Pokorny v. Getta's Garage

• Decision Date: 07 August 1990
• Docket Number: No. 8157,8157
• Citation: 579 A.2d 98,22 Conn.App. 539
• Court: Connecticut Court of Appeals
• Parties: Joseph POKORNY v. GETTA'S GARAGE et al.

Page 98

579 A.2d 98

22 Conn.App. 539

Joseph POKORNY v. GETTA'S GARAGE et al.

No. 8157.

Appellate Court of Connecticut.

Argued Jan. 11, 1990.

Decided Aug. 7, 1990.

Certification Granted Sept. 18, 1990.

[22 Conn.App. 540] Lawrence J. Merly, with whom, on the brief, was Nicholas E. Wocl, Bridgeport, for appellant (plaintiff).

Thomas A. Mulligan, Fairfield, with whom, on the brief, was Linda C. Christiani, Bridgeport, for appellees (defendants).

Before EDWARD Y. O'CONNELL, FOTI and LAVERY, JJ.

LAVERY, Judge.

The plaintiff, an employee-claimant, appeals from a decision of the compensation review division upholding the compensation commissioner's denial of interest on the commissioner's March 18, 1988 finding and award and upholding the commissioner's decision denying him $175,521.43 in hospital and medical expenses. We reverse the review division's decision.

The facts pertinent to this appeal are as follows. On June 7, 1979, the plaintiff, 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 plaintiff inhaled fumes from the fuel. As a result, he became dizzy and was transported to Stamford Hospital. While in the hospital emergency room, he sustained a brain stem stroke secondary to basilar artery occlusion. The stroke rendered him facially paralyzed and a quadriplegic. He also permanently lost his voice. The defendant employer, Getta's Garage, and the defendant worker's compensation insurance carrier, the American Home Insurance Company, denied coverage.

The plaintiff incurred extensive medical and hospital expenses, which were paid by the plaintiff's health insurance carrier under a group policy he had through his employer. His group health policy was cancelled on March 1, 1984; thereafter, the plaintiff had to procure his own medical insurance policy. The compensation commissioner did not hear the plaintiff's compensability claim until 1986; on September 11, 1986, the commissioner found that the plaintiff's claim was work related and compensable. The defendants were ordered to pay disability benefits at the rate of $160 per week, plus dependency and cost of living allowances retroactive to June 7, 1979, such payments to continue as long as the plaintiff remained totally disabled. The commissioner ordered the defendants to pay all of the plaintiff's medical, surgical, and hospital expenses incurred in connection with the 1979 injury. The commissioner ordered that if the parties were unable to agree on the payment for the health services, either party could request further hearings on the subject.

The commissioner also found that the defendants had not unreasonably contested liability in the claim and that there was no undue delay in either the adjustment or compensation of the claim, but rather that any delay was primarily due to the nature of the claim and the significant issues of medical causation. Accordingly, the commissioner denied the plaintiff's claims for interest and attorney's fees.

The defendants appealed the commissioner's finding of compensability to the compensation review division but never prosecuted the appeal and withdrew it prior to argument before the compensation review

                division.   The plaintiff and the defendants were unable to agree on payment for medical services and a formal hearing [22 Conn.App. 542] was held on February 1, 1988.   On March 18, 1988, the commissioner issued his decision, in which he again denied the plaintiff's claim for interest and attorney's fees on the same grounds as in the first decision.   The commissioner also found that the private medical carrier that had paid medical and hospital expenses on behalf of the plaintiff totalling $175,521.43 had not filed a lien or claim for repayment of all or any part of that sum.   The commissioner, therefore, denied the plaintiff's claim for payment of that sum.   The plaintiff appealed to the compensation review division from the decision of the commissioner failing to award him interest and failing to award him the $175,521.43 in medical and hospital expenses already paid by the medical insurance carrier.   The compensation review division upheld the commissioner on both issues.   We reverse the decision on both issues
                

I INTEREST

The commissioner based his denial of interest on his finding that the delay was due not to the fault or neglect of the defendants, but to the complexity of the medical issues. The injury took place on June 7, 1979. The hearing on compensability was in 1986 and on the remaining issues in 1988, seven and nine years after the injury.

