State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Melendez v. Valley Metallurgical

CASE NO. 4178 CRB-2-00-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 1, 2001

ESTATE OF NOZARIO MELENDEZ

RAMONA MELENDEZ, (Dependent Widow)

CLAIMANT-APPELLANT

v.

VALLEY METALLURGICAL

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard E. Gruskin, Esq., Gruskin & Gruskin, 56 Huntington Street, New London, CT 06320.

The respondents were represented by Nancy S. Rosenbaum, Esq., 655 Winding Brook Drive, Glastonbury, CT 06033.

The Second Injury Fund was not represented at oral argument. Notice sent to Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 14, 2000 Finding and Award of the Commissioner acting for the Second District was heard September 15, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, the dependent widow of the decedent Nozario Melendez, has petitioned for review from the January 14, 2000 Finding and Award of the Commissioner acting for the Second District. On appeal, she charges that the trier awarded her insufficient interest and attorney’s fees in conjunction with a back award of cost-of-living adjustments (COLAs), among other claims of error. We agree that the trial commissioner miscalculated the amounts due the claimant pursuant to § 31-300 C.G.S., and we remand this matter for further proceedings.

The decedent was injured in an explosion that occurred during the course of his employment on June 18, 1970, and died shortly afterward. Ever since, his dependent widow, Ramona Melendez, has been receiving workers’ compensation benefits as per an award dated July 15, 1970. In 1998, the parties met to discuss fully and finally settling this case. At that time, the commissioner discovered that both COLAs and weekly benefits had been improperly computed and paid over the life of the instant claim. (The claimant first became entitled to COLAs in 1977, with the passage of P.A. 77-554.) The parties concurred that the claimant was due a base principal payment of $127,998.51 in unpaid COLAs and temporary total disability benefits, which was paid by the insurer to the claimant’s attorney on June 9, 1999. Neither party disputes this amount.

The respondents also figured interest on the above payment at 6% per annum commencing in October 1977, and moving forward through May 13, 1999, based on the version of § 31-300 1 in effect at the time of the claimant’s injury. This payment totaled $55,607.86, and was also paid to the claimant’s attorney on June 9, 1999, along with a $2,597.40 check for interest adjustments through the date of payment. (See Feb. 2, 2000 Decision Re: Motion to Correct.) However, the claimant’s attorney maintained that this interest computation was incorrect, because the § 31-300 interest amount was increased to 10% per annum as of October 1, 1989 (via reference to § 37-3a C.G.S.). He also sought an attorney’s fee under § 31-300, as well as interest from June 10, 1999 forward on unpaid interest payments, and a 20% penalty pursuant to § 31-303.

The trial commissioner concluded that § 31-300 indeed requires a 10% interest payment on those benefits due as of October 1989, and recalculated the payable interest accordingly. However, he rejected the computation method proposed by the claimant in favor of one proposed by the respondents, and found that the claimant was due $71,618.57 in interest through June 6, 1999. He denied the claim for a 20% penalty under § 31-303. Also, he found that the insurer had acted promptly and reasonably once it determined that the claimant had been underpaid COLAs and temporary total disability benefits, and that any continuing delay in payment was due to the recommendation of another commissioner. This justified the respondents’ holding of the interest check, and merited no additional interest penalties beyond June 10, 1999. As for attorney’s fees, the trier authorized a total fee of $34,594.23, consisting of 20% of the principal due and 12% of the back interest, which incorporated a $20,000 award payable directly by the respondents as per § 31-300. The claimant has filed an appeal from that decision, where she has raised a number of different issues.

I. Alleged Due Process Violations

We first address the claimant’s allegation that she was deprived of due process by virtue of the trial commissioner’s denial of two motions on the date of the formal hearing: a motion to remove the instant issues to the Superior Court, where a civil action was pending, and a request for disclosure and production. The respondents protest that this board lacks subject matter jurisdiction to even consider such arguments. It is true that this board, being neither an Article III court under the United States Constitution nor a tribunal existing under Article Fifth, § 1 of the Connecticut Constitution, lacks the jurisdiction to determine the constitutionality of legislative enactments. Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). However, if we were required to ignore due process issues in resolving disputes between parties, we would be unable to effectively interpret the law in order to accomplish our remedial mandate. Weber v. Electric Boat, 4086 CRB-2-99-7 n.3 (Nov. 13, 2000). “Certainly, the reliability of our decisions would be highly suspect if parties could not be sure that this commission took basic constitutional rights into account as part and parcel of the determinations it was making as to the proper meaning of the law.” Id. As such, this board possesses the authority to consider the due process implications of the trial commissioner’s decision.

