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Ayala and Asselin & Associates v. Konover Residential Corp.

CASE NO. 1931 CRB-2-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 12, 1995

JUAN AYALA

CLAIMANT-APPELLEE

and

ASSELIN & ASSOCIATES

REPRESENTATIVE-APPELLANT

v.

KONOVER RESIDENTIAL CORP.

EMPLOYER

and

HOME INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented at oral argument, nor at the formal hearing resulting in the decision here on appeal. He was represented at prior proceedings by Robert Fitzgerald, Esq. of the appellant Asselin & Associates.

The appellant attorneys were represented by Richard E. Joaquin, Esq., Asselin & Associates, One Courthouse Square, P. O. Box 1, Willimantic, CT 06226.

The respondents were not represented at oral argument, nor at the formal hearing, from which they were excused.

This Petition for Review from the December 23, 1993 Finding and Dismissal of the Commissioner acting for the Second District was heard December 2, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant’s attorneys (appellant) have petitioned for review from the December 23, 1993 Finding and Dismissal of the Commissioner for the Second District. They argue on appeal that the commissioner had no authority to reduce the attorney’s fee in this matter, and that the reduction itself was an abuse of the commissioner’s discretion. We affirm the commissioner’s decision.1

The trial commissioner found that the claimant retained the appellant’s services on or about March 31, 1992 as noted in a fee agreement contract. The appellant agreed to represent the claimant with respect to legal issues surrounding his workers’ compensation claim against his employer and its insurer. Litigation arose out of the matter, and the appellant periodically charged the claimant an attorney’s fee based on past due amounts arising from that litigation. In early 1993, the appellant negotiated a $25,000 settlement of the claim with the insurance carrier. The stipulation was approved by Commissioner Brouillet, who denied the appellant’s request for a $5000 attorney’s fee representing 20 percent of the settlement amount. Rather, she approved a 15 percent fee of $3750.

The appellant requested a hearing on the propriety of the five percent reduction in its attorney’s fee, and presented expert testimony before the trial commissioner that a 20 percent attorney’s fee was the usual and customary fee for a negotiated settlement. The appellant also presented testimony by the trial attorney, who testified as to the nature of the claim, the difficulty of the case, the fee arrangement and his thought processes in negotiating the $25,000 settlement. The commissioner found that the 15 percent fee was reasonable and not arbitrary. He also found the fee consistent with a commissioner’s powers under § 31-319 C.G.S. (now § 31-327(b) C.G.S.) and the rules of equity under § 31-298 C.G.S. He therefore declined to reconsider the attorney’s fee petition, from which decision the appellant has petitioned for review.

The appellant first argues that Commissioner Brouillet did not have the power to review the attorney’s fee in this case because the fee was not disputed by the claimant. Section 31-327(b) provides that “[a]ll fees of attorneys, physicians, podiatrists or other persons for services under this chapter shall be subject to the approval of the commissioner.” The appellant argues that this supervisory power can only be exercised where the claimant and counsel disagree over the appropriate fee. It cites the statement of this Board in Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers’ Comp. Rev. Op. 132, 68 CRD-1-81 (July 13, 1982), affirmed, 39 Conn. Sup. 386 (1983), to the effect that “[w]henever there is even a hint of dissatisfaction between claimant and counsel over the fee arrangement, practitioners should seek the advice of the Commissioner and ask that the power granted in Sec. 31-319 be exercised.”

We disagree with the appellant’s reading of § 31-327(b). First, the Robinson opinion specifically states that the claimant and her attorney in that case had agreed to a $20,000 attorney’s fee, which the commissioner of his own accord reduced to $9,500. The propriety of this sua sponte reduction by the commissioner was not challenged in the opinion. We thus do not see how Robinson can be read to stand for the proposition that a dispute is a prerequisite to the commissioner’s exercise of authority under § 31-327(b). Indeed, the statement quoted by the appellant in no way indicates that the commissioner may not invoke his or her supervisory authority unless the parties so request.

