Gendron v. Griffin Health Services Corporation
It is axiomatic that the decision to award sanctions in the form of penalties, interest, and attorneys' fees lies squarely within the discretion of the trial commissioner. Theresa Gendron was treated for bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome while working for the respondent, Griffin Health Services Corporation. The trial commissioner also found depression related to the compensable injuries. The claimant sought penalties for the respondent's delay in paying mileage reimbursement and certain indemnity checks and claimed an IPad, a hands-free telephone device and access to an aqua therapy pool were reasonable or necessary medical treatment and reimbursement was owing. The trial commissioner disagreed that the claimed items were reasonable or necessary medical treatment and dismissed the claim for attorneys' fees and penalties concluding that the claimant failed to meet her burden of persuasion that temporary partial disability checks or any reimbursement payments were unduly delayed. The claimant's motion to correct was denied. The claimant appealed raising numerous claims. The Compensation Review Board found the trier's conclusions regarding mileage reimbursement could not stand and otherwise affirmed the decision. The commissioner found no exhibit was introduced into evidence indicating certain mileage reimbursement claimed. However, the record demonstrated that, in fact, the claimant had submitted such documents. The board remanded the file to the commissioner for additional analysis of whether the respondent's pattern of late payment of mileage reimbursement constituted undue delay such that interest, attorneys' fees and penalties were warranted. The commissioner did not err in finding that although the respondent did not make certain timely partial temporary disability payments, the payments were not unduly delayed because the claimant did not provide job searches. The board denied the claimant's motion to submit additional evidence consisting of job searches with fax confirmation pages. The claimant failed to explain why the material could not have been provided before the record closed. The commissioner did not abuse his discretion in refusing to award penalties, interest or attorneys' fees for allegedly missing temporary partial disability checks. The respondent provided a print-out of payments and failed to comply with the commissioner's directive to produce endorsed copies of all missing checks. Limited compliance was provided.