State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lee v. Cultec, Inc.

CASE NO. 5546 CRB-7-10-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 25, 2011

JONATHAN LEE

CLAIMANT-APPELLEE

v.

CULTEC, INC.

EMPLOYER

and

PEERLESS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Thomas J. Allingham, Esq., AllinghamSpillane, LLC, 54 Bridge Street, New Milford, CT 06776.

The respondents were represented by Lisa A. Bunnell, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the April 15, 2010 Finding and Award of the Commissioner acting for the Seventh District was heard September 24, 2010 before a Compensation Review Board panel consisting of Commissioners Jack R. Goldberg, Stephen B. Delaney, and Daniel E. Dilzer.

OPINION

JACK R. GOLDBERG, COMMISSIONER. The respondents in this matter have appealed from a Finding and Award issued to the claimant. They challenge the decision of the trial commissioner to award the claimant temporary total disability benefits during a period prior to his examination by the respondents’ expert witness. They also challenge the trial commissioner’s decision to impose statutory sanctions for unreasonable contest and undue delay. We find that the trial commissioner’s decision was consistent with the evidence on the record and the relevant statutes and case law. We find no error, and affirm the Finding and Award.

The trial commissioner reached the following Findings of Fact in this matter. She took administrative notice of the prior documents on file pertaining to the Finding and Award in favor of the claimant dated June 17, 2009. She also noted that after the present hearing had commenced on December 28, 2009, the Workers’ Compensation Commission approved a Voluntary Agreement which accepted a “neck strain” from the claimant lifting a propane tank.

The trial commissioner noted that on May 30, 2008 a CT scan revealed the claimant has moderate mid and lower cervical spine degenerative changes with no fractures. The respondents’ IME physician, Dr. Lawrence Schweitzer, testified that X-rays taken of the claimant on May 30, 2008 “showed significant issues in his cervical spine.”. At the time the claimant was released from New Milford Hospital on May 30, 2008 the claimant was diagnosed with “cervical radiculopathy.”. The claimant was prescribed Motrin, Vicodin and Robaxin with instructions not to drive or work while using these medications.

On June 2, 2008 Dr. Karen Tarbell prescribed Naproxin and Percocet for the claimant’s neck pain. The claimant was examined on June 6, 2008 by Dr. Keith E. Penny, an orthopedic surgeon with the Center for Advanced Orthopaedics & Sports Medicine, P.C. Dr. Penny recommended an MRI and EMG and took the claimant out of work until the results of the MRI and EMG studies were able to be reviewed. A June 11, 2008 MRI of the claimant’s cervical spine shows multilevel significant disc bulges and associated osteophytes from C3-C4 through C6-C7 with findings compatible with multilevel central canal stenosis and bilateral foraminal stenosis through these levels. A June 24, 2008 electrodiagnostic evaluation revealed that the claimant’s current medications are Robaxin and Hydrocodone. An evaluation report indicated that the bilateral upper extremity electrodiagnostic study was within normal limits. Dr. Schweitzer testified, however as to the electrodiagnostic study that “[i]t’s not unusual that it would be negative even in the face of significant disease.”

On June 25, 2008, the claimant had a follow-up visit with Dr. Penny who recommended the claimant see a spine specialist. The respondents did not authorize this treatment. Office notes electronically signed by William G. Broadhurst, P.A., fro. Dr. Penny’s office indicate that the claimant had been previously prescribed a Medrol Dose Pak and that the medication had done little to alleviate symptoms. On August 14, 2008 an office note from Dr. Karen Tarbell at Danbury Office of Physician Services, P.C., Housatonic Internal Medicine & Pediatrics documented the claimant’s cervical problems, recommended that he see a specialist and prescribed Percocet for pain. The trial commissioner noted that during 2008 and 2009 Dr. Abra G. Mabasa and Dr. Tarbell frequently prescribed narcotics to the claimant, including Percocet, Flexeril and Oxycontin. In the winter of 2008 the claimant started receiving prescriptions for anti-depressants such as Wellbutrin and Celexa. The accompanying medical notes documented the claimant’s cervical spine problems. An April 9, 2009 office note from Dr. Malbasa renewed the claimant’s prescription for Oxycontin and Celexa. Her notes indicated the patient is to get future pain meds from a pain specialist. Nonetheless, the claimant went to Dr. Malbasa on June 30, 2009 for a renewal of his Oxycontin prescription.