Moreover, the plain language of § 31-327(b) makes attorney’s fees subject to the approval of the commissioner. Sec. 1-1 C.G.S. requires that, in interpreting our statutes, we construe nontechnical words and phrases “according to the commonly approved usage of the language.” “Subject” is defined by the American Heritage Dictionary (2d Ed. 1982) as meaning “[u]nder the power or authority of another: subject to the law. . . . Contingent or dependent: subject to approval.” Black’s Law Dictionary further defines “subject to” as meaning “[l]iable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for.” It would be inconsistent with both the clear meaning of those definitions and the humanitarian purpose of the Workers’ Compensation Act in general to read § 31-327(b) as limiting the authority of commissioners to oversee attorney’s fees to situations where a party or its counsel have indicated discontent with a fee arrangement. A commissioner should be free to examine all attorney’s fee agreements to be sure that they are consistent with the attorney’s fee guidelines promulgated by the chairman of the workers’ compensation commission in accordance with § 31-280(b)(11)(C). Therefore, we hold that Commissioner Brouillet was entitled to invoke her supervisory authority under § 31-327(b) regardless of whether the claimant objected to the appellant’s requested attorney’s fee.

The appellant also argues that Commissioner Brouillet abused her discretion in reducing the attorney’s fee by five percent, and that the trial commissioner abused his discretion by ratifying that reduction. We note that this is a petition for review from the decision of the trial commissioner, not Commissioner Brouillet. We must therefore determine whether, given all the factors before the trial commissioner, it was an abuse of his discretion to decline to reconsider the appellant’s petition for attorneys fees.

The reasonableness of an attorney’s fee depends on many factors, including the preparation required, the novelty and intricacy of the case, the results obtained, and customary charges. Balkus v. Terry Steam Turbine, 167 Conn. 170, 179-80 n. 8 (1974). The actual amount which a commissioner may award for attorney’s fees is a matter within his or her discretion. Tartakovsky v. Sohmer/Pratt & Read, 7 Conn. Workers’ Comp. Rev. Op. 46, 47, 666 CRD-8-87 (Aug. 9, 1989); see also McCrory v. White Oak Co., 10 Conn. Workers’ Comp. Rev. Op. 108, 109, 1262 CRD-1-91-7 (May 6, 1992).

Here, the appellants offered into evidence a copy of their fee agreement with the claimant, which stated that “Asselin & Associates . . . shall be paid 20% of the total amount of all monies received pursuant to any award(s), judgment(s), agreement(s) or stipulation(s) of all or any portion of this claim . . . .” This is consistent on its face with the guidelines promulgated by this commission, in which we have stated that an attorney may charge no more than 20 percent of the total of the settlement or stipulation, less medical bills paid by the claimant. However, these guidelines do not preclude the commissioner from determining that, in a given case, an attorney is entitled to less than 20 percent of the total stipulation amount.

Despite the existence of the fee agreement, Commissioner Brouillet certainly could have determined that 20 percent of the settlement amount was too much for the appellants to charge for their services in this case. She was entitled by virtue of her power under § 31-327(b) to evaluate the stipulation, the fees previously charged, and the fair worth of the services performed by the appellants in obtaining a settlement. The appellants had a duty at the time the stipulation was approved to present evidence supporting the amount of the fee agreement, as the commissioner was entitled to use the factors known to her at that time in deciding whether the attorney’s fee should be approved. There has been no showing by the appellants that any evidence was offered at the appropriate time to support their request for 20 percent of the settlement amount.

We therefore cannot say that, given the evidence before him, the trial commissioner abused his discretion in failing to reconsider the award of attorney’s fees. He could reasonably have determined that Commissioner Brouillet took into account the factors known to her in deciding to award a 15 percent attorney’s fee. The trial commissioner was not required to credit the testimony offered by the appellant’s witnesses in support of the petition for additional fees, and did not have to reopen the issue. See Maio v. L.G. Defelice, Inc., 1734 CRB-5-93-5 (decided March 22, 1995) (commissioner determines credibility of witnesses).

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 The appellant specifically waived any objection to the presence of Commissioner Miles on this review panel despite his involvement in a prior formal hearing on the workers’ compensation claim underlying this matter. BACK TO TEXT

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