Opinion
CASE NO. 497 CRD-7-86
APRIL 29, 1988
The claimant was represented by Michael G. Lindner, Esq. and Reid Bogie, Esq., Baker, Moots Pellegrini.
The respondent was represented by Paul P. DeLuca, Esq., DeLuca Buzaid.
This Petition for Review from the July 10, 1986 Finding and Award of the Commissioner for the Seventh District was heard April 24, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Frank Verrilli.
FINDING AND AWARD
The Seventh District Finding and Award of July 10, 1986 is hereby affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant sustained a fracture of his right clavicle September 23, 1985 while employed as a laborer. The employer's appeal contends (1) Claimant was not disabled from September 23, 1985 to April 1, 1986, (2) the trial Commissioner erred in finding compensation rate to be $173.33, and (3) the commissioner erred in his finding the Respondent had unreasonably contested the claim for compensation and in his award of attorney's fees.
The determination of temporary total disability and the period of time it lasted is a matter within the discretion of the trial Commissioner, Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Osterlund v. State, 129 Conn. 591 (1943). The award of temporary benefits was not contrary to Sec. 31-307, C.G.S. governing said awards nor was it without evidence to support it.
As to the compensation rate issue, Claimant's testimony formed a sufficient basis for the computation made by the commissioner. Similarly, with respect to the finding of unreasonable contest end the award of attorney's fees, it is clear from the record that between September 23, 1985 and July 10, 1986, the date of the commissioner's award, the employer was contesting the case and had paid nothing. The record also shows that a written notice of claim was received January 13, 1986 served in accordance with Sec. 31-321, C.G.S. The employer filed no notice of contest, so under Sec. 31-297 (b), C.G.S., there was an irrebuttable presumption of compensability. Yet no payment of medical bill or weekly indemnity was forthcoming from the employer. Those facts constitute a sufficient basis for the commissioner to have exercised his discretion to award attorney's fees under Sec. 31-300, C.G.S.
The respondent also protested the commissioner's finding in paragraph #11 that the employer was uninsured for workers' compensation in violation of his obligations under Sec. 31-284, C.G.S. It is certainly within the province of a commissioner to find a failure to comply with the statute and to rely on the absence of any insurance coverage report under Sec. 31-316, C.G.S. If someone other than the employer was responsible for the failure to file such coverage information, then the respondent's remedy lies in another forum.
We therefore, affirm the July 10, 1986 Finding and Award of the Seventh District Commissioner in all respects.
Commissioners Robin Waller and Frank Verrilli concur.