CASE NO. 5280 CRB-2-07-10 CLAIM NO. 500121377CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
FEBRUARY 26, 2009
This Petition for Review of the October 2, 2007 Finding and Order on Remand of the Commissioner acting for the Second District was heard July 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
The claimant was represented by Amy Stone, Esq., formerly of, O’Brien, Shafner, Stuart, Kelly Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.
The respondent State of Connecticut was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
JOHN A. MASTROPIETRO, Chairman.
The claimant has petitioned for review from the October 2, 2007 Finding and Order on Remand of the Commissioner acting for the Second District. We find no error, and affirm the decision of the trial commissioner.
The following factual determinations are pertinent to our review. The claimant was employed by A. Torrance Construction Company from 1952 through 1964, during which period he experienced substantial exposure to asbestos. In 1964, the claimant was employed by the State of Connecticut, from which he retired in 1985. The claimant sustained additional exposure to asbestos during this time period. On March 7, 1980, the claimant underwent a thoracotomy and resection of the lower lobe of his right lung. He did not seek additional examination or treatment for his lungs until September 29, 2000, when he met with Paul Greif, M.D. The tests ordered by Dr. Greif indicated the claimant had “asbestos-related pleural disease, a pleural-based lesion and a pulmonary fibronodular density.” Claimant’s Exhibit D.
Dr. Greif referred the claimant to John Federico, M.D., who subsequently performed a biopsy of the claimant’s lung nodules. The biopsy indicated the claimant had “pleural and sub-pleural fibrosis and asbestos bodies.” Claimant’s Exhibit L. No malignancy was found. The claimant was then examined by Louis V. Buckley, M.D., on May 30, 2002, who diagnosed the claimant with “asbestos pleural plaques” and “infolding pleuritis, a benign condition associated with asbestosis.” Claimant’s Exhibit O. Dr. Buckley subsequently opined that the claimant “suffered from repeated episodes of infolding pleuritis” which had resulted in the claimant’s need for surgery in both 1980 and 2001. Id. On March 5, 2003, Dr. Buckley assigned the claimant a thirtyfive (35%) percent permanent partial disability of his lungs due to the surgical resections and scarring caused by the pleuritis.
At the request of the respondent, the claimant was examined by Michael Conway, M.D., on June 9, 2004. In reports dated June 9, 2004 and August 31, 2004, Dr. Conway indicated that he agreed with Dr. Buckley regarding the diagnosis and causation of the claimant’s lung disease. Dr. Conway assigned the claimant a forty (40%) percent permanent partial disability of both lungs as a result of the claimant’s asbestos-induced pleural disease, lobectomy and chronic obstructive pulmonary disease, and indicated that of that forty (40%) percent, he attributed twenty (20%) percent of the claimant’s lung disability to the claimant’s employment with the State of Connecticut and eighty (80%) percent to the claimant’s prior employment with A. Torrance Construction Company.
The claimant filed a Notice of Claim against the State of Connecticut on July 20, 2001 alleging a lung injury caused by exposure to asbestos during his employment with the state. Following two formal hearings held in this matter, the trial commissioner determined that the date of the claimant’s incapacity was March 5, 2003. The trial commissioner found the opinions of Drs. Greif and Buckley more persuasive than the other medical opinions offered relative to the issue of causation, but found Dr. Conway’s rating of forty (40%) percent more credible than Dr. Buckley’s rating of thirty-five (35)
percent. The trial commissioner “specifically rejected” Dr. Buckley’s opinion that the claimant had suffered two distinct injuries in 1980 and 2000. Findings, ¶ W. Based on the lack of evidence relative to the claimant’s exposure to asbestos after 1985, the trial commissioner determined the State of Connecticut was the carrier for purposes of § 31-299b C.G.S. Noting that the respondent had made a $10,000.00 advance to the claimant on August 23, 2004, the trial commissioner awarded the claimant statutory interest pursuant to § 31-295c C.G.S.
and § 31-300 C.G.S. but denied the claimant’s claim for attorney’s fees. The trial commissioner also indicated that the matter would be set down for additional hearings on the issue of apportionment.
