CRB Case Annotations re: Section 31-303

CRB affirmed trier’s dismissal of claim for late interest payment. Facts as found reflected respondents sent stipulation payment and documents to the address provided by the claimant. Respondents attempted to ascertain via email communication whether claimant received check and documents. Claimant could not confirm as he alleged he was away from his home. Ultimately, claimant provided an updated address, respondents forwarded a new check to that address. Claimant cashed the second check sent. Board affirmed as the respondents’ initial forwarding of check constituted the commencement of payment as required by § 31-303. See also, Naveo, § 31-301 Appeal Procedure.

Claimant settled with respondent on both Chapter 568 and Longshore claims and agreed to single payment on both claims, with attorney’s fees paid separately to counsel. Longshore claims required Labor Dept. approval, and there was a delay in paying attorney’s fees. Counsel sought late payment penalty under statute and trial commissioner rejected bid. CRB affirmed. Payments to claimant were commenced in timely manner. Factual predicate to penalize respondent absent in this case, it was impossible to pay attorney’s fees without federal approval, see Dubrosky v. Boehringer Ingelheim Corp., 145 Conn. App. 261 (2013). In addition, Schiano v. Bliss Exterminating Co., 260 Conn. 21 (2002) holds “payments under an award” for this statute does not include attorney’s fees.

CRB affirmed trial commissioner’s conclusion she lacked the requisite subject matter jurisdiction necessary to award a penalty for late payment pursuant to § 31-303. The late payment was claimed on the basis of the respondent’s failure to comply with a provision in a Stipulation stating how the claimant’s retirement benefits would be calculated. The method for computing retirement benefits was a matter of collective bargaining and thus, the trier was without jurisdiction to order a late payment penalty pursuant to § 31-303. See also, Murray, § 31-278; § 31-296.

Claimant reached agreement with Liberty Mutual & Second Injury Fund to settle her claim. Trial commissioner approved stipulation which included penalty clause for late payment. Liberty Mutual check arrived without incident. Second Injury Fund mailed check to claimant within time period after receipt of approved stipulation; but check never arrived. Second Injury Fund had to stop payment on first check and reissue check to claimant; who later received the original voided check. Claimant sought 20 percent penalty for late payment from Second Injury Fund. Trial commissioner concluded response to situation reasonable and dismissed claim for penalty. CRB affirmed. Risk of loss from Postal Service miscue could not be blamed on respondent when their conduct would have otherwise complied with agreement; parties did not agree to use certified mail or other more secure and timely delivery method.

Parties reached agreement on stipulation that deviated from Chairman’s Memorandum 2007-02; it required payment to be “payable” within 20 days of stipulation approval. Respondents issued check on 20th day and mailed it that day to claimant; it was received 5 days later. Claimant sought 20% statutory penalty for late payment. Trial commissioner denied relief; determining parties agreed to what transpired and payment was commenced within 20 days and within scope of the statute. CRB upheld trial commissioner. Garcia v. Middletown Nissan, 5035 CRB-8-05-12 (December 20, 2006) on point; commission will not revisit issue when parties agree not to follow the Chairman’s Memorandum on payment of stipulations. Obligation herein was “payable” within date of approval as per Francis v. Rushford Centers, Inc., 5428 CRB-8-09-2 (February 8, 2010).

Ayna v. Graebel Movers, Inc., 5452 CRB 4-09-3 (July 21, 2010), aff’d, 133 Conn. App. 65 (2012), cert denied, 304 Conn. 905 (2012).

Respondents sought to terminate temporary total disability benefits asserting medical evidence and claimant’s activities proved he had a work capacity. Claimant denied earning money after injury and relied on treating physician’s opinions. He further claimed Trial commissioner should have relied on prior commissioner’s denial of a Form 36. Trial commissioner discontinued benefits. Claimant appealed and CRB upheld trial commissioner. Respondents’ examiner offered probative evidence claimant had work capacity. Previous decision on earlier Form 36 did not rely on this evidence and was not binding herein. Trial commissioern cited evidence claimant was active individual who received money in Louisiana, plus Trial commissioner found ex-wife a credible witness on issue of operating business. Trial commissioner could reasonably find claimant had work capacity when he found claimant not to be credible. See also, Ayna § 31-296, § 31-300, § 31-301 Factual findings, § 31-307.

