CASE NO. 4912 CRB-4-05-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 19, 2006
The claimant was represented by Enrico Vaccaro, Esq., 1057 Broad Street, Bridgeport, CT 06604.
The respondents were represented by Michael Finn, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the January 18, 2005 Finding and Award of the Commissioner acting for the Fourth District was heard August 26, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Leonard S. Paoletta and Nancy E. Salerno.
STEPHEN B. DELANEY, COMMISSIONER. The respondents, Microboard Processing and Gallagher Bassett, appeal from the January 18, 2005 Finding and Award of the Commissioner acting for the Fourth District, finding in part that the claimant, Aurea Collazo, was totally disabled as a result of an injury sustained at her place of employment and that the respondents unreasonably contested her claim for workers’ compensation benefits.
In this case, a number of issues have become disputed in what on first blush appears to be a mundane employee slip and fall incident in the employer’s parking lot. We must determine if the trial commissioner’s decision was grounded in the facts, and then determine based on those facts, whether the respondents were justified in contesting this claim, or as the trial commissioner found, unreasonable and deserving of statutory sanctions under § 31-300 C.G.S.
Mrs. Collazo’s fall on the ice on March 5, 2003 at her place of employment is not in dispute. The respondents raise as an issue on appeal the fact that she continued to work at Microboard Processing as a senior solderer without apparent limitation until April 4, 2003, when she was unable to work due to an unrelated eye ailment. She was examined by her treating physician on March 20, 2003 and again on April 15, 2003. Her physician, Dr. Lewis determined the claimant was totally disabled as of April 15, 2003, due to a herniated disc in her back and recommended spinal fusion surgery. He determined the fall was the proximate cause of the disc injury. The claimant filed a Form 30C on August 27, 2003.
The claim was filed within the appropriate jurisdictional guideline for accidental injury under § 31-294c(a) C.G.S. She also completed a First Report of Injury immediately after the incident. The respondents were not prejudiced by the claimant’s measured response to the incident, having been advised of the accident immediately. There is no statutory obligation for a claimant to seek an immediate diagnosis or to stop working immediately upon suffering a potentially compensable injury; indeed, public policy would suggest prudence in such matters should not be penalized.
Any delay in treating the injury or in continuing to work following the accident goes to the weight of the evidence as to whether the claimant’s current injuries are the result of the March 5, 2003 fall, and would be the province of the trial commissioner to consider. The factual finding at issue here is one resulting from the trial commissioner’s assessment of the weight and credibility of the evidence put before him. What weight and credibility should be assigned to the evidence before a trial commissioner is at the very heart of a trial commissioner’s factual determinations. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000).
Respondents’ physician, Dr. Karnasiewicz, examined the claimant and determined that her injuries were degenerative and unrelated to the fall. Respondents seek on appeal to substitute their doctor’s findings for that of the claimant’s physician. The Finding and Award of the trial commissioner clearly shows he considered the opinions of the respondents’ physician, but accorded greater deference to that of the claimant’s physician. This is a classic circumstance of evaluating the credibility of medical testimony, which is a duty for the trial commissioner, and cannot be retried on appeal. This is one of the “prototypical questions of fact” which thereby limits “the degree of scrutiny we may apply on review.” Prescott v. Community Health Center, Inc., 4426 CRB 8-01-8 (August 23, 2002). All judgments of evidentiary credibility are left solely to the trial commissioner, who is charged with deciding which of the documentary exhibits and witnesses are the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).
The other issue for consideration is whether the trial commissioner was justified in awarding sanctions against the respondents under § 31-300 C.G.S. for unreasonably contesting and/or delaying the claim. Trial commissioners have traditionally been afforded latitude in making these determinations, as “a considerable amount of discretion is necessarily left to the trier to judge whether or not a respondent has reasonably conducted its defense of a particular claim, which may implicate its manner of administering the case generally.” Prescott, supra.
The trial commissioner was presented with a convoluted timeline and conflicting accounts of what respondents said or did at various occasions. Following the filing of the Form 30C on August 27, 2003, respondents filed a Form 43 contesting compensability on September 9, 2003. Had no further representations been made, and a respondents’ medical examination been promptly scheduled yielding an alternative diagnosis, the board believes the respondents would not have warranted sanctions. See Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (August 31, 1999), “we must agree with respondents that they had a reasonable basis for contesting the claimant’s claim.”