The claimant filed a Motion for Articulation seeking clarification as to whether the interest awarded by the trial commissioner pursuant to § 31-300 C.G.S. was payable at the rate of ten (10%) percent, in conformity with § 37-3a C.G.S., or twelve (12%) percent, both of which are permitted under that statute. The trial commissioner granted the claimant’s motion and ordered the State of Connecticut to pay interest at the rate of ten (10%) percent. Prior to the issuance of the trial commissioner’s ruling on the Motion for Articulation, the claimant filed an appeal contending that the trial commissioner had committed reversible error by failing to award the claimant attorney’s fees and by failing to award interest on the basis of both § 31-295(c) C.G.S and § 31-300 C.G.S. On January 9, 2007, this board remanded the matter to the trial commissioner for clarification as to whether he had found fault or neglect on the part of the respondent and, if not, whether the award to the claimant of interest at ten (10%) percent was made pursuant to § 31-295(c) C.G.S. or the appropriate provision of § 31-300 C.G.S.
In his Finding and Order on Remand issued on October 2, 2007, the trial commissioner took administrative notice of the original Finding and Award and the subsequent Compensation Review Board Opinion. The trial commissioner also indicated that he had “reviewed, considered and weighed” the prepared findings of the claimant and respondent but did not consider the respondent’s “Response to Claimant’s Proposed Finding and Award” dated June 18, 2007. The trial commissioner determined that interest had been awarded to the claimant pursuant to § 31-300 C.G.S. and not § 31-295(c) C.G.S. The trial commissioner also “specifically” found the payment to the claimant was not unduly delayed because of fault or neglect on the part of the respondent, Findings, ¶ 6, and dismissed the claimant’s claims for attorney’s fees and interest pursuant to § 31-295(c) C.G.S.
The claimant filed a Motion to Correct, which was denied in its entirety, and this appeal followed. On appeal, the claimant puts forth two primary contentions: (1) the trial commissioner erred as a matter of law in denying the claimant interest pursuant to § 31-295(c) C.G.S. in addition to interest pursuant to § 31-300 C.G.S.; and, (2) the trial commissioner’s failure to find undue delay on the part of the respondent has no foundation in the evidentiary record.
We begin our analysis with the claimant’s assertion that the trial commissioner erred as a matter of law in failing to award the claimant interest pursuant to § 31-295(c) C.G.S. in addition to § 31-300 C.G.S. We do not dispute that this board has repeatedly held that
payment of interest pursuant to this statutory provision is indeed mandatory if the conditions enumerated by the provision are met. SeeLiebel v. Stratford, 5070 CRB-4-06-3 (May 17, 2007); Schenkel v. RichardChevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004); Ortiz v. HighlandSanitation, 4439 CRB-4-01-9 (November 12, 2002). However, we also note that the first sentence of this statutory provision reads as follows: “[i]f the employee is entitled to receive compensation for permanent disability. . . .” (emphasis added). The conditional language of this passage would seem to suggest that the provision is implicated only after the issue of permanent partial disability is no longer the subject of litigation. So, for instance, in Liebel, supra, this board remanded the matter for a § 31-295(c) C.G.S. analysis because the evidentiary record was unclear as to exactly when the respondent had commenced paying the claimant his permanency, which permanency was no longer the subject of litigation between the parties. Similarly, in Schenkel, supra, this board remanded with an order that interest be paid on any unpaid permanency still outstanding as of the date of the agreedupon maximum medical improvement date.
On the other hand, in Ortiz, supra, this board chose to remand the matter because the Finding and Award was unclear as to “the status and origin” of the interest awarded to the claimant and this board was reluctant to “venture a guess” regarding the trier’s intent. Similarly, in Maddaloni v. State/University of Connecticut, 4679 CRB-2-03-6 (June 4, 2004), this board recognized the mandatory nature of § 31-295(c) C.G.S. but held, consistent with our holding in Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers’ Comp. Rev. Op. 123, 311 CRD-7-84 (June 27, 1988), that “the determination of a maximum medical improvement date was within the province of the trial commissioner.” Maddaloni, supra. Finally, in Hernandez v. American TruckRental, 5083 CRB-7-06-4 (April 19, 2007), we concurred with the agreement of the parties that the claimant was in fact owed interest pursuant to §31-295(c) C.G.S. on the basis that the claimant’s permanency rating and compensability were no longer in dispute.
