WHEELER v. BENDER PLUMBING SUPPLY, 1186 CRD-5-91-3 (6-5-92)


JEFFREY WHEELER, CLAIMANT-APPELLEE v. BENDER PLUMBING SUPPLY OF WATERBURY, INC., EMPLOYER and CNA INSURANCE COMPANY, INSURER, RESPONDENTS-APPELLANTS

CASE NO. 1186 CRD-5-91-3Workers’ Compensation Commission
JUNE 5, 1992

The claimant was represented by Michael A. Merati, Esq.

The respondents were represented by Kevin Blake, Esq., Law Offices of Justin J. Donnelly, Sr.

This Petition for Review from the February 26, 1991 Finding and Award of the Commissioner for the Fifth District was heard January 24, 1992 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller, and Angelo dos Santos.

OPINION

JOHN ARCUDI, COMMISSIONER.

Respondents have appealed the Fifth District’s award of $750.00 attorney’s fees to the claimant. The fees were awarded under. Sec. 31-300 because the commissioner concluded that respondents had unreasonably contested the claim for benefits.

Claimant was employed as a counterman and general helper. As part of his duties, he sometimes made deliveries. On Thursday, March 29, 1990 he injured his back while delivering a boiler with a co-worker. He continued to work that weekend, was off on Sunday and was unable to work Monday. On Tuesday he sought treatment for his back at a walk-in medical clinic. He ultimately was referred to Dr. Michael Karnasiewicz, M.D., a neurosurgeon who performed back surgery May 30, 1990. Dr. Karnasiewicz considered the need for the surgery was the result of the March 29, 1990 boiler lifting incident. See Dr. Karnasiewicz’s May 11, 1990 and September 4, 1990 reports. (Claimant’s Exhibit 3). The co-worker who made the March 29 delivery with the claimant testified that claimant had immediately complained of injuring his back on that date. See TR, January 3, 1991, p. 5.

Claimant made a timely claim for benefits under the act although he may not have followed the employer’s prescribed procedures for reporting workers’ compensation injuries. Respondents’ brief filed March 5, 1991 concedes that they offered no direct evidence to contradict the occurrence of a compensable event on March 29, 1990. Instead they argue that claimant’s failure to follow prescribed procedures and his behavior at the time cast doubt on the claim.

No Motion to Correct was filed by the respondents appellants. Thus, the factual findings of the trial commissioner must stand. Mack v. Blake Drug Co., 152 Conn. 523 (1965). On review we are therefore limited to determine whether the commissioner’s conclusion was contrary to law as we have already shown that there existed an evidentiary basis for the commissioner’s factual findings. Cf. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The authority to award attorney’s fees in unreasonably contested matters is Sec. 31-300 which provides, “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.”

Such an award is a matter within the discretion of a trial commissioner. Robinson v. Allied Grocers Cooperative, Inc., 39 Conn. Sup. 386 (1983) aff’g, 1 Conn. Workers’ Comp. Rev. Op. 132
(1982). See also, Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179 (note 8) (1974); Imbrogno v. Stamford Hospital, 9 Conn. Workers’ Comp. Rev. Op. 174, 967 CRD-7-90-1 (1991); Tartakovsky v. Sohmer/Pratt Read, 7 Conn. Workers’ Comp. Rev. Op. 46, 666 CRD-8-87 (1989). We cannot find any abuse of discretion in the fees here awarded.

We therefore affirm the Finding and Award of the trial commissioner.

Commissioners Robin Waller and Angelo dos Santos concur.