Kinsey v. World Pac ( 2014 )

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JEROME KINSEY v. WORLD PAC ET AL.
(AC 36159)
Lavine, Keller and Sullivan, Js.
Argued April 21—officially released August 12, 2014
(Appeal from workers’ compensation review board.)
Alan Scott Pickel, for the appellant (petitioner).
Colette S. Griffin, for the appellees (respondents).
Opinion
SULLIVAN, J. The petitioner, Jerome Kinsey, appeals
from a decision rendered by the Workers’ Compensa-
tion Review Board (board) affirming the decision of
the Workers’ Compensation Commissioner (commis-
sioner) ordering the respondents, World PAC and ACE
USA, to pay past due benefits and attorney’s fees. On
appeal, the petitioner claims that the board erred in
affirming the commissioner’s conclusions that (1) attor-
ney’s fees awarded pursuant to General Statutes §§ 31-
300 and 31-327 (b) cannot include paralegal fees, (2)
the respondents could not be sanctioned pursuant to
General Statutes § 31-288 due to insufficient notice, (3)
attorney’s fees should not be awarded for time
expended pursuing sanctions, and (4) the commission-
er’s knowledge of settlement negotiations did not neces-
sitate recusal. Because we agree with the petitioner’s
first claim, we reverse the board’s decision in part and
remand the case for further proceedings as to paralegal
fees. We affirm the board’s decision in all other respects.
An examination of the board’s record reveals the
following relevant facts. In 2000, the petitioner was
injured during the course of his employment with World
PAC. Since then, the petitioner has been receiving tem-
porary total disability payments. Since 2005, the peti-
tioner has been entitled to cost of living adjustment
(COLA) payments.
On December 5, 2011, the petitioner requested an
informal hearing before the commissioner for benefits,
sanctions, interest, and attorney’s fees, as a result of
the respondent’s discontinuance of payments without
warning and failure to provide a series of COLA adjust-
ments. This request was triggered by the respondents’
failure to adjust his weekly benefit checks to include
the necessary COLA of $7.26 since October, 2011. Also,
on November 6, 2011, the petitioner had received his
weekly benefit check, and then the payments had
stopped for approximately four weeks. The respon-
dents had not filed a form 36 advising the petitioner
that they were discontinuing payments or that COLA
would not be provided. On December 8, 2011—a date
after the petitioner’s request for an informal hearing
before the commissioner—the petitioner received a
check for the time period of November 9, 2011 to
December 6, 2011. The petitioner did not receive any
COLA adjustments until December 13, 2011, which was
a period of seventy-three days from when they were
due.
Evidence submitted before the commissioner indi-
cated that these stoppages were not the first time that
the respondents had failed to timely provide the peti-
tioner with his benefits. For example, on June 22, 2007,
the petitioner received a check for $6000 as compensa-
tion for benefits owed for the time period of October
1, 2006 through June 5, 2007. On April 2, 2008, the
petitioner received a check for $1448.60 as compensa-
tion for benefits owed for the time period of February
27, 2008 through April 1, 2008.
Although all past due benefits were paid by December
13, 2011, an informal hearing before the commissioner
was held on December 27, 2011, at which the respon-
dents’ counsel offered the petitioner $1000 to settle his
claim for attorney’s fees and sanctions. Counsel for the
petitioner declined the offer and pressed for $1500. On
January 5, 2012, the petitioner requested a preformal
hearing for benefits, sanctions, improper discontinu-
ance of benefits, interest, and attorney’s fees. On Janu-
ary 18, 2012, counsel for the petitioner received a check
dated January 10, 2012, in the amount of $1500. The
check for $1500 did not dissuade the petitioner from
his pursuit of sanctions, and on February 17, 2012, the
petitioner requested a formal hearing for an ‘‘award of
sanctions, interest and attorney’s fees for undue delay.’’
A formal hearing was held before the commissioner
for sanctions, interest and attorney’s fees pursuant to
§ 31-300 on March 12, 2012. Counsel for the petitioner
sought $23,118.75 in sanctions and attorney’s fees, plus
interest. On September 21, 2012, the commissioner, in
a written decision, ordered the respondents to pay the
petitioner the sum of $26.96 as and for interest on
unpaid temporary total disability benefits and unpaid
COLA increases, and to pay the petitioner’s attorney
the sum of $525 as and for a reasonable attorney’s fee
in connection with his preparation and attendance at
the December 27, 2011 preformal hearing.
The commissioner made the following factual find-
ings in regard to attorney’s fees that are relevant to this
appeal. The commissioner determined $350 an hour to
be a reasonable rate due to the ‘‘facile nature of the
matter . . . .’’ The commissioner found that the
respondents failed to provide requisite notice as to their
discontinuance of COLA benefits, and failed to make
this adjustment for a seventy-three day period, but that
the petitioner’s counsel had expended no time in the
pursuit of these arrearages; rather, all work performed
in pursuit of the petitioner’s benefits was performed by
counsel’s paralegal. The commissioner determined that
‘‘[t]here is no statutory authority for an award of parale-
gal fees or charges’’ and that the facts did not support
compensating attorney’s fees accrued subsequent to the
informal hearing. The petitioner’s counsel, specifically,
had expended only 1.5 hours of time in preparation
for the informal hearing. The commissioner determined
that, accordingly, the respondents’ offer at the informal
hearing of $1000 to resolve the issue was reasonable
to compensate counsel for his efforts, and that the
demand of the petitioner’s counsel of $1500 was unrea-
sonable.
