Opinion
CASE NO. 3247 CRB-6-96-1
DECEMBER 24, 1996
The claimant was represented by Barry L. Thompson, Esq., Famiglietti, Thompson, Vollono Mastrianni.
The respondents were represented by Brian Prindle, Esq.
This Petition for Review from the January 3, 1996 Findings of Fact and Award of Compensation of the commissioner acting for the Sixth District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
OPINION
The respondents have petitioned for review from the January 3, 1996 Findings of Fact and Award of Compensation of the Commissioner acting for the Sixth District. They argue on appeal that the trial commissioner erred by awarding interest and attorney's fees to the claimant. We affirm the trial commissioner's decision.
The claimant sustained a left shoulder dislocation on February 8, 1993, which was found compensable in a prior decision dated September 23, 1994. The issue at the formal hearings below was the claimant's pursuit of authorization for surgery. Since the accident, the claimant has had recurrent instability in his left shoulder. After some initial uncertainty, his treating physician opined that he should have surgery to stabilize his shoulder. Another physician, Dr. Barnett, examined the claimant at the respondents' request, and recommended a second examination of the claimant under anesthesia to obtain a more reliable diagnosis of his current condition. In Dr. Barnett's view, it was possible that the claimant had anterior weakness in his left shoulder, but the 1993 work injury was not a substantial factor of the claimant's shoulder condition.
The commissioner decided that there was a need for additional shoulder surgery as recommended by the treating physician, and that it was related to the compensable injury in 1993. He therefore authorized surgery. The commissioner also noted that Dr. Barnett's disagreement on the issue of causation was untimely, as that issue had been considered and determined in the earlier decision. He awarded the claimant interest on any compensation due that might be unpaid, and attorneys' fees for unreasonable contest of the issue of additional surgery pursuant to § 31-300 C.G.S. It is that award which the respondents have appealed here.
Section 31-300 provides that 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." The statute also allows the commissioner to award interest where there has been delay in adjustment or payment of compensation, even where such delay is not due to the fault of the employer or insurer. Whether the respondents unreasonably contested their liability for the claimant's surgery in this case was a factual question for the trial commissioner. See Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers' Comp. Rev. Op. 132, 135, 68 CRD-1-81 (July 13, 1982), affirmed, 39 Conn. Sup. 386, 388-89 (1983). Based on his impressions during the proceedings, he was entitled to draw a conclusion as to the reasonableness of the respondents' contest of liability.
Generally, an award of interest and attorneys' fees has been held to be in the discretion of the trial commissioner. Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466-67 (1990); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers' Comp. Rev. Op. 140, 141, 1186 CRD-5-91-3 (June 5, 1992). That means that, as long as there is some evidence to support the requisite finding of unreasonable delay in this case, the commissioner's decision to award attorneys' fees based on that delay must be affirmed. As the respondents failed to file a Motion to correct the findings, there is no reason for us to suspect that any of the commissioner's factual findings were clearly erroneous in this case. See Hicks, supra, 467. The respondents also made no motion for the trial commissioner to articulate his decision.
The evidence shows that the claimant's treating physician opined as early as September 1993 that he should have shoulder surgery, and that the respondents waited until April 27, 1995 to have an independent medical examination performed on the claimant. The commissioner noted that Dr. Barnett agreed with the treating physician's assessment that additional surgery would be required, as well as with his diagnosis of the claimant's medical condition. Dr. Barnett simply disagreed on the issue of causation — which was, of course, much harder to demonstrate two years after the compensable injury than it would have been in the several months following the accident. Based on this evidence and the commissioner's authority to assess the credibility of the medical opinions and other evidence, see Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Miner v. Town of Watertown, 10 Conn. Workers' Comp. Rev. Op. 100, 101, 971 CRB-5-90-1 (April 28, 1992), we cannot say that it was an abuse of the commissioner's discretion to find that the respondents had unreasonably contested the claimant's request for surgery in this case.
Accordingly, the trial commissioner's decision is affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.