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Heene v. Professional Ambulance Service, Inc.

CASE NO. 3743 CRB-06-97-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 8, 1999

LES HEENE

CLAIMANT-APPELLEE

v.

PROFESSIONAL AMBULANCE SERVICE, INC.

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENT-APPELLANT

and

MATHOG & MONIELLO

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Joel Ellis, Esq., Butler, Norris & Gold, 254 Prospect Avenue, Hartford, CT 06106-2041.

The respondent employer and CHAWCT were represented by Kristen Sotnik Falls, Esq., Letizia & Ambrose, 1764 Litchfield Turnpike, Suite 106, Woodbridge, CT 06525.

The respondent employer and Mathog & Moniello did not file a brief or appear at oral argument. Notice sent to David Bull, Esq., Forino & Griffin, One Century Tower, 265 Church Street, Suite 104, New Haven, CT 06510-7011.

This Petition for Review from the December 10, 1997 Finding and Award of the Commissioner acting for the Sixth District was heard June 12, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and the respondent insurer CHAWCT have petitioned for review from the December 10, 1997 Finding and Award of the Commissioner acting for the Sixth District. They argue on appeal that the trier erred by not including certain wages earned by the claimant in the calculation of his temporary partial disability benefit rate, by awarding excessive attorney’s fees against the respondents, and by denying their Motion to Correct. We affirm the trier’s decision in part, and reverse in part with an order that this case be remanded for further findings.

The claimant worked full-time as an emergency medical technician (EMT) with the employer on December 23, 1995, when he slipped on ice during the course of his employment and hurt his left shoulder. He was diagnosed with a left shoulder contusion at the hospital, and referred to Dr. Santoro. He missed three days of work as a result of that incident before Dr. Santoro cleared him to return on December 26, 1995. The claimant testified that during the ten months subsequent to that fall, he slowly developed increased shoulder discomfort. Although he lived with the pain, it restricted his activities to a degree. The claimant reported that the pain got worse during the week prior to October 19, 1996. On that date, while picking up a piece of equipment at an emergency scene, he felt severe left shoulder pain. After completing the call, he returned to work, notified his supervisor of the incident, and went home.

The claimant was diagnosed by a physician at Industrial Health Care with chronic left shoulder rotator cuff syndrome. He was placed on light duty and referred for an orthopedic evaluation to Dr. Miranda, who saw the claimant on October 23, 1996. He diagnosed the claimant with a possible rotator cuff tear from ten months earlier, and placed the claimant on light duty with no use of the left arm. An MRI revealed such a tear, and Dr. Miranda suggested surgery. The claimant attempted to avoid surgery by undergoing physical therapy, but it was unsuccessful, and he agreed to surgery on December 27, 1996. He testified that surgery was postponed twice because he could not obtain authorization for such treatment from the respondent CHAWCT, who was on the risk as of December 23, 1995, but no longer insured the respondent employer for workers’ compensation claims on October 19, 1996. The trier noted that CHAWCT contested liability for compensation on November 12, 1996, on the ground that the October 19, 1996 incident constituted an intervening injury.

On November 21, 1996, Dr. Miranda had opined by history and physical exam that the claimant’s rotator cuff tear was the result of the 1995 fall. He reiterated this opinion in response to specific questions by a senior claims representative of CHAWCT on January 10, 1997, explaining that the tear was solely the result of the 1995 fall, and was in no way due to the 1996 lifting incident. He again stated the same thing on February 20, 1997, and again expressed the need for the claimant to undergo surgery. Finally, the claimant underwent surgery on April 24, 1997, and processed the medical bills through his private health insurance.

The claimant was evaluated by Dr. Yannopoulos, an orthopedic surgeon, on July 14, 1997. He opined that the claimant was able to return to work subsequent to his December 1995 injury, indicating that it was probably just a shoulder strain. He thought that the strain was worsened by a sudden extension of the left shoulder on October 19, 1996, and that responsibility for the claimant’s disability should be apportioned equally among the two incidents.