On September 11, 2009, Dr. Lawrence Schweitzer examined the claimant on behalf of the respondents. He admitted that he had not examined the claimant between the date of injury and June 18, 2009. He did opine the claimant had a work capacity on September 11, 2009 and probably had a work capacity for some indeterminate period of time before September 11. Dr. Schweitzer placed restrictions on the claimant of a sedentary work capacity with no lifting over 20 pounds and opined that the claimant was not yet at maximum medical improvement. Dr. Schweitzer further opined in a July 15, 2009 letter that he did not believe the claimant was totally disabled between the date of injury and the date of the letter. Dr. Schweitzer further opined that the “pretty stiff dose” of Oxycontin the claimant was using would not inhibit the claimant’s ability to drive, to work and hold down a sedentary job.

Based on this record the trial commissioner concluded that the claimant had been kept out of work from May 30, 2008 to June 25, 2008 as a result of notes from the New Milford Emergency Room and Dr. Penny. Following the claimant’s June 25, 2008 follow-up visit, Dr. Penny recommended that the claimant see a spine specialist. Despite Dr. Penny’s recommendation, between June 26, 2008 and June 18, 2009, respondents failed to either schedule an IME to contest the compensability of the claim or, to authorize any substantive, specialized medical treatment for the claimant’s cervical spine condition.

In the interim, the claimant was limited to treating with Dr. Abra G. Mabasa and Dr. Karen Tarbell who prescribed increasingly heavier levels of prescription drugs to control his pain and depression. Dr. Mabasa and Tarbell were the only doctors the claimant could access for treatment as they were the only doctors who would accept his welfare health insurance plan. The claimant’s treating physicians instructed him not to drive or work while taking his pain medication. The trial commissioner concluded Dr. Schweitzer’s opinions as to the claimant’s work capacity were not persuasive. The trial commissioner concluded the weight of the medical evidence supported a finding that the claimant was totally disabled from May 31, 2008 through and including June 18, 2009. The trial commissioner also concluded the respondents unreasonably contested the claimant’s claim to temporary total disability benefits as they lacked medical evidence to justify a denial of benefits. She ordered a reasonable attorney’s fee pursuant to the provisions of § 31-300 C.G.S. The trial commissioner also concluded the respondents owe the claimant damages for undue delay pursuant to the provisions of § 31-288(b)(1) C.G.S.

Therefore, the trial commissioner order the respondents to pay temporary total disability benefits to the claimant from May 31, 2008 through and including June 18, 2009 as well as to pay a $1,000 civil penalty for undue delay. The claimant was directed to request a new formal hearing to ascertain the amount of attorney’s fees due for unreasonable contest. In response, the respondents filed a Motion for Articulation and a Motion to Correct. The Motion for Articulation was denied. The trial commissioner granted one correction to correct a scrivener’s error but denied any substantive corrections to the Finding and Award. The respondents have now pursued this appeal.

The respondents have cited a number of issues on appeal. They argue the trial commissioner exceeded her discretionary authority to find the respondents had unreasonably contested this claim. They claim it was error for the trial commissioner to deny their Motion for Articulation, as well as denying the corrections she did not grant. They assert they were not provided due process on the issue of § 31-288(b)(1) sanctions. They also assert error in the manner the attorney’s fee sanctions under § 31-300 C.G.S. were imposed. Finally, they contest the evidential sufficiency of the decision the claimant was temporarily totally disabled. We find none of these arguments persuasive.

We may deal briefly with the claim the trial commissioner committed error by denying the Motion for Articulation. ‘“An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification….’ Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204 (2003), citing, Miller v. Kirschner, 225 Conn. 185, 208 (1993).”. Biehn v. Bridgeport, 5232 CRB-4-07-6 (September 11, 2008). We find the trial commissioner’s rationale herein straightforward and do not believe she was obligated to grant the respondents’ motion.

The respondents claim the trial commissioner lacked a sufficient basis to find the claimant was temporarily totally disabled during the period in which the trial commissioner found he was entitled to § 31-307 benefits. They claim the treating physician was somehow incompetent to render an opinion on this issue, Respondents’ Brief, p. 18, that the basis of the claim lacked contemporaneous medical records, and that the opinions herein were insufficient to sustain an award pursuant to the Appellate Court opinion in Marandino v. Prometheus Pharmacy, 105 Conn. App. 669. We find none of these arguments persuasive.

