State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Merenski v. Greenwich Hospital Association, Inc.

CASE NO. 5076 CRB-7-06-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 18, 2007

BEVERLY MERENSKI, Dependent widow of MICHAEL P. MERENSKI

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

GREENWICH HOSPITAL ASSOCIATION, INC.

EMPLOYER

RESPONDENT-APPELLANT

CROSS-APPELLEE

and

RISK MANAGEMENT PLANNING GROUP

INSURER

APPEARANCES:

The claimant was represented by Christopher Lagano, Esq., Bloomenthal & Trow, 30 Oak Street, Stamford, CT 06905.

The respondent was represented by Neil Ambrose, Esq., Letizia, Ambrose & Falls, P.C. One Church Street, New Haven, CT 06510.

These Petitions for Review from the March 22, 2006 Memorandum of Decision of the Commissioner acting for the Seventh District were heard February 23, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Both the respondent and the claimant appeal from the March 22, 2006 Memorandum of Decision of the Commissioner acting for the Seventh District.1 In that decision the trial commissioner awarded the claimant attorney’s fees in the amount of $30,300 on the basis of the respondent’s unreasonable contest/undue delay. The respondent filed an appeal and presents the following issues for review; (1) whether the trial commissioner’s decision was untimely as it was issued more than 120 days after the close of the record and thus, the decision is invalid pursuant to § 31-300; (2) whether the trial commissioner erred in finding the respondent unreasonably contested the instant matter, and (3) whether the trial commissioner erred in finding undue delay after June 7, 2001.

The claimant also appeals from the trial commissioner’s decision and presents the following issues; (1) whether the trial commissioner erred in concluding the respondent’s unreasonable contest of the matter began June 7, 2001 and not May 11, 2000 and whether the trial commissioner erred in only awarding $30,300 for attorney’s fees. Before we consider the issues raised on appeal, a history of the proceedings and facts which give rise to this claim are in order.

The claimant is the dependent spouse of the decedent Michael P. Merenski. The decedent was employed by the respondent as chief carpenter. On November 29, 1995 the decedent was called into work in the early morning hours and asked to report to work as part of the hospital’s snow removal crew. Between 3:30 a.m. and 9:30 a.m. the decedent engaged in plowing and snow shoveling. Sometime after 9:30 a.m. the decedent re-entered the hospital and proceeded to his office. At 9:55 a.m. the decedent was found slumped over his desk and within an hour was pronounced dead due to ventricular fibrillation.

On September 15, 1997 the claimant in her capacity as the decedent’s dependent spouse brought this claim. On May 11, 2000 the respondent filed a motion to dismiss the claim as untimely pursuant to § 31-294c(a) C.G.S. That motion was denied September 7, 2000 and the respondent filed an appeal with this board. The trial commissioner’s denial of the motion to dismiss was affirmed. See Merenski v. Greenwich Hospital Assn., 4292 CRB-7-00-9 (September 12, 2001)[hereafter Merenski I].

While Merenski I was pending before this board, informal and pre-formal proceedings on the issue of compensability went forward. Ultimately, these proceedings resulted in the trial commissioner’s July 2, 2002 Finding and Award in which he found the decedent’s death was compensable. However, in the July 2, 2002 Finding and Award the commissioner reserved ruling on claimant’s entitlement to attorney’s fees and interest on the basis of the respondent’s unreasonable contest/undue delay.

Sometime in February 2003 proceedings on the issue of unreasonable contest/undue delay were opened. There appears to be some divergence of opinion as to whether there was an agreement to decide the matter on a pro forma basis. See Appellant’s Brief, p. 5 and Claimant’s Reply Brief, p. 7. Nonetheless, on June 9, 2004 the trial commissioner issued a Finding and Award in which he concluded the respondent unreasonably contested and unduly delayed the instant matter. The trial commissioner ordered payment of attorney’s fees in the amount of $32, 832.50. The claimant moved to correct the Finding and Award so as to reflect a delay that commenced May 11, 2000 and attorney’s fees in the amount of $68,512.50. On November 2, 2004 the commissioner granted the claimant’s Motion to Correct in its entirety.

The respondent appealed the trial commissioner rulings on the issue of unreasonable contest and undue delay as well as the amount of attorney’s fees. In its January 12, 2005 order the CRB remanded the matter for a formal hearing or other appropriate action on the basis that there was an inadequate record. Merenski v. Greenwich Hospital Association, 4822 CRB-7-04-6 (January 12, 2005)[Merenski II]. The instant proceedings followed the CRB’s remand order.