In the instant matter, our review of the evidentiary record indicates that the claimant’s permanency rating and date of maximum medical improvement continued to be subjects of litigation even after the permanency ratings were obtained from the claimant’s treater, Dr. Buckley, and the IME doctor, Dr. Conway, M.D. Although Dr. Buckley assigned the claimant a thirtyfive (35%) percent permanent partial disability rating, the doctor also “attributed [the claimant’s] reduction in diffusing capacity to the results of his infolding pleuritis and the pulmonary resections he has undergone”, thereby linking the claimant’s present-day condition to the lung surgery which the claimant underwent in March of 1980. Claimant’s Exhibit O.
In his IME report, Dr. Conway also referenced the claimant’s surgery in 1980, noting that although the concern at that time was for a possible malignancy, it was Dr. Conway’s opinion that the claimant’s symptoms were more likely related to asbestos exposure. Claimant’s Exhibit R. While Dr. Conway stated that he agreed with Dr. Buckley as to the diagnosis of asbestosinduced pleural disease, he also opined that “the most significant period of asbestos exposure was that as a construction worker whereas the time where he had worked as an inspector for the State his exposure was clearly much less significant.”
Claimant’s Exhibit R. In light of that opinion, as previously discussed, Dr. Conway assigned eighty (80%) of the claimant’s asbestosinduced disease to the claimant’s work in construction and twenty (20%) to the claimant’s work as a supervisor for the State of Connecticut. Id. Finally, Dr. Conway also implicated the claimant’s history as a smoker, observing in that “[o]bviously, both asbestos and cigarette smoking play into his diagnoses.” Id.
In his follow-up correspondence to respondent’s counsel of August 31, 2004, Dr. Conway attributed half of the forty (40%) percent permanent partial disability rating to the claimant’s chronic obstructive pulmonary disease and one half to the claimant’s “pleural disease, the rounded atelectasis, and the lobectomy, all of which I believe are secondary to asbestos exposure.” Claimant’s Exhibit S. Dr. Conway concluded that “it is reasonable to assume therefore that asbestos contributed to the original lobectomy.” Id. In contrast, although Dr. Buckley in his report of March 5, 2003 does assign the claimant a thirty-five (35%) percent permanency rating, he does not specifically reference any workplace exposure to asbestos but, rather, attributes the claimant’s “reduction in diffusing capacity to the results of his infolding pleuritis and the pulmonary resections he has undergone.” Claimant’s Exhibit O.
Clearly, Dr. Buckley and Dr. Conway’s invocation of the claimant’s medical procedures from 1980 and the relationship between those procedures and the claimant’s prior asbestos exposure raised a question as to whether the notices of claim filed by the claimant in July 23, 2001, August 7, 2001 and November 16, 2001 were timely. In fact, our review of all three of the claimant’s notices of claim indicates that the date of injury was reported as “prior to 10/12/2000.” Given the medical opinions propounded by Drs. Buckley and Conway, it would be expected that the respondent’s inquiry would focus on just how “prior” to October 12, 2000 the claimant’s injury actually occurred. In fact, at the formal hearing held in this matter on March 7, 2005, one of the § 31-299b
C.G.S. respondents pointed out that the 1980 hospital records appeared to raise a potential statute of nonclaim defense and stated that the other § 31-299b respondents did not want to be prejudiced by the State’s possible failure to pursue such a defense. Transcript, p. 10. The claimant himself, while under crossexamination at his deposition, initially testified that his position as a supervisor for the State of Connecticut entailed “just paperwork” and that his “job was basically to insure that the contractor [sic] was fulfilled.” October 26, 2001 Deposition, p. 26. However, when prompted, the claimant also testified that he was responsible for inspecting job sites and it was his opinion that asbestos was present at many of those job sites. Id., pp. 28-29.
Our review of the foregoing testimony and medical reports suggests that the establishment of the claimant’s permanency award was a less straightforward matter than claimant’s counsel has suggested. We also note that in addition to the complications in the medical record raised by the claimant’s prior medical treatment and admitted longterm smoking habit, the transcript of the testimony at the formal hearing held on March 7, 2005 indicates that the issue of the claimant’s compensation rate was still not settled, as claimant’s counsel testified that she had just been given some additional wage information and needed to ascertain the claimant’s status at the time of his retirement.
