Opinion
CASE NO. 129 CRD-3-82
MAY 29, 1984
The Claimant-Appellant was represented by Max F. Brunswick, Esq.
The Respondents-Appellees were represented by Robert F. Moran, Esq.
This Petition for Review from the January 21, 1982 Decision of the Commissioner for the Third District, was argued January 28, 1983 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Frank Verrilli.
FINDING AND AWARD
1-12. Paragraphs 1 through 12 of the Commissioner's Finding are affirmed and adopted as paragraphs 1-12 of this Division's Finding.
IT IS ORDERED, ADJUDGED AND DECREED that:
A. Claimant is entitled to temporary total disability compensation payment from January 27, 1961, to August 26, 1961, and from December 15, 1961, to April 1, 1963, at his compensation rate of $52.00 per week with appropriate cost of living adjustments. Proper credit shall be given for advance payments by Respondents of twenty-six weeks.
B. Medical bills in the amount of $1,466.64, Pharmacy bills in the amount of $137.73 and a Yale Surgical Company bill in the amount of $113.77 shall all be paid by Respondents.
C. All proper and future medical expenses shall be provided for Claimant.
D. Claimant's request for attorney's fees is denied.
E. Claimant is awarded interest on the amounts due him under this Finding and Award.
This Finding and Award was written by Chairman John Arcudi for the entire panel.
OPINION
Claimant's appeal from the Third District Commissioner involves only a claim for interest and attorney's fees. Her decision had been long delayed due to a series of events. Claimant suffered a compensable injury to his scalp while employed by the Respondent Dwight Building Company January 27, 1961, and a Voluntary Agreement between the parties was filed and approved by the Third District Commissioner February 15, 1961. The claimant was paid a certain number of weeks of temporary total disability but claimed he was due additional weeks between July 27, 1961 and September 9, 1964.
On September 9, 1964 the then Third District Commissioner denied payment for these additional weeks. That decision was appealed to the Superior Court which sustained the appeal and remanded to the Commissioner for further proceedings August 12, 1966. A judgment of non-suit was mistakenly entered in the Superior Court file July 17, 1968. This was reopened January 12, 1972. In the meantime a new Commissioner, other than the one of the September 9, 1964 decision, had been appointed to the Third District. Several hearings were held before that new Commissioner.
This second Commissioner retired December 31, 1978, and still another Commissioner was appointed. Hearings were held before this third Commissioner May 11, 1981 and June 4, 1981, and she issued her decision January 21, 1982. It should be noted that claimant had had a succession of attorneys between January 27, 1961 and January 21, 1982.
The Commissioner awarded claimant temporary total benefits for the periods January 27, 1961 to August 26, 1961 and December 15, 1961 to April 1, 1963 at a weekly compensation rate of $52.00 per week plus applicable cost of living increases. None of the parties has appealed this basic award, but since the Commissioner denied interest and attorney's fees under Section 31-300, claimant has appealed as noted.
Section 31-300 permits, and its predecessor in force on January 27, 1961 permitted, the ordering of interest on an award when there was undue delay in payment even if the delay was not caused by fault or neglect. The part of the present statute permitting allowance of an attorney's fee by the Commissioner if the employer has unreasonably contested liability was not added until 1967. Neither in the proceedings before us or at the Third District level did either party address the issue of the applicability of a 1967 amendment to a 1961 injury. However, that issue need not concern us as the Third District Commissioner denied both interest and attorney's fees, and if she considered the 1967 amendment at all, her denial of attorney's fees must necessarily have been based on a factual finding that there was no fault or neglect.
Connecticut General Statutes, Rev. of 1958, Section 31-176.
1967, P.A. 842, Sec. 10.
But the Commissioner's failure to award interest presents a different question. Payment has here been ordered more than twenty years after the weeks the Commissioner found should have been paid. The statute in 1961 stated, "where there has been delay in either adjustment or payment . . ." not due to the fault or neglect of the employer . . . , whether such delay was caused by appeals or otherwise, the commissioner may allow interest. . ." Clearly, the statute provides for the exercise of the Commissioner's discretion in deciding whether to award. But such discretion cannot an unfettered discretion. It must be subject to due process considerations. If the Commissioner does not exercise discretion to award interest after a twenty year delay, then when can such discretion be exercised?
We therefore remand the matter to the Commissioner to award and compute interest due on the weeks of temporary total disability payments that have been ordered.
Commissioners Kolinsky and Verrilli join in this opinion.