Opinion
CASE NO. 967 CRD-7-90-1
AUGUST 2, 1991
The claimant was represented by Philip M. French, Esq.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the January 5, 1990 Finding and Award of the Commissioner of the Eighth acting for the Seventh District was heard January 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Susan Creamer.
OPINION
Earlier proceedings in this matter were the subject of a May 11, 1987 Finding and Award. This was appealed and was affirmed by this division, Imbrogno v. Stamford Hospital, 5 Conn. Workers' Comp. Rev. Op. 99, 610 CRD-8-87 (1988). Subsequently the Eighth District Commissioner sitting for the Seventh District issued another Finding and Award January 5, 1990. That January, 1990 decision is the subject of this appeal.
The claimant sustained a compensable injury to her left forearm September 15, 1979. The May 11, 1987 ruling concluded claimant developed a conversion hysteria due to her left arm injury, and she was granted payment for treatment of that condition until February 24, 1982. On that date cervical surgery unrelated to the arm injury occurred. This caused worsening of claimant's medical state. The May 11, 1987 decision did not order payment for treatment of that condition after February 24, 1982.
If, the latest proceedings below claimant requested payment of some thirty-two different medical bills. Most were for treatments after February 24, 1982. These requests are listed in paragraphs #4 (17 claims), #5 (5 claims) and #6. (10 claims) of the January, 1990 Finding and Award. The commissioner' ordered payments of fifteen of the thirty-two. As to the others he found that "the claimant had not sustained her burden of proof that such bills were by authorized medical providers and/or being reasonable and necessary." The commissioner also found that there was an unreasonable delay in the payment, of those fifteen allowed claims, and he therefore ordered payment of a $1,000.00 attorney's fee pursuant to Sec. 31-300, C.G.S.
Three different Petitions for Review have been filed by claimant on January 12, February 20, and March 7, 1990. The latter two are from the denials of the Motion to Correct and the Motion to Modify and/or Reopen respectively. The appeal from a denial of a Motion to Correct is a procedural superfluity and unnecessary; and most if not all the issues in the third appeal are comprehended within those involved in the first.
Disputed claims for payment of medical expenses and the question of a reasonable attorney's fee, to be awarded at the commissioner's discretion when the respondent has unduly delayed payments due, raise questions which depend on the factual conclusions of the trial commissioner. See McConnell v. Hewitt Associates, 8 Conn. Workers' Comp. Rev. Op. 32, 764 CRD-7-88-8 (1990); Tartakovsky v. Sohmer/Pratt Read 7 Conn. Workers' Comp. Rev. Op. 46, 666, CRD-8-87 (1989). Those conclusions are generally not reviewable by this division unless they are found without evidence or are based on unreasonable or impermissible inferences or are contrary to law. Fair v. People's Savings Bank, 207 Conn. 535 (1988) We have thoroughly reviewed the evidence below and do not find that the commissioner's conclusion is unreasonable. Bailey v. Mitchell, 113 Conn. 721 (1931).
Assessment of attorney's fees for undue delay rests if, the trier's discretion. The pertinent part of Sec. 31-300 states: the commissioner may include in his award . . . a reasonable attorney's fee in the case of undue delay in adjustments Compensation and may include in his award in the case of undue delay in payments of compensation, . . . a reasonable attorney's fee. Claimant's counsel asserts that fees due him are $27,000 and that claimant's former counsel should receive $1,200.00. The further assertion is that these bills were unquestioned and therefore should be paid in full.
The statute in addition to granting the commissioner the power to order payment of an attorney's fee for undue delay also permits an award of attorney's fee for unreasonable contest of liability. No unreasonable contest was here found; on the contrary no liability was assessed for seventeen of the thirty-two medical claims made. The fee awarded was only for the delay in payment of the ten undisputed portions of the medical claims. The bill submitted by the attorney apparently was for all the legal work done in the entire case. The matter involved many more issues than the ten undisputed medical claims. In the last analysis it was still within the commissioner's discretion whether to award a fee and how much to award. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179-80 (1974) (note 8); Menzies v. Fisher, 165 Conn. 338 (1973); Robinson v. Allied Grocers Cooperative, Inc., 39 Conn. Sup. 386 (1983) aff'g 1 Conn. Workers' Comp. Rev. Op. 132, 88 CRD-1-81 (1982); Trantolo v. Trantolo Trantolo, P.C., 8 Conn. Workers' Comp. Rev. Op. 69, 823 CRD-6-89-2 (1990); Tartakovsky v. Sohmer/Pratt Read, 7 Conn. Workers' Comp. Rev. Op. 46, 666 CRD-8-87 (1989); Bode v. Deitsch Plastic Co., 1 Conn. Workers' Comp. Rev. Op. 226, 131 CRD-3-82 (1982).
We affirm the January 5, 1990 Finding and Award and dismiss the appeal.
Commissioners Andrew Denuzze and Susan Creamer concur.