Transcript, p. 3. Thus, while there is no question that any delay in providing a claimant benefits rightfully due that claimant is at sharp variance with the stated purpose of the Worker’ Compensation Act, we find that in this particular matter, the complexity of the claimant’s medical issues and apparent confusion regarding the appropriate compensation rate were such that the trial commissioner’s refusal to award the claimant interest pursuant to § 31-295(c) C.G.S. did not constitute reversible error.
The foregoing analysis relative to the trial commissioner’s disinclination to award interest pursuant to § 31-295(c) C.G.S. also serves to illuminate our discussion of the appellant’s second issue; namely, that the trial commissioner erred in failing to make a finding of undue delay and/or neglect on the part of the respondent such that pursuant to § 31-300 C.G.S., an award of attorney’s fees was warranted in addition to the interest award. This board had the opportunity to address this issue in Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6
(June 19, 2001) and set out the following parameters relative to § 31-300
. . . there are four separate circumstances in which the trial commissioner is empowered to penalize an employer or insurer. Where adjustments or payments of compensation have been unduly delayed due to the fault or neglect of the employer or insurer, the commissioner may award interest and a reasonable attorney’s fee. Where adjustments or payments of compensation have been delayed in the absence of fault by the employer or insurer, the commissioner may allow interest “as may be fair and reasonable.” Where the claimant prevails in an action and the trier finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. Finally, where total or partial incapacity payments are discontinued without (1) the issuance of proper notice as required by § 31-296 and (2) a written approval of such cessation by the commissioner, the trier is required
to award the claimant a reasonable attorney’s fee and interest on the prematurely halted or reduced payments.
This board has also “repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7
(November 12, 1998). See also Ruiz-Dugue v. Greenwich Hospital, 16 Conn. Workers’ Comp. Rev. Op. 208, 3267 CRB-7-96-2 (May 22, 1997); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). Our scope of review of such determinations is sharply constrained, limited as it is to whether the trial commissioner’s decision constituted an abuse of discretion, which “exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). “An attorney’s fee award for unreasonable contest is made when, after hearing the parties’ arguments and reviewing the evidence, the trier decides that the employer or insurer lacked a reasonable basis upon which to contest the claimant’s request for benefits.”
Duffy v. Greenwich Board of Education, 4930 CRB-7-05-3 (May 15, 2006). See also Bailey v. State/Greater Hartford Community College, 3922 CRB-2-98-10 (November 30, 1999), aff’d in part, rev’d in part, 65 Conn. App. 592 (2001).
In the instant matter, the trial commissioner, on remand, was asked to clarify his original Finding and Award in which he had awarded the claimant statutory interest pursuant to both § 31-295c C.G.S. and § 31-300 C.G.S. He did so, by stating that interest had been awarded pursuant to § 31-300 C.G.S. only. However, the claimant has asserted that because the commissioner originally awarded the claimant interest pursuant to both statutes, which decision was not appealed by the respondent, he “was not at liberty to change that award when the case was remanded for articulation.” Appellant’s Brief, p. 8 (fn. 1).
We do not dispute that the initial Finding and Award in this matter was the appropriate subject for an articulation, which is a well-settled remedy in situations when the basis for a trial commissioner’s conclusions is unclear or the factual findings as written are perceived to be ambiguous. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . .” Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204 (2003), citing Miller v. Kirschner, 225 Conn. 185, 208 (1993). Here, the trial commissioner initially appeared to award the claimant interest pursuant to two separate and distinct statutes, neither of which contains language to the effect that one statute can operate simultaneously with the other. As such, they are both clearly distinguishable from § 31-303 C.G.S., which does contain specific language authorizing the assessment of a twenty (20%) percent penalty for late payments under a voluntary agreement “in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.” As the instant respondent correctly points out, “[t]here is no provision in either § 31-295(c) or § 31-300
that provides that interest pursuant to either statutes [sic] can be imposed in addition to interest pursuant to another statute. . . . Since the legislature obviously knew how to impose interest or penalty in addition to other statutory interest or penalty the absence of such language can only mean the legislature did not intend that § 31-295(c) interest be added to § 31-300 interest.” Respondent’s Brief, pp. 3-4.