Parties executed Voluntary Agreement in November 2004 using MMI date of November 9, 2000. Claimant did not receive permanency payments until 2005. Claimant asserted he was entitled to interest and penalties due to late payment of permanency award. Trial commissioner found VA deficient as it did not list percentage of disability or number of weeks of compensation due. Medical reports did not establish physician had opined to MMI as of date listed in VA. Parties did not resolve disputed permanency rating until after VA was executed. Trial commissioner denied claimant’s request. CRB upheld trial commissioner. VA was legally deficient and not supported by medical evidence on the record. VA cannot be enforced against respondent when parties have not agreed on material terms. Since parties continued to negotiate, trial commissioner within discretion to deny sanctions sought for undue delay or unreasonable contest. See also, Milewski, § 31-295(c), § 31-300.

Trial commissioner ordered interest on late payment of permanency pursuant to both § 31-295(c) C.G.S. and § 31-300 C.G.S. CRB remanded, seeking clarification as to which statute constituted basis for award and whether there had been undue delay. On remand, trier found no undue delay and awarded interest pursuant to 31-300 C.G.S. only. Claimant appealed, arguing respondents improperly contested permanency because of apportionment reimbursement concerns and claimant was therefore entitled to mandatory interest pursuant to § 31-295(c) C.G.S. plus interest and attorney’s fees pursuant to § 31-300 C.G.S. CRB upheld award of interest pursuant to § 31-300 C.G.S. noting permanency continued to be litigated after claimant was rated due to complications in claimant’s medical history and a potential statute of non claim defense. CRB also determined that unlike § 31-303 C.G.S, neither § 31-295(c) C.G.S. nor § 31-300 C.G.S. allow for simultaneous payment of interest. CRB upheld trier’s finding of no undue delay on grounds that, in addition to medical record issues, claimant’s availability for litigation was hampered by his ill health and residence out-of-state for part of the year. Trier denied claimant’s Motion to Correct in its entirety. See also, Abrahamson, § 31-295(c), § 31-300, § 31-301, Factual Findings. § 31-301-4.

Hummel v. Marten Transport, Ltd., 5303 CRB-5-07-11 (May 14, 2008), aff’d, 114 Conn. App. 822 (2009), cert. denied, Conn. (2009).

Following remand, trial commissioner levied monetary penalties on respondent for failing to make payments pending appeal. Commissioner assessed 20% penalty on unpaid survivor’s benefits and burial benefits and awarded claimant legal fees for hearings where post-appeal relief was sought. Respondents appealed and CRB upheld trial commissioner. Respondent’s argument that they had meritorious appellate issues does not relieve them of obligations under § 31-301(f) C.G.S., see Gerte v. Logistec Connecticut, Inc., 5086 CRB-3-06-5, 5116 CRB-3-06-7 (April 27, 2007). Penalties for late payments are mandated by the “plain meaning” of the statute, see Schiano v. Bliss Exterminating, 260 Conn. 21 (2002). See also Hummel, § 31-301(f) C.G.S. § 31-300 C.G.S.

Hummel v. Marten Transport, LTD., 5080 CRB-5-06-4 (April 19, 2007), aff’d, 114 Conn. App. 822 (2009), cert. denied, Conn. (2009).

CRB remanded for order of interest on the basis that § 31-303 is not discretionary. See, Hummel v. Marten Transport, LTD, 5080 CRB-5-06-4 (April 19, 2007) § 31-288, § 31-300, § 31-301(f), § 31-306, § 31-307(e).

Order was in place directing respondents to pay COLAs. Respondents adopted calculation method that underpaid claimant. Respondents were accountable for consequences of later Commission determination that COLA payments were insufficient, including liability for 20% penalty under § 31-303. Award affirmed. See also, Edwards, § 31-300, § 31-306.

