Opinion
CASE NO. 357 CRD-7-84
JULY 21, 1988
The claimant was represented by Richard L. Jacobs, Esq., Jacobs, Votre Jacobs.
The respondents were represented by Kevin J. Maher, Esq.
This Petition for Review from the October 16, 1984 Ruling On Claimant's (March 27, 1984) Motion To Reopen And Correct Finding and Award (Dated March 22, 1984) After Appeal To Appellate Court And Denial of Petition for Certification of the Commissioner for the Seventh District was heard June 26, 1987 before a Compensation Review Division panel consisting of Commissioners Robin Waller, Andrew P. Denuzze and Michael S. Sherman.
OPINION
The present proceeding is an appeal to the Compensation Review Division from a Ruling on Claimant's March 27, 1984 Motion To Reopen And Correct Finding and Award Dated March 22, 1984 After Appeal To Appellate Court and Denial of Petition For Certification. At issue is the amount of interest that may be allowed on past amounts of compensation.
On March 22, 1984 the trial Commissioner ordered respondents to pay compensation from March 22, 1977 for so long as the claimant was totally disabled. He further found that the delay in payment of compensation was not occasioned by the fault or neglect of the respondents. He allowed interest at the rate of six percent from December 6, 1982, the date the Compensation Review Division reversed his initial denial of compensation pursuant to Section 31-300, C.G.S.
Claimant's only disagreement with the Award is that the interest should have been awarded from March 22, 1977, the date of the incapacity, rather than December 6, 1982, the reversal date by the Compensation Review Division. She contends that having found interest due, the Commissioner was legally obligated to order interest from the date of the incapacity. The sole issue is whether the Workers' Compensation Act dictates such action or whether Section 31-300, C.G.S. gives the Commissioner the discretion to determine the date from which interest may be allowed.
The claimant contends that once the Commissioner exercised discretion to allow interest, the statute mandates that it must be paid from the date of incapacity since respondents have had the use of the claimant's money from the date of incapacity. Correlatively, the Commissioner only has the discretion to determine whether interest should be paid and the rate, not the period for which it is to be paid. Limitation of the time to one other than that of the date of incapacity is an abuse of the Commissioner's discretion.
Respondents contend that neither statute nor case law limits the exercise of discretion by the Commissioner in awarding interest. By extension, therefore, it is not an abuse of discretion for the Commissioner to define the period during which interest is due.
The appropriate section of the statute, 31-300 C.G.S. provides as follows
"In cases where there has been delay in either the 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 six percent per annum, 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 six percent per annum to be upon employer or insurer. . . ."
It is interesting to note that the statute is silent on the question of the time from which interest may be allowed.
The two cases cited by the parties, Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974) and Davis v. Dwight Building Co., 2 Conn. Workers' Comp. Rev. Op. 51, 129 CRD-3-82 (1984) are likewise silent on this exact issue.
In Balkus, the court upheld the Commissioner's denial of interest where there had been a delay of three years between the date of injury and the Award. In remarking on the extent of the Commissioner's discretion the court noted "The Commissioner stated that delay in payment of compensation `was caused by the nature of the claim and the medical problems involved and in the opinion of the Commissioner, does not warrant the assessment of interest.'" The court found the Commissioner's exercise of discretion in denying interest neither improper nor unfounded. Balkus, supra, at 181.
This passage indicated that the Commissioner is given wide latitude in applying discretion even when the period of delay is three years which the court found to be "disturbingly long". Id., at 181.
However, the discretion is not unbridled. In Davis, the Compensation Review Division concluded that the trial Commissioner's failure to award interest after a lapse of twenty years between the date of injury and the date of first payment of compensation was an abuse of discretion.
"Clearly, the statute provides for the exercise of the commissioner's discretion in deciding whether to award. But such discretion cannot be an unfettered discretion. It must be subject to due process considerations. If the commissioner does not exercise discretion to award interest after a twenty-year delay, then when can such discretion be exercised?"
Davis, supra, at 52.
As noted above, the relief sought in the case before us is not based upon a penal theory. That is, the claimant does not contend that the payment of interest should be imposed upon the respondents for their fault or neglect but because they had the "advantage" of the use of the money. The statute provides that the Commissioner must determine the interest rate up to six percent that may be "fair and reasonable".
