Palmateer v. Stop & Shop Companies, Inc.

CASE NO. 2218 CRB-2-94-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 6, 1995

MARK PALMATEER

CLAIMANT-APPELLEE

v.

STOP & SHOP COMPANIES, INC.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by David J. O’Dea, Esq., Beebe and O’Neil, 335 Washington Street, P.O. Box 6002, Norwich, CT 06360. The claimant waived oral argument and the matter was considered on papers submitted.

The respondent was represented by Robert S. Bystrowski, Esq., Morrison, Mahoney & Miller, 100 Pearl St., Hartford, CT 06103.

This Petition for Review from the November 17, 1994 order of the Commissioner acting for the Second District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent appeals from the November 17, 1994 order of the Commissioner for the Second District imposing a $500 attorney’s fee against it for failure to appear at an informal hearing on November 16, 1994. From the commissioner’s letter dated November 17, 1994, it appears that no one appeared on behalf of the respondent at said hearing until fifteen minutes after its conclusion. The hearing was only scheduled for fifteen minutes in length anyway, so the matter had to be postponed. The commissioner imposed a sanction against the respondent, ordering it to pay the claimant’s attorney (who was present at the hearing) a $500 attorney’s fee. The respondent has appealed, arguing that such an order cannot be entered without a formal hearing, and that said order was improper under § 31-300 C.G.S., which section the commissioner used as authority for the fine.

Section 31-300 authorizes an award of attorney’s fees “where, through the fault or neglect of the employer or insurer, adjustments of compensation . . . or . . . payments have been unduly delayed,” or where “the commissioner finds that the employer or insurer has unreasonably contested liability,” or “where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice [of discontinuance] . . . .” There is no indication that any of those conditions were met in this case. We note that § 31-288(b) C.G.S. does countenance a civil penalty of up to $500 for a party who unreasonably delays the completion of hearings. However, that section also provides that an appeal of such a penalty “shall be taken in accordance with the provisions of section 31-301.”

Even if we were to interpret the commissioner’s fine as having been levied under § 31-288(b), a meaningful appeal is impossible in this case because there is no record for this Board to review. It is clear from the statute that the legislature intended that a party would have the opportunity to appeal such a penalty. Since that cannot be done without a record, and we have no record to examine, the respondent’s appeal is sustained.

The trial commissioner’s decision is reversed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.