Ortiz v. Highland Sanitation

The claimant was represented by Kathy Boufford, Esq., Williams & Bellenot, 501 Main Street, Monroe, CT 06468.

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

This Petition for Review from the September 18, 2001 Finding and Award of the Commissioner acting for the Fourth District was heard June 21, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 18, 2001 Finding and Award of the Commissioner acting for the Fourth District. The claimant contends on appeal that the trier erred by failing to award attorney’s fees in light of an award of interest that was made pursuant to § 31-300 C.G.S. As the nature of the trial commissioner’s decision is ambiguous and somewhat inconsistent, we remand this matter for clarification.

The trier found that the claimant sustained compensable injuries to his right shoulder and neck. (The claimed date of injury is September 22, 1999, though no mention of that date is made in the trier’s Finding and Award.) Shoulder surgery was performed by Dr. Brown on March 30, 2000, and the claimant was released for light duty work on October 3, 2000. Permanent partial disability benefits were paid through November 12, 2000, while maximum medical improvement was not reached until November 28, 2000. Dr. Brown then rated the claimant with a 20% permanency of the right master shoulder. The trier ordered that the claimant was entitled to the payment of permanent partial disability benefits from November 12, 2000 to November 28, 2000, with the 20% permanency award payable from that date forward, and 10% interest per annum for weeks unpaid after that date. The claimant then filed a Motion to Correct on September 26, 2001, which sought to amend the award to allow for a small amount of additional interest and a $1,346.25 attorney’s fee, citing § 31-300 as authority. The trier granted the motion insofar as it sought 10% interest for permanent partial disability1 benefits due between November 12, 2000 and November 28, 2000, but denied the motion with respect to attorney’s fees. The claimant herein appeals that ruling to this board.

According to the claimant, partial incapacity benefits were discontinued by the respondents without prior written notice or approval, and permanent partial disability benefits remained unpaid until almost one year after the date of maximum medical improvement. Though the trier ordered the payment of 10% interest on those amounts, he did not order the payment of attorney’s fees. The claimant contends that such an award is impermissible under § 31-300, as an award of interest for undue delay in the payment of benefits must also be accompanied by an award of attorney’s fees pursuant to Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 125 (1992). See also, DiBello v. Barnes Page Wire Products, 4290 CRB-7-00-9 (Sept. 25, 2001). Section 31-300 states, “In any case where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice [of a proposed discontinuance of benefits pursuant to § 31-296] and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments.” We observe that the current rate prescribed by § 37-3a is ten percent per year.

The respondents, meanwhile, note that the trial commissioner never made a finding of undue delay. The correction granted by the trier states, “Claimant is entitled to receive interest due at 10% per annum for weeks after November 17, 2001 for permanent partial disability benefits due from November 12, 2000 to November 28, 2000.” Section 31-300 is only mentioned in the accompanying explanation provided by the claimant. The respondents observe that § 31-295(c) requires permanent partial disability benefits to begin “not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement.” Nothing is said about attorney’s fees in § 31-295(c), and undue delay, unreasonable contest and/or the improper discontinuance of benefits are not made a prerequisite for such an award of interest, as is the case under § 31-300.

The circumstances appear to demonstrate that the trier originally awarded the claimant two separate periods of permanent partial disability benefits: an initial award from November 12, 2000 to November 28, 2000, and a subsequent award of 20% permanent partial disability for the right shoulder, with interest due at the rate of 10% per annum on that latter award. The claimant then sought a correction asking for 10% interest for the original period of permanent—as opposed to temporary—partial disability, which the trier granted, while at the same time denying a request for attorney’s fees. This would suggest that the trier viewed this motion as a simple request for interest on unpaid permanency benefits, which is mandated by § 31-295(c) rather than § 31-300. Subsequent to the filing of this appeal and the preparation of the parties’ briefs, the trier corrected his decision to reclassify the former 16-day period as a temporary partial disability award rather than a permanency award. Such a correction appears logical, as permanency was not reached before November 28, 2000, and the claimant submitted records of job searches into evidence. See Claimant’s Exhibits A, B.

However, we cannot presume that the rectification of this error also changes the nature of the interest award that resulted from the granting of the Motion to Correct, which issue was not clarified in the Amended Finding and Award. An award of sanctions under § 31-300 requires an affirmative finding of undue delay, unreasonable contest, or the discontinuance of benefits without proper notice. As the rate of interest payable under both § 37-3a and § 31-295(c) amounts to ten per cent per annum, one could reasonably make a case for either statute as the trier’s envisioned basis for his granting of the claimant’s requested correction. The § 31-295(c) award of interest is consistent with the trier’s award of permanency benefits beyond November 28, 2000, but it is incompatible with the prior sixteen-day award of benefits in light of the amendment made to the award and the lack of a factual basis for awarding permanency benefits prior to November 28, 2000. On the other hand, if we presume that the award of 10% interest in ¶ A of the claimant’s Motion to Correct was granted pursuant to § 31-300, then the trier’s concomitant denial of attorney’s fees would be inconsistent with that ruling.

Because we would be venturing a guess as to the trier’s intent either way, the best solution is for us to remand this case to the trier with instruction that he clarify the status and origin of the award of interest that was ordered via the granting of the claimant’s Motion to Correct. We have held that, where the findings of a trial commissioner appear to be inherently inconsistent amongst themselves, or with the trier’s conclusions, the correct approach is to remand the matter for clarification. Lourenco v. Cammisa, 13 Conn. Workers’ Comp. Rev. Op. 118, 1661 CRB-1-93-3 (Jan. 31, 1995); Tessier v. Kogut Florist and Nurseryman, Inc., 9 Conn. Workers’ Comp. Rev. Op. 276, 1088 CRD-8-90-7 (Dec. 13, 1991). This is certainly the case here, as the Amended Finding and Award is not compatible with the award of interest sans attorney’s fees on the span of benefits between November 12, 2000 and November 28, 2000.

Accordingly, we remand this matter for clarification of the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 This award was later amended to reflect entitlement to temporary partial disability benefits, rather than permanent partial disability benefits, for the brief period in question. See March 26, 2002 Amended Finding and Award. BACK TO TEXT