Watters v. Rural Gas Company

The claimant was represented by Ian Cole, Esq., Cohen & Thomas, 315 Main Street, Derby, CT 06418.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 10, 2003 Ruling on Motion to Dismiss of the Commissioner acting for the Fourth District was heard October 31, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Nicholas Watters, has appealed from the March 10, 2003 Ruling on the Motion to Dismiss by the Commissioner acting for the Fourth District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. Formal hearings on this matter were held on December 18, 2001 and February 6, 2002 and continued to February 27, 2002 for the submission of briefs and proposed findings. The claimant submitted proposed findings on February 27, 2002. As part of his proposed findings, he specifically asked the trial commissioner to order interest and attorneys fees pursuant to § 31-300 based on the fact that the respondent Rural Gas Company had unduly delayed payment. On May 21, 2002 the trial commissioner issued a Finding and Award in this case. He found the claimant sustained a compensable injury to his right knee while working for the respondent on April 2, 2001. He found the treatment and October 5, 2001 arthroscopic surgery claimant underwent was made necessary by that injury. He ordered the respondent to pay all medical expenses and compensation benefits resulting from the April 2, 2001 injury. Neither party filed a Motion to Correct nor a Petition for Review based on this Finding and Award.

On or about October 9, 2002 the claimant filed a memorandum of law in support of an award of attorney’s fees based on the respondent’s alleged undue delay in the payment of benefits. On or about February 26, 2003 the respondent, Hartford Insurance Group, filed a Motion to Dismiss the claimant’s claim for interest and attorneys fees, which was granted by a subsequent trial commissioner on March 10, 2003. The trial commissioner’s dismissal cited Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) for the proposition that a workers’ compensation case should not be tried in a piecemeal fashion.

The claimant argues the trial commissioner erred in determining she did not have jurisdiction to grant attorneys fees and interest at that time. The claimant contended the nature of attorney’s fees is such that the fees cannot be anticipated at the outset of a workers’ compensation proceeding. He argued the fees are awarded only after the trial commissioner has heard the case and are often raised sua sponte after the record is closed. The claimant cites Bailey v. State/GHCC, 3922 CRB-2-98-10 (November 30, 1999).

The issue of attorney’s fees and interest is grounded in a claim of a respondent’s unreasonable contest of liability. Therefore, this issue is inherently tied to the underlying claim. The trial commissioner must make a determination regarding the issue of unreasonable contest only after listening to the evidence in support and defense of the claim. Blaha v. Logistec Connecticut, Inc., 4544 CRB-3-02-6 (July 9, 2003). However, before the trier can consider the unreasonable contest issue, the claim must be raised and the parties given the opportunity to litigate. The claimant’s attempt to present this claim for the first time in the proposed findings was not a proper presentation of that claim.

If the claimant believed the trial commissioner either overlooked his request for attorney’s fees and interest or improperly denied such, the appropriate action would have been to object to the original award via a Motion to Correct and/or a Petition for Review. The claimant cannot allow the original award to come and go and then many months later ask for an additional award of interest and attorney’s fees. The claimant did not file a Motion to Correct as to the trier’s lack of finding on this issue and therefore, failed to properly preserve the claim. Additionally, we have long countenanced against a parties piecemeal presentation of claims. Brown v. Connecticut Aerosol, 3169 CRB-3-95-5 (April 7, 1997); Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (December 7, 1995). Therefore, we will not allow the claimant to present a claim for attorney’s fees at this late date when it should have been presented with the initial claim.

Therefore, we affirm the March 10, 2003 Ruling on Motion to Dismiss of the Commissioner acting for the Fourth District.