CASE NO. 5314 CRB-3-08-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 23, 2009
LOGISTEC OF CONNECTICUT, INC.
LAMORTE BURNS & CO.
The claimant was represented by David A. Kelly, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondents were represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06511.
The Petition for Review from the December 20, 2007 Ruling on Respondents’ Motion for Reconsideration and for Oral Argument filed by respondents-appellants was withdrawn May 27, 2008. Oral argument before the board was limited to Claimant’s Motion for Summary Dismissal/Motion for Attorney Fees. The motion was heard August 29, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Anthony DiBlase seeks a sanction in the form of an award of attorney’s fees to be imposed on the respondents, Logistec Connecticut, Inc. and Lamorte Burns & Co. This proposed sanction is based on a claim of unreasonable contest by the respondents. Upon review of the record, we are not persuaded sanctions are warranted under these circumstances. The Motion is denied.
The following facts are relevant to the determination. On December 7, 2004 a Finding of Dismissal was reached for this claim based on the grounds that the claimant’s injuries were outside the jurisdiction of this Commission. This decision was appealed and this board affirmed the trial commissioner’s decision. DiBlase v. Logistec of CT., Inc., 4896 CRB-4-04-12 (January 19, 2006). (“DiBlase I”) Our decision was appealed to the Connecticut Supreme Court, which reversed the jurisdictional ruling of the trial commissioner and this board. DiBlase v. Logistec Connecticut , Inc., 283 Conn. 129 (2007). Subsequent to obtaining a favorable result on appeal, the claimant filed a motion for unreasonable contest against the respondents before the trial commissioner acting for the Third District. During this proceeding, counsel for the claimant filed a subpoena against Harold Halpin, president of Lamonte Burns, the employer’s claim administrator for this matter, seeking his attendance at an October 29, 2007 formal hearing. Counsel for the respondents filed a Motion to Quash this subpoena on October 26, 2007. The parties agree that the trial commissioner denied the Motion to Quash ex parte on or about November 1, 2007.
Subsequent to this decision, the respondents filed a Petition for Review to this board and contemporaneously filed a Motion for Reconsideration and for Oral Argument before the trial commissioner. On January 3, 2008 this board ordered the appeal of the commissioner’s November 1, 2007 decision remanded due to the absence of a necessary record. DiBlase v. Logistec of Connecticut, Inc., 5305 CRB-3-07-11 (January 3, 2008). (“DiBlase II”) On December 20, 2007 the trial commissioner denied the respondents’ Motion for Reconsideration and for Oral Argument.
The respondents then filed an appeal on January 3, 2008 from the December 20, 2007 decision denying their Motion for Reconsideration and for Oral Argument. The claimant filed a Motion for Summary Dismissal/Motion for Attorney Fees on January 25, 2008 and a second motion regarding these matters on May 12, 2008. During the pendency of this appeal the respondents obtained a resolution of the outstanding discovery issues via the Superior Court. On May 21, 2008 the respondents requested a withdrawal of their January 3, 2008 appeal, asserting the issues involved were now moot. On May 27, 2008 this board granted the withdrawal of the appeal. The claimant however, continued to request a ruling on the issue of attorney’s fees.
The gravamen of the claimant’s argument is that the respondents’ appeals were frivolous and interposed for the purposes of delay. In any event, the initial appeal was remanded by this board and the second appeal was withdrawn. The claimant offers no compelling argument why in the absence of a pending appeal on the merits, this board should now impose sanctions against the respondents.1 In particular, we note the claimant does not offer any authority from the Connecticut General Statutes or the Rules of Practice supportive of relief at this stage of the proceedings.
It is long settled law that a decision as to whether sanctions should be imposed for unreasonable contest is one committed to the discretion of the commissioner. Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006). Based on the record herein, we believe there are insufficient grounds upon which to levy sanctions against the respondents in this matter.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 Although the Superior Court’s decision on the respondents’ Motion to Quash is not part of the record herein, the matter was discussed at length at oral argument. Therefore, we note that it does not appear the Superior Court agreed with the claimant’s contention the respondents’ concerns over the discovery process in this proceeding were frivolous. Since the court granted the relief sought by the respondents, we may infer they found those concerns legitimate. BACK TO TEXT