DiBello v. Barnes Page Wire Products

The claimant was represented by Daniel Benjamin, Esq., Benjamin & Gold, 350 Bedford Street, Suite 403, Stamford, CT 06901.

The respondent employer was represented by Leo Gold, Esq., Mackler & Gold, P.C., 460 Summer Street, Stamford, CT 06901.

The respondents’ insurers Hartford ITT Insurance Group and Aetna/Travelers were represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent insurer Ohio Casualty Group Insurance Co. was not represented at oral argument. Notice sent to Thomas J. Hagarty, Esq., Halloran & Sage, One Goodwin Square, 225 Asylum Street, Hartford, CT 06103-4303.

The Second Injury Fund was not represented at oral argument. Notice sent to Michelle Truglia, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 31, 2000 Finding and Order of the Commissioner acting for the Seventh District was heard May 18, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Barnes Page Wire Products has petitioned for review from the August 31, 2000 Finding and Order of the Commissioner acting for the Seventh District. In this appeal, it contends that the trier erred by awarding the claimant an attorney’s fee without finding either unreasonable contest or a specific payment of benefits that was unduly delayed, and by awarding the claimant § 31-308a benefits without first finding a diminished earning capacity. We find error, and reverse the trial commissioner’s decision with direction on remand.

The claimant in this case was injured during the course of his employment on August 10, 1993. Compensability was determined in a July 15, 1996 Finding and Award. Subsequently, in a Finding and Order dated January 21, 1999, a commissioner held that none of the three insurers named by the respondent Barnes Page in this action were on the risk at the time of the claimant’s injury. In DiBello v. Barnes Page Wire Products, 3970 CRB-7-99-2 (March 2, 2000), this board affirmed that decision with respect to the insurers Aetna Casualty & Surety and Hartford ITT Insurance Group. However, with respect to the Ohio Casualty Group Insurance Co., we held that the case had to be remanded to the trier in order to conduct further proceedings “to determine whether the actions of the insurer’s agent require it to accept liability as the respondent employer’s workers’ compensation carrier.” Id. Both the appellant Barnes Page and the appellee Ohio Casualty filed appeals from that ruling to the Appellate Court, though the latter’s appeal was withdrawn on December 22, 2000. The Appellate Court has not yet ruled on the remaining appeal, as the underlying issues regarding the amount of benefits due the claimant still await resolution.

It is in conjunction with those issues that the instant petition for review now comes before this board. In an August 31, 2000 Finding and Order, the trial commissioner found that the claimant’s average weekly wage was $580.00, and his compensation rate was $329.27. He was totally disabled from the date of his injury through November 17, 1993, after which he was released to light-duty work. In December 1993, he was released by the Advanced Physical Therapy Center to full-time, heavy-duty work after it was observed that the claimant could lift 114-150 lbs. to various heights with good body mechanics. Findings, ¶ 4. The claimant took a job with Cargen Fence Company shortly after November 17, 1993, where he earned a $15.00 hourly salary, which exceeded his wages at Barnes Page. However, a dispute with his employer led the claimant to leave the Cargen Fence job the following June.

Meanwhile, Dr. Dunn, the claimant’s chiropractor, reported that he had a 15% permanent partial disability of the back as of April 25, 1994. She reported findings of a genetic spinal weakness, including spondylolisthesis and spina bifida. The claimant has seen Dr. Dunn approximately 160 times since reaching maximum medical improvement in April 1994, incurring $8,500 in chiropractic expenses. Dr. Rubenstein, an orthopedist, evaluated the claimant and concluded that he had a 20% permanency of the back, with three-quarters of that permanency due to pre-existing back conditions. He thought that the claimant’s continuing chiropractic treatment was palliative rather than curative. Pursuant to the 1996 Finding and Award, the employer was ordered to pay temporary total disability benefits through November 17, 1993, with all other benefits to await future determination. Previously, the claimant had received $7,050.00 in advances, which exceeded the $4,233.47 in total disability benefits that was then due.

In his decision below, the trial commissioner ordered Barnes Page to pay the claimant for a 20% permanency of his back, with a maximum medical improvement date of July 29, 1994. After the expiration of said specific indemnity payments on January 14, 1996, the employer was directed to pay the claimant § 31-308a benefits for 74.8 weeks at the rate of $150.00 weekly, matching the length of the permanency award. The trier also found $5,500.00 of Dr. Dunn’s fees reasonable, as well as $3,500.00 of Advanced Physical Therapy’s fees, and a $560.00 fee for Dr. Prokop. The trier then stated at the end of his award, “Because of the complexities, confusion and legal issues presented throughout the history of the Claimant’s file, no interest is awarded to him . . . . [T]he behavior of the Employer up to the date of the Claimant’s compensable injury was not unreasonable. However, the undersigned is of the opinion that sufficient hearings were held with all parties being present, which would have given ample evidence and inferred direction to the Employer that it was going to be obligated to pay certain benefits to the Claimant as the file progressed through the processes of informal and formal hearings.” This failure on the employer’s part to “anticipate its obligation” inspired the trier to award the claimant a $5,000.00 attorney’s fee. At the claimant’s request, the trier later corrected his findings to note that there was a delay in the adjustment or payment of compensation through the fault of the employer or insurer. Here on appeal, Barnes Page protests the attorney’s fee, and the trier’s award of discretionary benefits under § 31-308a.