Prior to both of his compensable injuries, the claimant had contracted with the respondent employer to clean its premises (e.g. emptying wastebaskets, cleaning lavatories, vacuuming carpets) as part of a private cleaning business he solely owned. He continued to operate this $1500-$2000 per month business through June 30, 1997, when the contract expired. The claimant testified that he was unable to work as an EMT from October 19, 1996 to April 24, 1997, as a result of lifting restrictions. However, he was able to do his cleaning. Post-surgery, he was totally disabled for two weeks by Dr. Miranda, who then permitted him to return to his cleaning business with a restriction against left arm lifting. The claimant was returned to restricted duty with no left arm use on July 28, 1997, and began looking for work. He found a job driving cars for National Car Rental on October 13, 1997 earning $5.15 per hour for 24 hours per week.

The trier specifically rejected Dr. Yannopoulos’ report and accepted the opinions of Dr. Miranda, the treating physician. He assigned full responsibility for the rotator cuff tear and surgery and all related disability to the December 23, 1995 compensable injury. The trier also noted that CHAWCT refused to accept liability for indemnity, medical and surgery benefits, forcing the claimant to use his personal health insurance, despite the lack of any medical opinion to support its denial of payment. Moreover, the IME that it finally obtained only split the responsibility 50-50. The trier found that CHAWCT had unreasonably contested liability, and ordered it to pay attorney’s fees of $5,437.50 to the claimant’s counsel, along with 12% interest on all unpaid indemnity benefits on account of the respondents’ undue delay in payment.

Along with two weeks of temporary total disability benefits, these benefits included temporary partial disability from October 20, 1996 through April 23, 1997 and May 8, 1997 forward. The trier stated that the benefits payable before October 13, 1997 (the date the claimant began working at National Car Rental) should be paid at the base compensation rate without any reference to earnings from the claimant’s cleaning business. The trier reasoned that his self-employment did not qualify as concurrent employment under § 31-310 and § 31-275 C.G.S. The respondents have appealed the trier’s decision to this board.

We first address the finding of unreasonable contest. As the history related above indicates, the commissioner faulted CHAWCT for refusing to make payment without prejudice on this claim even though the treating physician’s opinion had not been contradicted by another doctor. The appellants argue that, because the trial commissioner is not required to accept the medical opinion of the treating physician, they were entitled to contest the claim, “especially in a claim where the factual evidence just as strongly supports the position of the Respondents.” They cited the claimant’s return to work three days after his initial injury, and his failure to obtain any treatment for his shoulder until October 19, 1996, the date of the second injury, as indicative of this “factual evidence.”

Section 31-300 permits the trier to allow to the claimant 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 statute also allows an award of twelve percent annual interest in cases where, through the employer or insurer’s fault or neglect, payments of compensation were unduly delayed. The commissioner found that each of these transgressions occurred, and that the claimant was entitled to interest and attorney’s fees. It is generally within the trier’s discretion to make such an award. Sanchez v. Steben’s Motors, 3247 CRB-6-96-1 (Dec. 24, 1996). “[A]s long as there is some evidence to support the requisite finding of unreasonable [contest and undue] delay in this case, the commissioner’s decision . . . must be affirmed.” Id.

We do not believe it was an abuse of discretion for the trier to make such an award here. As we noted in Muldoon v. New England Installation, 3552 CRB-4-97-3 (August 24, 1998), where it is clear that a claimant is entitled to benefits, and the issue is simply which insurer will pay for them, the trier may fault the respondents for withholding benefits. In the instant case, the same insurer was not on the risk on the two dates in question, even though the claimant worked for the same employer at the time of each incident. The claimant should not have carried an extra burden because of that fact, and given the humanitarian purpose of the Workers’ Compensation Act, this change in insurers should not have kept him from receiving one iota of necessary medical care.

