Summary
In McGloin v. Gateway Industries, 5 Conn. Workers' Comp. Rev. Op. 148, 618 CRD-1-87 (1988), the Compensation Review Board held that a statute's specific enumeration of the various particular benefits payable by it excludes those items not listed.
Summary of this case from Aubertin v. Pacelli Bros. Transportation, Inc.Opinion
CASE NO. 618 CRD-1-87
JULY 26, 1988
The claimant appeared pro se on appeal but was accompanied by Union Representative Michael Coyne. At the trial level Claimant was represented by Leon Rosenblatt, Esq.
The respondent-employer was not represented on appeal but was represented at the trial level by Robert J. Blumling, Esq.
The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General.
This Petition for Review from the July 22, 1987 Finding and Award and October 2, 1987 Supplemental Finding and Award of the Commissioner at Large acting for the First District was heard October 30, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and Michael S. Sherman.
OPINION
Claimant suffered a compensable injury to the right knee April 6, 1987. Respondent-employer was uninsured on that date. Compensability was not contested The Commissioner at Large acting for the First District in a June 22, 1987 Finding and Award awarded chapter 568 benefits. Additionally, he awarded interest at the rate of 12% per annum based on a finding that payments to the claimant were unduly delayed. As the benefits awarded remained unpaid, under Sec. 31-355, C.G.S., the Commissioner by his October 2, 1987 award ordered the Second Injury Fund to pay all sums due claimant, including the 12% interest.
The Second Injury Fund has appealed and claimant filed a cross-appeal. It is the Fund's position that whatever the employer's duty may have been as to the sums ordered to be paid, Sec. 31-355 does not impose upon the Fund the obligation to pay interest. Claimant's cross-appeal contends the Commissioner should have awarded attorney's fees. In the event we reverse the trial Commissioner and grant attorney's fees, the Fund requests us to decide whether Sec. 31-355 imposes that obligation on it.
Section 31-355(a) provides in pertinent part:
"When an award of compensation shall have been made under the provisions of this chapter against an employer who fails or is unable to pay the medical and surgical aid or hospital and nursing service required under Sec. 31-294 or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, dependency allowance, or any adjustment in compensation required by this chapter . . . such payments shall be made and compensation provided from the second injury and compensation assurance fund . . . ."
The Fund argues that the statute's specific enumeration of the various particular benefits payable by it excludes those items listed, i.e. the interest on awards or attorney's fees. We agree.
The phrase in the statute, "any adjustment in compensation required by this chapter", refers to the cost-of-living adjustments in Sec. 31-306(b)(2), C.G.S. and Sec. 31-307a, C.G.S., and not to interest or attorney's fees. The meaning language in a statute is to "be determined by reference to the use of that phrase in other parts of the same statute", Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438 (1985), aff'd, 200 Conn. 630 (1986). Here, "adjustments" used in other parts of the Act in relation to cost-of-living. Further, "an enumeration of powers in a statute is uniformly held to forbid the things not enumerated", State ex. rel. Barnard v. Ambrogio, 162 Conn. 491, 498 (1972) quoting State ex. rel. Barlow v. Kaminsky, 144 Conn. 612, 620 (1957). See also, State v. Kish, 186 Conn. 757 (1982). As Sec. 31-355 does not include interest and attorney's fees in its specific listing, we must conclude that the legislature did not intend to obligate the Fund for those payments. We therefore reverse the Commissioner below in his Order to the Fund to pay interest on the award.
With regard to claimant's cross-appeal, Sec. 31-300, C.G.S. provides, "In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney's fee" (emphasis added). The use of the term "may" places such awards within the discretion of the commissioner, Davis v. Dwight Building Co., 2 Conn. Workers' Comp. Rev. Op. 51, 129 CRD-3-82 (1984); Robinson v. Allied Grocers Cooperative Inc., 1 Conn. Workers' Comp. Rev. Op. 132, 68 CRD-1-81 (1982), aff'd, 39 Conn. Sup. 386 (1983); Graf v. Genovese and Massaro, Inc., 1 Conn. Workers' Comp. Rev. Op. 129, 59 CRD-3-81 (1982). In the instant matter, we do not find the trial Commissioner abused his discretion in failing to order attorney's fees.
The appeal of the respondent Second Injury Fund is sustained and the decision of the trial Commissioner ordering the Fund to pay interest on the award is reversed. The claimant's cross-appeal is dismissed and the decision of the trial Commissioner on the issue of attorney's fees is affirmed.
Commissioners Frank Verrilli and Michael S. Sherman concur.