Spak v. Shelton Lakes Residence

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

This Petition for Review from the March 14, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District was heard August 24, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 14, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision, the trial commissioner concluded that the claimant’s termination from her employment was not in violation of § 31-290a. In addition, the trial commissioner concluded that there was no undue delay in payment on the part of the respondents and thus denied the claimant’s request for interest and attorney’s fees. In support of her appeal, the claimant contends that her workers’ compensation indemnity benefits should never have been stopped.

Initially, we note that the board issued a Dismissal Order on April 26, 2001 which dismissed the claimant’s appeal insofar as it related to the § 31-290a claim, but which allowed the claimant to pursue her appeal limited to the claim of interest and attorney’s fees based upon undue delay. Thus, we will now consider only the claim of interest and attorney’s fees, which was denied by the trial commissioner.

The claimant’s argument on appeal regarding this issue is somewhat unclear, and in this respect we note that the claimant is representing herself. The claimant contends in her “Additional Reasons of Appeal” (undated) received June 20, 2001, that “my compensation checks should have never been stopped” because a Form 43 filed by the respondents on March 6, 1995 was not (the claimant alleges) properly approved. In her Reasons of Appeal (undated) received April 3, 2001, the claimant states that her “compensation checks stopped the 3rd week in April 1995.”

In the instant case, the claimant has not filed a Motion to Correct. We are thus limited to the facts as found by the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991). The trial commissioner made the following findings. “On May 9, 1995, based on a March 27, 1995 report of Dr. MacEllis Glass, a Form 36 was filed and approved returning the claimant to light duty work.” Findings, ¶ 8. The claimant returned to light duty work on May 17 and May 18, 1995 after receiving a written warning from her employer, but on May 19, 1995 she again refused to work. The claimant’s authorized treater, Dr. Geiger, returned the claimant to full duty work on May 25, 1995, but the claimant failed to return to work. The trial commissioner concluded: “In view of the numerous medical reports and conflicting medical opinions regarding the date when she could return to full duty work both in 1995 and since that year it is not found that there was undue delay in the payment of benefits.” Findings, ¶ 15.

Section 31-300 allows the trier to award interest where there has been a delay in the adjustment or payment of compensation, even where such delay is not due to the fault of the employer or insurer. 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). This board has ruled that an award of attorney’s fees and interest is within the commissioner’s discretion. Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (Dec. 19, 2000); Byars v. Whyco Chromium, 14 Conn. Workers’ Comp. Rev. Op. 386, 2187 CRB-5-94-10 (October 5, 1995), aff’d, 40 Conn. App. 938 (1996)(per curiam).

In the instant case, we can find no abuse of the commissioner’s discretion in declining to award attorney’s fees and interest pursuant to § 31-300.