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Serfilippi v. Vision Hair Design

CASE NO. 3815 CRB-07-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 21, 1999

MARILOU SERFILIPPI

CLAIMANT-APPELLANT

v.

VISION HAIR DESIGN

EMPLOYER

and

LIBERTY MUTUAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Alan S. Pickel, Esq., Law Offices of Anthony A. Piazza, 112 Prospect Street, Stamford, CT 06905.

The respondents were represented by James L. Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the May 7, 1998 Finding and Order of the Commissioner acting for the Seventh District was heard October 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 filed a petition for review from the May 7, 1998 Finding and Order of the Commissioner acting for the Seventh District. In that decision, the trier found that the respondents satisfied a stipulation agreement by mailing their check on September 16, 1997, and in doing so, tendered the amount due to the claimant. The claimant argues on appeal that simply mailing the check did not constitute “tender” within the meaning of the stipulation. We affirm the trial commissioner’s decision, remanding only for a minor recalculation of interest.

The trial commissioner found the following relevant facts. On November 8, 1994 the claimant was employed by the respondent Vision Hair Design when she suffered a compensable injury. On September 9, 1997 the parties entered into a stipulation which stated that the respondents were to continue to pay the claimant weekly benefits “until such time as Respondents have tendered to Claimant the above mentioned $45,000.00.” Findings, ¶ 5, quoting Joint Exhibit 1, p. 3. The respondent-insurer Liberty Mutual mailed a check in the amount of $45,000.00 on September 16, 1997 which was received by the claimant’s attorney on September 22, 1997. The trier found that, by mailing the check on September 16, 1997, the respondents fulfilled the requirements of the stipulation and tendered the $45,000.00 on September 16, 1997. Thus, the commissioner concluded that the claimant was entitled to neither an additional week of benefits, nor interest and attorney’s fees concerning late payments of benefits.

The claimant filed a Motion to Correct dated May 21, 1998. In that motion, she requested the inclusion of findings that (1) the respondents failed to send the claimant her September 8, 1997 benefit check until October 31, 1997; (2) that said payment was made only after an informal hearing on October 28, 1997; (3) that the claimant was entitled to interest and attorney’s fees pursuant to § 31-296 C.G.S. regarding the aforementioned late payment; and (4) that respondents should pay $2.86 in interest, and $693.75 in attorney’s fees. The commissioner granted paragraphs one and two in full. Three and four were granted only insofar as $2.86 of interest was due. The trier did not award attorney’s fees.

The claimant argues that the trial commissioner erred in finding that the respondents “tendered” the $45,000.00 on September 16, 1997 because the claimant did not receive the check until September 22, 1997. The claimant relies on Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149 (1961), which states that tender is “an offer to pay a debt or discharge a duty, and . . . the actual production of the money and the placing of it in the power of the person entitled to receive it. Sands v. Lyons, 18 Conn. 18, 25.” Id., 155-56. It is the claimant’s position that in the present case, tender was not made until the check was received by her counsel on September 22, 1997.

When reviewing the factual determinations of a trial commissioner, this Board can not alter such findings unless they are found without evidence, based on impermissible or unreasonable factual inferences, or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant case, the trial commissioner found that the check was mailed on September 16, 1997. Findings, ¶ C. This finding is supported by evidence that the check in question was written on September 16, 1997. Respondent’s Exhibit 2. In addition, Vincent Bartolini testified that it is the business practice of Liberty Mutual to create and distribute checks on the same day. Transcript, p. 20. “That a letter was duly deposited in a mail box may be proved either by direct or circumstantial evidence. It may be proved by the testimony of the person who deposited it or by proof of facts from which it may be reasonably inferred that it was duly deposited.” Kerin v. Udolf, 165 Conn. 264, 268 (1973). It is therefore reasonable for the trial commissioner to conclude that the respondent insurer having written the check on September 16, 1997, sent the claimant’s check on the same day. We will not disturb that finding. See Fair, supra,

The Supreme Court’s ruling in Mayron’s Bake Shops, Inc., supra, may be read harmoniously with the trial commissioner’s findings. The definition of “tender” in Mayron’s Bake Shops, Inc. does not suggest any particular method by which the respondent must proffer payment. The instant stipulation also leaves that issue open. The respondents reasonably chose to use the mail system as a means of delivering the claimant’s weekly checks, and there is no indication that she ever objected to that vehicle for proffering payment. Liberty Mutual effectively relinquished control over the checks by placing them in the mail and designating them for delivery to the claimant. We cannot categorically hold that the respondents failed to produce the check within the above definition of “tender” by depositing it in the mail on September 16, 1997. Given the facts of this case, the trial commissioner’s interpretation of “tender” to encompass the mailing of the claimant’s benefit check was a reasonable reading of that term.

