CASE NO. 2252 CRB-2-94-12 COMPENSATION REVIEW BOARD WORKERS’ COMPENSATION COMMISSION  AUGUST 29, 1996

JOANNE ARTKOP, DEPENDENT WIDOW OF BRIAN ARTKOP CLAIMANT-APPELLEE  v. EAST COAST OFFICE SYSTEMS, INC. EMPLOYER WAUSAU INSURANCE CO. NSURER NATIONWIDE INSURANCE INSURER RESPONDENTS-APPELLANTS DUPLICATING METHODS, INC. EMPLOYER PEERLESS INSURANCE, INC. INSURERRESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Thomas Albin, Esq., Embry & Neusner, 118 Poquonnock Road, P. O. Box 1409, Groton, CT 06340.

The respondent-appellants (Nationwide Insurance) were represented by James F. Powers, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

The respondent-appellees were not represented at oral argument, as they were dismissed from further litigation. Notice sent to Dominick Statile, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the December 21, 1994 Finding and Award of the Commissioner acting for the Second District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

JESSE M. FRANKL, CHAIRMAN. The respondents East Coast Office Systems, Inc., and Nationwide Insurance have petitioned for review from the December 21, 1994 Finding and Award of the Commissioner acting for the Second District. They argue on appeal that the trial commissioner erred by awarding attorney’s fees and interest against them. We reverse the trial commissioner’s decision.

The claimant suffered a heart attack and died on January 15, 1991. At the time of the incident, he was giving a deposition as part of a lawsuit involving his former employer and East Coast Office Systems, Inc. (ECOS), his new company, which the commissioner found arose out of and in the course of his employment with ECOS. The trial commissioner also found that “[p]ayment of compensation to the dependent widow, has been unduly delayed due to the fault or neglect of the Employer and Insurer for nearly four years. The dependent widow is entitled to interest at the rate of 12% per annum on the unpaid compensation and a reasonable attorney’s fee of $10,000 (ten thousand dollars) for prosecution of this claim.” The commissioner denied the appellants’ requested correction to this finding, which was a statement that, because of the unusual circumstances in this case, there has been no undue delay in payment caused by fault or neglect. The appellants then filed their petition for review.1

The transcript indicates that, after the trial commissioner indicated that the issues included costs and attorney’s fees against ECOS2 on behalf of both the claimant and Peerless Insurance, the claimant’s counsel told the trial commissioner that “the claimant is not asserting any costs or attorney’s fees against anyone.” (Transcript of Aug. 8, 1994, p. 4). Likewise, counsel for Duplicating Methods and Peerless Insurance waived any claim for costs and fees against ECOS. (Id., p. 10). The commissioner accepted both of these withdrawals without much discussion. (Id., pp. 4, 10).

Section 31-300 gives the trial commissioner wide discretion to award interest and attorney’s fees in cases where an employer or insurer has unduly delayed the payment of compensation. Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 141, 1186 CRD-5-91-3 (June 5, 1992). We will not reverse such an award absent an abuse of discretion. Id. In this case, however, we believe that it was no longer within the discretion of the trial commissioner to award such fees against ECOS once the other parties had waived any claim to them. ECOS could not be expected to fairly defend that issue once it was waived by the claimant and the respondent-appellees, even if the record as a whole contained sufficient facts to support the existence of undue delay.

Therefore, we reverse the trial commissioner’s decision.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 A motion to dismiss dated November 13, 1995 was withdrawn by the claimant at oral argument. BACK TO TEXT

2 For the purposes of this discussion, “ECOS” includes the respondent-insurer Nationwide Insurance. BACK TO TEXT