State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Hummel v. Marten Transport, LTD

CASE NO. 5303 CRB-5-07-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 14, 2008

DEBRA HUMMEL, Dependent widow of HENRY HUMMEL

CLAIMANT-APPELLEE

v.

MARTEN TRANSPORT, LTD

EMPLOYER

and

CRAWFORD & COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Albert E. Desrosiers, Esq., and Lawrence F. Morizio, Esq., Cousins, Desrosiers, & Morizio, P.C., 2563 Main Street, Stratford, CT 06615-5844.

The respondents were represented by Erica W. Todd, Esq., and Joseph F. Trotta, Esq., Trotta, Trotta & Trotta, LLC, 900 Chapel Street, P.O. Box 802, New Haven, CT 06503-0802.

Andrew Dewey, Esq., Baio & Associates, P.C., 15 Elm Street, Rocky Hill, CT 06067 appeared on behalf of the Guaranty Fund Management Services, an interested party.

The Second Injury Fund was represented at the trial by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. However, the issues on appeal did not concern the Fund and they did not file a brief or appear at oral argument.

This Petition for Review from the November 13, 2007 Finding and Award of the Commissioner acting for the Fifth District was heard March 28, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is the latest chapter in the long running dispute as to whether the spouse of the decedent Henry Hummel is entitled to benefits under § 31-306 C.G.S. We have considered this matter on three previous occasions. See Hummel v. Marten Transport, Ltd., 4667 CRB-5-03-5 (May 3, 2004), appeal dismissed for lack of final judgment, 90 Conn. App. 9 (2005), aff’d, 282 Conn. 477 (2007) [hereafter referred to as Hummel I]; Hummel v. Martin Transport, Ltd., 4760 CRB-5-03-12 (November 19, 2004) [hereafter Hummel II] and Hummel Transport v. Martin Transport, Ltd., 5080 CRB-5-06-4 (April 19, 2007) [hereafter Hummel III]. In Hummel III we considered the issue of penalties, interest and attorney’s fees due to the claimant as a result of the respondent’s failure to pay an award and remanded this issue back to the trial commissioner for determination. On November 13, 2007 the trial commissioner found “the respondent has steadfastly refused to pay benefits pending appeal under Conn. Gen. Stat. Sec. 31-301(f) to the claimant, filing multiple appeals in avoidance of payment.” Findings, ¶ 12. She awarded the claimant the sum of $43,909.68 as and for a 20% penalty under § 31-303 C.G.S. on unpaid widows benefits. She also awarded her the sum of $800.00 as a penalty under § 31-303 C.G.S. on unpaid burial expense, and directed the respondent to pay the claimant’s attorney the sum of $9,300 for attorney’s fees associated with efforts to collect benefits under § 31-301(f) C.G.S. The respondents have appealed this award.

The respondents have filed no fewer than ten reasons for appeal. Upon review, we find that the first seven reasons advanced deal with substantive matters beyond the scope of the remand we ordered in Hummel III. We also find those issues were fully considered and resolved in our decisions in Hummel I, Hummel II, and Hummel III. For the reasons stated in Hicking v. State/Department of Correction, 4935 CRB-2-05-4 (April 10, 2006), we decline to consider those issues on appeal.1

The basic legal principles of res judicata and collateral estoppel also mean a party should not demand that a trial commissioner retry the same facts after a decision has already been reached on those facts. . . . We have held “a claimant is not entitled to multiple opportunities to raise and resolve the same issue.” Schreiber [v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001)] and respondents are also precluded from obtaining multiple hearings on the same issue. The respondent simply cannot overcome the fact that these issues are now precluded from further consideration. Id.

The respondents continue to argue that since they are advancing a potentially meritorious argument before the appellate courts that they should be relieved from the obligation to comply with the requirements of § 31-301(f) C.G.S. to pay the dependent spouse benefits during the pendency of the appeal process. We have already considered and rejected this argument.

In Gerte v. Logistec Connecticut, Inc., 5086 CRB-3-06-5, 5116 CRB-3-06-7 (April 27, 2007) the respondents argued that since their appeal to the Supreme Court contested the subject matter jurisdiction of the Commission that they should not be required to pay the claimant benefits pursuant to § 31-301(f) C.G.S. We held to the contrary.

The respondents appeal from the § 31-301(f) C.G.S. order based on one principle; that since the overall award is void for lack of subject matter jurisdiction, the interlocutory relief is void as well. They offer no relevant legal authority for the position that a jurisdictional dispute relieves the respondents of the obligation to honor the terms of an interlocutory award pending an appeal. The claimant on the other hand cites a number of cases for the opposite proposition: that when a claimant obtains a § 31-301(f) C.G.S. order the respondent is obligated to honor the award. “We hold that § 31-301(f) requires the payment of benefits pending appeal upon request by the claimant, as was done in this case.” (emphasis in original) Horn v. State/Dept. of Correction, 4764 CRB-3-03-12 (January 24, 2005). Id.