We first consider the issue raised by the respondent as to whether the trial commissioner’s decision is invalid under § 31-300 as it was issued more than 120 days after the close of the record. We find this claim to be without merit. Section 31-300 provides in pertinent part, “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of the commissioner’s findings and award.” The respondent argues that the trial commissioner indicated at the October 27, 2005 formal hearing that the matter would be continued and the pro forma hearing held “next Friday.” See October 27, 2005 Transcript, p.65. For whatever reason the matter was not scheduled for the “next Friday.” A pro forma hearing was scheduled for November 22, 2005 and the parties were so informed. It does not appear that the respondent objected to the time and date of the scheduled November 22, 2005 hearing. Therefore, the respondent waived any objection it had to the time and date of the last hearing in this matter. We therefore find no merit to the respondent’s claim that the trial commissioner’s March 22, 2006 decision violated the time constraint for issuing a decision as set out in § 31-300.

The next issue raised by the respondent is whether the trial commissioner erred in concluding that it unreasonably contested the claim. Our discussion relating to this issue is somewhat more involved and requires a more detailed chronology of the prosecution and defense of this claim. While Merenski I was pending on appeal, informal and preformal proceedings went forward and the respondent secured new counsel. On June 1, 2001 in proceedings before the trial commissioner respondent’s new counsel requested a continuance so that it would have adequate time to prepare his case and prepare for the cross examination of the claimant’s medical expert. The respondent’s counsel stated that it was not its intention to procure another expert opinion for the respondent’s case or to delay the matter. It appears that at that point the respondent had identified its medical expert as Dr. Krauthamer. The continuance was granted.

On August 11, 2001 the respondent again sought a continuance. At that time the respondent indicated its intention to proffer the testimony of another medical expert, Dr. Jaime Gerber. The claimant objected and argued the respondent’s proffering of another medical expert was not necessary as it would merely corroborate the testimony and/or opinions provided by Dr. Krauthamer. Further, the respondent’s proffering of the testimony of another medical expert was in direct contrast to representations made to the trial commissioner and claimant’s counsel. The trier suggested to the respondent that the necessity of Dr. Gerber’s testimony was doubtful as it was most likely to be substantially similar to that of Dr. Krauthamer. Nonetheless, the trial commissioner granted the respondent’s request for a continuance and ultimately, Dr. Gerber testified but only after a number of continuances for his appearance were granted.2

The respondent argues that the trial commissioner abused his discretion in concluding the respondent unreasonably contested the matter and unduly delayed payments. Section 31-300 provides, inter alia, that in instances where a commissioner determines that the claim for benefits was unreasonably contested the trial commissioner may make an award for attorney’s fees. However, § 31-300 also permits a trial commissioner the discretion to conclude that claimant’s compensation payments were unduly delayed through the fault or neglect of the respondent.3

The respondent argues that the trial commissioner abused his discretion in concluding that it unreasonably contested the instant claim. The respondent cites as authority this tribunal’s holding in Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (August 31, 1999). The respondent cites Malafronte as standing for the proposition that a finding of unreasonable contest cannot stand where the respondent’s IME provided an opinion that a claim was not compensable. We think Malafronte is factually distinguishable. In Malafronte in addition to the opinion of the respondent’s examiner the CRB stated, “the trial commissioner noted that the record contained various dates as the date of injury, and further noted that the respondent alleged that the claimant provided inconsistent statements regarding the history of her injury.” No such factual dispute exists in the matter before us. Additionally, Malafronte stands for the proposition that a finding of unreasonable contest is within the discretion of the trial commissioner.

“An abuse of discretion exists when a court . . . 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). In support of his conclusion the trial commissioner referenced a number of factors. Among them was the promulgation of the respondent’s defense premised on the untimeliness of the claim. That defense was put forward in a Motion to Dismiss filed May 11, 2000, more than 2½ years after the claimant filed her claim. Further that line of defense was found wanting under both a plain reading of the pertinent provision of § 31-294c(a) C.G.S. and the board’s prior opinion in Dorsett v. General Dynamics Corp., 8 Conn. Workers’ Comp. Rev. Op. 77, 805 CRD-2-88-12 (May 8, 1990), aff’d, 23 Conn. App. 827 (1990) (per curiam), cert. denied, 218 Conn. 901 (1991) (board acknowledged two-year period for filing a claim was applicable where dependent’s claim filed five months after the decedent suffered a heart attack and died on the same day). This board even went so far as to say, “[t]hus, we perceive no legal basis upon which the respondent’s appeal could be reasonably sustained.” See Merenski I, supra.

Additionally, the trier referenced the representation of the respondent that it had no intention to procure the opinion of another medical expert. The respondent then sought to continue proceedings so as to proffer the opinion of a medical expert, Dr. Gerber. As both counsel for the claimant and the trial commissioner predicted that opinion was largely redundant of the opinion expressed by the respondent’s other expert, Dr. Krauthamer.

