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Yuille v. Bridgeport Hospital

CASE NO. 3735 CRB-04-97-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 10, 1998

DARCY YUILLE

CLAIMANT-APPELLEE

v.

BRIDGEPORT HOSPITAL

EMPLOYER

SELF-INSURED

and

RISK MANAGEMENT GROUP

ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Laura M. Mooney, Esq., 203 Church Street, P. O. Box 645, Naugatuck, CT 06770-0645.

The respondents were represented by Francis J. Ficarra, Esq., 1375 Kings Highway East, Suite 425, Fairfield, CT 06430.

This Petition for Review from the November 20, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard April 24, 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 respondent Bridgeport Hospital has petitioned for review from the November 20, 1997 Finding and Award of the Commissioner acting for the Fourth District. The only document that has been filed in support of its appeal is the petition for review itself. The respondent has not filed Reasons for Appeal, a Motion to Correct, or a brief. The claimant moved for a default judgment for failure to prosecute the appeal on February 10, 1998. On April 23, 1998, the day before oral argument was scheduled to take place on this appeal, the respondent’s counsel filed a letter withdrawing its petition for review, along with a copy of a letter that said counsel wrote to the claimant’s counsel.

In her Finding and Award, the trial commissioner found that the respondent agreed in writing to pay $11,862.66 in temporary partial benefits within seven days of the July 18, 1997 agreement. She also found that the respondent had failed to pay reasonable and necessary medical bills as of the date of the formal hearing, and that the employer discontinued the payment of all benefits to the claimant without first filing a Form 36. Even though the claimant submitted light duty work search forms, the respondent refused to issue temporary partial disability payments. The claimant’s treating physician referred her to Dr. Dawe, who recommended a discography and possible surgery. The respondent denied that treatment, but never attempted to obtain an independent medical examination during the 14 months preceding the close of the record on September 22, 1997. The respondent agreed to that treatment at the formal hearing. The respondent also refused to pay for a medical examination ordered by Commissioner Verrilli on November 16, 1996. Another § 31-294f examination was ordered on February 25, 1997, and the examiner’s subsequent report concurred with Dr. Dawe’s opinion. Nevertheless, the respondent continued to refuse the claimant further medical treatment. Only at the formal hearing did the respondent agree to pay for all reasonable treatment, and the discography recommended by Dr. Dawe.

The trial commissioner noted that the claimant sought interest on the unpaid permanent partial disability benefits, and payment of attorney’s fees in the amount of $4008.20. She found that the respondent had unduly delayed benefit payments to the claimant, and granted the request for interest and attorney’s fees. She explicitly ordered that the $11,862.66 be paid to the claimant, along with 10% interest totaling $1,186.27. She also awarded the claimant an attorney’s fee of $175.00 per hour, with the total amount to be determined by further proceedings. All medical bills submitted by the claimant were also ordered paid, and the commissioner specifically found that the claimant had not yet reached maximum medical improvement. Thus, no credits against a possible specific indemnity award could be taken by the respondent. The trial commissioner specifically noted that the case management of this claim has been unconscionable. The respondent appealed that decision, but as noted above, did not offer any support for its appeal, and withdrew the petition for review the day before oral argument was scheduled.

In her brief, the claimant states that the respondent has unreasonably and without good cause delayed the processing of this claim from the outset, resulting in extreme hardship to the claimant. She requests not only that the trial commissioner’s order be upheld, but that 12% interest be awarded on the $4008.20 in attorney’s fees claimed at the formal hearing and the still-unpaid temporary partial disability benefits from the date of the award through the present, and that the respondent be sanctioned and fined as a result of its continued unconscionable behavior. The claimant’s attorney has offered an updated Attorney Fee Affidavit in the amount of $1,683.06 for her work on this appeal. As the respondent has filed nothing in support of its appeal and did not attend oral argument, there has been nothing offered to rebut the claimant’s contentions.

Given the trial commissioner’s findings regarding the conduct of the respondent in administering workers’ compensation benefits in this case, and the respondent’s failure to offer any argument in support of its appeal before withdrawing it at the last minute, this board is forced to conclude that the respondent filed its petition for review solely for the purpose of delay. 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. See 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). This case also warrants the imposition of sanctions.

Based on the withdrawal of the respondent’s appeal, we hold that the respondent is liable to the claimant for all sums awarded by the trial commissioner. The respondent is also liable for 10% interest per annum (as per § 37-3a) on all unpaid benefits through the date of this decision pursuant to § 31-301c(b), and is liable for the claimant’s attorney’s fees associated with this appeal, which we believe was taken for the purpose of vexation and delay. See Thaller, supra. Pursuant to § 31-327 C.G.S., we remand this case to the Fourth District for a determination of the attorney’s fees owed to claimant’s counsel. See LaPia v. Stratford, 47 Conn. App. 391, 400-401 (1997); Schiano v. Bliss Exterminating, 16 Conn. Workers’ Comp. Rev. Op. 189, 191-92, 3315 CRB-4-96-4 (May 16, 1997). As no decision has yet been made on the amount of attorney’s fees due the claimant’s counsel, we do not believe that interest is currently owed on those sums.

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

Workers’ Compensation Commission

Page last revised: June 29, 2005

Page URL: http://wcc.state.ct.us/crb/1998/3735crb.htm

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