Muldoon v. New England Installation et al.

The claimant was represented by Robert Carter, Esq., Carter & Civitello, One Bradley Road, Woodbridge, CT 06525.

The respondents Home Insurance, Liberty Mutual Insurance, Zurich Insurance, and American Guarantee & Liability Insurance were represented by James J. Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

The respondents Cummings Insulation and CNA Insurance were represented by Howard Levine, Esq., Law Offices of Grant Miller, 29 South Main Street, West Hartford, CT 06107, who did not appear.

The respondent Kemper Insurance was represented by Tracy Cleary, Esq., Law Offices of Michael Brodinsky, P.O. Box 35, North Haven, CT, 06473, who did not appear.

The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 10, 1997 Order Re: 31-301(f) Benefits of the Commissioner acting for the Fourth District was heard January 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the March 10, 1997 Order Re: 31-301(f) Benefits of the Commissioner acting for the Fourth District.1 In that decision the trial commissioner ordered the Fund to make payments pending appeal pursuant to § 31-301(f). In addition, the trial commissioner concluded that the failure of both the Fund and the respondent CNA Insurance to make any payments to the dependent widow pending appeal constituted unreasonable delay pursuant to § 31-300, and thus awarded attorney’s fees. In support of their appeal, the respondents contend that the trial commissioner erroneously ordered the respondent CNA Insurance to pay $2,500.00 in attorney’s fees pursuant to § 31-300 for unreasonable delay, as the case law at that time provided that the Fund was responsible for payments pending appeal.

Public Act 95-277 amended § 31-301(f) to provide that during the pendency of an appeal, the “compensation and medical treatment shall be paid by the employer or its insurer.” (Emphasis added). Public Act 95-277 became effective July 1, 1995. Prior to July 1, 1995, § 31-301(f) provided that during the pendency of an appeal the “compensation and medical treatment shall be paid from the Second Injury Fund pursuant to § 31-354.” (Emphasis added).

The trial commissioner found the following relevant facts. The present case has been pending since the Notice of Claim was filed in June of 1987. On May 16, 1996, a Finding and Award was issued which ordered the respondent CNA Insurance, as the § 31-299b carrier, to pay surviving spouse and funeral benefits. The respondent employer and CNA Insurance appealed that decision, and the claimant requested payment pending appeal pursuant to § 31-301(f). The parties stipulated that the dependent widow did not receive any benefits since the date of the decedent’s death on February 24, 1995. (12/17/96 TR. at 6, 10-11). The decedent’s injury, specifically occupational lung disease, predates the amendment of § 31-301(f) by P.A. 95-277 which became effective July 1, 1995. Accordingly, the trial commissioner concluded that the payments pending appeal should be made by the Fund under § 31-301(f), citing Coley v. Camden Associates, Inc., 3432 CRB-2-96-9 (Feb. 28, 1997).

In Coley, the Board concluded that the change to § 31-301(f) made by P.A. 95-277 should be applied based upon the date of injury rule. The Board’s decision was subsequently reversed by the Supreme Court in Coley v. Camden Associates, Inc., 243 Conn. 311 (1997) which was released on November 25, 1997. We note that on November 26, 1997, an amended order was issued in the instant case ordering CNA Insurance rather than the Fund to make payments pursuant to the Supreme Court’s decision.

In the instant case, the formal hearing was held on December 17, 1996 and the trial commissioner’s order was issued on March 10, 1997, prior to the Supreme Court’s reversal. Accordingly, the trial commissioner’s order was based upon the Board’s February 28, 1997 decision in Coley, supra, which held that P.A. 95-277 should be applied based upon the date of injury rule, and thus that the Fund was obligated to make payments pending appeal. The trial commissioner explained that although the respondent insurer and the Fund may each have a legitimate argument regarding which is legally obligated to pay pending appeal pursuant to § 31-301(f), nevertheless it is unreasonable and unconscionable for neither to pay thereby leaving the dependent widow with no benefits.

In support of their appeal, the respondents contend that the “only issue before this Board” is the trial commissioner’s award of attorney’s fees. (Respondents’ Brief at p. 3). The respondents argue that it was improper for the trial commissioner to order the respondents to pay attorney’s fees for unreasonable delay of payments pending appeal when in the same decision the trial commissioner found the Fund, rather than the respondents, liable to make the payments pending appeal. This argument fails to acknowledge the trial commissioner’s finding that it is egregious for neither party to make any payments even though the parties knew that one of them will ultimately be held liable for said payments.2 Indeed, the Appellate Court has explained, “In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Stickney v. Sunlight Construction, Inc., 48 Conn. App. 609, 617 (1998). Moreover, as our Supreme Court in Coley, supra, has held that § 31-301(f) obligates the respondents to make payments pending appeal, we conclude that it was proper for the trial commissioner to conclude that the respondents had unreasonably delayed payments pursuant to § 31-300.

The trial commissioner’s award of attorney’s fees against the respondents is affirmed.

Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.

2 We have repeatedly recognized the “principle that the Workers’ Compensation Act is remedial in nature and should be construed to accomplish its humanitarian purpose.” Schiano v. Bliss Exterminating, 3315 CRB-4-96-4 (May 16, 1997) (citing Dubois v. General Dynamics Corp., 222 Conn. 62, 67 (1992)). “A necessary element of this principle is the idea that relief under the Act will be provided as quickly and efficiently as possible. A claimant who is disabled from employment by a work-related injury is usually in need of prompt financial attention as well as medical attention, for the inability to earn wages has an immediate negative impact on the lives of most claimants. Yet, this concept often becomes lost in the partisan battles between employers, employees, insurers, medical providers, and their numerous attorneys.” Id. BACK TO TEXT