The petitioner appealed to the board from the com-
missioner’s decision, pursuant to General Statutes § 31-
301. On September 17, 2013, the board, in a written
decision, determined that the commissioner’s findings
were supported by evidence in the record and were a
proper exercise of her discretion. The board determined
that it was not persuaded that there was any legal error.
The petitioner timely appealed to this court from the
board’s decision, pursuant to General Statutes § 31-
301b. Additional details of the findings and determina-
tions of the commissioner and the board will be pre-
sented as necessary.
We set forth the relevant standards of review before
turning to the specific claims raised by the petitioner.
‘‘A party aggrieved by a commissioner’s decision to
grant or deny an award may appeal to the board . . . .
The board is obliged to hear the appeal on the record
and not retry the facts. . . . [T]he power and duty of
determining the facts rests on the commissioner, the
trier of facts. . . . The conclusions drawn by him from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them. . . . Our scope of review of the actions of
the board is similarly limited. . . . The role of this
court is to determine whether the . . . [board’s] deci-
sion results from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them.’’ (Internal quotation
marks omitted.) McFarland v. Dept. of Developmental
Services, 115 Conn. App. 306, 310–11, 971 A.2d 853,
cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).
I
The petitioner first claims that the board erred in
affirming the commissioner’s determination that she
lacked the statutory authority to award paralegal fees.
Specifically, the petitioner asserts that the commis-
sioner may award paralegal fees pursuant to her author-
ity to award ‘‘reasonable attorney’s fees’’ at her
discretion under §§ 31-300 and 31-327 (b). We agree
with the petitioner.
The following additional facts are relevant to this
claim. The board concluded that the commissioner’s
determination that ‘‘[t]here is no statutory authority for
an award of paralegal fees or charges’’ was reasonable,
and that her decision not to award paralegal fees was
a proper exercise of her discretion. In reaching this
decision, the board stated: ‘‘We find that the provisions
of § 31-327 . . . make the determination of what is a
reasonable legal fee within the discretion of the trial
commissioner. . . . [The petitioner’s] counsel cites
Connecticut cases not involving [Workers’ Compensa-
tion Commission (commission) matters] where judicial
awards have included [paralegal fees as an] element of
relief. This is unpersuasive, as none of these cases
involve sanctions under [the Workers’ Compensation
Act (act), General Statutes § 31-275 et seq.], and appel-
late precedent supports the discretion of a trial judge
in determining sanctions. Moreover, the statute herein,
§ 31-327 . . . discusses the award of fees for ‘attor-
neys.’ While this statute does allow for fees to poten-
tially be approved for ‘other persons;’ we also note that
the statute utilized by the commissioner in this case,
§ 31-300 . . . calls for ‘a reasonable attorney’s fee’ to
be awarded when payments are unduly delayed. Our
decision in Heilweil v. Board of Education, No. 5161,
CRB 8-06-11 (October 24, 2007), is instructive on this
issue. In Heilweil, we reversed the award of a witness
fee to a vocational expert, as such individuals were not
among those enumerated under General Statutes § 31-
298 as entitled to a witness fees. We find paralegals are
not among the professionals enumerated under [§§] 31-
300 . . . or 31-327 . . . who may receive fees as a
component of sanctions against a respondent.’’ The
board determined that, accordingly, the commissioner’s
decision to not compensate counsel for the time that
his paralegal spent pursuing the petitioner’s benefits
was not reversible error.
The issue presented requires us to determine whether
paralegal fees can be awarded under §§ 31-300 and 31-
327 (b). ‘‘It is well established that [a]lthough not dispos-
itive, we accord great weight to the construction given
to the workers’ compensation statutes by the commis-
sioner and [the] board. . . . A state agency is not enti-
tled, however, to special deference when its
determination of a question of law has not previously
been subject to judicial scrutiny. . . . [W]hen . . . [a
workers’ compensation] appeal involves an issue of
statutory construction that has not yet been subjected
to judicial scrutiny, this court has plenary power to
review the administrative decision.’’ (Internal quotation
marks omitted.) Kuehl v. Z-Loda Systems Engineering,
Inc., 265 Conn. 525, 532, 829 A.2d 818 (2003). Neither
party now contends that the board’s determination of
this question of law has been previously subject to
judicial scrutiny, or that its interpretation of the statute
is time-tested. Accordingly, we exercise plenary review
over this claim. See, e.g., Schiano v. Bliss Exterminat-
ing Co., 260 Conn. 21, 33–34, 792 A.2d 835 (2002).
Our analysis of this claim is guided by our well estab-
lished principles of statutory construction. ‘‘When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case . . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .
