State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Toth v. American Frozen Foods, Inc.

CASE NO. 4069 CRB-04-99-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 9, 2000

GEORGE TOTH

CLAIMANT-APPELLANT

v.

AMERICAN FROZEN FOODS, INC.

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant’s counsel waived oral argument on this matter. Notice sent to William Cotter, Esq., Cotter, Cotter & Mullen, L.L.C., 1809 Black Rock Turnpike, Fairfield, CT 06430.

The respondents’ counsel also waived oral argument on this matter. Notice sent to Margaret E. McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the June 16, 1999 Finding and Award of the Commissioner acting for the Fourth District was considered March 10, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 16, 1999 Finding and Award of the Commissioner acting for the Fourth District. He argues on appeal that the trial commissioner improperly awarded his counsel an attorney’s fee of $1,700 less than he requested. Because we are unable to ascertain the basis for the trier’s arrival at the sum of $2,535.00, we remand this issue to the trial commissioner for articulation.

The claimant sustained a compensable injury to his cervical spine on August 3, 1994, which the respondents accepted by voluntary agreement. In February 1998, he underwent surgery for three herniated cervical discs. The respondents contested liability for that surgery, the period of disability that followed it, and the claimant’s resulting increase in permanency, but were unsuccessful. In fact, the trial commissioner found that their contest of liability was unreasonable. His order that the respondents pay temporary total and permanent partial disability benefits was thus accompanied by an award of 12% interest and a $2,535 award of attorney’s fees. The claimant’s counsel then filed a Motion to Correct that amount, citing an invoice that he had submitted detailing 24.20 hours of legal work at $175.00 per hour. Though the trier acknowledged that said invoice had been offered into evidence, he declined to increase the fee award to $4,235.00. That ruling is the sole subject of this appeal.

Section 31-327(b) provides that “[a]ll fees of attorneys, physicians, podiatrists or other persons for services under [the Workers’ Compensation Act] shall be subject to the approval of the commissioner.” 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 the customary cost of similar services in the area. Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 89, 1931 CRB-2-93-12 (May 12, 1995), citing Balkus v. Terry Steam Turbine, 167 Conn. 170, 179-80 n. 8 (1974). Though the trier has relatively broad discretion to set the actual amount of an attorney’s fee, an attorney is still entitled to appeal such an award, and to attempt to demonstrate that the commissioner abused his fact-finding discretion. Contreras v. Montana Bakery, 3819 CRB-7-98-5 (June 16, 1999); Ayala, supra, 89-90. This requires that the trier’s decision be detailed enough to enable this board to ascertain the method of calculation that he used in setting counsel’s fee, particularly where the fee exceeds the amount permitted by the attorney’s fee regulations that this Commission has promulgated.1

Here, the only direct evidence concerning legal fees was the invoice offered into evidence by claimant’s counsel. Claimant’s Exhibit G. This invoice breaks down in detail the time spent on this case by counsel, asserts an hourly rate of $175.00 per hour, and requests a total amount of $4,235. The numbers themselves suggest that the commissioner for some reason subtracted $1,700 from the amount requested, and awarded the $2,535 remainder as a fee. Unfortunately, nothing in the record confirms that the trier performed this calculation, and if so, why. Although the fee award is roughly in the range of the amount corresponding to 20% of the total amount of benefits awarded ($2,379.11), we are unable to retrace the trier’s thought process in setting the $2,535 fee. This prevents us from adequately reviewing the manner in which he exercised his factfinding discretion. Accordingly, we must remand this case to the trial commissioner for articulation of the basis underlying the attorney’s fee award.

Commissioners Robin L. Wilson and Stephen B. Delaney concur.

1 See the September 10, 1993 directive of former Chairman Jesse M. Frankl issued pursuant to § 31-280(b)(11)(C), which in general sets a 20% cap on attorney’s fees. Notably, the applicability of those fee guidelines in this particular case is open to question, as we have held that where a respondent has unreasonably contested liability and fees have been awarded under § 31-300, a commissioner is entitled to award a greater sum than contemplated by the fee guidelines. Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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