DocketNumber: AC 23605
Citation Numbers: 81 Conn. App. 761
Judges: Flynn
Filed Date: 3/2/2004
Status: Precedential
Modified Date: 9/8/2022
Opinion
The defendants, the board of education of the city of Stamford and Kemper Insurance Group, appeal from the decision of the workers’ compensation review board (board) affirming the findings and award of the workers’ compensation commissioner (commissioner) in favor of the plaintiff, Frank A. Arcano, Jr.
The basic facts of this case as found by the commissioners
Commissioner Robin L. Wilson concluded in her June 7, 2000 finding and award that the plaintiffs stroke had been caused by lifting the credenzas and therefore was work related and compensable. Commissioner Wilson also determined that the plaintiffs foot ulcer was caused by his paralysis, which resulted from the stroke, and was therefore also compensable. Commissioner Wilson ordered the defendants to issue voluntary agreements accepting liability for the plaintiffs injuries, to reimburse the plaintiff for any sick or vacation time used while he was out on total disability, to pay the plaintiff temporary total and temporary partial disability
After a formal hearing was held to determine the type and amount of benefits due the plaintiff, Commissioner James J. Metro issued his finding and award on October 2, 2001. Commissioner Metro concluded that the plaintiff was totally disabled from January 14 to August 3, 1997, and from March 6, 1998, to July 12, 2001, and ordered the defendants to pay the plaintiff temporary total disability benefits owed to him for these time periods at the stipulated base compensation rate of $364.67 per week. Commissioner Metro determined that the plaintiff was entitled to statutory interest on unpaid temporary total disability benefits during these periods and was also due attorney’s fees as a result of the undue delay caused by the defendants’ lack of compliance with Commissioner Wilson’s June 7, 2000 order. He awarded attorney’s fees in the amount of $3850, i.e., 22 hours at the rate of $175 per hour. Commissioner Metro broke down the hours as follows: 9.5 hours at workers’ compensation hearings; 4 hours of office conference time; and 8.5 hours of telephone conference time. The case was then appealed to the board.
The board was presented with the primary issue that is now facing this court: Whether the commissioner had sufficient evidence on which to find that the plaintiff was totally disabled after March 6, 1998. In affirming Commissioner Metro’s finding and award, the board emphasized the deposition testimony of Vinnick, which it found sufficient to support the finding of total disability. On the matter of attorney’s fees, the board concluded that the record amply supported Commissioner Metro’s conclusion of undue delay by the defendants
At the outset, we set forth the applicable standard of review. “When the decision of a commissioner is appealed to the board, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . The commissioner has the power and duty, as the trier of fact, to determine the 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.” (Internal quotation marks omitted.) Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670, 673, 836 A.2d 1268 (2003). Although the court may not supplant its conclusions for those of the board, the court “retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Saf-ford v. Owens Brockway, 262 Conn. 526, 534, 816 A.2d 556 (2003).
I
The defendants first claim that the board acted improperly as a matter of law by affirming Commissioner Metro’s conclusion that the plaintiff was totally disabled as of March 6, 1998. The defendants rely entirely on Vinnick’s deposition testimony in support of their claim. Specifically, the defendants argue that Vinnick testified that the plaintiff was disabled after March 8,1998, only by virtue of medical conditions that pre-existed his work-related accident, namely, hypertension, congestive heart failure, diabetes and nephrotic syndrome. The defendants noted that Vinnick testified
We agree with the plaintiff that the defendants presented only the portion of Vinnick’s testimony that was favorable to their position. The defendants’ argument that the plaintiff did not suffer from any work-related disability as of March 6,1998, presupposes that the foot ulcer suffered by the plaintiff did not result from his stroke.
In addition to Vinnick’s testimony, a letter from the plaintiffs podiatrist, James Gunipero, was admitted into evidence. Gunipero wrote: “In my opinion, [the plaintiff] has been totally disabled since [March, 1998] due to the repeated ulcerations and breakdown of his left foot. ... If [the plaintiff] had stayed in his job, he would have lost his foot, his leg and possibly more.”
We conclude that sufficient evidence existed to support Commissioner Metro’s determination that the plaintiffs stroke caused or exacerbated conditions that prevented the plaintiff from working during the relevant time periods. Therefore, the board properly affirmed the findings of the commissioner on this claim.
The defendants’ next claim is that the board improperly affirmed the commissioner’s award of attorney’s fees to the plaintiff.
