State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Contreras v. Montana Bakery

CASE NO. 3819 CRB-07-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 16, 1999

ROBERTO CONTRERAS

CLAIMANT-APPELLANT

v.

MONTANA BAKERY

EMPLOYER

and

TRANSAMERICA INDEMNITY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

This appeal concerned a fee dispute between two attorneys who represented the claimant in this matter. The appellant was the claimant’s counsel Joseph Tauber, Esq., 99 Prospect Street, Stamford, CT 06901.

The appellee was the claimant’s previous counsel, who was not represented at oral argument. Notice sent to Gerald Davino, Esq., Sheri Paige & Associates, 37 Wall Street, P.O. Box 2068, Norwalk, CT 06852.

The respondents were not represented at oral argument. Notice sent to Collette Griffin, Esq., Forino & Griffin, One Century Tower, 265 Church Street, Suite 404, New Haven, CT 06510-7011.

This Petition for Review from the May 19, 1998 Finding and Award of the Commissioner acting for the Fifth District was heard November 6, 1998 before a Compensation Review Board panel consisting of the Commissioners Donald H. Doyle, Jr., Michael S. Miles and John A. Mastropietro.

OPINION

DONALD H. DOYLE, JR., COMMISSIONER. The claimant’s attorney, Joseph Tauber, Esq., has petitioned for review from the May 19, 1998 Finding and Award of the Commissioner acting for the Seventh District. He disagrees with the trier’s decision to award half of a $3,800 attorney’s fee to Sheri Paige, Esq., the lawyer who previously represented the claimant in this matter. As the trial commissioner made sufficient factual findings to support this apportionment of fees, we must affirm his decision on appeal.

The trial commissioner found the following relevant facts. The claimant was injured on September 8, 1993 while working for the respondent Montana Bakery. He engaged the law office of Sheri Page & Associates to represent him on October 20, 1993. Representatives of that firm filed a Form 30C on the claimant’s behalf, attended informal hearings, kept him apprised of the status of his case, and forwarded relevant medical bills, notes and reports to the insurer.

The claimant had reported to Attorney Paige that he was not a legal resident of the United States. After consulting fellow counsel, the Immigration and Naturalization Services, and the Internal Revenue Service, Attorney Paige concluded that the claimant was not entitled to temporary total or temporary partial disability benefits, and would thus be ineligible to collect a weekly compensation paycheck. She told the claimant that he was entitled to reasonable and necessary medical treatment, and that he would be entitled to an award for permanent partial disability if such a condition resulted from his workplace accident. Attorney Paige proposed a $14,500 settlement to the insurer.

On August 10, 1996, she received a letter from Attorney Joseph Tauber stating that the claimant had decided to dismiss her firm and retain his legal counsel instead. As Attorney Tauber had announced, the claimant subsequently terminated her services. Her law office had by then expended over 30 hours working on the claimant’s case. At a January 13, 1997 hearing, Attorney Tauber indicated that he had obtained $5,000 of temporary total disability payments on the claimant’s behalf since he had begun handling the file, and that he had reached an agreement to settle the case for another $14,000. Attorney Gerald Davino, an employee of Sheri Paige & Associates, declared that his firm would be making a claim for attorney’s fees. The commissioner ordered $2,800 placed in escrow until the fee dispute was settled.

At the formal hearing, a retainer agreement between the claimant and each attorney was entered into evidence. Attorney Tauber alleged that the $5,000 advance was for temporary total disability benefits, $1,000 of which he collected as an attorney’s fee. The trial commissioner found that the total attorney’s fee in dispute for this case was $3,800 rather than $2,800.