There is no question that there was a long delay between the injury and the award. In Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 181, 355 A.2d 227 (1974), the Supreme Court expressed its opinion that three years is a disturbingly long duration between injury and award. There is no question that the delay suffered by the plaintiff called into play General Statutes § 31-300, which governs the commissioner's awarding of interest.

The commissioner did in fact consider the applicability of the statute, and we do not disturb his conclusion that the delay was not the fault of the defendants, or his denial of an interest award based upon that part of the statute. See Balkus v. Terry Steam Turbine, supra. Section 31-300 provides, however, a second basis for the award of interest to the claimant. The commissioner improperly failed to make findings or a decision under this second, relevant passage in the statute, which provides: "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, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six per cent per annum to be upon the employer or insurer."

Clearly, even without fault or negligence on the part of the defendants, there has been significant delay in adjusting and paying this claim. Although the injury had occurred on June 7, 1979, the first award was dated September 11, 1986, and the second award was dated March 18, 1988. The case is now over ten years old. When deciding a claim for interest, the commissioner cannot ignore relevant sections of the statute. In this case, the commissioner did not take into account the advantages the defendants have enjoyed from the use of the money over a nine year period. Nor did the defendants show that they earned less than 6 percent on the money they did not pay out.

The defendants' claim that the plaintiff's interest claim is res judicata is without merit because the record does not reveal that the defendants timely asserted the doctrine. Res judicata is an affirmative defense that must be pleaded. Nikitiuk v. Pishtey, 153 Conn. 545, 553, 219 A.2d 225 (1966); Gaer Bros., Inc. v. Mott, 144 Conn. 303, 310, 130 A.2d 804 (1957). It appears from the record that the defendants raise it for the first time in this

                court, when it should have been raised in the trial court.   On remand, if the plaintiff is awarded interest it would be on the findings and awards made as a result of the February 1, 1988 hearing and not the September 18, 1986 hearing.   The commissioner must exercise his discretion relative to the second provision of the statute
                

II MEDICAL PAYMENTS

If the defendants had not contested the plaintiff's claims, they would have been responsible for the immediate payment of the plaintiff's medical expenses. General Statutes § 31-294. When the defendants contested the plaintiff's compensation claim, however, the plaintiff's group medical insurance provider, pursuant to General Statutes § 38-174n, was obligated to pay his medical expenses. The plaintiff's private health carrier paid $175,521.43 on his behalf.

Prior to the effective date of General Statutes § 38-174n, ¹ October 1, 1981, the private health carrier had no right to file a lien on workers' compensation awards for reimbursement for benefits or services furnished and our Supreme Court, in Grogan v. New Britain, 175 Conn. 174, 181-82, 397 A.2d 97 (1978), has concluded that, absent a statute, an employer is not entitled to a deduction or a setoff. Thereafter, however, that statute was amended to provide that any insurer that furnished benefits or services to a person suffering an injury or illness covered by workers' compensation could place a lien on the proceeds of any compensation award to the extent of benefits paid for the effects of the injury or illness arising out of and in the course of employment as a result of a controverted claim.

It is undisputed that the plaintiff's private insurance carrier has not, from October 1, 1981, until the present ever filed a lien. The plaintiff makes three arguments why the defendant has no right to withhold the payment of the $175,521.43. First, the injury took place on June 7, 1979, and the law giving the private health insurer carrier a lien was not effective until October 1, 1981, and operated prospectively, not retrospectively. Second, the defendants' obligation to pay the plaintiff's medical bills did not change in the absence of a lien. The lien is for the benefit of the private health insurance carrier and not the employer or his workers' compensation insurance carrier. Third, since no appeal was effectuated on the issue of compensability from the September 11, 1986 finding and award, and since the issue was not reopened at the February 1, 1988 hearing, the judgment of the commissioner is final and the plaintiff is entitled to have his medical bills paid by the defendants.

The defendants, on the other hand, argue that if they pay ...