‘‘Moreover, [i]n applying these general principles, we
are mindful that the [act] indisputably is a remedial
statute that should be construed generously to accom-
plish its purpose. . . . The humanitarian and remedial
purposes of the act counsel against an overly narrow
construction that unduly limits eligibility for workers’
compensation. . . . Accordingly, [i]n construing work-
ers’ compensation law, we must resolve statutory ambi-
guities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes.’’ (Footnote omitted; internal quotation
marks omitted.) Vincent v. New Haven, 285 Conn. 778,
784–85, 941 A.2d 932 (2008).
Our analysis begins with the language of the relevant
provisions. Section 31-300 provides in relevant part:
‘‘In cases where, through the fault or neglect of the
employer or insurer, adjustments of compensation have
been unduly delayed, or where through such fault or
neglect, payments have been unduly delayed, the com-
missioner may include in the award interest at the rate
prescribed in section 37-3a and a reasonable attorney’s
fee in the case of undue delay in adjustments of compen-
sation and may include in the award in the case of
undue delay in payments of compensation, interest at
twelve per cent per annum and a reasonable attorney’s
fee. . . .’’ Also relevant to this claim is § 31-327 (b),
which provides: ‘‘All fees of attorneys, physicians, podi-
atrists or other persons for services under this chapter
shall be subject to the approval of the commissioner.’’
The petitioner asserts that the plain and unambiguous
meaning of ‘‘reasonable attorney’s fees’’ in § 31-300
includes fees accrued by an attorney’s paralegal. The
petitioner contends that the term is plain and unambigu-
ous because, in accordance with General Statutes § 1-
1 (a),1 it is a term of art that has ‘‘ ‘acquired a peculiar
and appropriate meaning in the law’ . . . .’’ Specifi-
cally, the petitioner argues that ‘‘inherent in the defini-
tion’’ of ‘‘reasonable attorney’s fee’’ are those fees that
arise ‘‘from [the] work of nonattorneys supervised by
attorneys,’’ and here, that would encompass the work
performed by the paralegal for the petitioner’s counsel.
We agree.
The term ‘‘reasonable attorney’s fee’’ is not defined
in the act.2 ‘‘Although [the act] does not itself define
the phrase, such silence does not necessarily equate to
ambiguity. See Mayfield v. Goshen Volunteer Fire Co.,
301 Conn. 739, 745, 22 A.3d 1251 (2011). ‘The test to
determine ambiguity is whether the statute, when read
in context, is susceptible to more than one reasonable
interpretation.’ . . . Francis v. Fonfara, [303 Conn.
292, 297, 33 A.3d 185 (2012)]. In the absence of express
statutory guidance, we must inquire whether the phrase
is a legal term of art that has ‘acquired a peculiar and
appropriate meaning in the law’ requiring it to ‘be con-
strued and understood accordingly.’ General Statutes
§ 1-1 (a). ‘[L]egal terms . . . absent any legislative
intent shown to the contrary, are to be presumed to be
used in their legal sense. . . . Words with a fixed legal
or judicially settled meaning must be presumed to have
been used in that sense. . . . In ascertaining legislative
intent [r]ather than using terms in their everyday sense,
[t]he law uses familiar legal expressions in their familiar
legal sense.’ . . . State v. Dupigney, 295 Conn. 50, 59,
988 A.2d 851 (2010).’’ Patino v. Birken Mfg. Co., 304
Conn. 679, 689, 41 A.3d 1013 (2012).
We agree with the petitioner that the term ‘‘reason-
able attorney’s fees’’ has acquired a judicially settled
meaning that includes fees accrued by an attorney’s
paralegal to aid the attorney in the representation of
his client. ‘‘Reasonable’’ is defined as ‘‘[f]air, proper, or
moderate under the circumstances. Fit and appropriate
to the end in view.’’ Black’s Law Dictionary (9th Ed.
2009). ‘‘Attorney fees’’ is defined as ‘‘[t]he charge to a
client for services performed for the client . . . .’’ Id.Accordingly, a strict interpretation of ‘‘reasonable attor-
ney’s fee’’ would be a fair and moderate charge under
the circumstances to a client for services performed.
Courts presume that a fair and just charge for services
performed may include those fees accrued by the attor-
ney’s paralegal in the service of the client. ‘‘It has fre-
quently been recognized . . . that paralegals are
capable of carrying out many tasks, under the supervi-
sion of an attorney, that might otherwise be performed
by a lawyer and billed at a higher rate.’’ Missouri v.
Jenkins, 491 U.S. 274, 288 n.10, 109 S. Ct. 2463, 109 L. Ed.