First, we note that on the issue where the respondents rely on the Appellate Court’s decision in Marandino, supra., the Supreme Court reversed the Appellate Court. See Marandino v. Prometheus Pharmacy, 294 Conn. 564, 592-597 (2010).1 The Supreme Court in Marandino upheld a trial commissioner’s reliance on the opinions rendered by a treating physician who had performed multiple examinations of the claimant. We also note that we have long rejected appellate arguments based on comparing the alleged superior expertise of one physician versus another practitioner Huertas v. Coca Cola Bottling Company, 5052 CRB-1-06-2 (January 22, 2007). ‘“If on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.’ Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003).”. Huertas, supra. The claimant notes in his brief on page 9, the respondents did not object to the introduction of Dr. Mabasa’s report and did not seek to depose her. See December 14, 2009 Transcript, p. 4. Therefore, as we held in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), the trial commissioner was permitted to rely on the conclusions of this report in her Finding & Award.

In the present matter the trial commissioner cited numerous test results evidencing the claimant had suffered a significant injury to his cervical spine. Findings, ¶¶ 3 & 6. The trial commissioner noted the claimant had been deemed disabled as a result of that injury. Findings, ¶ 5. There is no evidence in the record any treating physician later cleared the claimant to return to work. Instead, the record is replete with the claimant being prescribed an accelerating level of narcotics, Findings, ¶¶ 4, 8, 10-21, which had been originally prescribed with directions that the claimant not to drive or to work. Findings, ¶ 3. We find that there was a “reasonable diagnostic method” behind an opinion that claimant was unable to work as a result of his injury and the resulting narcotic pain medication. The claim the trial commissioner lacked contemporaneous medical records to support her decision is specious. See Findings, ¶¶ 4, 8, 10-21. While the issue of total disability is a matter which the claimant must provide continuing proof, Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001) “the entirety of this record contains sufficient evidence upon which a reasonable commissioner could base a decision that the claimant was totally disabled…”. Id.2

The respondents’ argument on the issue of total disability thus is limited to the position their examiner, Dr. Schweitzer, should have his opinion on the claimant’s work capacity credited by the trial commissioner. The trial commissioner may decide which medical professional he or she finds more credible and persuasive in a “dueling expert” case. Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006). The trial commissioner did not find Dr. Schweitzer persuasive on the issue of work capacity and that is her prerogative.

In considering the issue as to what caused the claimant to be disabled from work during this extended period, we are struck with how closely this case parallels a 2009 CRB case where this panel upheld a finding of temporary total disability. In McInnis v. Shelter Workz, 5299 CRB-3-07-11 (June 11, 2009) the claimant suffered a spine injury and within a month after the incident, the claimant’s treater referred him to a spine specialist. The respondents did not authorize such treatment for almost a year, and when the claimant was finally examined, he was determined to have a herniated disc and deemed temporarily totally disabled. The trial commissioner then ordered payment of § 31-307 C.G.S. benefits relating back to the original injury. This panel affirmed this decision for the following reasons.

It is clear that our law requires a respondent to provide to injured workers appropriate and timely medical care. We look to the specific terms of § 31-294d(a)(1) C.G.S.
The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider. (Emphasis added)
In the present matter, the claimant’s initial treating physician, Dr. Pito, recommended that the claimant be examined by a specialist on July 22, 2005. This examination did not occur until June of the next year, at which time the claimant was determined to be totally disabled. The respondents are challenging the adequacy of the claimant’s evidence for total disability during this time period. The obvious problem herein is the delay was occasioned by the respondents’ response to the treating physician’s recommendation. It appears the trial commissioner was concerned over the equity of penalizing the claimant under these circumstances and we share this concern. As we stated in a prior case involving AIG, Mohamed v. Domino’s Pizza, 5352 CRB-6-08-6 (April 22, 2009), our public mission “is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.”. Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000). It is clear that the claimant did suffer a delay in receiving appropriate treatment for his injuries in this instance. Our system is intended to prevent delays in compensation from penalizing the injured, Casey v. Northeast Utilities, 249 Conn. 365, 379 (1999), and in this case, the delay was in providing appropriate medical treatment. The failure to provide a prompt diagnosis in this matter can hardly be laid at the claimant’s feet given the facts of this case. McInnis, supra.