We must apply the “plain meaning” of statutes enacted pursuant to Chapter 568. See § 1-2z C.G.S. and Hummel v. Marten Transport, 282 Conn. 477, 495-501 (2007). The “plain meaning” of § 31-301(f) C.G.S. provides no alternative to the payment of an award during the pendency of an appeal if the claimant seeks such payment.

(f) During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer. (Emphasis added)

The Supreme Court has previously held “[a]bsent an indication to the contrary, the legislature’s choice of the mandatory term “shall” rather than the permissive term “may” indicates that the legislative directive is mandatory.” Bailey v. State, 65 Conn. App. 592, 604 (2001). The respondents’ statutory construction absolving it of liability during an appeal is simply incompatible with the “plain meaning” of the relevant statute.

Having resolved the issue of whether payments under § 31-301(f) C.G.S. were mandated we consider whether penalties for noncompliance under § 31-303 C.G.S. were properly awarded. We conclude they were. We note that in Schiano v. Bliss Exterminating Co., 260 Conn. 21 (2002) the Supreme Court pointed out that the mandatory term “shall” also is included in § 31-303 C.G.S.

Payments due under an award shall commence on or before the tenth day from the date of such award. . . . Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter. (Emphasis added.) Id., 34-35.

Having concluded that the trial commissioner properly assessed a twenty percent penalty against the respondent for late payments in accordance with § 31-303 C.G.S; we now consider the award of attorney’s fees. The respondents argue that the award of attorney’s fees in this instance contravenes precedent in Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974) and Liebel v. Stratford, 5070 CRB-4-06-3 (May 17, 2007). We do not agree based on the facts of this case.

Both Balkus and Liebel were cases in which the factual basis for the award of attorney’s fees as a sanction was challenged. In Balkus the court specifically did not consider the reasonableness of the fee awarded to counsel. Id., n8. In Liebel the absence of a formal agreement between attorney and client weighed against reversing the trial commissioner’s decision not to award legal fees to claimant’s spouse/counsel.2 We could not revisit the factual determination in Liebel for the same reason we are precluded from doing so in the present case since no Motion to Correct was filed to correct the alleged factual errors made by the trial commissioner. As a result, pursuant to Samaoya v. William Gallagher, 4951 CRB-7-05-6 (April 26, 2006), aff’d, 102 Conn. App. 670 (2007); Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006); Soto-Velez v. Michael’s Chrysler Plymouth, 4628 CRB-2-03-2 (February 3, 2004); and Crochiere v. Enfield-Board of Education, 227 Conn. 333, 347 (1993) we must accept the validity of the facts found by the trial commissioner as this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4.3

In reviewing the law we find that Schiano, supra, permits a trial commissioner to include a “reasonable attorney’s fee” as part of the sanctions mandated for late payment under § 31-303 C.G.S. Id., 35. The plain meaning of the statute makes clear that the twenty percent penalty is in addition to other permissible sanctions under Chapter 568. See also Muldoon v. New England Installation, 3552 CRB-4-97-3 (August 24, 1998). We also note that a trial commissioner has great latitude in determining what a reasonable attorney’s fee is.4 “Where a respondent has unreasonably contested liability, a commissioner has the option to award an attorney’s fee greater than the guidelines allow, as long as the charges seem reasonable based on the evidence;” Liebel, supra, citing Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (January 8, 1999). The evidence before the trial commissioner was that claimant’s counsel was one of 49 attorneys in Connecticut certified as a specialist in Workers’ Compensation and he submitted a 73 page affidavit as to the hours he expended on the file to the trial commissioner. We therefore do not find the trial commissioner’s conclusions as to an appropriate billing rate or time spent on the file unreasonable.

We believe the use of statutory monetary sanctions by trial commissioners seeking to enforce orders of this Commission is essential to the performance of this Commission’s statutory mission. The trial commissioner acted appropriately given the record herein to assess the respondents’ sanctions expressly permitted under our statutes. We find no error, affirm the Finding and Award, and dismiss this appeal.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 We defer to our prior Hummel decisions for a more detailed outline of the facts of this case. BACK TO TEXT

2 There is no factual dispute that Attorney Desrosiers and his firm have filed the appropriate appearances as counsel for the claimant in this case. BACK TO TEXT

3 As a result, the respondents are now barred from contesting the facts found by the commissioner notwithstanding their arguments as to reliance on hearsay evidence. We also question reliance on Balkus when the transcript submitted as an exhibit to respondents’ brief demonstrates counsel for the respondent engaged in extensive cross-examination of claimant’s counsel. See Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007). BACK TO TEXT

4 “‘We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest 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 board’s scope for 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).” Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006). We find the rationale expressed in Duffy equally applicable to awards of attorney’s fees under § 31-303 C.G.S. BACK TO TEXT

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Page last revised: May 20, 2008

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