2d 31 (1989). As detailed by the United States Supreme
Court in Missouri, when reviewing an award of attor-
ney’s fees under 42 U.S.C. § 1988 (b), which, like § 31-
300, provides simply for ‘‘a reasonable attorney’s fee
as part of the costs’’: ‘‘Clearly, a ‘reasonable attorney’s
fee’ cannot have been meant to compensate only work
performed personally by members of the bar. Rather,
the term must refer to a reasonable fee for the work
product of an attorney. Thus, the fee must take into
account the work not only of attorneys, but also of
secretaries . . . and others whose labor contributes to
the work product for which an attorney bills her client;
and it must also take account of other expenses and
profit. The parties have suggested no reason why the
work of paralegals should not be similarly compen-
sated, nor can we think of any. We thus take as our
starting point the self-evident proposition that the ‘rea-
sonable attorney’s fee’ provided for by statute should
compensate the work of paralegals, as well as that of
attorneys.’’ Id., 285.
Our own Supreme Court extended the presumption
that a reasonable attorney’s fee may include the work
of nonattorneys when it considered the term reasonable
attorney’s fee in another statute within the act. Namely,
in Sorrentino v. All Seasons Services, Inc., 245 Conn.
756, 774–76, 717 A.2d 150 (1998), our Supreme Court
reviewed an award of attorney’s fees issued pursuant
to General Statutes § 31-290a (b) (1),3 which, as is the
case with the discretion granted to the commissioner
in § 31-300, directs a trial court to award ‘‘reasonable
attorney’s fees’’ to employees who prevail in civil
actions for discriminatory or retaliatory discharge as a
result of having filed a workers’ compensation claim.
In Sorrentino, the trial court had sua sponte departed
from the terms of the fee agreement between the plain-
tiff and his counsel, not on the ground that it was an
unreasonable agreement, but instead on the ground that
‘‘a downward modification was justified by the billing
records, which described work performed by nonattor-
neys . . . .’’ Sorrentino v. All Seasons Services, Inc.,
supra, 776. On appeal, our Supreme Court determined
that ‘‘[i]t is not unreasonable per se for attorneys to
engage and to bill clients for services rendered by non-
lawyers’’ and, accordingly, that the trial court’s depar-
ture from the terms of a reasonable fee agreement was
an abuse of its discretion.4 Id.
Here, the commissioner awarded the attorney’s fees
pursuant to § 31-300 and at her discretion pursuant to
§ 31-327. An interpretation of § 31-300 that permits para-
legal fees to be included within the term ‘‘reasonable
attorney’s fees’’ is in harmony with § 31-327 (b), which
grants the commissioner the discretion to award ‘‘[a]ll
fees of attorneys . . . or other persons for services
under this chapter . . . .’’5
We conclude that an award of ‘‘reasonable attorney’s
fees’’ issued pursuant to §§ 31-300 and 31-327 (b) may,
at the discretion of the commissioner, include fees
accrued by paralegals. Accordingly, the commissioner’s
determination that she was without the statutory
authority to award such fees was improper.
II
Second, the petitioner claims that the board erred in
upholding the commissioner’s conclusion that sanc-
tions pursuant to § 31-288 could not be entered against
the respondents due to lack of notice.6 Specifically, the
petitioner asserts that the respondents received proper
notice. We are not persuaded.
A review of the record indicates that the petitioner
requested an informal hearing for ‘‘[benefits], sanctions,
improper discontinuance of [benefits], interest [and]
attorney’s fees.’’ The petitioner later requested a formal
hearing for an ‘‘award of sanctions, interest and attor-
ney’s fees for undue delay.’’ Thereafter, the hearing
notice issued by the commissioner listed the issue of
the formal hearing to be ‘‘[§] 31-300: Award of Interest
and Attorney’s Fees for Undue Delay.’’ The commis-
sioner issued a corrected notice on February 21, 2012,
which again detailed the issue of the hearing to be
‘‘[§] 31-300—Award of Interest and Attorney’s Fees for
Undue Delay,’’ but listed at the bottom that it was cor-
rected to include ‘‘sanctions.’’ There is no mention of
§ 31-288 in any of the notices.
At the center of this issue is the petitioner’s failure
to list explicitly on his requests for hearings that he
was pursuing § 31-288 sanctions. With respect to this
omission, the commissioner concluded: ‘‘[The respon-
dents] object to any penalties being levied under the
provisions of [§] 31-288 on the grounds that [the peti-
tioner’s] counsel had not raised the issue of [§ 31-288]
penalties prior to the March 12, 2012 formal hearing or
during the course of the formal hearing. . . . Despite
[the petitioner’s] request for sanctions under [§] 31-
288, the preformal and formal hearing notices herein
establish [that] the only issue before the commission
is sanctions under [§] 31-300. No attempt was made by
[the petitioner’s] counsel to amend either the preformal
hearing notice (sent out two weeks prior to the [Febru-
ary 2, 2012] hearing) or the formal hearing notice (sent
out seven weeks prior to the [March 12, 2012] hearing)
to include the issue of [§ 31-288] sanctions. Accordingly,
the sanctions awarded herein are necessarily confined
to [§] 31-300.’’ (Citation omitted.) The board affirmed
this finding, determining: ‘‘While a trial commissioner
may determine that during the course of a hearing a
previously unnoticed issue is suitable for adjudication
. . . the commissioner is under no obligation to do so.