The circumstances in this case are extremely similar to McInnis. The claimant had a referral from his treating physician to seek treatment from a back specialist. Notwithstanding the statutory obligations of § 31-294d(a)(1) C.G.S., the respondents decided not to authorize appropriate medical treatment for the claimant. Having limited the claimant to treating with general practitioners, the respondents then criticize the opinions from such physicians. This panel upheld a trial commissioner in McInnis who refused to reward a respondent that acted in this fashion. We believe precedent compels us to reach a similar result in this case.3 The respondents’ inaction clearly penalized the claimant.

The respondents in McInnis were not sanctioned for undue delay or unreasonable contest. The trial commissioner in the present case decided the respondents should be penalized. The respondents have appealed arguing both that the trial commissioner deprived them of due process by her ruling and that on substantive grounds the sanctions were unwarranted. We will review the due process grounds first. If the respondents were deprived of due process on the issue of sanctions then the matter must be remanded to the trial commissioner for a new hearing and we need not address the substantive basis of this dispute at this time. We note that in their brief and at oral argument before this panel the respondents limited their due process arguments to the issue of § 31-288(b)(1) C.G.S. As a result we conclude the respondents concede they were afforded due process on the issue of attorney’s fee sanctions under § 31-300 C.G.S. The source of the respondents’ argument appears to be an inartful characterization of the grounds for these sanctions in the trial commissioner’s April 29, 2010 ruling on the respondents’ Motion to Correct. In this ruling the trial commissioner stated,

DENIED. Penalty under 31-288(b)(1) was awarded sua sponte for the respondents egregious behavior in failing to provide appropriate medical treatment prior to the finding and award and then formulating a defense to payment of temporary total disability payments accrued prior to the June 17, 2009 Finding and Award by attacking the quality of his treatment and credibility of his treating physicians between May 30, 2008 and June 18, 2009; for opposing the claimant’s claim for over a year without a single medical to supports (sic) its opposition; and in light of this contest, for failing to commission an IME until three months after the Commission issued a Finding and Award in the claimant’s favor. Based upon the experience level of respondents’ legal counsel, the respondents knew, or should have shown, that its dilatory and very deliberate conduct violated the spirit and intent of the Workers’ Compensation Act, thereby exposing itself to sanctions under the provisions of C.G.S. Sec. 31-288(b)(1).

The use of the term “sua sponte” has caused the respondents to claim that this award violates precedent such as Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974) and Capozzo v. Milford Jai Alai, 4655 CRB-3-03-3 (March 26, 2004). They claim that this issue was not properly noticed before the commencement of the formal hearing and they were unable to properly prepare to defend themselves on this issue. Were this issue raised arbitrarily by the trial commissioner on her own initiative after the hearing was underway we would find this argument meritorious.4

Our review of the various hearing notices in this matter demonstrates that the claimant had raised the issue of undue delay and unreasonable contest on a regular basis prior to the commencement of the formal hearing. The claimant first sought § 31-300 C.G.S. sanctions in a notice dated August 12, 2009 for a September 16, 2009 informal hearing. A notice for a October 21, 2009 pre-formal hearing cited § 31-300 C.G.S. sanctions as an issue. These notices issued commencing November 4, 2009 for the December 14, 2009 formal hearing cite § 31-300 C.G.S., and further state under “Special Instructions” “3 hrs Re; Sanctions”. Claimant’s Exhibit A, dated December 14, 2009 requested interest and attorney’s fees. Counsel for the claimant stated on the record at the commencement of the December 14, 2009 hearing that he was seeking sanctions for unreasonable contest and for interest on unpaid disability benefits. December 14, 2009 Transcript, pp. 1-3. Counsel for the respondents stated after claimant’s counsel made his demand for sanctions for unreasonable contest that she agreed with the statement of issues. Id., pp. 2-3.

While neither the trial commissioner nor counsel for the claimant made a specific statutory citation on the record to § 31-288 (b)(1) C.G.S., upon reviewing the totality of the circumstances we do not believe the respondents were deprived of their right to due process. The respondents received frequent and unequivocal representations prior to the commencement of the formal hearing that statutory sanctions were to be a focal point of the deliberations. The respondents’ citation of Capozzo, supra., is inapposite as in that case the hearing notices never advised the respondent sanctions were under consideration. For the reasons we discussed in Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) we find the respondents were sufficiently advised as to the relief under consideration. The trial commissioner is permitted to follow the evidence where it leads. Vetre v. State/Department of Children and Youth Services, 3443 CRB-6-96-10 (November 28, 2000). We do not find the two sanction statutes so dissimilar that the respondents were unable to prepare an effective defense regarding § 31-288 (b)(1) C.G.S.5 Nonetheless, in their post-trial brief dated February 1, 2010, after counsel for the respondents acknowledged the issue was under consideration, the respondents failed to address the issue of whether sanctions were warranted. As the Appellate Court held in McGuire v. McGuire, 102 Conn. App. 79 (2007), “[w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.”. Id., 83.

