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Izzo v. American Compressed Gases

CASE NO. 4678 CRB-3-03-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 5, 2004

JOHN L. IZZO

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

AMERICAN COMPRESSED GASES

EMPLOYER

and

ATLANTIC MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Richard Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.

The respondents were represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott & Pellett, P.C., 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300.

These Petitions for Review from the May 22, 2003 Finding and Award, the June 25, 2003 Ruling and the December 3, 2003 Ruling on Motion for Additional Evidence by the Commissioner acting for the Third District were heard April 30, 2004 before a Compensation Review Board panel consisting of Commissioners A. Thomas White, Jr., Charles F. Senich and Amado J. Vargas.

OPINION

A. THOMAS WHITE, JR., COMMISSIONER. The claimant has petitioned for review from the May 22, 2003 Finding and Award of the Commissioner acting for the Third District, while the respondents have petitioned for review of the June 25, 2003 ruling on the respondents’ motion for § 31-300 interest, and the December 3, 2003 ruling on the respondents’ motion to submit additional evidence. The only issues pending for review are the respondents’ claims of error, which require that we reverse the trier’s two subsequent rulings, and remand for further proceedings.1

The trial commissioner’s May 22, 2003 Finding and Award granted the claimant temporary total disability benefits from March 15, 2001 forward, without discussing the claimant’s entitlement to interest. The claimant then filed a motion to amend the award by adding a paragraph stating, “Payments of compensation having been delayed not through the fault or neglect of the employer or the insurer, the respondents shall pay interest on such sums in accordance with Section 31-300 C.G.S.A.” Over the respondents’ objection, the trier granted this motion by adding a sentence that states, “It is further found that the respondent did not delay the payment through fault or neglect; however, they did have the use of the money and are further ordered to pay interest at the rate of 10% pursuant to C.G.S. 31-300 and C.G.S. 37-3a from March 15, 2001.”

The respondents then filed a petition for review, followed by a Motion to Submit Additional Evidence. In that motion, they asserted that they were denied the opportunity to present arguments or evidence on the record to show that the interest rate awarded should be less than the maximum rate prescribed by § 37-3a C.G.S. Section 37-3a allows interest in civil actions and certain arbitration proceedings “at the rate of ten per cent a year, and no more . . . as damages for the detention of money after it becomes payable.” Section 31-300 C.G.S. states, in turn, that “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.” Despite this “fair and reasonable” language, the trial commissioner denied the respondents’ Motion to Submit Additional Evidence, resulting in a follow-up petition for review.

On appeal, the respondents contend that the trier erred by failing to afford them an opportunity to demonstrate that the interest awarded should have been less than the maximum rate allowed by § 37-3a. We agree. The language of § 31-300 clearly contemplates that, in cases where payment is delayed without fault or neglect on the part of the respondents, the trier should make a “fair and reasonable” award that considers the advantage that the employer or insurer had from the use of the delayed funds, with the burden being on the employer or insurer to prove that a lesser rate is appropriate. The trial commissioner did not provide the respondents with a chance to show that the 10% interest rate was too high in this case. The plain language of the law requires otherwise. Therefore, the trier’s award of interest pursuant to the June 25, 2003 ruling must be reversed, with direction on remand to conduct a hearing on the subject of the proper interest rate payable pursuant to § 31-300.

Commissioners Charles F. Senich and Amado J. Vargas concur.

1 The claimant was not pursuing any separate allegations of error at the time of oral argument on appeal, having agreed with the respondents that further proceedings were necessary with respect to the § 31-300 award. span class="back">BACK TO TEXT

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