The trial commissioner concluded that the notices and
correspondence prior to the formal hearing did not
reference § 31-288 . . . . We also find that unlike Vali-
ante [v. Burns Construction Co., No. 5393, CRB 4-08-
11 (October 15, 2009)], the trial commissioner did not
put the parties on notice at the opening of the formal
hearing that this issue was under consideration. There-
fore, we find no error from the trial commissioner[’s]
not awarding the claimant sanctions pursuant to § 31-
288 . . . .’’ (Citation omitted.)
‘‘It is fundamental in proper judicial administration
that no matter shall be decided unless the parties have
fair notice that it will be presented in sufficient time
to prepare themselves upon the issue.’’ Osterlund v.
State, 129 Conn. 591, 596, 30 A.2d 393 (1943). ‘‘[D]ue
process [in the administrative hearing context] requires
that the notice given must . . . fairly indicate the legal
theory under which such facts are claimed to constitute
a violation of the law. . . . [T]he fundamental reason
for the requirement of notice is to advise all affected
parties of their opportunity to be heard and to be
apprised of the relief sought. . . . [N]otice of a hearing
is not required to contain an accurate forecast of the
precise action which will be taken on the subject matter
referred to in the notice. It is adequate if it fairly and
sufficiently apprises those who may be affected of the
nature and character of the action proposed, so as to
make possible intelligent preparation for participation
in the hearing . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) Goldstar Medical Services, Inc.
v. Dept. of Social Services, 288 Conn. 790, 823–24, 955
A.2d 15 (2008).
‘‘However, since [the] commission is not bound by
strict pleading rules . . . a party may be apprised that
a given claim is at issue by other means, such as the
statements of parties at trial, the evidence they have
introduced, or the papers they have filed. . . . Such
flexibility is essential to an informal system that seeks
to honor the requirements of due process while avoiding
the presentation of cases in piecemeal fashion, where
possible, and the undue prolongation of proceedings.
. . . Still, freedom and flexibility need not be indepen-
dent of some sort of structure. To that end, the parties
involved in a formal hearing should recognize the impor-
tance of taking the time at the outset of the hearing to
articulate the issues they wish to address during the
proceedings. Such an eye for detail will better serve
them, as confusion and uncertainty will be less likely
to arise.’’ (Citations omitted.) Mosman v. Sikorsky Air-
craft Corp., No. 4180, CRB 4-00-1 (March 1, 2001); see
also 4 A. Sevarino, Connecticut Workers’ Compensation
After Reforms (J. Passaretti ed., 5th Ed. 2012) § 10.02,
p. 1234, and § 10.19.1, pp. 1263–67.
The petitioner asserts that the board’s decision is
incorrect because, first, the statutory basis of the hear-
ing is not required to be listed in the hearing notice,
and second, the respondents had actual notice that he
was pursuing § 31-288 sanctions and, thus, they suffered
no prejudice from his failure to ensure that § 31-288
was listed on the commissioner’s hearing notices. Spe-
cifically, the petitioner asserts that the commissioner’s
decision was a misapplication of the law, ‘‘as there is
no statutory or regulatory rule asserting such a narrow,
hypertechnical requirement as a prerequisite to exercis-
ing discretion as a commissioner.’’ Further, the peti-
tioner asserts that the respondents had actual notice
that he was pursuing sanctions because: (1) his request
for a formal hearing stated the issue to be an ‘‘award
of sanctions, interest, and attorney’s fees for undue
delay,’’ and only § 31-288 refers to the fees stemming
from unduly delayed payments or other sanctionable
behavior as penalties or sanctions; (2) the commis-
sioner listed the issue of ‘‘sanctions’’ as a separate issue
by placing it under the ‘‘special instructions’’ section
at the bottom of the notice; (3) he announced at the
beginning of the formal hearing that he was pursuing
sanctions ‘‘under all applicable statutes’’; and (4) during
settlement discussions, the respondents offered to pay
attorney’s fees in exchange for his not pursuing sanc-
tions or additional attorney’s fees. We are not per-
suaded.
A review of the record supports the commissioner’s
finding that the respondents did not receive notice that
the petitioner was pursuing sanctions under § 31-288.
First, a plain reading of the amended notice indicated
that the issue would be sanctions pursuant to § 31-
300. Second, counsel for the respondents stated at the
beginning of the formal hearing that she was ‘‘unclear
as to when an attorney says ‘or all sanctions under the
statute,’’ and counsel for the petitioner failed to specify
in response, or at any point of that hearing, that § 31-
288 was the statutory foundation for the petitioner’s
pursuit of sanctions. Third, a review of the transcript
of the formal hearing indicates that the commissioner
never stated that § 31-288 sanctions were an issue to
be addressed. Finally, if the respondents were aware
that § 31-288 sanctions were at issue because of conver-
sations during settlement negotiations, that is not sup-
ported by the record before this court. ‘‘Because we
are required to afford great deference to the commis-
sioner’s conclusion . . . we must interpret [the com-
missioner’s finding] with the goal of sustaining that
conclusion in light of all of the other supporting evi-
dence.’’ (Internal quotation marks omitted.) Weiss v.