The defendants argue that the commissioner’s award of attorney’s fees was not detailed enough to ascertain the method of calculation used to determine the fee. The commissioner set out the award of attorney’s fees as follows: “[T]he [plaintiff] is entitled to have his attorney’s fees, i.e., twenty-two hours at the rate of $175 per hour for a total of $3850 paid to [the plaintiffs counsel]. ” The commissioner also detailed the number of hours the attorney claimed to have spent working on various tasks. There is no mystery as to how the commissioner arrived at the amount of attorney’s fees. If the commissioner had set forth the attorney’s rate and time spent,
The defendants also claim that they were denied the opportunity to cross-examine the plaintiffs counsel regarding the amount of his requested fee. In support of their argument, the defendants cite the board’s decision in Cirrito v. Resource Group Ltd. of Connecticut, 4248 CRB-1-00-6 (June 19, 2001). In Cirrito, the board remanded the matter on the issue of attorney’s fees because the denial of the defendants’ request to cross-examine the plaintiffs counsel regarding the amount of his requested fee constituted a denial of procedural due process. The board concluded that the defendants’ counsel had adequately preserved an objection for review and that the commissioner’s ruling “[cast] a shadow of doubt over whether the [defendants] were afforded a meaningful right to respond to this item of evidence, given their articulated desire to cross-examine the preparer of the document.'” (Emphasis added.) Id.
Cirrito is plainly distinguishable from the present case. The record indicates that the defendants’ counsel did not request an opportunity to cross-examine the plaintiffs counsel and also failed to object to the request for attorney’s fees. The plaintiffs contend that this lack of objection constituted a waiver of the right to cross-examine the plaintiffs counsel. We agree.
It is axiomatic that a trial court must “[afford] the parties the opportunity to present evidence and to be heard on the issue of reasonable attorney’s fees. . . . [A] party seeking attorney’s fees must satisfy the undisputed requirement that the reasonableness of attorney’s fees and costs ... be proven by an appropriate evi-dentiary showing. . . . This protects the opposing party’s right to litigate fully the reasonableness of the
In this case, we note that although the defendants are not expressly challenging the evidence produced by the plaintiffs counsel regarding his requested fees, the record reveals that the plaintiffs counsel provided to the commissioner a detailed description of the tasks he performed and the time spent on each task. The record does not indicate that defendants’ counsel in any way objected to this award or requested an opportunity to question the plaintiffs counsel on this issue. In light of the holding in Smith, we find this fact to be dispositive and will not overturn the board’s affirmation of the commissioner’s award of attorney’s fees.
The decision of the workers’ compensation review board is affirmed.
In this opinion the other judges concurred.
Frank A. Arcano, Jr., died in December, 2001. The commissioner’s subsequent order in February, 2002, directed the defendants to remit payment for benefits to the plaintiffs estate.
The issues of compensability and the amount of compensation benefits owed to the plaintiff were bifurcated, and findings were made by both Commissioner Robin L. Wilson and Commissioner James J. Metro.
The defendants emphasized Vinnick’s testimony that the ulcer had not healed until March 3, 1999. Accepting this fact as true, their argument contesting the plaintiffs disability from March, 1998, until March, 1999, would be baseless unless it could be established that the foot ulcer did not result from the stroke.
“[The Plaintiffs Counsel]: But the right hand tremors and the processing delay, would that have inhibited him from returning back to work?
“[The Witness]: Absolutely, in addition to all the other problems.
“[The Plaintiffs Counsel]: [SJtanding alone, if he had processing delays and tremors in his hand—
“[The Witness]: I don’t see how he could go back to work with changes in his mentation.
“[The Plaintiffs Counsel]: And that condition has remained the same since March 3, 1999, until the present?
“[The Witness]: If anything, it has gotten worse. He’s even more confused.”
The defendants challenge the award of attorney’s fees partly on the basis of their contention that they were not required to make temporary total disability payments to the plaintiff and that attorney’s fees were therefore inappropriate because if no benefits were owed, then no undue delay was committed. We need not address this argument for two reasons. First, the defendants were ordered to do several things in Commissioner Wilson’s finding and award on compensability, which they did not do. As they did not challenge that award, they cannot now contend that they were not obligated to perform these tasks. Second, because we have determined that the board properly affirmed the commissioner’s finding that the plaintiff was totally disabled during the contested time periods, the defendants’ argument is not valid.
The plaintiffs counsel actually requested $4068.75 in attorney’s fees and claimed to have spent 23.25 hours on this case. However, when the number of hours that the plaintiffs counsel testified to have spent on this case were calculated, they in fact equated to twenty-two hours.
“ [I] t is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . This principle applies with even greater force to an agency’s interpretation of its own duly adopted regulations. . . . When an agency has expertise in a given area and a history of determining factual and legal questions similar to those at issue, its interpretation is granted deference by the courts.” (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 138-39, 778 A.2d 7 (2001).
The chairman of the workers’ compensation commission issues fee guidelines pursuant to General Statutes § 31-280 (b) (11) (C), which directs the chairman in relevant part to “[i]ssue . . . annually . . . guidelines for the maximum fees payable by a claimant for any legal services rendered by an attorney in connection with the provisions of this chapter, which fees shall be approved in accordance with the standards established by the chairman . . . .”