled as a result of the refusal of both the Respondents to authorize said surgery....” (Finding No. 17). Since the trial commissioner’s finding of undue delay is not based on impermissible or unreasonable factual inferences or contrary to law, it must be upheld. Fair, supra.

We note that the trial commissioner awarded attorney’s fees pursuant to § 31-300, but did not award interest. Having already upheld the trial commissioner’s finding that the respondents’ conduct caused undue delay pursuant to § 31-300, we find the trial commissioner’s award of attorney’s fees within his discretion. See Imbrogno, supra. However, 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.” Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992).” Here, the trial commissioner did not award interest in conjunction with the attorney’s fees as required. We therefore remand this issue to the trial commissioner.

In further support of their appeal, the respondents argue that the imposition of a fine for undue delay is not permitted under § 31-300, but that a fine may be levied under § 31-288(b). We agree. See Palmateer v. Stop & Shop Companies, Inc., 14 Conn. Workers’ Comp. Rev. Op. 277, 2218 CRB-2-94-11 (Sept. 6, 1995). Section 31-288(b) provides that where “through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed... the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars....” While we believe that the egregious nature of the respondents’ conduct in this case supports the trial commissioner’s fine in the amount of $1,000, this amount is in excess of the statutory limit of § 31-288(b) and must be reversed. Therefore, we remand this issue to the trial commissioner to determine the amount to be levied in accordance with the statutory limits of § 31-288(b).

We feel it necessary to remind the respondents of the purpose of the Workers’ Compensation Act. The Act has always been, “remedial in nature and should be construed to accomplish its humanitarian purpose.” Schiano v. Bliss Exterminating, 16 Conn. Workers’ Comp. Rev. Op. 189, 3315 CRB-4-96-4 (May 16, 1997) (citing 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.” Schiano, supra.

In the instant case, the respondents should have agreed to authorize the surgery with an agreement to share the cost and to adjust the apportionment of the cost after the surgery. Undeniably, the respondents were aware that the claimant was in need of surgery for his ankle due to his compensable injuries, and that one or all of them would eventually be held liable for the cost of the surgery. It was therefore unconscionable for the respondents to cause the cancellation of the claimant’s scheduled surgery. While the two employers quibbled over how to apportion the cost of the surgery, knowing full well that both would have to pay a portion of the cost, the claimant was effectively denied reasonable and necessary treatment. Indeed, we conclude that the respondent appellants’ appeal to this Board has only served to delay this matter, and thus we conclude that the claimant is entitled to attorney’s fees pursuant to §31-301(e) and Practice Book §4184B(4), (5), (8).1

The commissioner’s decision is hereby remanded for further proceedings consistent with this opinion. Specifically, on remand the trial commissioner should consider the imposition of a fine pursuant to § 31-288(b), and an award of interest under § 31-300. The trial commissioner should also award attorney’s fees incurred by the claimant due to the respondents’ present appeal. Additionally, the respondents are required by § 31-301c(b) to pay interest on any portion of the award that remained unpaid during the pendency of this appeal.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

1 “Section 31-301(e) C.G.S. provides that, where applicable, the procedure in appealing a commissioner’s award is the same as the procedure used in appealing a superior court decision to the supreme court. Under the Rules of Appellate Procedure, a party may have costs and fees imposed against it for presenting unnecessary or frivolous issues on appeal, as well as for disregarding the rules governing the withdrawal of appeals. Practice Book § 85-2(4), (5), (8). Costs may also be taxed against a party filing an appeal that is found to be frivolous or taken for the purpose of vexation or delay. Practice Book § 76-4. We have applied these statutes to appellants in workers’ compensation cases in the past.” Yuille v. Bridgeport Hospital, 3735 CRB-4-97-12 (June 10, 1998), citing In re: Veterans’ Memorial Medical Center, 3063 CRB-8-95-5 (March 14, 1997); see also Thaller v. Albert Philopena, Inc., 3477 CRB-8-96-11 (March 18, 1998). BACK TO TEXT

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