Chesebrough-Ponds USA Co., 51 Conn. App. 106, 110,
719 A.2d 1225 (1998). The commissioner’s conclusion
is sustainable by the underlying facts in this case, and
we decline to disturb her conclusion.
III
Third, the petitioner claims that the board erred in
affirming the commissioner’s decision to not award
attorney’s fees for time spent by his counsel in the
pursuit of sanctions against the respondents. We are
not persuaded.
The following additional facts are relevant to our
disposition of this claim. The commissioner found that
her ‘‘inability to award sanctions against the respon-
dents under the provisions of § 31-288 should not be
construed by the respondents as an affirmation of their
conduct in this case or, for the past instances of unilat-
eral cessation of the payment of benefits to the claimant.
. . . That a pattern and practice exists in this regard
makes their conduct even more offensive. Said conduct
is not in compliance with either the spirit or letter of
the workers’ compensation law in this state. Had [§] 31-
288 been duly noticed for the formal hearing, sanctions
would have been levied to the fullest extent possible
by the undersigned trial commissioner.’’
Nonetheless, the commissioner declined to award
attorney’s fees for counsel’s futile pursuit of sanctions.
Instead, the commissioner found that compensation of
attorney’s fees accrued after the date of the informal
hearing was unreasonable under the circumstances.
Specifically, the commissioner found: ‘‘[Counsel’s affi-
davit] shows only 1.5 hours of time invested by [the
petitioner’s] counsel for the period subsequent to the
retirement of the debt [December 13, 2011] and the date
of the first hearing thereafter [December 27, 2011]. Even
at counsel’s $495 hourly rate, his fee would have
amounted to $742.50; with the addition of the outstand-
ing $26.96 interest, [the petitioner’s] total claim for the
December 27, 2011 hearing should not have exceeded
$796.46. Accordingly, the respondents’ December 27,
2011 offer of $1000 to settle the dispute was beyond
fair and reasonable. Counsel’s insistence on payment
of $1500, with full knowledge that he only had 1.5 hours
invested in the case was, therefore, unreasonable. For
this reason, I decline to award attorney’s fees for any
time invested by [the petitioner’s] counsel after the
December 27, 2011 informal hearing. The [act] simply
does not provide any statutory authority upon which
to base an award of attorney’s fees for an attorney’s
effort to collect a fee he had not earned.’’ The board
affirmed this ruling as a proper exercise of the commis-
sioner’s discretion.
We begin by noting that the commissioner did not
conclude that she lacked the statutory authority to
award attorney’s fees for counsel’s pursuit of sanctions
under §§ 31-288 or 31-300; instead, her decision was
that, under the circumstances of this case, she consid-
ered such an award to be unreasonable, and exercised
her discretion accordingly. The petitioner now con-
tends that this exercise of her discretion was nonethe-
less legally unsound because, as asserted by the
petitioner, ‘‘[t]he correct interpretation of the statutes
at play, §§ 31-300 and 31-288, is that if a commissioner
finds, in her discretion, that attorney’s fees are war-
ranted, she must award them based on the time spent
pursuing all successful legal remedies, including those
promulgated by the legislature for deterrence purposes.
She may not arbitrarily provide a cutoff time after which
no attorney’s fees may be awarded without any legal
or factual basis to do so.’’ (Emphasis in original.) To
support these assertions, the petitioner notes that the
‘‘principles of statutory construction . . . require us to
construe a statute in a manner that will not thwart its
intended purpose or lead to absurd results’’; (internal
quotation marks omitted) Coppola v. Coppola, 243
Conn. 657, 665, 707 A.2d 281 (1998); and asserts that
the commissioner’s findings and award, accordingly,
are statutorily improper because their effect is to
remove a petitioner’s incentive to pursue sanctions for
repeated violations, in effect nullifying §§ 31-300 and
31-288. The respondents counter the petitioner’s policy
concerns; specifically, the respondents assert that an
award of attorney’s fees under the circumstances of
this case would be ‘‘tantamount to penalizing [the defen-
dants] for their rapid correction of all issues relating
to the delayed payments’’ and ‘‘would likewise result
in deterring employers from quickly remedying out-
standing payments owed injured workers . . . as there
would be no benefit to doing so.’’
‘‘The decision to award attorney’s fees is within the
commissioner’s discretion and dependent on the find-
ings of fact.’’ McFarland v. Dept. of Developmental Ser-
vices, supra, 115 Conn. App. 323. Contrary to the
petitioner’s assertion, the commissioner has the discre-
tion to award attorney’s fees pursuant to § 31-327, and
neither § 31-300 nor § 31-288 removes that discretion.
The petitioner’s appeal to policy is unavailing, as ‘‘[t]he
role of this court is to determine whether the . . .
[board’s] decision results from an incorrect application
of the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them.’’ (Internal
quotation marks omitted.) Id., 311. The petitioner has
failed to establish that the commissioner’s exercise of
discretion was an improper application of the relevant
statutes to the facts of this case; rather, the petitioner
asserts that this court should remove the commission-
er’s discretion in all circumstances such as this, and that
this court cannot do. Accordingly, the board properly
affirmed the commissioner’s exercise of her discretion.
