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CASE NO. 4470 CRB-3-01-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 12, 2002
CEI BOTTLING & DISTRIBUTION CO.
FIREMAN’S FUND INSURANCE CO.
The claimant was represented by Richard L. Jacobs, Esq., Jacobs, Jacobs & Shannon, 265 Orange Street, New Haven, CT 06510.
The respondents were represented by Lori McHugh, Esq., Genovese, Vehslage & Chapman, 500 Enterprise Drive, Rocky Hill, CT 06067.
This Petition for Review from the November 29, 2001 Finding and Award of the Commissioner acting for the Third 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.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the November 29, 2001 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trier erred by finding that they unreasonably contested liability for the claimant’s injury, and by finding that the payment of compensation in this matter was unduly delayed. We find no error on review, and affirm the trial commissioner’s decision.
The trier found the following facts. The claimant was working for the respondent CEI Bottling & Distribution Co. on August 5, 1998. On that date, she lifted a 40-pound box from the floor to an assembly line table, and then pulled it toward her in order to do her work. While pulling the box, the claimant felt pain in her left arm and screamed. Two co-workers who were facing the claimant saw the incident and heard her cry of pain. The supervisory people on the assembly line also knew that she had been injured. The claimant finished out her shift, and reported for work the next day. However, by mid-morning she was unable to continue working due to the pain, and she was taken to the emergency room by her employer. The claimant told hospital personnel that she had felt something snap in her neck on the previous day, and that she was suffering from pain in her neck and left shoulder.
The claimant returned to work, but ceased performing tasks that required her to use her left arm. On September 8, 1998, she filed a Form 30C that erroneously listed the date of injury as August 12, 1998. The claimant’s former counsel later filed a corrected Form 30C with the respondents—but not this Commission—on February 3, 1999, indicating that the correct date of injury was August 5, 1998. The respondents contested payment of medical care resulting from that injury, and submitted a form into evidence that had been signed by the claimant stating that she had not suffered a work-related injury during the week ending August 9, 1998. The trier found the claimant’s injury compensable, and further found that the respondents had unreasonably contested liability and had unduly delayed the payment of compensation through their own fault and neglect as per § 31-300 C.G.S. He thus ordered the payment of 12% interest on all compensation due the claimant, along with a reasonable attorney’s fee. The respondents have filed an appeal from that ruling.
Whether or not a respondent has unreasonably contested liability or unduly delayed the payment of benefits is a question of fact for the trial commissioner, subject to the same standard of review as other factual issues that are dependent on the trier’s discretion. Strona v. Textron Lycoming Division, 4398 CRB-4-01-5 (Aug. 6, 2002); Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000); Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (Aug. 31, 1999). A trier normally awards attorney’s fees and interest pursuant to § 31-300 when, after hearing the parties’ arguments and reviewing the evidence, he concludes that there was insufficient evidence to support the respondents’ contest of a claim. Bailey v. State/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999), aff’d in part, rev’d in part on other grounds, 65 Conn. App. 592 (2001). Where sanctions have been awarded under § 31-300, the general inquiry performed on review by this board is an examination of the record to determine whether it supports the trier’s conclusion that the respondents lacked a reasonable basis upon which to contest liability. Malafronte, supra. Id.
The respondents contend here that a reasonable person could not consider the compensability of the claimant’s injuries indisputable. They protest that the trial commissioner’s decision fails to specify how or when their contest lacked substantive merit. Moreover, they identify various instances in the transcript of the claimant’s testimony where her statements were inconsistent with what she said on cross-examination, and with the contents of the September 8, 1998 Form 30C and the September 10, 1998 Yale-New Haven Hospital emergency room record. See June 6, 2000 Transcript, pp. 9-12, 17-18, 30-31, 35, 37, 47, 49-56, 62; Respondents’ Exhibit 1. So goes their argument, “Indeed, the Commissioner would not have abused his discretion by dismissing the instant claim based on finding Claimant’s testimony wholly suspect. When read in its entirety, the Trial record reveals a reasonable basis for contesting the claim based on the issue of the Claimant’s credibility.” Brief, p. 5.
In examining the trial record, we observe that, at the outset of the formal hearing, the claimant’s attorney listed the issues as “Compensability, causal connection and attorney’s fees for unreasonable contest.” June 6, 2000 Transcript, p. 2. The first exhibit offered into evidence by the claimant is a report from Yale-New Haven Hospital dated August 6, 1998, that states, “Pt. moving a box at work yesterday. Felt something snap in neck. Now has pain in L. neck & shoulder radiating down L. arm.” Claimant’s Exhibit A; Transcript, p. 23. The commissioner also took administrative notice of the September 8, 1998 Form 30C, which was prepared by the claimant (with the help of her boyfriend) and which listed the date of injury as “8-12-98,” and the cause of injury as, “While working in the line of work, I pull a box of perfume and that when I felt strong pain.” See Transcript, pp. 30-31. We note that the claimant’s primary language is Spanish, and that she testified with the help of an interpreter.