In his testimony, the claimant denied that he was an illegal alien, and averred that Attorney Paige never asked him whether he was in the United States legally. Attorney Tauber further argued that Attorney Paige’s position on illegal aliens is incorrect, as an illegal alien may indeed receive temporary total disability benefits. [Such eligibility has been firmly established by Dowling v. Slotnik, 244 Conn. 781 (1998).] He cited a decision of this board, Tavares v. Noel, 15 Conn. Workers’ Comp. Rev. Op. 172, 2010 CRB-7-94-3 (March 8, 1996), in support of his argument, and observed that Sheri Paige & Associates had not attempted to get temporary total compensation for the claimant.

The trier found that Attorney Paige attended an informal hearing on May 2, 1995, and obtained for the claimant a rating of 12% permanency attributable to the accepted injury of September 8, 1993. The trier also found that, after Attorney Tauber took control over the case, he reviewed correspondence, conducted a telephone conference that resulted in a $5,000 advance for the claimant, attended a hearing, and obtained a stipulation for $14,000. The trier concluded that both firms represented the claimant “competently and diligently.” He cited on a November 6, 1996 letter from Attorney Tauber to the respondents’ counsel, Attorney Colette Griffin, to show that the $5,000 advance was against permanency benefits, not for temporary total disability (noting also that an attorney cannot collect a fee from temporary total compensation). The trier concluded that each firm was entitled to half of the attorney’s fee, and ordered Attorney Tauber to pay Attorney Paige $1,900 of the $3,800 he had received (or was holding in escrow). Attorney Tauber has appealed that decision.

First, we address a Motion to Submit Additional Evidence that the appellant has filed in conjunction with his appeal. In order for this board to admit additional evidence pursuant to Admin. Reg. § 31-301-9, the proffered items must be material, and there must be good reasons for failing to present these items below. The documents offered by the appellant here consist of letters from Attorney Paige to Commission Chairman Jesse M. Frankl, Attorney Griffin, and Commissioner Thomas Cotter, as well as a response from Attorney Griffin, and an exchange of brief correspondence between the appellant and Chairman Frankl. Through many of these letters there runs a vivid and often vehement stream of serious allegations by Attorney Paige against several of the participants in the proceedings below. However, these assertions are not material to the question before this board, which is whether the trial commissioner properly awarded payment to Attorney Paige for her work on the instant case. At most, their effect would be to reiterate the already accepted fact that Attorney Paige did not believe the claimant to be entitled to temporary total disability benefits because of his presumed status as an illegal alien. Thus, we deny the appellant’s Motion to Submit Additional Evidence.

The trial commissioner who presides over a case has the authority under § 31-327(b) to approve all attorney’s fees. Closely attendant to this authority is the trier’s power to settle disputes between attorneys regarding entitlement to fees. The appellant carries the burden of demonstrating to this review board that the trial commissioner abused his discretion in dividing the attorney’s fees as he did. Day v. Middletown, 16 Conn. Workers’ Comp. Rev. Op. 200, 202, 3264 CRB-8-96-2 (May 20, 1997); Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 89, 1931 CRB-2-93-12 (May 12, 1995). In attempting to meet that burden, Attorney Tauber asserts that certain facts found by the trier were erroneous, and attempts to persuade this board that the representation provided by Sheri Paige & Associates merited no compensation.

Attorney Paige’s firm neither filed a responsive brief, nor appeared at oral argument to rebut the comments of Attorney Tauber. Their neglect of this appeal does little to bolster their defense. However, as the appellee, the firm benefits from the legal inertia of the trier’s decision: this board will not change the findings of fact unless they were found without evidence, or if they fail to include undisputed, material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Similarly, the trier’s legal conclusions must stand unless they are unsupported by the findings, or the result of an illegal application of the law to the facts. Id.

The claimant sought corrections to several facts concerning specific details of Attorney Paige’s handling of the instant case. However, in deciding whether Attorney Paige’s firm was entitled to attorney’s fees, the trier considered their overall representation of the claimant during the three years the firm served as his counsel. For example, the trier’s declination of the appellant’s request that he specify the number of informal hearings that the appellees attended is not a ruling we can reverse on appeal, as this single detail was undoubtedly insignificant to his decision. Only corrections that are material to the outcome of the case need be granted. Webb, supra, 71.