IV
As his final claim, the petitioner asserts that the board
erred in deciding that the commissioner was not
required to recuse herself from adjudicating the formal
hearing. Specifically, the petitioner asserts that,
because the commissioner was aware of the contents of
settlement discussions, her adjudication of the formal
hearing violated due process. We are not persuaded.
The following additional facts are relevant to this
claim. During the formal hearing, the parties raised the
issue of settlement offers that were discussed at the
informal hearing, and the commissioner admitted as
evidence a letter from the petitioner’s counsel to the
respondents’ counsel acknowledging receipt of a check
for $1500. In her written decision, the commissioner
noted that at the formal hearing the petitioner’s counsel
had questioned whether the settlement offers should
have been raised as an issue in regard to the consider-
ation of a fine under § 31-300, and that counsel had
requested that a new hearing be held on this issue at
which the terms of prior settlement negotiations would
not be considered as evidence. The commissioner deter-
mined that counsel’s ‘‘request for a new trial is unwar-
ranted, as the matter at hand did not involve ‘settlement
demands and counteroffers’ in connection with the res-
olution of the case-in-chief. . . . The [petitioner’s]
interlocutory request for sanctions by way of attorney’s
fees and interest under [§] 31-300 involved a ministerial
function of the commissioner applying workers’ com-
pensation statutes, reviewing the commission’s file,
respondents’ payment history, the [petitioner’s] attor-
ney’s affidavit and attached statement for services, and
the [petitioner’s] testimony regarding the chronology
of the payment history.’’
The board affirmed the commissioner’s decision,
determining that it was not an abuse of the commission-
er’s discretion to admit the evidence of settlement dis-
cussions because ‘‘it was certainly relevant as to
whether the respondents had offered to pay sanctions
at a certain date’’ and that such evidence ‘‘would either
support or challenge whether [the petitioner’s] counsel
should be compensated for work performed after that
date seeking to obtain such an award.’’ Further, the
board determined that the commissioner properly did
not recuse herself, because, first, ‘‘the recusal of trial
commissioners has been disfavored except for circum-
stances under which a trial commissioner determined
on his or her own that [his or her] impartiality was at
issue’’; (internal quotation marks omitted) Martinez-
McCord v. State/Judicial Branch, No. 5647, CRB 7-11-
4 (August 1, 2012); and here, the record lacked any
indication that the commissioner held any bias or favor-
itism toward any party. Second, the board distinguished
Jutkowitz v. Dept. of Health Services, 220 Conn. 86,
96–98, 596 A.2d 374 (1991), relied upon by the petitioner
for its holding that it is improper for administrative
boards to consider settlement offers in their delibera-
tions. As argued by the respondents, and agreed upon
by the board, Jutkowitz is distinguishable from this
case, as Jutkowitz concerned a reference to settlement
negotiations by the administrative agency’s counsel dur-
ing his case-in-chief, whereas the present dispute is
interlocutory in nature and does not impact the substan-
tive rights of the petitioner to benefits.
The petitioner now asserts that the board’s determi-
nation was incorrect, once again relying on Jutkowitz
v. Dept. of Health Services, supra, 220 Conn. 96–98.
Specifically, the petitioner asserts that, as in Jutkowitz
v. Dept. of Health Services, supra, 97–98, where the
court found that merely mentioning that a settlement
offer had been made, but not specifying its terms, was
improper, here, the petitioner states that ‘‘the commis-
sioner specifically cited to and used evidence of settle-
ment discussions in determining the award of attorney’s
fees . . . .’’ (Emphasis omitted.)
The petitioner’s argument is unavailing. The ‘‘settle-
ment’’ that the petitioner refers to were attempts to
resolve the issue of penalties and attorney’s fees, as all
past due arrearages had been paid by the time of the
discussions at issue. The petitioner does not challenge
the board’s determination that the evidence was rele-
vant and admissible as to the issue of the amount of
sanctions and attorney’s fees to be awarded pursuant
to § 31-300; see 1 A. Sevarino, Connecticut Workers’
Compensation After Reforms (J. Passaretti ed., 5th Ed.
2012) § 3.14.7, p. 206 (‘‘Normally, settlement negotia-
tions have no bearing on the merits of a claim. However,
where the pending issue is whether an insurer unduly
delayed the payment of benefits evidence of good faith
efforts to reach a compromise may be considered rele-
vant.’’), citing Melendez v. Valley Metallurgical, No.
4178, CRB 2-00-1 (May 1, 2001), appeal dismissed, AC
23921 (May 14, 2003), cert. denied, 266 Conn. 904, 832
A.2d 64 (2003); and we are not persuaded that the com-
missioner should nevertheless have recused herself
because the petitioner has cited no evidence of bias or
favoritism exhibited by the commissioner as a result
of her awareness of the contents of the settlement dis-
cussions, and the record discloses none.
