Summary
In Miner v. Town of Watertown, 10 Conn. Workers' Comp. Rev. Op. 100, 971 CRB-5-90-1 (April 28, 1992), this Board held that confusion over a claimant's date of injury did not prevent the commissioner from making a finding as to that date, even though the claimant himself asserted that his shoulder injury had occurred one day earlier than the date found by the commissioner.
Summary of this case from Troske v. Wolcott View ManorOpinion
CASE NO. 971 CRB-5-90-1
APRIL 28, 1992
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondents were represented by Richard L. Aiken, Jr., Esq., and Margaret E. Corrigan, Esq., both of Pomeranz, Drayton, and Stabnick.
This Petition for Review from the January 16, 1990 Finding and Award of the Commissioner for the Fifth District heard October 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Donald H. Doyle and Jesse Frankl.
OPINION
Four issues constitute the basis for the respondent municipality's appeal from the Fifth District's January 16, 1990 Finding and Award. The town contests (1) the finding that claimant sustained a compensable right shoulder injury October 1, 1985 entitling him to total disability benefits from October 1, 1985 to January 9, 1986 and from February 18 to March 13, 1986, (2) the award of partial disability benefits from January 9 to February 17, 1986, (3) the specific benefits awarded claimant had periods of discomfort due to his right shoulder injury and was sometimes less able to tolerate working with such tools as a jackhammer or wood chipper. See claimant's Exhibit 4, reports of Dr. Dyer, December 13, 1986 and February 18, 1986. Also, the claimant's testimony indicated that he worked light duty for the respondent employer. See June 28, 1989 TR at 5. Admittedly, there was no evidence he sustained any wage loss as a result of the light duty status for the weeks in January and February of 1986. But the commissioner's finding, paragraph nine, was "he should be paid temporary partial benefits if his earnings were diminished during that time." His award, line b), then stated "Temporary partial benefits as set forth in paragraph nine." The award was obviously contingent upon a showing of diminished earnings under Sec. 31-308(a). As there was evidence by the doctor and the claimant to support the light duty status and if further evidence is forthcoming that there was wage loss, then that award also must stand.
Exhibit 4 and Dr. Dyer's medical reports of December 13, 1986 and March 26, 1987 also support the conclusion that claimant sustained a ten (10%) per cent permanent partial disability to his right arm. Specifically, the December 13, 1986 medical report stated:
We also discussed permanent partial disablity to the right shoulder. When the time comes, I think he will be rated at between 5% and 10% of the function of the right shoulder and arm based on the observed symptoms over a prolonged period of time with a diagnosis of a chronic strain. do not think major changes will occur. I do not expect any surgery or bracing will be necessary.
In his March 26, 1987 report, the doctor said:
Disposition: To stop working with the chipper and the jackhammer, may take Motrin, should use the usual hot compresses and hot showers and postural program. He has a chronic partial disability back and shoulders as defined in the December 13, 1986 report.
That doctor's testimony was sufficient to sustain the commissioner's conclusion. Especially, as the respondent presented no evidence on the issue of claimant's permanent partial incapacity.
Finally, on the issue of interest and attorney's fees, respondent contends there was no evidence that it unreasonably contested the claim and delayed payment, nor did the trial make any actual finding that any undue delay of due to the fault or neglect of the employer or insurer. The commissioner did find, paragraphs #13 and #14, "Respondent presented no evidence to indicate a basis for a good faith denial of claimant's claim. The claim was unreasonably contested and there has been an unreasonable delay in payments." We have examined the entire Fifth District file. Both parties submitted trial briefs in the proceedings below. As previously noted, the claimant's trial brief argued that a compensable injury to the right shoulder had occurred September 30, 1985 at 9:00 A.M. The respondent's brief argued that the claimant had presented differing versions of how the injury occurred and when it happened. It pointed out that Dr. Dyer recounted claimant's statement that the injury occurred when Dyer, 11/18/85) Claimant's direct testimony (TR, June 28, 1989, pp. 3-4, 18-19) was that it happened due to shoveling and raking activities on October 1, 1985. The employer's brief than argues that because of these inconsistencies the claimant has failed to sustain his burden of proof that a compensable injury occurred. Although it may be true that the respondent did not itself present any testimony, as the commissioner stated, nonetheless it did present a substantial argument as the basis for its contest. The fact that the commissioner did not agree with the argument, as was his right, did not necessarily make the contest an unreasonable one.
Sec. 31-300, C.G.S. provides in pertinent part: In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in Sec. 37-3a and a reasonable attorney's fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney's fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with Sec. 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in Sec 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in Sec. 37-3a to be upon the employer or insurer. 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.
Here, the commissioner made no finding of fault or neglect on the part of the employer or its insurer. He did conclude there was an unreasonable contest on the basis that respondent presented no evidence to support "a good faith denial of Claimant's claim." However, as we have shown, it was not necessary for the respondent actually to present testimony in order to make a reasonable or "good faith" contest. That was an improper standard to apply. There was undoubtedly an inordinate delay, more than four years from the date of injury to the date of the commissioner's ruling without any payment by respondent. That would certainly justify the imposition of interest at a rate up to that "prescribed in Sec. 37-3a." But there must be a finding of fault or neglect or unreasonable contest to justify a higher rate of interest or attorney's fees.
We therefore sustain the appeal in part. We affirm the commissioner's rulings that this was a compensable injury and his awards of benefits. We reverse as to the award for twelve per cent (12%) interest and attorney's fees. The matter is remanded further proceedings consistent with this opinion.
Commissioners Donald H. Doyle and Jesse Frankl concur.