Opinion
CASE NO. 3969 CRB-3-99-1CLAIM NO. 300034773
MAY 29, 2001
The claimant was represented by Kevin Blake, Esq., Shepro, Brown Blake, 2051 Main Street, Stratford, CT 06497.
The respondents were represented by Neil Ambrose, Esq., Letizia, Ambrose Cohen, P.C., One Church Street, New Haven, CT 06510.
This Petition for Review from the January 15, 1999 Finding and Award of the Commissioner acting for the Third District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
OPINION
The claimant has petitioned for review from the January 15, 1999 Finding and Award of the commissioner acting for the Third District. In that decision, the trial commissioner concluded that the claimant's right shoulder condition and need for surgery were causally related to her employment, and found the claimant temporarily totally disabled from September 9, 1997 through October 13, 1997. Subsequently, the trial commissioner granted the respondent's Motion to Correct to indicate that the claimant was not totally disabled from September 9, 1997 to October 13, 1997 as she had been travelling during that period in her capacity as a travel agent. In support of her appeal, the claimant contends that the parties agreed during the formal hearing that the trial commissioner would only address the issue of compensability, and thus the trial commissioner should not have addressed the claimant's entitlement to temporary total or temporary partial disability benefits.
We note that the respondent filed a petition for review which was subsequently withdrawn.
During the formal hearing, the claimant's attorney stated, in pertinent part, as follows:
ATTORNEY BLAKE: We have talked and we have made an agreement, and correct me if I'm wrong, that with respect to the issue of lost time and vacation time and personal time, that we will not request the Commissioner to rule on that in order to give both parties times to obtain that information and pending a ruling, if it's found compensable, we'll ask for a hearing on that issue alone.
ATTORNEY AMBROSE: I agree with that, Commissioner. . . . July 23, 1998, Transcript, pp. 49-50.
Accordingly, we agree with the claimant's contention that the trial commissioner's decision should not have addressed the claimant's entitlement to indemnity benefits. We thus vacate those portions of the Finding and Award which address the claimant's disability status, and remand the issue for a further hearing allowing the claimant and the respondent to present their respective case. See Cummings v. Twin Tool Manufacturing, 13 Conn. Workers' Comp.Rev.Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed June 29, 1995, A.C. 14747.
We therefore need not rule upon the claimant's Motion to Submit Additional Evidence, in which the claimant seeks to present evidence regarding her claim for temporary total and temporary partial disability benefits.
Finally, we will address the claimant's contention that during the formal hearing she requested attorney's fees and interest due to the respondent's unreasonable contest, but that the trial commissioner failed to address that issue in his decision. During the formal hearing, the claimant requested attorney's fees and interest. See May 11, 1998 Transcript, p. 4; see also July 23, 1998 Transcript, pp. 50-51. This issue "requires the taking of evidence and factual findings on the evidence, a matter within the province of the trial commissioner." Soares v. Glass Industries, 12 Conn. Workers' Comp.Rev.Op. 189, 193, 1377 CRB-3-92-1 (May 4, 1994). Accordingly, we remand this issue to the trial commissioner. Id.
The trial commissioner's decision is affirmed in part, and remanded in part; specifically the matter is remanded for a determination of the claimant's claim for indemnity benefits and the claimant's request for attorney's fees and interest.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 29th day of May 2001 to the following parties:
ROSEMARIE SPATAFORE
KEVIN BLAKE, ESQ. 7099 3400 0008 5807 6929
YALE UNIVERSITY
NEIL AMBROSE, ESQ. 7099 3400 0008 5807 7100
_____________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers' Compensation Commission