Kilton v. Cote & Sons, Inc.

The claimant was represented by Donald A. Mitchell, Esq., 10 Harmony Street, Danbury, CT 06810.

The respondents were represented by Scott Williams, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the October 6, 1994 “Finding and Award: Articulation” of the Commissioner acting for the Seventh District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 6, 1994 “Finding and Award: Articulation” of the Commissioner acting for the Seventh District. In his appeal, the claimant contends that the commissioner improperly made substantive changes to the original September 26, 1994 Finding and Award by issuing the October 6, 1994 articulation. Specifically, the claimant contends that the articulation should have been made pursuant to a motion to reopen under § 31-315 C.G.S. The claimant further contends that the trial commissioner lacked the jurisdiction to issue the articulation.

The trial commissioner for the Seventh District initially issued a Finding and Award on September 26, 1994. In that decision, the trial commissioner found that the claimant sustained a compensable myocardial infarction. The trial commissioner further stated:

Subsequently, on October 6, 1994, in the “Finding and Award: Articulation” the commissioner stated:

We will first address the claimant’s contention that the trial commissioner lacked jurisdiction to issue the articulation. The issuance of an articulation is proper where the trier of fact “fails completely to state any basis for its decision; or where the basis, although stated, is unclear.” Chemero v. Westreco, Inc., 10 Conn. Workers’ Comp. Rev. Op. 142, 143, 1081 CRD-7-90-7 (June 29, 1992) (quoting State v. Wilson, 199 Conn. 417, 434 (1986). As an articulation is merely a clarification of a prior decision, there is no requirement that a hearing be conducted prior to the issuance of an articulation. The clarification of the commissioner’s order regarding attorney’s fees in this case was the proper subject of an articulation, and did not require a motion to reopen pursuant to § 31-315. The claimant’s contention that the articulation was improper because he had no notice and because there was no hearing is thus unavailing. Accordingly, the claimant’s motion to submit additional evidence regarding the notice of the requested articulation is moot.

Section 31-300 provides that a commissioner may award interest where the payments have been “unduly delayed.” 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).

In the instant case, the commissioner found that the respondents were responsible for an “undue delay” in payments of all indemnity benefits. The trial commissioner thus ordered the respondents to pay twelve percent interest on those payments. The subsequent articulation indicates that the commissioner did not award attorney’s fees to be paid by the respondents, but merely set a cap on the fees to be paid by the claimant. Thus, the commissioner awarded interest but did not award attorney’s fees.

As an award of interest without an award of attorney’s fees for undue delay pursuant to § 31-300 is not permissible, we must remand this matter to the trial commissioner. Imbrogno, supra.

This matter is remanded to the trial commissioner in accordance with the above.

Commissioner Amado J. Vargas concurs.

MICHAEL S. MILES, COMMISSIONER, DISSENTING. I respectfully dissent from the majority regarding § 31-300. The majority relies upon Imbrogno, supra, for the requirement that both interest and attorney’s fees must be awarded where there is an undue delay of payment pursuant to § 31-300, but that neither interest nor attorney’s fees may be awarded individually without the other also being awarded. There appears to be no reasonable basis for interpreting § 31-300 in such a strict manner. Rather, the language of the statute should be interpreted to allow discretion to a trial commissioner to award either interest or attorney’s fees, or both, based upon the unique circumstances of each case.