Opinion
CASE NO. 265 CRD-4-83
MAY 8, 1987
The claimant was represented by Allan B. Rubenstein, Esq., Garrison, Kahn, Crane and Silbert.
The respondents were represented by Richard Stabnick, Esq., and Lucas Strunk, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the September 21, 1983 Finding and Award of the Fourth District Commissioner was heard April 26, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Gerald Kolinsky.
FINDING AND AWARD
1-12. Paragraphs 1 through 12 of the trial Commissioner's Finding and Award are affirmed and made paragraph's 1 through 12 of this Division's Finding and Award.
Paragraphs A, B and D of the trial Commissioner's order are affirmed and made paragraphs A, B and C of this Division's Award.
This matter is hereby remanded to the trial Commissioner to reconsider the amount awarded for attorney's fees.
OPINION
Claimant suffered a recurrence of his November 5, 1979 compensable injury to his right ankle on November 8, 1982. He was awarded total disability benefits from November 8, 1982 to December 14, 1982 and attorney's fee of $700 for the unreasonable contest of liability. The respondents have appealed the September 21, 7983 Finding and Award arguing trial Commissioner erred in awarding total disability benefits from November 8, 1982 to December 14, 1982, and in awarding attorney's fees for the unreasonable contest of liability.
As to the first issue, the determination of whether claimant was entitled to total disability benefits is a matter which involves factual findings and conclusions by the trial Commissioner. Since the trial Commissioner's conclusions were not the result of an incorrect application of law to the facts or based on unreasonable inferences drawn from the facts, the conclusion must stand. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979).
An award of attorney's fees due to unreasonable contest of liability is a matter controlled by Sec. 31-300 C.G.S. But determination of unreasonableness of contest is ordinarily also a matter for the trier of fact. Our review of that determination is limited to an inquiry whether there was an abuse of discretion, Davis v. Dwight Building Co., 2 Conn. Workers' Comp. Rev. Op. 51, 129 CRD-3-82 (1984). We find that while it may have been unreasonable for the respondents to contest basic compensability, the contest as to the extent of disability may have had a reasonable basis. We, therefore, remand this matter to the trial Commissioner to reconsider the amount awarded for attorney's fees.
Commissioners Robin Waller and Gerald Kolinsky concur.
Sec. 31-300 provides, inter alia, "In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow a reasonable attorney's fee."