POKORNY v. GETTA'S GARAGE, 716 CRD-7-88-3 (6-2-89)

JOSEPH POKORNY, CLAIMANT-APPELLEE CROSS-APPELLANT vs. GETTA’S GARAGE, EMPLOYER and AMERICAN HOME INSURANCE CO., INSURER RESPONDENTS-APPELLANTS CROSS-APPELLEES

CASE NO. 716 CRD-7-88-3Workers’ Compensation Commission
JUNE 2, 1989

The claimant was represented by Lawrence J. Merly, Esq.

The respondents were represented by Edward O’Brien, Jr., Esq., and Thomas Mulligan, Esq. and Linda R. Christiani, Esq., McNamara Kenney.

This Petition for Review from the March 18, 1988 Supplemental Finding and Award of the Commissioner for the Seventh District was heard October 28, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Darius Spain.

OPINION

JOHN ARCUDI, CHAIRMAN.

Claimant’s appeal seeks interest on the Seventh District March 18, 1988 Finding and Award.[1]
He also seeks to have respondents pay him $175,521.43 in medical and hospital expenses already paid by a private medical insurance carrier.

On June 7, 1979, claimant while employed as a tow truck operator was dispatched to assist in the removal of an overturned truck on Interstate 95. The overturned truck had spilled diesel fuel and the claimant inhaled fumes from diesel fuel spilled by the overturned truck. As a result he became dizzy and was transported to the Stamford Hospital. While in the hospital Emergency Room he sustained a compensable brain stem stroke secondary to basilar artery occlusion. The stroke rendered him quadraplegic, aphonic and facially diplegic.

The March 18, 1988 Supplemental Finding and Award concluded: (1) claimant was entitled to benefits for permanent disfigurement; (2) claimant was entitled to an allowance for nursing services provided by his wife; and (3) claimant’s basil compensation rate was corrected. The trial Commissioner denied the interest claim as the delay in payment resulted from the complexity of the medical issues involved and was not due to the fault or neglect of the respondents. The claim for the payment of $175,521.43 medical expenses was denied.

Sec. 31-300 C.G.S. governs the interest claim. “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 . . . the commissioner may allow interest at such rate, not to exceed six per cent per annum. . .” (Emphasis ours.) As noted in Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers’ Comp. Rev. Op. 123, 311 CRD-7-84 (1988), findings and conclusions as to interest awards are predicated on the trial Commissioner’s fact-finding function. We will not disturb those factual conclusions where substantially supported by the evidence and not contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535, 540-41 (1988), citing Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78 (1947).

II A

For the second part of his appeal claimant cites this tribunal’s decision, La Prade v. Robbins, 4 Conn. Workers’ Comp. Rev. Op. 100, 505 CRD-7-87 (1987). He urges that La Prade mandates payment of medical and hospital expenses by the respondent employer even if those expenses have already been paid by a carrier other than the workers’ compensation carrier. Stated in those terms his argument is correct. However, while La Prade held that the respondent carrier had pay those expenses, it did not hold that they had to be paid the claimant. Logic supports claimant’s contention that the employer should not benefit from the private carrier’s payment. but neither should claimant enjoy unjust enrichment. Sec. 38-174n, C.G.S.,[2] governs the situation. Under that statute the private insurance carrier paying the hospital expenses has a lien against the workers’ compensation employer and carrier when those respondents are ultimately found to be liable for the compensable injury. If any order were to be entered against the compensation carrier for the payment of medical expenses that order would enure to the benefit of the paying private carrier.

Although the recent decisions of the Appellate Court and the Supreme Court in McGowan v. General Dynamics Corp./Electric Boat Division, 15 Conn. App. 615 (1988), aff’d per curiam, 210 Conn. 580 (1989) do not involve the same issue litigated here, they are nonetheless relevant. In those cases the appellate tribunals overruled this Division and construed Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458, reh. denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179 (1980), to prohibit a claimant’s double recovery. The rationale there enunciated applies here. The law cannot permit this claimant to enjoy a windfall, i.e. to be paid twice for his medical expenses.

The Seventh District March 18, 1988 Supplemental Finding and Award is affirmed and the appeal is dismissed.

Commissioners Gerald Kolinsky and Darius J. Spain concur.

[1] Originally this appeal included a Petition for Review filed by the respondents. However, the respondents in their October 3, 1988 brief indicated their intention to withdraw their Reasons of Appeal and did not brief any of the issues raised in their appeal. We therefore do not consider any of the issues raised by respondents’ Reasons of Appeal. Fleischer v. Kregelstein, 150 Conn. 158 (1962).

[2] Sec. 38-174n. Lien of workers’ compensation awards for insurers. Notice of lien. (a) For purposes of this section, “controverted claim” means any claim in which compensation is denied either in whole or in part by the workers’ compensation carrier or the employer, if self-insured. (b) Any insurer, hospital or medical service corporation or employee welfare benefit plan which furnished benefits or services under a health care service plan, an individual or group disability policy, including a loss-of-income policy, an individual or group accident, health or accident and health policy, a self-insured employee welfare benefit plan, or a hospital or medical service plan contract, to any person suffering an injury or illness covered by the workers’ compensation act has a lien on the proceeds of any award or approval of any compromise made by a workers’ compensation commissioner less attorneys’ fees approved by the district commissioner and reasonable costs related to the proceeding, to the extent of benefits paid or services provided for the effects of the injury or illness arising out of and in the course of employment as a result of a controverted claim, provided such plan, policy or contract provides for reduction, exclusion, or coordination of benefits of the policy or plan on account of workers’ compensation benefits.