Stipulation reached between claimant and respondent called for payment within 30 days of receipt of executed agreement by insurer. Claimant received his portion of award approximately 39 days after approval of agreement, as original check was mailed to wrong address. Claimant sought § 31-303 C.G.S. sanctions for late payment, which trier awarded. CRB remanded for finding as to when insurer received agreement. Date of receipt of agreement is an essential subordinate fact preceding award of sanctions.

Matey v. Dember, 4488 CRB-7-02-2, 4532 CRB-5-02-5 (May 14, 2003), appeal dismissed for failure to comply with Supreme Court’s directive, 85 Conn. App. 198 (2004).

Affirmed trier’s finding that interest not due under this section as no order was issued against the Fund. See also, Matey, § 31-278, § 31-307, § 31-307a, § 31-300. See, Matey v. Dember, 256 Conn. 456 (2004).

See, Ruffino, § 7-433c.

Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001), appeal dismissed, A.C. 23921 (May 14, 2003), cert. denied, 266 Conn. 904 (2003).

Section 31-303 did not apply to unduly delayed adjustment of benefits where there was no award, stipulation or voluntary agreement specifically requiring payment of such enumerated sums. See also, Melendez, § 31-278, § 31-298, § 31-300, and see May 24, 2001 ruling on motion to correct/articulate CRB decision in Melendez, § 31-301. Appeal procedure. Related decision in Melendez, 4178 CRB-2-00-1 (November 19, 2003), rev’d, 86 Conn. App. 880 (2005)(no jurisdiction to rule on motion to reopen CRB decision), § 31-301. Appeal procedure.

Where original award ordered not only disability benefits for claimant, but interest and attorney’s fees as well based on undue delay in payment of compensation, CRB reversed trier’s ruling that penalty provision of § 31-303 did not apply to the portion of the award attributable to attorney’s fees and interest. Statute does not purport to distinguish between disability payments due to claimant and payments awarded to others to whom fees are due for services provided to claimant, though panel questioned wisdom of such broad statutory language. Supreme Court reversed CRB’s decision, holding that, despite plain language of § 31-303, its legislative history and other provisions of Act provide compelling evidence that legislature did not intend attorney’s fees to be subject to § 31-303 penalty. See also, Schiano, § 31-278, § 31-300. Prior decisions at Schiano, 3436 CRB-4-96-10 (April 8, 1998), and Schiano, 1852 CRB-4-93-9 (December 7, 1994), aff’d, 57 Conn. App. 406 (2000), both discussed at § 31-293 and, with regard to the 1994 CRB decision, § 31-301. Appeal procedure as well, and Schiano, 3315 CRB-4-96-4 (May 16, 1997), § 31-301. Appeal procedure.

CRB affirmed trial commissioner’s award of a twenty- percent penalty. Respondent argued that § 31-303 does not apply to a stipulation for a full and final settlement because § 31-303 refers only to a voluntary agreement or an award. This issue has recently been considered in Davis v. Forman School, 54 Conn. App. 841 (1999), where the Appellate Court held that § 31-303 applies to stipulations. Whether the claimant was prejudiced due to the late payment is not material. See also, Borici, § 31-297.

CRB held that the trial commissioner properly issued a penalty against the Fund for failure to pay an award within ten days, as it would be unreasonable to construe the penalty provision of § 31-303 as applying only to employers and insurers. (Wilson, C., DISSENTING) The twenty-percent penalty under § 31-303 for failure to make payments within ten days applies only to an employer or its insurer and does not apply to the Fund.

The trial commissioner assessed a five thousand dollar penalty against the insurer for its failure to pay an approved stipulation within ten days, pursuant to P.A. 93-228, § 14, which amended § 31-303 to allow for the imposition of a fine for failure to make payments within ten days following a voluntary agreement or award. The insurer contended that P.A. 93-228, § 14 may not be applied retroactively and that the provision does not apply to stipulations. The CRB affirmed the trial commissioner’s decision, and held that P.A. 93-228, § 14 applies to stipulations which are approved on or after July 1, 1993, the effective date of the legislation. (Wilson, C., DISSENTING) The penalty provision applies only to a voluntary agreement or an award, but does not apply to a stipulation.

CRB Case Annotations re: Section 31-303

Day when compensation payments become due. Penalty for late payments.