On November 1, 1999, the claimant filed a motion to remove the instant action to Superior Court. The decedent’s estate had filed suit against the respondent insurer on May 18, 1999, and was seeking an “action on the judgment, pursuant to Section 31-300 C.G.S.” In her motion, she stated that “this matter can only be fairly resolved after the issues are understood and narrowed down by discovery motions, annexed hereto and depositions of Wausau, as the petitioner is uncertain of what position the carrier will take at the hearing. As such, [she] is not ready to go forward with respect to the issues set down for the hearing on November 15 and withdraws [her] claim to a formal hearing at this time.” The respondents objected on November 5, 1999, that this agency had primary jurisdiction over the claims for interest, penalties, attorney’s fees and COLAs, and that the claimant had not yet exhausted her administrative remedies pursuant to Hyatt v. Milford, 224 Conn. 441 (1993), aff’g 26 Conn. App. 194, 199 (1991). Section 31-300, meanwhile, permits court enforcement of a commissioner’s award in the same manner as a legal judgment. The respondents asserted that, as no COLA or interest award had yet been issued, a court would have no basis for jurisdiction. They also noted that § 31-278 does not grant a commissioner the authority to remove an action to the Superior Court. Ten days later, the trier denied the motion to remove without elaboration. At the formal hearing, he also perfunctorily denied the claimant’s 14-page Request for Disclosure and Production. November 15, 1999 Transcript, p. 2.

As a preface, we note that it is unclear whether the Superior Court, in enforcing an established award as per § 31-300, may add in COLAs, interest and attorney’s fees as adjustments. Connecticut caselaw does not address this question, and this board clearly has no standing to decide such a matter. We observe, though, that the application of § 31-300 often involves the use of factfinding discretion, whereas a court might hesitate to make even ministerial changes to a valid compensation award in light of the specialized and complex nature of Chapter 568. Courts also respect the division of legal authority inherent in our law. “‘It is a well settled principle of administrative law that a party may not bring a matter to the Superior Court without first exhausting available administrative remedies.’ Silverman v. New Haven, 19 Conn. App. 360, 364, [cert. denied, 212 Conn. 812,] (1989). . . . The modification or interpretation of an award made by the workers’ compensation commissioner is a function of the workers’ compensation commission and not the Superior Court.” Hyatt, supra, 26 Conn. App. 194, 197, 199 (1991); see also, Fenton v. Conn. Hospital Assn. Workers’ Comp. Trust, 58 Conn. App. 45, 56 (2000) (good reasons exist for exhausting available administrative remedies before seeking judicial review). Further, § 31-300 states that the commissioner may include interest and attorney’s fees in an award; it does not address the possibility of superior court judges taking the same step in a subsequent enforcement action, even though the preceding sentence of the statute authorizes the court’s execution upon an award as if it were a judgment. It is thus imaginable that a court might decline to supplement a plaintiff’s earlier award by itself calculating additional, ancillary sums.

The degree of the Superior Court’s authority to apply § 31-300 is not the determinative factor in this case, however. Whether his subject matter jurisdiction was concurrent or exclusive, the trial commissioner was unquestionably empowered to rule on the amount of COLAs, interest and attorney’s fees to which the claimant was entitled. These matters are part of the workers’ compensation scheme, and clearly fall within a commissioner’s purview once his jurisdiction over a claim has been established. Thus, the trier would have had the general authority to rule on the issues presented here. “The plaintiff’s remedy offered by § 31-278 was adequate; invoking it would have put him in the position to get the relief he wanted, i.e., money. After all, ‘It is not the [plaintiff’s] preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be “adequate,” need not comport with the [plaintiff’s] opinion of what a perfect remedy would be.’ Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc. 178 Conn. 586, 590, [] (1979).” Fenton, supra, 56-57.

In the workers’ compensation forum, of course, proceedings are governed not by the rules of discovery that control in civil court, but by the relaxed evidentiary standards set forth in § 31-298. Under these simplified standards, a commissioner is not bound by common law or statutory rules of evidence or procedure, “but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties . . . .” Section 31-298; LaPia v. Stratford, 47 Conn. App. 391, 400 (1997). These words give the presiding commissioner great latitude to decide what materials should be deemed relevant and admitted into evidence. Vetre v. State/Dept. of Children and Families, 3948 CRB-6-98-12 (Feb. 14, 2000); Zizic v. Sikorsky Aircraft Division, 3732 CRB-4-97-11 (July 7, 1999). As long as a party is given an opportunity to state its claims and arguments, and is given the chance to confront adverse witnesses and evidence, the requirements of procedural due process in adjudicative administrative hearings will be satisfied even under such a relaxed standard. See Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).