Yet, it did. CHAWCT was more concerned about assigning responsibility to TIG than it was about ensuring that the claimant’s medical needs be met, even though it would have been easy to authorize payment for his surgery subject to apportionment later. The fact that no medical report was ever obtained to support CHAWCT’s position ironically highlights the short-sighted gamesmanship that too often marks the administration of workers’ compensation cases by insurers in this system. When an injured claimant needs medical care, the top priority should and must be that he receive that medical care. See Schiano v. Bliss Exterminating, 16 Conn. Workers’ Comp. Rev. Op. 189, 191, 3315 CRB-4-96-4 (May 16, 1997). The commissioner did not err in accentuating this point by awarding interest and attorney’s fees.

The respondents also challenge the amount of the $5,437.50 fee awarded to the claimant’s counsel. They contend that this amount is excessive, as it represents much more than 20% of the total indemnity benefits awarded to the claimant, and as it is based upon a $250 hourly rate that exceeds the customary charge for prosecuting a workers’ compensation claim.

Section 31-327(b) states that all attorney’s fees shall be subject to the approval of the commissioner. We do not believe that the Chairman’s fee guidelines issued pursuant to § 31-327(b) and § 31-280(b)(11) need be applied to awards of attorney’s fees under § 31-300. Although compliance with said guidelines would be strong evidence that such fees were not unreasonably high, see Grillo v. Prestige Enterprises, Inc., 13 Conn. Workers’ Comp. Rev. Op. 311, 315, 1704 CRB-1-93-4 (April 25, 1995), the commissioner is entitled to award a greater sum if he deems it appropriate. An attorney who takes a claimant’s case and encounters a party who unreasonably contests his client’s claim is forced to spend more time than expected representing his client. Limiting counsel to a 20% fee in such cases could encourage respondents to stonewall opposing attorneys until it was no longer financially viable for them to represent their clients.

Here, the trial commissioner decided that the $250 per hour figure charged by claimant’s counsel was reasonable. As this was an unreasonable contest case, the trier was within his rights to also award counsel the full amount of his $5,437.50 bill. The respondents have pointed to no evidence in the record that disproves the legitimacy of those charges, and we will not reverse the trier’s decision on that matter.

The other issue raised by the respondents on appeal is the proper method of calculating the claimant’s entitlement to benefits under § 31-308(a) in light of the wages he earned from his cleaning business. Section 31-310 controls the ascertainment of a claimant’s average weekly wage. It allows wages earned from other employers to be taken into account where “the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ he was injured . . . [is] insufficient for him to obtain the maximum weekly compensation rate . . . .” Under § 31-275(10), the sole proprietor of a business is considered an employer only if he notifies this Commission in writing of his intent to accept the provisions of chapter 568. There is no dispute that the claimant did not do that in this case, and that his cleaning business cannot be considered concurrent employment for the purposes of § 31-310. See Lemieux v. General Dynamics, 14 Conn. Workers’ Comp. Rev. Op. 383, 2077 CRB-2-94-6 (Oct. 5, 1995).

Because § 31-310 does not define the claimant’s cleaning business as “concurrent employment,” the trier reasoned that the wages earned by the claimant from his cleaning business also could not be considered in computing his temporary partial disability benefits before and after surgery. The respondents argue that this was erroneous, especially considering that the claimant earned more from his cleaning business than he did as an EMT. The claimant, meanwhile, argues that earnings should be treated the same way under both § 31-310 and § 31-308(a), and that it would be inconsistent to omit concurrent employment earnings from § 31-310 and not § 31-308(a).

Section § 31-310 defines a claimant’s “average weekly wage,” which is referred to throughout the Workers’ Compensation Act. However, one place it is not referred to is in the first part of § 31-308(a). That section states that a partially incapacitated employee “shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury . . . and the amount he is able to earn after the injury . . . .” The key words here are “amount he is able to earn.” They do not limit themselves to amounts derived from an employer under § 31-275(10), or to wages as defined in § 31-310. Their scope is plainly much more catholic with regard to the type of earnings they contemplate.