The question is, may the Commissioner reasonably infer the length of the period for which interest is to be paid as well as the amount of the interest? The statute provides an answer to the latter by expressing a presumption for six percent with the burden of proof being on the employer to show why it should be less.
Aid in answering the former question is provided by reference to the recent Supreme Court decision in Fair v. People's Savings Bank, 207 Conn. 535 (1988). There the trial Commissioner was reversed by the Compensation Review Division on the issue of whether an injury arose out of the course of employment. The trial Commissioner found that the fatal attack by the claimant's decedent's boyfriend was enough of an importation of the decedent's domestic private life into the workplace as to cut off the employer's liability.
Fair v. People's Savings Bank, 4 Workers' Comp. Rev. Op. 71, 289 CRD-4-83 (1987). The claimant, Timothy Fair, Jr., was the minor dependent child of the decedent, Gail Rogers and Timothy Fair, Sr., her boyfriend. They had lived together and at the same time she was employed by the respondent People's Savings Bank. A violent disagreement erupted between the decedent and Timothy Fair, Sr., he went to the bank and after threatening the decedent was escorted out. The decedent then decided to terminate employment. At the time of her exit interview Fair returned to bank seeking contact with the decedent and was directed to area where she was. After a brief interchange with the decedent, he fatally shot her. The trial commissioner's denial of compensation, based on a finding that injury did not arise out of the course of employment, reversed by the Compensation Review Division.
In reversing the Compensation Review Division, the Supreme Court relied heavily upon Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947) citing Voehl v. Indemnity Ins. Co., 288 U.S. 162, 166 (1933) emphasizing the Commissioner's role in analyzing the facts and inferring conclusions from them.
"Moreover, the United States Supreme Court has held that `[i]n determining whether a particular injury arose out of and in the course of employment, the Deputy Commissioner must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the foregoing statutory provisions. If supported by evidence and not inconsistent with the law, the Deputy Commissioner's inference that an injury did or did not arise out of and in the course of employment is conclusive.'"
Fair, supra, at 539 quoting Cardillo, supra, at 477.
In the case before us, the trial Commissioner made extensive findings of fact in the Finding and Award dated March 22, 1984. He exhaustively set forth the nature of the claim and the circumstances leading from the reversal and the remand to the denial of certification. He concluded in paragraph 34 that the delay was caused primarily by the nature of the claim and not the fault and neglect of the employer. By allowing interest the Commissioner inferred that the employer had use of the money and that it had not met the burden of showing why that amount should be less than six percent. In drawing inferences concerning the complexity of the claim and the employer's blamelessness for delay, he limited the interest to the time after the Compensation Review Division reversal.
Paragraph 34 reads as follows: On March 8, 1984, an Informal Hearing in this case was held before the undersigned wherein the claimant requested interest on the Finding and Award, and in accordance with such request I find that the delay in payment of compensation in this claim was caused primarily by the nature of the claim and not through the fault or neglect of the respondents. However, considering the significant period of time that has elapsed since the date of the injury, and considering the discretionary powers of the Commissioner under Section 31-300, Connecticut General Statutes, I find it reasonable and ALLOW interest at the rate of six percent per annum, the imposition of which is to run commencing on December 5, 1982 (sic), the date of reversal and remand by the Compensation Review Division, said interest to be paid on all accrued weekly compensation benefits from December 5, 1982 (sic).
As in Fair, this case presents a question of mixed law and fact and the inferences drawn by the Commissioner are dispositive of the issues even if a reviewing body were to think an opposite result would be more reasonable.
"`Even if such an inference be considered more legal than factual in nature, the reviewing court's function is exhausted when it becomes evident that the Deputy Commissioner's choice has substantial roots in the evidence and is not forbidden by the law. . . .'"
Fair, supra, at 540-41 quoting Cardillo, supra, at 478.
We therefore affirm the Seventh District's October 16, 1984 Ruling on Claimant's Motion to Reopen and Correct Finding and Award After Appeal to Appellate Court and Denial of Petition for Certification.
Commissioners Andrew P. Denuzze and Michael S. Sherman concur.