Opinion
CASE NO. 03608 CRB-07-97-05CLAIM NO. 700000428
AUGUST 10, 1998
The claimant was represented by Brian Doyle, Esq., Ferguson Doyle, P.C.
The respondents were represented by Maureen Driscoll, Esq., Maher Williams.
This Petition for Review from the May 9, 1997 Finding and Award of the Commissioner acting for the Seventh District was heard January 9, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.
OPINION
The respondents have petitioned for review from the May 9, 1997 Finding and Award of the Commissioner for the Seventh District. In that decision the trial commissioner awarded the claimant a five percent permanent partial disability of the lower back. In support of their appeal, the respondents contend that the trial commissioner erred by denying the respondents' request to enter into evidence the transcript of a prior hearing. We find no error.
In the May 9, 1997 Finding and Award, the trial commissioner found that Commissioner Metro had issued an award on June 21, 1994. In the June 21, 1994 decision, Commissioner Metro found that the claimant sustained a compensable injury to her lumbar spine on November 15, 1990. The respondents contend that Commissioner Metro's failure to award permanent partial disability benefits precluded the award of said benefits in the May 9, 1997 Finding and Award. We find no merit to this argument, as a finding and award may be issued which does not address all possible issues. Indeed, our Appellate Court has recognized that a decision may be properly issued which leaves unresolved an issue such as permanent partial disability. Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 120 (1992).
In further support of their appeal, the respondents contend that the trial commissioner erred in denying their request to submit into evidence a transcript of a hearing held by Commissioner D'Oyen on March 10, 1993. We find no error. The trial commissioner is not bound by the ordinary rules of evidence under § 31-298. Rather, he or she is instructed to "make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter." Sec. 31-298. The commissioner thus had broad discretion to determine the admissibility of the transcript as evidence, and only an abuse of that discretion would give us cause to set his ruling aside. Nelson v. Deb's Inc., 15 Conn. Workers' Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996).
We note that Commissioner D'Oyen subsequently changed her name to Tracy.
The respondents sought to introduce the March 10, 1993 transcript at the formal hearing on January 16, 1997. The claimant objected on the basis that Commissioner D'Oyen had recused herself after commencing the formal hearing, and a new formal hearing was scheduled with Commissioner Metro. Therefore, the claimant contended that the March 10, 1993 transcript was not relevant. (1/16/97 TR. at p. 4). The trial commissioner noted that the only issue before him was the issue of permanent partial disability, and further noted that there was only one medical opinion, that of Dr. Ogiela, regarding the assessment of the claimant's permanent partial disability. The respondents acknowledged that they had no evidence contradicting the opinion of Dr. Ogiela. (1/16/97 TR. at p. 6). The trial commissioner therefore sustained the claimant's objection. We find no abuse of discretion in the trial commissioner's ruling. Moreover, we find the respondents' conduct of appealing the five percent permanent partial disability where the respondents have presented no contradictory evidence to be questionable at best.
Finally, we note that in the May 9, 1997 Finding and Award, the trial commissioner awarded interest at an unspecified rate and did not award attorney's fees. The trial commissioner did not make a specific finding that the respondents' conduct constituted either unreasonable delay or unreasonable contest. Section 31-300 C.G.S. provides in relevant 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 section 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. . . . 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.
Regarding undue delay in payments, our Appellate Court has stated: "We read the words of § 31-300,`may include in his award interest . . . and a reasonable attorney's fee,' to allow a discretionary award of both interest and attorney's fees or neither, but not to allow an award of one and not the other." Imbrogno, supra, at 125; see also Kilton v. Cote Sons, Inc., 15 Conn. Workers' Comp. Rev. Op. 199, 2178 CRB-7-94-10 (April 23, 1996) (Miles, dissenting), dismissed for lack of final judgment, A.C. 15936 (9/19/96). Accordingly, this matter must be remanded for findings regarding whether the respondents' conduct constituted undue delay or unreasonable contest, and for a determination of whether attorney's fees should be awarded. In all other respects, the trial commissioner's decision is affirmed.
The matter is remanded to the District in accordance with the above.
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.
Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers' Compensation Commission