A private business endeavor that is outside the Act with respect to the definition of “concurrent employment” can still provide earnings to a claimant that are recognized under the Act for some purposes. Just as a claimant’s active participation in a business that he owns may establish that he is not totally disabled, the amounts he earns in such a business must be taken into account in determining how much he is actually earning at any given time under § 31-308(a). See Granoff v. New Haven, 12 Conn. Workers’ Comp. Rev. Op. 166, 168, 1555 CRB-3-92-11 (April 29, 1994). The language of § 31-308(a) appears to require that result by its use of the term “the amount he is able to earn” rather than the narrower, statutorily defined term “income,” which implicates the presence of an employer. Sec. 31-284b(a); Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 399-400 (1997). Where the language of the statute is unambiguous, this board may not divert from the meaning of that language, even if it would result in a claimant being denied benefits that would be consistent with the overall spirit of the Act. Trankovich v. Frenish, Inc., 47 Conn. App. 628, 631 (1998).

As the trier failed to consider the claimant’s earnings from his cleaning business in calculating his benefits under § 31-308(a), we must remand this matter for further consideration of that issue. The case is thus remanded for that purpose, while the award of attorney’s fees and interest against the respondents is affirmed.

Commissioners George A. Waldron concurs.

AMADO J. VARGAS, COMMISSIONER, DISSENTING IN PART. I concur with the majority regarding the issues of unreasonable contest and attorney’s fees, but dissent from their opinion on the appropriate method of calculating the claimant’s temporary partial disability benefits. The purpose of the Workers’ Compensation Act is undeniably of a humanitarian nature. Gil v. Courthouse One, 239 Conn. 676, 682 (1997). In my opinion, the claimant’s outside earnings should be treated identically under both statutes, and the majority has overemphasized the breadth and the significance of the § 31-308(a) phrase “the amount he is able to earn. “

Our Supreme Court has recognized that the Act should be construed to “make every part operative and harmonious with every other part insofar as is possible.” Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 21 (1995) (internal citations omitted). In this case, neither the inclusion nor the exclusion of the claimant’s cleaning business profits in his § 31-308(a) earnings would render a portion of the statutory language inoperative; however, the majority’s insertion of those profits into the temporary partial disability equation coldly clashes with the omission of those profits from the 31-310 average weekly wage calculation. If a claimant who has suffered a compensable injury cannot be additionally compensated for his inability to generate income from a sole proprietorship that happens to be unregistered under § 31-275(10), he should not then be separately penalized for pursuing that same occupation while he qualifies for temporary partial disability payments. Logically and legally, the entire activity is taking place outside the Workers’ Compensation Act. Whether or not the claimant’s ability to perform cleaning duties could have been used to determine his employment capability is irrelevant; his earnings from that occupation cannot be part of the Act for only those purposes that benefit the insurer.

One of the purposes of the Act is to put an injured worker in the same financial position as he was prior to the injury. The majority’s result would leave the claimant and other similarly situated workers with little or no temporary partial disability benefits, although it is clear that this claimant suffered a compensable injury from which he was disabled for a period of time.

The phrase “amount he is able to earn” as used in § 31-308(a) is ambiguous. The statute itself repeatedly describes as “employees” both the claimant and the individual currently working at his former job whose salary is being compared to the claimant’s earnings. As a matter of statutory interpretation, it would be permissible to read “the amount he is able to earn” as meaning, “the amount he is able to earn as an employee.” Given the humane purpose of the Act, and the undesirability of variant treatment for non-”employment” earnings, the more cogent reading of the Act is the one which would affirm the well-reasoned decision of the trial commissioner. Therefore, I dissent.

Workers’ Compensation Commission

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