Byars v. Whyco Chromium

The insurer was represented by Scott Williams, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the October 24, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard June 23, 1995 before a Compensation Review Board panel consisting of Commissioners Roberta Smith D’Oyen, Amado J. Vargas and Michael S. Miles.

OPINION

ROBERTA SMITH D’OYEN, COMMISSIONER. The claimant has petitioned for review from the October 24, 1994 Finding and Award of the Commissioner acting for the Fifth District. In that decision, the commissioner denied the claimant’s request for attorney’s fees and interest. In his appeal, the claimant does not dispute any of the commissioner’s findings regarding his request for attorney’s fees and interest, but merely asks for review from the Appellate Court. We affirm the trial commissioner’s decision.1

The following is a brief summary of the procedural history of this case. A trial commissioner for the Fifth District initially issued a Finding and Award on July 1, 1991 in which he found that the claimant sustained a compensable injury and also ordered interest on any payments awarded which had not been paid when due. The commissioner specifically found that the claimant was not entitled to attorney’s fees. That decision was appealed to this board, and we issued a decision on March 10, 1993 which remanded the case for a determination of whether the claimant was represented by an attorney in the trial proceedings. The original trial commissioner had retired at the time of our remand. Therefore, pursuant to our remand, another trial commissioner for the Fifth District issued a decision on October 24, 1994 which denied interest and attorney’s fees.

The claimant filed an appeal from the October 24, 1994 decision to this board. We note that the claimant, in support of his appeal, makes numerous arguments regarding both the original Finding and Award and the board’s remand decision. However we will limit our decision to the October 24, 1994 decision, which is the subject of this appeal.

The trial commissioner in his October 24, 1994 decision determined that the claimant was not entitled to either attorney’s fees or interest. Specifically, the commissioner found that the claimant was represented by an attorney from May 16, 1989 to on or about September 11, 1989 but was dissatisfied with the attorney’s services and never paid the attorney. In addition, the commissioner found that prior to the issuance of the original July 1, 1991 Finding and Award, the respondents had already paid the claimant’s benefits in excess of the amount ordered in the July 1, 1991 Finding and Award. Accordingly, the order in the July 1, 1991 Finding and Award that the respondents pay interest on “any payments as ordered above that were not paid where due” did not result in the payment of interest.

Section 31-300 provides that a commissioner may award interest where the payments have been “unduly delayed.” Section 31-300 further provides that a commissioner may award attorney’s fees where the respondents have “unreasonably contested liability.” In the instant case, the commissioner did not find that there was a delay in payments or an unreasonable contest, and thus did not award interest. In addition, the commissioner found that the claimant was not entitled to attorney’s fees.

The Connecticut Appellate Court has stated: “We read the words of § 31-300, ‘may include in his award interest ... and a reasonable attorney’s fee,’ to allow a discretionary award of both interest and attorney’s fees or neither, but not to allow an award of one and not the other.” Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992). Moreover, this board has ruled that an award of attorney’s fees and interest is within the commissioner’s discretion. Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). In the instant case, we find that there was no abuse of the commissioner’s discretion in declining to award attorney’s fees and interest pursuant to § 31-300.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Amado J. Vargas and Michael S. Miles concur.

1 The claimant may appeal this decision to the Appellate Court pursuant to §31-301b. BACK TO TEXT