The respondents argue that on a substantive basis the trial commissioner lacked grounds to find that they had unreasonably contested this claim or unduly delayed paying benefits or delaying medical treatment. They argue that until there was a finding that the injury was compensable there was no obligation on their part to schedule an independent medical examination. This argument is essentially the one raised by the respondents i. Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006) and rejected by this panel. In Duffy the respondents delayed scheduling an IME for the claimant and once the examination was completed, the trial commissioner determined the results did not justify contesting the claim. “While respondents correctly point out this case hinged on issues of the claimant’s credibility, the trial commissioner also made an affirmative finding of “incredulity” on the part of the respondents.”. Id. We upheld an order of sanctions in Duffy when the trial commissioner reached the affirmative finding the respondents’ evidence was incredulous. In the present matter Conclusions ¶¶ B, C & H reach the standard delineated in Duffy to justify the imposition of sanctions on a respondent who cannot justify their defense of a meritorious claim. Dr. Schweitzer identified a herniated disc and the respondents had failed to authorize treatment. See also Marra v. Ann Taylor Stores Corp., 5027 CRB-3-05-11 (December 29, 2006) (§ 31-300 C.G.S. award upheld when respondents’ examiner agreed with treating physician on material issues).

“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 of 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), Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008).

We note there have been some occasions when the record did not provide any affirmative findings of misconduct on the part of the respondents and we have vacated a sanctions award, see Francis v. Rushford Centers, Inc., 5428 CRB-8-09-2 (February 8, 2010), Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001) and Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009). However, the trial commissioner in this case made numerous affirmative findings of misconduct in the Finding and Award. We cannot conclude that levying sanctions on a respondent that fails to provide reasonable medical care for a cervical disc injury “vitiates logic.”. See McInnis, supra.

The respondents originally indicated that the trial commissioner’s decision to hold an additional hearing on the issue of a reasonable attorney’s fee constituted error as it “exceeded her discretionary authority.”. The respondents did not brief this issue or address this at oral argument, and therefore, we deem it abandoned on appeal. Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007). We also cannot ascertain when in any prior decision this panel has questioned a trial commissioner bifurcating the issue regarding an appropriate attorney’s fee to a future hearing.

The trial commissioner’s decision herein is supported by evidence on the record and was rendered after a hearing which comported with the requirements of due process.6 We find no error, dismiss this appeal, and affirm the Finding and Award.

Commissioners Stephen B. Delaney and Daniel E. Dilzer concur in this opinion.

1 We note the Supreme Court’s Marandino opinion was released on January 26, 2010. The Appellant’s brief, which relied on a now overruled Appellate Court opinion, was dated July 19, 2010. BACK TO TEXT

2 In Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001) we upheld a total disability award which included a nine month period in which the claimant did not seek treatment. BACK TO TEXT

3 In some respects, the circumstances in this case are even more troubling than the circumstances in McInnis v. Shelter Workz, 5299 CRB-3-07-11 (June 11, 2009). In McInnis the respondents inaction delayed the claimant’s diagnosis. In the present case, the claimant had MRIs evidencing disc herniation prior to seeking authorization to treat with a specialist and the respondents failed to act. BACK TO TEXT

4 See Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009) (respondents had inadequate notice to defend issue as to whether claimant should receive foreign medical treatment). BACK TO TEXT

5 The relevant terms of the two statutory sanction provisions are as follows:

§ 31-288 (b)(1). Whenever through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, such employer or insurer may be assessed by the commissioner hearing the claim a civil penalty of not more than one thousand dollars for each such case of delay, to be paid to the claimant. (2. Whenever either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.

§ 31-300. 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

6 We uphold the trial commissioner’s denial of Corrections #2, 3 & 4 and the partial denial of correction #1 from the respondents’ Motion to Correct. This motion sought to interpose the respondents’ conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they either would not have compelled a different result, Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. State/Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), or the trial commissioner did not find the evidence probative or persuasive Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d. 126 Conn. App. 902 (2011) (per curiam). BACK TO TEXT

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