We also cannot reverse the commissioner’s reliance on the testimony1 of Attorney Davino to establish that the claimant had informed, or had led Attorney Paige to reasonably believe, that he was an illegal alien. The trier of fact is the sole judge of the credibility of the testimony provided by witnesses, and he was not required to deem the claimant’s remarks inviolable. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). As for the “incorrect statement of the law” in ¶ 6 of the Finding and Award, the trier was merely restating Attorney Paige’s presumed a priori conclusion of law at the time she was serving as the claimant’s counsel. He was not proposing that illegal aliens are in fact ineligible to receive wage replacement benefits, which would contradict the law under Dowling, supra, and the decisions of this board.

Attorney Tauber objects that Attorney Paige’s firm refused to give him the claimant’s file after the claimant terminated their representation. He argues that, under Bershtein v. Nemeth, 221 Conn. 236 (1992), original counsel may not claim an attorney’s fee without first relinquishing its file to the successor counsel. He sought a correction to the findings that would reflect that proposition, which was denied. Attorney Davino had objected that his firm was not required to turn over the file until Attorney Tauber provided a letter of protection for the firm’s legal fees, or came to an agreement with the firm regarding the same, pursuant to an advisory formal opinion of the Connecticut Bar Association. See Revised Formal Opinion No. 31, The Obligation to Turn over a Client’s File and The Right to Protect an Earned Legal Fee (1988). Attorney Tauber explains in his appellate brief that he refused to do so because in an accepted workers’ compensation case, “all legal fees are protected and allocated by the commissioner.” Brief, p. 1.

Marsh, Day & Calhoun v. Solomon, 204 Conn. 639 (1987), finds our Supreme Court holding that an attorney has a self-executing possessory lien against the file of a client whose bill remains unpaid. This lien, a device for attorneys to protect their proper fees, does not exist where an attorney has been furnished with adequate security, or where the rights of a client would be prejudiced by retention of the file. Id., 645-46. This decision is reflected by Revised Formal Opinion No. 31. Bershtein, supra, addresses Revised Formal Opinion No. 31 (see p. 240-41, n.5), and holds that successor counsel need not pay prior counsel the reasonable value of its services where there is no contract to do so, and where prior counsel refused to provide successor counsel with the file and an accounting of time spent on the case so that such a contract might be drafted. Id., 242-43. Although Attorney Tauber attempts to align himself with the successor counsel in Bershtein, he admits that he was unwilling to make an agreement regarding the division of fees with Sheri Paige & Associates. His refusal to do so may have created more work for him in preparing a substitute file, but we cannot say as a matter of law that this was due to the original counsel’s recalcitrance. Accordingly, we will not reverse the trier’s denial of this correction, which encompasses not only legal issues, but factual issues regarding the conduct of the parties. See Webb, supra.

Ultimately, the trier had a reasonable amount of discretion as to whether to award Sheri Paige & Associates attorney’s fees in this case. The file contains representations by the firm as to the amount of time its employees spent working on this case, and the trier opined that they managed the claimant’s file competently and diligently. Often, cases take time to resolve, maturing only after the parties have been negotiating for a long period of time. The fact that the claimant received all of his benefit payments after Attorney Tauber took over the case did not automatically render the services of Attorney Paige’s firm valueless, or of trifling worth. The commissioner here believed that both of the firms retained as counsel deserved an equal share of the 20% attorney’s fee, and made his award accordingly. We cannot substitute our judgment for his.

The trial commissioner’s decision is therefore affirmed.

Commissioners Michael S. Miles and John A. Mastropietro concur.

1 The record does not contain a transcript from the formal hearing before the trial commissioner. We are thus unable to review the precise “testimonial hearsay” that Attorney Tauber claims was related by Attorney Davino, and relied upon by the trial commissioner. BACK TO TEXT

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