First, we discuss the disputed attorney’s fee. The relevant language of § 31-300 provides, in relevant part:

Along with situations in which an employer discontinues or reduces benefits without proper statutory notice (in which the law directs that a fee award “shall” be allowed), these two sets of circumstances are the only ones in which a commissioner may award attorney’s fees as sanctions against a respondent for improperly maintaining a defense or administering a claim. An attorney’s fee award for unreasonable contest is made when, after hearing the parties’ arguments and reviewing the evidence, the trier decides that the employer or insurer lacked a reasonable basis upon which to contest the claimant’s request for benefits. Bailey v. State/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999), aff’d in part, rev’d in part on other grounds, 65 Conn. App. 592 (2001). A related finding of undue delay would be appropriate where a respondent has withheld the payment of benefits on faulty or neglectful grounds, including a disagreement among insurers over who is liable to pay benefits that are otherwise admittedly due. Heene v. Professional Ambulance Service, 3743 CRB-6-97-12 (Jan. 8, 1999); McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (Nov. 12, 1998).

In this case, the trial commissioner evidently believed that Barnes Page was justified to some degree in its denial of liability for this complex claim, and did not wish to impose interest against them. However, he was also of the opinion that certain benefits due the claimant should have been “anticipated” by the claimant’s employer, and that it was at fault for causing the claimant to have to retain an attorney. By correcting the finding to state that the employer had, through its own fault, delayed the payment of compensation to the claimant, the trier aligned his findings with a statutory formula that conferred upon him discretion to award the claimant interest and an attorney’s fee as per § 31-300. Of course, he had already awarded the attorney’s fee, but had opted not to grant interest to the claimant.

Despite the kinship between unreasonable contest and undue delay, it would not be the place of this board to read an express finding of “undue delay” as a finding of “unreasonable contest,” for the two concepts are legally different. According to our Appellate Court, where a commissioner makes a discretionary award of attorney’s fees as a sanction for the undue delay of the payment of undisputed amounts of benefits, an award of interest must also be made. Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992). “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.” Id. The Imbrogno decision is directly on point here, as we have before us an express finding of undue delay coupled with an award of attorney’s fees, but not interest. Thus, as required by Imbrogno, we must remand this decision to the trier so that he may calculate which portion of the claimant’s benefits were unduly delayed by the employer, and award interest on that sum as provided by § 31-300. See Syphers v. Dedicated Logistic Services, 3711 CRB-1-97-10 (Nov. 16, 1998).

With regard to the award of § 31-308a benefits, the appellants contend that there is an insufficient factual basis in the findings to support such an award. We agree. At the time of the claimant’s injury, § 31-308a allowed additional benefits for permanent partial disability following the expiration of a specific indemnity award. Such benefits are calculated by subtracting the wages that a claimant will “probably be able to earn” following his injury from the wages that are currently being earned by an employee in a position comparable to that held by the claimant prior to his injury, and taking 75% of that difference. The claimant’s earning capacity is “to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, [and] the availability of work for persons with such physical condition and at the employee’s age.” We know from the trier’s findings that the claimant has a 20% permanency of his back, that he was limited to light-duty work following his injury “to the present”; Findings, ¶ 3; that he was released to “full-time, heavy-duty work” in December 1993; Findings, ¶ 4; and that he was able to obtain a job earning more than he had earned at Barnes Page, which he left due to a dispute with his employer. The trier also found that, in 1998, the claimant earned in excess of $32,000, which was more than what he had earned at Barnes Page. Findings, ¶ 13.

On the basis of these findings, it is not apparent that the claimant has suffered a diminished earning capacity. None of the statutory factors are specifically discussed, and ¶ 4 of the findings suggests that the claimant’s earning capacity has not diminished at all. Nevertheless, the trier awarded the claimant 74.8 weeks of § 31-308a benefits at the rate of $150.00 per week. We are also unable to determine the manner in which that sum was mathematically derived. We thus remand this issue to the trier as well, so that he may articulate the grounds for his finding that the claimant has suffered a diminution in earning capacity, and the specific amount of that diminution that formed the basis for his award of benefits. As it stands, we have insufficient information upon which to review his ruling.

The trial commissioner’s decision is hereby reversed, and the case remanded so that the trier may (1) make further findings regarding the issue of interest on unduly delayed benefits, and (2) articulate the basis for his award of § 31-308a benefits.