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Lapia v. Town of Stratford

CASE NO. 3109 CRB-4-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 29, 1996

MICHAEL J. LAPIA, JR.

CLAIMANT-APPELLANT

v.

TOWN OF STRATFORD

RESPONDENT-APPELLEE

and

ATTORNEY HAROLD BRIENES

INTERVENOR

APPEARANCES:

The claimant was represented by Stephen J. Humes, Esq., Humes & Reath, 44 Parkway Dr., Trumbull, CT 06611.

The respondent employer was represented by John Florek, Esq., Biafore, Florek & O’Neill, 1825 Barnum Ave., Stratford, CT 06497.

Attorney Harold Brienes represented himself: The Brienes Law Firm, 1566 Park Ave., Bridgeport, CT 06604.

This Petition for Review from the June 5, 1995 Order Regarding Attorney’s Fees of the Commissioner acting for the Fourth District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 5, 1995 Order Regarding Attorney’s Fees of the Commissioner acting for the Fourth District. In that order, the trial commissioner awarded attorney’s fees for Attorney Brienes’ representation of the claimant regarding a workers’ compensation claim which resulted in an approved stipulation. Pursuant to a bench ruling on November 17, 1995, this Board granted Attorney Brienes’ Motion to Be Made a Party Defendant dated September 18, 1995. The claimant argues on appeal that the commissioner did not have jurisdiction to award the attorney’s fees in this matter, and that the award itself was an abuse of the commissioner’s discretion. We affirm the commissioner’s decision.

We will first address the claimant’s Motion for Default Judgment for Failure to Defend Appeal filed on November 7, 1995. In that motion, the claimant requests a default judgment because neither the respondent employer1 nor Attorney Brienes had filed a brief for the Compensation Review Board as of November 6, 1995. The failure of an appellant to follow the briefing schedule of the Compensation Review Board has been cited as a factor in dismissing an appeal. See Green v. Labor Force of America, 13 Conn. Workers’ Comp. Rev. Op. 113, 1908 CRB-3-93-11 (Feb. 1, 1995). We have also denied a motion to dismiss for failure to prosecute where a brief was filed late but where no prejudice had been shown. See McNulty v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 32, 1332 CRD-7-91-10 (Jan. 26, 1994). In the instant case, Attorney Brienes’ motion to be made a party was not granted until November 17, 1995, and his brief was filed on November 6, 1995. The claimant has not alleged that he suffered any prejudice. Moreover, the claimant as the appellant is asking to have a trial commissioner’s order overturned due to the respondent employer’s failure to file a brief. Certainly, as the appellant in the instant matter, the claimant has the burden of presenting his appeal whether or not a memorandum of law is filed by the opposing party. The claimant’s motion for a default judgment is denied.

We will now address the merits of the claimant’s appeal. 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.” In Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers’ Comp. Rev. Op. 132, 140, 68 CRD-1-81 (July 13, 1982), affirmed, 39 Conn. Sup. 386 (1983), this board stated that whenever there is “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 (now 31-327) be exercised.”

We have stated that “the plain language of § 31-327(b) makes attorney’s fees subject to the approval of the commissioner.” Ayala v. Asselin & Associates, 14 Conn. Workers’ Comp. Rev. Op. 87, 89, 1931 CRB-2-93-12 (May 12, 1995). “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).” Id.

In the instant case, Commissioner Arcudi issued an order dated June 5, 1995, which is the subject of the present appeal. The order states that Commissioner Arcudi was the presiding commissioner at several formal hearings during the period when settlement negotiations occurred between the claimant and the respondent employer regarding the claimant’s workers’ compensation claim, during which time the claimant was represented by Attorney Brienes. The order further states that the settlement negotiations resulted in a stipulated resolution under which the claimant received the following: (1) a lump sum of $103,333.00; (2) $20,000.00 per year for life: (3) a life insurance policy in the amount of $100,000.00; (4) medical insurance until the claimant reaches the age of sixty-five; (5) various accrued pension contributions, longevity and holiday credits, and uniform allowance amounts. The order states: “This settlement package is in my estimation worth well over $250,000.00. I am also aware of the amount of time expended by Attorney Brienes in representing (the claimant).” Accordingly, Commissioner Arcudi set the attorney’s fee for Attorney Brienes at $40,000.00 plus $1,732.00 in out of pocket expenses.

The claimant first argues that Commissioner Arcudi did not have the jurisdiction to award the attorney’s fee in this case because he presided over formal hearings in this matter while in the Fourth District, and subsequently issued the Order Regarding Attorney’s fees while assigned to the Seventh District. This argument has no merit as § 31-280(b) allows trial commissioners to be transferred between districts. Certainly, a trial commissioner is permitted to make a determination on a case which he has presided over even after he has been transferred to another district. The claimant next argues that Commissioner Arcudi was precluded from making an order of attorney’s fees because Commissioner Verrilli had previously ordered that an escrow account be established for the attorney’s fees in the amount of $25,000.00. We find no merit to the argument that the prior order constituted res judicata, as Commissioner Verrilli’s order did not constitute a final order as to the amount of attorney’s fees owed to Attorney Brienes, but merely set up an escrow account to safeguard some of the attorney’s fees which could be awarded in the future.

Similarly, we find no merit in the claimant’s argument that Commissioner Arcudi improperly engaged in ex parte communication with Attorney Brienes. In support of this contention, the claimant cites the trial commissioner’s order which states: “Attorney Brienes has asked me to set an attorney’s fee in the above captioned matter....” As Attorney Brienes was not a party to the case at that time, it was reasonable for him to make this request to the trial commissioner who had presided over the formal hearings in the case. Furthermore, we find no merit to the claimant’s contention that he was not afforded due process, as the claimant could have requested a formal hearing regarding the June 5, 1995 Order Regarding Attorney’s Fees, but instead chose to appeal the order directly to this Board.

The claimant contends on appeal that the trial commissioner abused his discretion in awarding $40,000.00 in attorney’s fees. We must therefore determine whether the award was an abuse of his discretion. We have stated:

‘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). Ayala, supra, at 89-90.

Here, the trial commissioner determined that the claimant’s settlement amount was worth well over $250,000.00. The claimant does not contest this estimate. Thus, the award of attorney’s fees is well within 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. See Ayala, supra, at 90. Indeed, it would have been reasonable to award a substantially higher amount, as the claimant’s settlement was indeed worth more than $250,000.00.

Pursuant to § 31-327(b), Commissioner Arcudi had the power to evaluate the stipulation and the value of the services performed by Attorney Brienes in obtaining a settlement. We therefore cannot say that the trial commissioner abused his discretion in issuing the award of attorney’s fees.

The trial commissioner’s order is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 The claimant’s appeal involves only the issue of the attorney’s fees awarded to Attorney Brienes, and this issue does not affect the respondent employer. BACK TO TEXT

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