The trial commissioner also reviewed the respondent’s handling of the appeal it took from the commissioner’s July 2, 2002 Finding and Award. In the prosecution of that appeal the respondent filed a Motion for Extension of Time for the filing of its brief and the deadline for filing its brief was extended. The respondent’s brief was not filed by the time of the extended deadline. The claimant filed a Motion to Dismiss the appeal and shortly thereafter, the respondent withdrew its appeal. In view of the above we cannot say the trier abused his discretion in concluding the respondent unreasonably contested this matter.

We next consider whether the trial commissioner abused his discretion in concluding that the respondent unduly delayed matters. In his March 22, 2006 Memorandum of Decision the trial commissioner stated the following;

Respondent, within sight of the completion of the Formal Hearing on the issue of compensability, discharges counsel A and retains present counsel. Present counsel seeks a continuance on the grounds of time needed to prepare his medical witness and to prepare his cross examination of Claimant’s medical witness, assuring the Commissioner that he was not seeking another medical witness. The facts show that counsel was either disingenuous or that a pattern of delay was in the making. It is challenging to accept that a witness, doctor or otherwise, could not arrange his schedule to be able to appear when scheduled. Requesting continuances on more than one occasion, three weeks in advance of a scheduled hearing when no emergency could be known to exist at the time of the scheduled hearing, strains credulity. These postponements numbered four in all and involved some nine months duration.

On appeal, the respondent argues the trial commissioner should not have concluded that it unduly delayed the proceedings as each continuance was granted by the trial commissioner. The respondent contends that the trial commissioner’s conclusion in his March 22, 2006 Memorandum suggests that the trial commissioner, some five years after granting the continuances, is second guessing the appropriateness of his rulings.

We think the matter is more analogous to situations where a trial judge permits a party to lay a foundation for putting in certain evidence and ultimately concludes that the evidence should not be admitted. In the instant matter, when the trial commissioner granted the continuances he permitted the respondent a certain degree of leeway in presenting its case. It was only after the respondent put on the testimony of Dr. Gerber that the trial commissioner was in the position to determine whether the extension of the proceedings for the production of testimony was warranted.

Many of the same events that support the trial commissioner’s conclusion as to unreasonable contest also support his conclusion that this matter was unduly delayed. We therefore do not conclude the trial commissioner abused his discretion in reaching this conclusion either.

We next consider the issues presented for review by the claimant. We begin with reviewing whether the trial commissioner erred in awarding interest and a reasonable attorney’s fee from June 7, 2001 (the scheduled formal hearing date for which a continuance was granted after respondent secured new counsel and represented that it was not seeking a continuance for the purpose of procuring another medical expert) as opposed to May 11, 2000 (the date when the respondent filed its unsuccessful defense on the basis that the claim was untimely pursuant to § 31-294c(a)). At what point interest for undue delay should begin to accrue is a matter to be determined by the trial commissioner and will not be disturbed unless without evidentiary support, contrary to law or based on unreasonable or impermissible inferences. See Bilotta v. Connecticut Natural Gas Corp., 4106 CRB-1-99-8 (October 5, 2000). Further the amount of attorney’s fee to be awarded is also a matter within the trial commissioner’s discretion. Dilieto v. New Haven, 4709 CRB-3-03-8 (August 5, 2004). Again, we do not conclude the trial commissioner abused his discretion.

We therefore affirm the conclusions reached by the trial commissioner in his March 22, 2006 Memorandum of Decision.

Commissioners Amado J. Vargas and Scott A. Barton concur.

1 We note postponements were granted during the pendency of this appeal. BACK TO TEXT

2 The trial commissioner’s March 22, 2006 Memorandum of Decision states:

Notwithstanding the undersigned’s suggestion, he granted Respondent’s right to present the testimony of Dr. Gerber and the doctor was scheduled to appear for testimony on November 21, 2001. On October 10, 2001 Respondent advised the Commission and the Claimant that Dr. Gerber would not be available on November 21, 2001, and requested and was granted a new date of November 27, 2001.

Dr. Gerber did appear on November 27, 2001, but he was unable to complete his testimony and a continuance of the session was scheduled for February 11, 2002. On January 18, 2002, Respondent again advised the Commission and the Claimant that Dr. Gerber would not be able to attend the scheduled date of February 11, 2002. A new date of February 26, 2002, was set on which date Dr. Gerber’s testimony was completed. BACK TO TEXT

3 Sec. 31-300 provides in pertinent 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. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. 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. 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. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: June 22, 2007

Page URL: http://wcc.state.ct.us/crb/2007/5076crb.htm

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