By placing the check in the mail on September 16, 1997, the respondents discharged their obligation to produce payment. Kerin, supra, states that “(i)f a person to whom money is due, either by express assent or direction, or a course of dealing from which such assent may be inferred, authorizes its transmission by mail, the person from whom it was due is relieved from the consequences of a default if it is duly and properly put into the mail.” Id., 268. Having found that the check for $45,000.00 was placed into the mail on September 16, 1997, the trier properly perceived that the respondents were relieved of their duty at that point. Therefore, the trial commissioner committed no error in finding that the respondents tendered the check on September 16, 1997.

Finally, the claimant argues that the trial commissioner erred by not awarding her attorney’s fees pursuant to § 31-296 C.G.S. An informal hearing was held on October 28, 1997 on the issue of the respondents’ failure to pay benefits as per the stipulation agreement for the weeks of September 8 and September 15, 1997. Liberty Mutual thereafter paid the benefits for the week of September 8, 1997, with the payment arriving six weeks late. In partially granting the claimant’s Motion to Correct, the commissioner awarded the claimant $2.86 in interest for this delay using the formula prescribed by § 31-296. However, § 31-296 requires in conjunction with an award of interest an award of “reasonable attorney’s fees incurred by the employee in relation to such discontinuance or reduction.” In the instant case, the commissioner specifically declined to award attorney’s fees.

In granting in part the claimant’s Motion to Correct, the trial commissioner did not explicitly state that he was granting interest pursuant to § 31-296. We infer that from the language in the Motion to Correct, and the trier’s use of the § 31-296 interest formula. Yet, the crux of the commissioner’s ruling on the Motion to Correct was that the claimant was entitled to interest, but not attorney’s fees. Such a ruling is incompatible with § 31-296, which requires the payment of both interest and attorney’s fees where an employer discontinues or reduces § 31-296 payments without the commissioner’s approval. Notably, the calendar week of benefits for which interest was awarded below was the week following the approval of the stipulation.

This board is required to give the trial commissioner’s ruling deference on review, and to interpret his findings consistently with the law, if possible. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996). By awarding interest, but not attorney’s fees, it is evident that the trier believed that any delay in payment was not the fault of the respondents. Indeed, there is no finding of undue delay, nor do the circumstances of the late payment bear out such a conclusion, as the parties entered into the stipulation on September 9, 1997. One could reasonably conclude that the respondents’ failure to send the claimant a check for the week of September 8-14 was not based on bad faith, but was an offshoot of the parties’ concordance and the trier’s approval of the stipulation, and the respondents’ imminent preparation to issue the $45,000 check. One could also conclude that this lapse in payment was not a discontinuance or reduction within the meaning of § 31-296. Once the stipulation was reached, a lump sum payment was due rather than weekly benefits of the type normally associated with a voluntary agreement.

By awarding interest and specifically not awarding attorney’s fees, we assume the trial commissioner found no fault on the part of Liberty Mutual. Undue delay or unreasonable contest on the part of the employer/insurer is the standard precursor to an award of attorney’s fees under the Workers’ Compensation Act. Here, the spirit of the trier’s award suggests that he was in actuality contemplating an award of interest pursuant to § 31-300.1 Under that section, an award of attorney’s fees is not required absent a finding of fault. We believe that the most appropriate result is to construe the award of interest as a § 31-300 award; specifically, the type that is made when “the delay has not been due to the fault or neglect of the employer or insurer.” Unfortunately, the trial commissioner’s award of $2.86 at the rate of one and one quarter per cent per month is slightly inconsistent with the ten per cent per annum rate prescribed in § 37-3a C.G.S. In fact, $2.86 exceeds the actual amount due. Therefore, a correction will be necessary.

We affirm the trial commissioner’s ruling that the respondents tendered the $45,000.00 check in a timely fashion, and his resultant denial of the claimant’s request for benefits for the week of September 15, 1997. However, we remand this matter to the trial commissioner to determine the proper rate of interest owed for the delay in payment of benefits due for the week of September 8, 1997.

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

1 Section 31-300 states in relevant part: “In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer . . . the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer.” BACK TO TEXT

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