CARPENTINO v. PERKINS TRUCKING COMPANY, 488 CRD-3-86 (4-6-88)

FREDERICK CARPENTINO, CLAIMANT-APPELLEE, CROSS-APPELLANT vs. PERKINS TRUCKING COMPANY, EMPLOYER and TRANSPORT INSURANCE COMPANY, INSURER, RESPONDENT-APPELLANT and MICHIGAN MUTUAL INSURANCE COMPANY, CHUBB GROUP, TRAVELERS INSURANCE COMPANY, KEMPER INSURANCE COMPANY, INSURERS, RESPONDENTS-APPELLEES, SECOND INJURY AND COMPENSATION ASSURANCE FUND

CASE NO. 488 CRD-3-86Workers’ Compensation Commission
APRIL 6, 1988

The claimant-cross appellant was represented by Richard Weinstein, Esq., Pearson, Baum Weinstein.

The respondent-appellant was represented by John J. Keefe Jr., Esq., Hugh K. Keefe, Esq., and Michael McClary, Esq., Lynch, Traub, Keefe and Errante, P.C.

The respondents-appellees were represented as follows: J. Gregg Patti, Esq., and Gregory Patti, Esq., for Michigan Mutual Insurance Company; Kevin Maher, Esq., for the Chubb Group; Jason Dodge, Esq., Pomeranz, Drayton Stabnick, for the Travelers Insurance Company; Edward S. Downes Jr., Esq., for the Kemper Insurance Company; and Morton Greenblatt, Esq., and Robert Murphy, Esq., Assistant Attorneys General, for the Second Injury Fund.

This Petition for Review from the June 11, 1986 Finding and Award of the Commissioner for the Third District was heard December 5, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Darius T. Spain and Frank Verrilli.

FINDING AND AWARD

1-29. Paragraphs 1 through 29 of the Finding and Award below are affirmed and adopted as paragraphs 1 through 29 of this Division’s Finding and Award.

30. Paragraph 31 of the Finding and Award below is affirmed and adopted as paragraph 30 of the Division’s Finding and Award.

WHEREFORE IT IS ORDER, ADJUDGED AND AWARDED that:

A-G. Paragraphs A through G of the Award below are affirmed and adopted as paragraphs A through G of this Division’s Award.

H-J. Paragraphs I, J and L of the Award below are made paragraphs H through J of this Division’s Award.

THE MATTER IS REMANDED TO THE DISTRICT FOR FURTHER PROCEEDINGS TO DETERMINE THE REASONABLE ATTORNEY’S FEE DUE UNDER SEC. 31-300, C.G.S.

OPINION

JOHN ARCUDI, Chairman.

No issue is here presented as to the compensability of Claimant’s January 16, 1981 head injury and its sequelae. The June 11, 1986 decision below awarded benefits for continuing total disability to Claimant employed as a mechanic by the respondent-employer. The Third District Commissioner found his disability was attributable to post-concussion syndrome resulting from that head injury. The respondent-carrier, Transport Insurance Company appeals, contending that the employee’s disability was due both to the January 16, 1981 accident and carbon monoxide poisoning developed during employment with this employer previous to that date. Therefore, Transport holds liability should be transferred to the Second Injury Fund under Sec. 31-349, C.G.S. Claimant’s cross-appeal argues the Commissioner should have granted attorney’s fees pursuant to Sec. 31-300, C.G.S. and interest at the rate of ten percent (10%) instead of six percent (6%).

The record below is voluminous. Formal hearings were conducted on eight separate occasions and resulted in more than a thousand pages of formal testimony. There is no doubt that the medical testimony proffered was conflicting. Transport, in essence, asks this tribunal to substitute our factual findings for that of the trial Commissioner. We will not do so when the trial Commissioner’s conclusion based on conflicting evidence was not so unreasonable as to justify appellate interference, Adzima v. UAC/Norden Division, 177 Conn. 107 (1979); Bailey v. Mitchell, 113 Conn. 721 (1931).

Claimant’s cross-appeal is governed by Sec. 31-300, C.G.S.[1] . As this tribunal recently held in Platt v. UTC/Pratt Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3 (1985), 164 CRD-6-82, an employer may not discontinue compensation benefits without the filing of a proper Form 36 and “[s]uch . . . discontinuance shall not become effective unless specifically approved in writing by the Commissioner”. Id. at 6. In the instant case, the Form 36 was never approved by the Commissioner and therefore the discontinuance of benefits by the respondent-appellant was improper. Section 31-300 since 1971 has provided:

No employer or insurer shall discontinue payment on account of total or partial incapacity . . . if it is claimed by . . . the injured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance in the manner prescribed in section 31-296
and the commissioner specifically approves such discontinuance in writing . . . In any case where the commissioner finds that the employer or insurer has discontinued such payment without having given such notice and without the commissioner having approved such discontinuance in writing the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate of six per cent per annum on the discontinued payments.” (emphasis added)

Generally speaking, an award of attorney’s fees under those provisions is based upon an allegation of unreasonable contest. In such instances the decision whether to award attorney’s fees is a matter left to a trial Commissioner’s discretion. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 178-9 (1974); Robinson v. Allied Grocers Cooperative, Inc., 39 Conn. Sup. 386 (1983) (per curiam), aff’g, 1 Conn. Workers’ Comp. Rev. Op. 132, 68 CRD-1-81 (1982); Davis v. Dwight Building Co., 2 Conn. Workers’ Comp. Rev. Op. 51, 129 CRD-3-82 (1984). However, the statute cited above provides where an employer or insurer has improperly discontinued payments, “the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate of six per cent per annum . . .”. The word “shall” usually connotes a mandatory rather than permissive construction, Caulkins v. Petrillo, 200 Conn. 713, 717 (1986); Blake v. Meyer, 145 Conn. 612, 616 (1958). See also, State ex. rel. Arcudi v. Iassogna, 165 Conn. 203 (1973).

Therefore, once factual circumstances establish that an employer or its insurance carrier improperly discontinued payments the decision to award reasonable attorney’s fees is no longer discretionary. It is a mandatory obligation imposed on the erring employer or its insurance carrier as is an award of interest at six percent (6%) per annum.

We conclude that the Commissioner of the Third District’s June 11, 1986 Finding and Award be affirmed in all respects except her conclusion that reasonable attorney’s fees were not due to the claimant. We therefore remand this matter back to the trial Commissioner for further hearings as to the determination of reasonable attorney’s fees.

Commissioners Darius T. Spain and Frank Verrilli concur.

[1] Section 31-300 C.G.S. provides in pertinent part: In cases where there has been delay in either 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 per cent 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 per cent per annum to be upon the employer or insurer. 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. No employer or insurer shall discontinue payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance in writing. The commissioner shall render his decision within fourteen days of receipt of such notice. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any payments received from the day the commissioner receives the notice of discontinuance until the day of approval of such discontinuance. In any case where the commissioner finds that the employer or insurer has discontinued any such payment without having given such notice and without the commissioner having approved such discontinuance in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate of six per cent per annum on the discounted payments.