MARINO v. CITY OF WEST HAVEN, 240 CRD-3-83 (3-16-87)

SALVATORE MARINO, CLAIMANT-APPELLEE vs. CITY OF WEST HAVEN, EMPLOYER, SELF-INSURED, RESPONDENT-APPELLANT

CASE NO. 240 CRD-3-83Workers’ Compensation Commission
MARCH 16, 1987

The claimant was represented by Gerald F. Stevens, Esq., Stevens, Moran, Carroll Carveth.

The respondent was represented by Edward Gallant, Esq., and Keith Bradoc Gallant, Esq., Gallant, Gallant Culver.

This Petition for Review from the June 8, 1983 Supplemental Finding and Award of the Commissioner-at-Large acting in the Third District was heard March 29, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Gerald Kolinsky.

FINDING AND AWARD

The Finding and Award of the trial Commissioner is affirmed and adopted as the Finding and Award of this tribunal. The matter is remanded for hearing claimant’s Motion for Interest and Attorneys’ Fees.

OPINION

JOHN ARCUDI, Chairman.

Claimant was awarded benefits under Sec. 7-433c C.G.S. in a March 12, 1981 Finding and Award. On June 8, 1983 the Commissioner at Large in a Supplemental Finding and Award granted forty weeks of benefits for surgical scars resulting from cardiac bypass surgery. The respondents have appealed, arguing that Sec. 31-308(d) C.G.S. disfigurement benefits are not payable under Sec. 7-433c. As part of the proceedings, the claimant has moved for counsel fees and interest under Sec. 31-300 C.G.S.

Piantedosi v. Bridgeport, 2 Conn. Workers’ Comp. Rev. Op. 45, 254 CRD-4-83 (1984) addressed this matter some time ago. The actual issue litigated in Piantedosi was whether Sec. 7-433b C.G.S.[1] precluded a claimant undergoing coronary bypass surgery from receiving disfigurement benefits after returning to work and collecting full pay. The Compensation Review Division held the claimant could be paid such a scarring award. “Respondent-appellant would have us so interpret the statute that a municipal policeman or fireman who returned to work would not be entitled to a disfigurement award. This is contrary to the practice under Chapter 568. . . .” Id. at 46.

The Compensation Review Division panel in Piantedosi had no question that a claimant was entitled to a disfigurement award under Sec. 7-433c. At issue there was whether the maximum payment provisions of Sec. 7-433b were applicable to a claimant who had returned to work. Thus, of necessity the questions here raised were then decided against the position of the present appellants. This is consistent with Grover v. Manchester, 165 Conn. 615 (1973), Plainville v. Travelers Indemnity Co., 178 Conn. 664 (1979), and Janco v. Fairfield, 39 Conn. Sup. 403 (1983). We therefore affirm the June 8, 1983 Supplemental Finding and Award.

With respect to the Motion for Attorneys’ Fees and Interest, Sec. 31-300 C.G.S.[2] controls where a claim was unreasonably contested. We remand to the trial Commissioner to make that factual determination, Graf v. Genovese Massaro, Inc., 1 Conn. Workers’ Comp. Rev. Op. 129, 59-CRD-3-81 (1982) and Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers’ Comp. Rev. Op. 132, 68-CRD-1-81 (1982), Aff’d 39 Conn. Sup. 386 (1983).

The respondent’s appeal is dismissed and the matter is remanded for further proceedings on claimant’s motion.

Commissioners A. Paul Berte and Gerald Kolinsky concur.

[1] Sec. 7-433b(b). Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensation period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, providing the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.

[2] Section 31-300 provides, inter alia, 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 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.