However, on October 17, 2003, the respondent Gallagher Bassett (the employer’s insurance administrator) held a telephone conversation with claimant’s attorney wherein he concluded they had accepted the claim. Evidence supporting claimant’s counsel’s understanding that respondents were withdrawing its objections to the claim was contained in the respondents own adjuster notes “As per Mike Sassu claim is accepted, spoke to EE’s attorney.” Claimant’s Exhibit E.
Following the telephone conversation “accepting” the claim, the respondents then failed to provide a Voluntary Agreement or to withdraw their Form 43, rather they scheduled a respondents’ medical examination for the evident purpose of contesting compensability. Respondents now say the “acceptance” communicated on October 17, 2003 was limited in some undefined fashion regarding medical treatment. Respondents’ Brief, p. 6.1
The board finds that the trial commissioner could have found this conduct unreasonable for two reasons. First, the adjusters note suggests that at least one employee of respondents’ carrier found the claim justified as of October 17, 2003, thereby creating a question for the trier of fact regarding the respondents’ good faith in continuing the contest. In addition, the circumstances here cause black letter contract law to be applied to the situation.
If the respondents were accepting the claim in anything less than an unequivocal manner, it was incumbent on them to advise the claimant of the exact nature of what elements of the claim they were accepting, and which elements they were not accepting. Recent Connecticut precedent indicates that when an offer is extended to form a contract, ambiguities in the offer or contract are resolved against the party who drafted the offer. See Silvermine Investors v. Call Center Tech., Inc., 81 Conn. App. 701, 705 (2004) ‘“we note, however, when there is ambiguity, we must construe contractual terms against the drafter,’ Rund v. Melillo, 63 Conn. App. 216, 222 (2001).” In this matter, the trial commissioner did resolve the ambiguity against the respondents.2
There were a number of commercially reasonable methods to memorialize in a real-time fashion exactly the undertaking the respondents intended. An electronic mail message could have been sent over the Internet, a facsimile sent to claimant’s counsel, or even a letter sent through the Postal Service or an overnight delivery carrier. Respondents’ failure to do any of these reasonable acts rendered them vulnerable to testimony deemed credible by the trial commissioner that an agreement was reached to accept the claim, it was breached by the respondents, and their subsequent conduct was unreasonable.
Two recent cases cited by the respondents, Sharkey v. Stamford, 4068 CRB-7-99-6, (November 17, 2000) and Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-1 (December 19, 2000), stand for the proposition that when a trial commissioner decides not to award attorney’s fees under § 31-300 C.G.S., this is a discretionary determination for the trier of fact. “We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). This discretion runs in both directions, either to grant or to deny an award of attorney’s fees. Therefore, our review is limited to whether the trial commissioner’s decision constituted an abuse of discretion. “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). Sufficient evidence exists in the record to establish the trial commissioner did not abuse his discretion in this matter.
The commissioner’s Finding and Award of January 18, 2005, as corrected by the Commissioner acting for the Fourth District on February 7, 2005, is herein upheld.
Commissioners Leonard S. Paoletta and Nancy E. Salerno concur.
1 Respondents state a Voluntary Agreement accepting compensability was proffered to the claimant on or before May 13, 2004. (Respondents’ Brief, p. 7). The trial commissioner still could have found this agreement untimely and the acceptance less than wholehearted under the circumstances. BACK TO TEXT
2 Ambiguity seems to persist in the respondents’ approach to this case. On p. 19 of their brief they argue “Respondents have made clear it does not contest the compensability of the underlying claim.” However, on p. 26 of their brief they argue “it is plausible that the Claimant injured her back at a time subsequent to the fall on March 5, 2003 . . . .” There is no evidence in the record to support this assertion concerning a subsequent injury which contradicts the purported “acceptance” of the compensable injury, and it is inconsistent with the testimony of their own expert regarding a degenerative back issue. (Respondents’ Brief, p. 23) Indeed it appears unreasonable to advance speculative theories of causation after the respondents have already had the claimant examined by their own physician. BACK TO TEXT