On direct testimony, when the claimant’s counsel inquired if she said anything “right at that time” she got hurt, she stated that she was at the assembly line table crying, and then went to the office, whereupon her supervisor sent her to the hospital in the company of a fellow employee. Transcript, p. 15-18. When shown the Form 30C with the August 12, 1998 date of injury on it, she clarified that the injury had occurred on August 6th. Id., p. 31. The respondents then attempted to raise the defect in the notice of claim as a jurisdictional bar under § 31-294c, though they did not list this as a reason for contest in their Form 43. It later emerged from the claimant’s testimony that she had initially hurt her arm during the afternoon of August 5, a few minutes before the end of her workday, and had been unable to continue performing her job the following morning. At that point, she started crying and reported her injury to her employer’s office. Transcript, p. 36-37, 49-50.
The respondents’ counsel then seized upon this apparent discrepancy as a possible fabrication of testimony by the claimant, and began an aggressive line of questioning that suggested she was lying. Id., 51-65. At that point, the trier intervened, and reminded the respondents’ attorney that there was a medical report in evidence dated August 6, 1998 that was consistent with the claimant’s story. “If this is a medical record, a history given on the 6th of August, referring to the previous day, why are we making this enormous issue over the 12th?” Id., 65. When counsel responded that he was trying to determine the extent of the claimant’s credibility insofar as she had “denied injuring herself on August 6th and turned the event into something in the afternoon on August 5th to be consistent with that record,” the trier again stated that “we still can’t get around the presence in reality of that document right there. . . . I would not belabor the issue of the 12th in the face of that evidence.” Id., 67-68. Claimant’s counsel then offered into evidence a letter from her former attorney to the respondents dated February 3, 1999, containing an amended notice of claim with an injury date of August 5, 1998, and an accompanying letter explaining that a mistake had initially been made regarding an alleged August 12, 1998 date of injury. Claimant’s Exhibit D. In testimony, the claimant again explained that the “injury” of the 6th was actually the point in time when she could no longer bear the pain of her injury from the previous afternoon, and sought medical attention. Id., 74.
At the next formal hearing on December 18, 2000, the respondents offered no witnesses of their own. Their attorney cross-examined the claimant’s witnesses, generally focusing his questions on the circumstances of the claimant’s injury. Once the claimant rested her case, the respondents offered into evidence two documents. The first was a paper dated February 27, 1998 containing a list of signatures, including the claimant’s, in acknowledgment that the undersigned employees had received information concerning their employer’s workers’ compensation medical care plan and procedures. Respondents’ Exhibit 2. The second was a set of “accident report” forms for the weeks ending August 9, 16 and 23, 1998, with each form stating, “With my signature I acknowledge that I have not suffered a work replated [sic] accident during the past week. I further understand that it is my responsibility to advise my supervisor of any accident, no matter how minor.” Respondents’ Exhibit 3. The forms also repeat the same essential statement in Spanish. The list of signatures on each form contains that of the claimant. Respondents’ counsel stated that he was offering this to impeach the claimant’s credibility, as she testified that she had not received anything in Spanish with regard to policies. December 18, 2000 Transcript, p. 51. The claimant stated that the signature looked like hers, but she could not recall ever seeing those papers. Id., 54. The respondents offered no other evidence in defense of her claim.
Given the evidence in the record, and the tone of the trial proceedings, we do not think that the trier abused his discretion by concluding that the respondents had unreasonably contested liability here. A reasonable person could readily conclude that the respondents were informed of the injury on August 6, 1998, at which point they provided the claimant with medical care. Witnesses were present to corroborate this incident, and a contemporaneous medical record from Yale-New Haven Hospital was created. Thereafter, one could reasonably infer that any steps taken to disclaim the occurrence of this injury were nothing more than attempts by the employer to evade responsibility by trying to take advantage of the claimant’s error in listing her date of injury as August 12, 1998 on her original Form 30C. One could certainly infer that the “accident report” forms submitted by the respondent lack a strong indication of reliability, as they are not terribly specific, do not provide the claimant with a ready alternative to signing (we note that none of the other employees’ signature lines are blank, either), and are suggestive of an employer policy that is designed to obtain quick, routine disclaimers of injury from unsuspecting workers. The trial commissioner was in a better position than we are to judge the credibility of the evidence and the demeanor of everyone present before him, and the issue of unreasonable contest had been raised at the outset of the hearings. In these circumstances, the trier was within his authority to find that there was no sound basis for the respondents’ denial of this claim.
The respondents also contend that undue delay and unreasonable contest are disparate concepts under § 31-300. They protest that the claimant chose to bifurcate liability and benefit issues at trial, thereby making the payment of benefits premature, along with an award of interest for undue delay. “It is irrational to conclude that benefits were delayed via fault and/or neglect without any evidentiary basis.” Brief, p. 6. Yet, where a commissioner finds that an employer has unreasonably contested liability in a case, it will often follow that the payment of compensation has been unduly delayed insofar as benefits have not yet been paid which would have been payable had the employer accepted liability for the injury. Though the precise amount of benefits due the claimant may not yet have been determined at the time of the Finding and Award, we do not believe that it was premature for the commissioner to order that the claimant receive interest on past benefits due, howsoever such benefits may ultimately be determined. In fact, the entry of an interest award at this juncture may speed the ultimate resolution of this claim, should further formal hearings not be necessary for the determination of benefits due. Therefore, we uphold the trier’s decision.
The trial commissioner’s Finding and Award is accordingly affirmed.
Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.
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