Furthermore, we are not persuaded that the board’s
unwillingness to rely on Jutkowitz v. Dept. of Health
Services, supra, 220 Conn. 86, was the result of ‘‘an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them.’’ (Internal quotation marks omitted.) McFar-
land v. Dept. of Developmental Services, supra, 115
Conn. App. 311. Accordingly, we decline to disturb the
board’s determination as to this claim.
The decision of the Workers’ Compensation Review
Board is reversed only as to the issue of an award of
paralegal fees and the case is remanded to the board
with direction to reverse the decision of the commis-
sioner as to that issue only and to order further proceed-
ings in accordance with law. The decision of the board
is affirmed in all other respects.
In this opinion the other judges concurred.
1
General Statutes § 1-1 (a) provides: ‘‘In the construction of the statutes,
words and phrases shall be construed according to the commonly approved
usage of the language; and technical words and phrases, and such as have
acquired a peculiar and appropriate meaning in the law, shall be construed
and understood accordingly.’’
2
The act also does not provide a definition for ‘‘attorney’s fee,’’ ‘‘attorney’’
or ‘‘fee.’’
3
General Statutes § 31-290a (b) (1) provides in relevant part: ‘‘Any
employee who prevails in such a civil action shall be awarded reasonable
attorney’s fees and costs to be taxed by the court . . . .’’
4
We further note that this court has affirmed an award of paralegal fees
included in an award of ‘‘reasonable attorney’s fees’’ under General Statutes
§ 42-110g (d) of the Connecticut Unfair Trade Practices Act (CUTPA). See
Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 199 and n.4, 752
A.2d 1098 (2000); see also Ulbrich v. Groth, Superior Court, judicial district
of Waterbury, Complex Litigation Docket, Docket No. X06-CV-08-4016022-
S (March 22, 2011) (‘‘As recognized by the Supreme Court in [Missouri v.
Jenkins, supra, 491 U.S. 285], separately billing for the services of a paralegal
has become a widespread practice or custom in the legal community. A
blanket prohibition against the recovery of paralegal services as part of
an attorney fee award under CUTPA would place attorneys representing
prevailing CUTPA plaintiffs in a qualitatively more limited or restrictive
position than similarly situated attorneys representing plaintiffs in the mar-
ketplace. . . . [S]uch a situation is neither required by the language of
CUTPA, nor consistent with the legislative purpose of the attorney fee
provision.’’), rev’d in part on other grounds, 310 Conn. 375, 78 A.3d 76 (2013).
Also, the trial courts of Connecticut frequently include paralegal fees
within their attorney’s fees awards. See, e.g., Advanced Arms Dynamics v.
Comprehensive Prosthetic Services, Superior Court, judicial district of New
Haven, Docket No. CV-06-5004605 S (July 6, 2011) (‘‘[b]efore the court exam-
ines the Johnson [v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974)] factors it should also note that it seems to have always been assumed
that staff such as paralegals assisting counsel are part of the total cost of
litigation which can be charged against a defendant and to which the Johnson
test applies’’); Machado v. Hartford, Superior Court, judicial district of
Hartford, Docket No. CV-07-4028971 (August 5, 2009) (including paralegal
fees and copier expenses in its attorney’s fees award).
5
Furthermore, an interpretation that bars compensation for paralegals
raises serious policy concerns, because it requires attorneys to perform the
paralegal’s work at a much higher rate, or to bill the paralegal’s work at
their own higher rate. See Missouri v. Jenkins, supra, 491 U.S. 288 n.10.
An interpretation of ‘‘reasonable attorney’s fees’’ that fosters such behavior
is inapposite to ‘‘[t]he humanitarian and remedial purposes of the [act,
which] counsel against an overly narrow construction that unduly limits
eligibility for workers’ compensation. . . . [T]he purposes of the act itself
are best served by allowing the remedial legislation a reasonable sphere of
operation considering those purposes.’’ (Internal quotation marks omitted.)
Vincent v. New Haven, supra, 285 Conn. 785. Accordingly, an interpretation
of ‘‘reasonable attorney’s fees’’ that excludes fees accrued by paralegals in
the service of the claimant is absurd and unreasonable. See General Statutes
§ 1-2z. Nonetheless, ‘‘[a]lthough we recognize that the humanitarian and
remedial purposes of the act counsel against an overly narrow construction
that unduly limits eligibility for workers’ compensation . . . we are not
free to accomplish a result that is contrary to the intent of the legislature as
expressed in the act’s plain language.’’ (Citation omitted; internal quotation
marks omitted.) Barton v. Ducci Electrical Contractors, Inc., 248 Conn.
793, 807, 730 A.2d 1149 (1999). The plain language of the act, however, does
not bar the compensation of paralegals that accrue fees in the service of
the attorney for the claimant.
6
General Statutes § 31-288 (b) (1) provides in relevant part: ‘‘Whenever
through the fault or neglect of an employer or an insurer, the adjustment
or payment of compensation due under this chapter is unduly delayed, such
employer or insurer may be assessed by the commissioner hearing the claim
a civil penalty of not more than one thousand dollars for each case of delay,
to be paid to the claimant. . . .’’