We agree. Our directive on remand recognized the trial commissioner’s lack of jurisdiction to award interest pursuant to both statutes, and for that reason this board requested the trial commissioner to specify upon which of the two statutes his award was based. As this board had previously observed in Ortiz, supra, “[b]ecause we would be venturing a guess as to the trier’s intent either way, the best solution is for us to remand this case to the trier with instruction that he clarify the status and origin of the award of interest that was ordered via the granting of the claimant’s Motion to Correct.” In the instant matter, given that the trial commissioner complied with the request made of him by this board on remand, we are not now persuaded that he impermissibly changed, rather than clarified, his initial finding.
The claimant’s broader contention that the trial commissioner’s failure to find undue delay on the part of the instant respondent constituted reversible error may rise in
part from comments of respondent’s counsel at the formal hearing of March 7, 2005. A necessary review of the evidentiary record as a whole reveals that in addition to the various complications addressed in the initial segment of this analysis (i.e., the claimant’s medical history and its effect on the issue of causation and/or a potential statute of nonclaim defense, in addition to the apparent ongoing confusion concerning the correct compensation rate), several other issues also served to complicate the timely progression of this claim. One such issue was the asserted delay in obtaining the claimant’s medical records from 1980. May 14, 2007 Transcript, p. 3. Another, and arguably far more problematic, barrier concerned the claimant’s availability for proceedings associated with the prosecution of his claim. The claimant apparently resides in Florida for at least part of the year, such that at the time of his deposition in October of 2001, he indicated he would not be returning to Connecticut until the following April. Deposition, pp. 25-26. The claimant also suffered a heart attack while living in Florida, thereby further delaying the respondent’s ability to take his deposition. Respondent’s Brief, p. 7. We also note that at the formal hearing held on March 7, 2005, claimant’s counsel stated that the claimant was in Florida and would not be returning to Connecticut before May. Transcript, p. 11.
Thus, common sense would seem to suggest that the claimant’s status as an outof-state claimant along with his health issues would have hampered even the most zealous of prosecutions. In fact, given the complexities of the claim, we consider the matter to be on point with Pokorny v. Getta’s Garage, 22 Conn. App. 539 (1990) [limited cert. granted on other grounds, 216 Conn. 815 (1990), aff’d in part, rev’d in part, 219 Conn. 439
(1991)] in which the court acknowledged a long delay between the date of the injury and the award of benefits to the claimant but attributed it to “the complexity of the medical issues.” Id., at 542. Unlike the instant matter, the Pokorny claimant had not raised the issue of attorney’s fees; however, the court, remarking that “[w]hen deciding a claim for interest, the commissioner cannot ignore relevant sections of the statute,” did reverse the trial commissioner’s decision not to assess interest, in light of the passage in § 31-300 C.G.S. which states that a trial commissioner must consider the advantage to a respondent from the interim use of the funds. Id., at 543.
We also note that the respondent advanced the claimant the sum of $10,000.00 on August 23, 2004, which advance, while falling far short of the total amount allegedly then due the claimant, did represent the sum total of the respondent’s contribution of twenty (20%) percent based on the permanency breakdown assessed by Dr. Conway in his IME report of June 9, 2004. March 7, 2005 Transcript, p. 8. The respondent also promptly paid the balance of the permanency owed plus the ten (10%) percent ordered by the trial commissioner once the Finding and Award of January 6, 2006 had issued. Respondent’s Brief, pp. 4-5. Thus, in light of the logistical difficulties in the prosecution of the claim along with the complexity of the issues inherent in the claim itself, we decline to hold that the trial commissioner’s finding of no undue delay constituted an abuse of his discretion.
The claimant filed a Motion to Correct in this matter, which was denied in its entirety. Our review of this motion suggests that the claimant was essentially seeking a restatement of the trial commissioner’s findings to comport with the claimant’s
contentions that the trial commissioner had intended to award interest pursuant to both § 31-295(c) C.G.S. and § 31-300 C.G.S. and to establish a finding of undue delay. As the proposed corrections primarily seem to reflect the claimant’s desire “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933
(2003), we find no error in the trial commissioner’s denial of the Motion to Correct. “The [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.
The Finding and Order on Remand dated October 2, 2007 of the Commissioner acting for the Second District is accordingly affirmed.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
A: Yeah. I would say that because they were buildings mostly; and the piping obviously covered it, hot water piping. Everything got covered.” October 26, 2001 Deposition, pp. 28-29.