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Abrahamson v. State of Connecticut Department of Public Works

CASE NO. 5054 CRB-2-06-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 9, 2007

ERNEST A. ABRAHAMSON

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF PUBLIC WORKS

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340

The respondent, State of Connecticut was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review of the January 6, 2006 Finding & Award of the commissioner acting for the Second District was heard July 14, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case presents a question in regards to the appropriate interpretation of § 31-300 C.G.S. This statute permits a trial commissioner to award interest and attorney’s fees if he determines a respondent engaged in unreasonable delay in paying a claim or unreasonably contested liability. In this case, the trial commissioner ordered an award of interest on an unpaid award, but declined to order the sanction of the claimant’s attorney fees against the respondent. The claimant has appealed from this decision, claiming that both interest and attorney’s fees must be awarded in this case. In reviewing the actual findings and the applicable case law, we are unable to determine whether the trial commissioner intended to award interest under § 31-295(c) C.G.S. rather than § 31-300 C.G.S. We are also unable to determine what provision of § 31-300 C.G.S. the trial commissioner applied in this matter. As a result, we remand this matter for an articulation as to what result the trial commissioner intended and what factors motivated his decision.

The trial commissioner found the following facts, the majority of which are not disputed. The claimant was employed both by the A. Torrance Construction Company and by the State of Connecticut. He worked for the Department of Public Works from 1964 until his retirement in 1985 as a construction supervisor. He suffers from asbestos related lung disease. He had surgery performed in 1980 and did not have further treatment or examination of his lungs until 2000. He had a biopsy done in 2001. In 2001 he filed a notice of claim against the State for his asbestos exposure while in state service.

The claimant was examined by his treating physician and an examiner chosen by the respondent State of Connecticut. Following a June 9, 2004 examination the state’s expert assigned a 40% permanent partial disability rating to his lungs and attributed 20% of the claimant’s lung exposure to his state service and 80% to A. Torrance Construction Company. The respondent made a $10,000 payment to the claimant without prejudice on August 23, 2004.

In his Finding and Award of January 6, 2006 the trial commissioner found the opinion of the treating physicians persuasive as to causation, but found the respondent’s examiner more persuasive as to disability. As no evidence was proffered that the claimant had been exposed to asbestos after leaving state service the State was deemed the § 31-299b C.G.S. carrier for purposes of apportionment. The commissioner established a 40% disability rating and a maximum medical improvement date of March 5, 2003.

The dispute is over two other provisions of the findings and award:

d. The respondent State of Connecticut shall pay statutory interest on those owed benefits pursuant to 31-295(c) and 31-300.
e. The claimant’s claim for attorney’s fees is dismissed.

The claimant moved for articulation on the interest rate due on the unpaid balance of the award, as the commissioner had the discretion to award either a 12% or 10% interest rate under § 31-300. On January 25, 2006 the trial commissioner determined the interest rate to be 10%. The claimant did not seek an articulation as to why attorney’s fees were not awarded. Instead, a petition for review on this issue was filed on January 24, 2006.

The relevant statute reads in part

In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.

The statute also provides a sanction for unreasonable contest “in cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.”

However, § 31-300 also includes this provision,

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, whether such delay was caused by appeals or otherwise, 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. (Emphasis added)

The parties both cite appellate authority for their positions. The claimant alleges that the holding of Imbrogno v. Stamford Hospital, 28 Conn. App. 113 (1992) requires the award of both attorney’s fees and interest in this instance. In Imbrogno the trial commissioner awarded attorney’s fees, but not interest. The Appellate Court held, “[w]e 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., pp. 125.

The respondent relies on a CRB decision to justify their position attorney fees are not owed. In Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001) we laid out an analysis of § 31-300 which the respondent believes is dispositive of this dispute.

Pursuant to § 31-300, there are four separate circumstances in which the trial commissioner is empowered to penalize an employer or insurer. Where adjustments or payments of compensation have been unduly delayed due to the fault or neglect of the employer or insurer, the commissioner may award interest and a reasonable attorney’s fee. Where adjustments or payments of compensation have been delayed in the absence of fault by the employer or insurer, the commissioner may allow interest “as may be fair and reasonable.” Where the claimant prevails in an action and the trier finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. Finally, where total or partial incapacity payments are discontinued without (1) the issuance of proper notice as required by § 31-296 and (2) a written approval of such cessation by the commissioner, the trier is required to award the claimant a reasonable attorney’s fee and interest on the prematurely halted or reduced payments.” (Emphasis in original)

To resolve this issue we are required to look first at the “plain meaning” of the relevant statute as per § 1-2z C.G.S. We must also look to the “plain meaning” of the Finding and Award as we cannot simply add findings of fact to the award which would conveniently comport with a simple decision herein.

As noted, there are two different provisions in the relevant statute governing the award of interest to the claimant. Only one provision deals with the award of attorney’s fees. Where there is a finding of “fault or neglect,” the trial commissioner may award interest and a reasonable attorney’s fee. (Emphasis added).1 As a result Imbrogno is unassailable precedent that if an attorney’s fee is awarded, interest must be awarded as well, as the statute is written in conjunctive fashion. However, the converse reading cannot be presumed, as the statute does provide for the award of interest without attorney’s fees if there is no finding of fault.

The plain language of the Finding and Award is silent on whether the trial commissioner found fault or neglect on the part of the respondent. Neither party filed a Motion to Correct or a Motion for Articulation to illuminate this issue, and as we stated in Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) we are reluctant to reach inferences which “amount to putting words in the trial commissioner’s mouth.”

As a result, we find this case exactly on point with a decision which neither party cited as precedent in its brief Ortiz v. Highland Sanitation, 4439 CRB-4-01-9 (November 12, 2002). In Ortiz an identical fact pattern occurred, as a trial commissioner awarded interest on a delayed award pursuant to § 31-300 C.G.S. without awarding attorney’s fees. We held in that case, “[b]ecause we would be venturing a guess as to the trier’s intent either way, the best solution is for us to remand this case to the trier with instruction that he clarify the status and origin of the award of interest that was ordered via the granting of the claimant’s Motion to Correct.” Id. Stare decisis compels a similar outcome in this matter.

The Ortiz case also dealt with another fact present in this case: the fact that the ultimate outcome—the issuance of interest at the rate of 10% without awarding attorney’s fees—can be reached by applying another statute cited in the Finding and Award which does not have the alternative remedies of § 31-300. In Ortiz we held “one could reasonably make a case for either statute as the trier’s envisioned basis for his granting of the claimant’s requested correction.” In this case the Finding and Award references both § 31-295(c) and § 31-300. The Motion for Articulation granted a 10% interest rate which is the interest rate in § 37-3a and the rate applied in a non penalty situation under § 31-300. This is the same interest rate as applied on unpaid awards in § 31-295(c). The language of this statute is a “no-fault” penalty.

If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of subsection (b) of section 31-308, the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement.

As result, we find this record is inadequate for appellate review. In order to ascertain if the trial commissioner’s Finding and Award comports with the Imbrogno precedent we need to obtain clarification as to what relief the trial commissioner intended. We herein remand this matter for an articulation as to whether the trial commissioner found fault on the part of the respondent for the delay in payments and if not, whether he intended to order interest pursuant to § 31-295(c) or § 31-300.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.

1 We agree with the claimant that when a trial commissioner finds fault or neglect on the part of a respondent for failing to pay an award, or for unreasonably contesting the case, both attorney’s fees and interest must be awarded as per Imbrogno. These findings cannot be inferred from the record at hand. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: January 12, 2007

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