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Kuhar v. Frank Mercede & Sons, Inc.

CASE NO. 5250 CRB-7-07-7



JULY 11, 2008











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

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

This Petition for Review from the Finding and Order of the Commissioner acting for the Seventh District was heard February 29, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Charles F. Senich, and Amado J. Vargas.


ERNIE R. WALKER, COMMISSIONER. The appeal is from the July 5, 2007 Finding and Order of the trial commissioner acting for the Seventh District. This Finding and Order included a decision not to penalize the respondents for the delayed issuance of benefit checks. The claimant argues that this decision was contrary to public policy and therefore, an abuse of his discretion. We do not find the trial commissioner’s decision herein was clearly erroneous based on the facts in the record. Therefore, we uphold his decision and dismiss this appeal.

The following facts are relevant to this issue. The claimant suffered a compensable foot injury in 1996, which has been accepted by the respondents. In 2001, the claimant developed a problem with his lumbar spine and sought treatment for the ailment, claiming the back problem was causally connected to his altered gait resulting from his right ankle injury. The respondents contested liability for the back injury. The respondents’ medical examiner and the commissioner’s examiner both opined the spine problems were unrelated to the claimant’s foot injury. The claimant’s treating physician, Dr. Peter W. Hughes, testified that due to the number of surgeries the claimant had undergone that one of his legs was longer than the other and the claimant had an altered gait for over ten years. Dr. Hughes was of the opinion that the claimant’s severe right ankle injury and altered gait when combined produced the problems with the claimant’s lumbar spine. The commissioner accepted the opinion of Dr. Hughes and determined that the spine injury was a compensable injury as a sequelae of the accepted foot injury.

The commissioner also addressed the payment of compensation to the claimant following his February 22, 2005 ankle surgery. During the period following the surgery the claimant was temporarily disabled. The claimant’s spouse testified to a delay in receipt of benefit checks during this period. A witness for the respondents’ insurance carrier, the Hartford Insurance Group, testified that the claimant had changed his mailing address between 2002 and 2005 and this information had not been made available to the carrier. Two checks had been mailed to an incorrect address and returned. When the carrier was made aware of the problem, replacement checks were issued. The claimant’s spouse testified that approximately six or seven checks were between seven and nine days late when they were forwarded on to her husband. The trial commissioner found this testimony credible, but found the original issuance of checks to the incorrect address totally excusable. He found the subsequent delays did not violate the spirit of the Workers’ Compensation Statute.

The claimant took a timely appeal from the Finding and Order. The appeal claims the trial commissioner erred with regard to the law by failing to determine the multiple late payments of temporary total disability benefits amounted to an undue delay of benefits. The claimant alleges this was in error as consequently the commissioner did not penalize the respondents by causing them to pay attorney’s fees and interest to the claimant. Upon review we are not persuaded that the trial commissioner reached a legally improper decision in this matter.

The relevant statute herein is § 31-288(b) C.G.S. The “plain meaning” of this statute (see Hummel v. Marten Transport, 282 Conn. 477, 496-501 (2007); applying § 1-2z C.G.S) does not compel a different result in the present case.

Whenever (1) through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, or (2) either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.

For a respondent to be penalized for undue delay under this statute, the trial commissioner must determine the action or inaction by the respondent “unduly delayed” benefits due the claimant.1 The trial commissioner must further find these delays were due to “fault or neglect.” These are factual questions which places the determination within the discretion of the trial commissioner. When such a determination is reached we must extend “every reasonable presumption in favor of the action.” Daniels v. Alander, 268 Conn. 320, 330 (2004). We outlined the extent of that presumption in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007),

The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings . . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed, (Citations omitted; internal quotation marks omitted.) citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).

The commissioner in the present case was presented with evidence that during a limited period of time fewer than ten benefit checks to the claimant were each delayed no more than two weeks. The cause for the initial delay was due to a misunderstanding as to the claimant’s current address. The claimant on appeal does not present any specific facts which would show that this misunderstanding by the respondent was either willful or a result of inattentiveness or negligence.2 Therefore, we do not find the factual determination in this matter was inconsistent with the standard delineated in Berube, supra, or another case dealing specifically with sanctions Duffy v. Town of Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006),

We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). This board’s scope of review is limited to whether the trial commissioner’s decision constituted an abuse of discretion. “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001).

We cannot conclude that the trial commissioner’s determination that the respondents’ conduct failed to meet the threshold to justify sanctions was so arbitrary as to vitiate logic. Whether the respondents’ conduct warranted sanctions under the facts in this case was clearly a judgment call for the trial commissioner. Concluding that he acted within his discretion, we affirm the Finding and Order and dismiss the appeal.

Commissioners Charles F. Senich and Amado J. Vargas concur in this opinion.

1 “Unduly” is an adverb based on the word “Undue.” Black’s Law Dictionary (8th Edition) defines “Undue” as “excessive or unwarranted.” BACK TO TEXT

2 As no Motion to Correct was filed, we must accept the validity of the facts found by the trial commissioner and this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4 and Stevens v. Raymark Industries, 5215 CRB-4-07-4 (March 26, 2008). Had the commissioner rendered a decision on this issue that omitted relevant material facts, a Motion to Correct would have been the proper vehicle to address this issue as in Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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