Our records show that various informal and preformal hearings were conducted in this case throughout 1999, with the willing participation of both parties. The issues of accrued COLAs and interest for undue delay constantly remained at the forefront of discussion. After settlement conferences failed to produce a compromise, the claimant’s attorney wrote a letter to the commissioner dated October 4, 1999, stating that his client wished to litigate the amount due, and that a formal hearing would be requested “at a point in time.” Notice of a November 15, 1999 formal hearing was then issued by this Commission on October 13, 1999. The claimant first requested removal of this action to the Superior Court on November 1, 1999, the same date he filed his Request for Disclosure and Production.

This discovery request directed the insurer, Wausau, to answer 38 interrogatories, some of which concerned peripheral matters such as the names and addresses of other dependent widows and widowers whose situations resembled that of the claimant; the names of all witnesses that the respondents intended to produce and the nature of their testimony; and the return on Wausau’s investment income for every year between and including 1977 and 1989. The claimant also requested that Wausau make available copies of any files of dependents receiving COLAs pursuant to § 31-306 who reside, or have resided, in Puerto Rico, where the claimant lived for many years; copies of files of any dependents who have made complaints regarding their COLA payments; and copies of any documents regarding proposed settlements. The respondents objected that an identical request had been filed in the claimant’s civil suit, and that the information sought by the claimant had no relevance to the issues that were to be heard by the commissioner at the formal hearing. They observed that such formal pleadings are not required in this forum, and further, that this lengthy request for information should not have been made within such a short time of the formal hearing, given that the claimant had had months to seek information. The claimant replied that she was merely trying to establish fault or neglect on the part of the insurer by obtaining the names of potential witnesses, and that she would be unable to defend herself if she did not know which employees of the respondents would be called to testify, or what the respondents’ exact position was regarding interest and penalties. Indeed, she stated that the absence of such information would amount to “trial by ambush” and a violation of due process.

A claimant need not be given advance notice of every legal argument that a respondent intends to present at a formal hearing. Our Supreme Court has stated that “notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 2050 CRB-3-94-5 (Sept. 20, 1995), citing Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971). A trial commissioner is not required to mitigate the effect of this informal notice standard by allowing the parties to become privy to each others’ strategies via the pre-trial discovery process. If a party introduces a witness whom the opposition was unprepared to cross-examine, the trier always retains the discretion to allow for a continuance in order to allow preparation time, or he may simply refuse to admit the “surprise” testimony at all. See Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998) (commissioner reasonably excluded transcript from evidence where claimant had one day’s notice of doctor’s deposition, which was held two days before formal hearing). Significantly, the respondents sought to introduce no witnesses at the formal hearing, which fact the trier was presumably aware of when he denied the claimant’s discovery motion orally on November 15, 1999.

With respect to the claimant’s right to obtain extensive background information from Wausau as part of an effort to demonstrate that its failure to pay COLAs was due to fault or neglect, we do not dispute that such evidence might have helped the claimant prove her case. However, the respondent fairly points out that the workers’ compensation system was designed with simplified hearing procedures in order to provide a speedy disposition of contested cases. Vetre, supra. As a result, the trial commissioner’s judgment concerning the admissibility of evidence often overshadows evidentiary rules and common-law theories that would be determinative in a court of law. Id.; see also § 31-298; Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). Given the timing of the claimant’s discovery request relative to the formal hearing, and the ancillary nature of the dispute in the instant action (which ultimately centered on the proper interest rate to charge the respondents), we cannot say that the trier abused his discretion by declining to allow the claimant to pursue a complex discovery process that would likely have involved extensive research and interrogative proceedings, as well as long delays in the resolution of this case. See, e.g., Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 2295 CRB-8-95-2 (Sept. 6, 1996) (line of questioning regarding bias of doctor was appropriately circumscribed by trier), aff’d, 48 Conn. App. 774 (1998).

The claimant also challenges the trier’s admission of Respondent’s Exhibit 1, a packet of documents that contains numerous memoranda detailing the parties’ attempts at reaching settlement between May 13, 1999 and the formal hearing. The claimant had objected at trial that the settlement discussions were inadmissible as evidence, and should not affect her recovery, as the respondents could have paid the amount of COLAs and interest that were undisputed while negotiations on the remainder were ongoing. Transcript, pp. 7-9. Counsel also objected that the packet contained interest calculations that were prepared by an accountant who was not present for cross-examination. Id., 11.

Normally, we would agree that unsuccessful settlement negotiations have no bearing on the merits of a claim. However, where the pending issue is whether an insurer unduly delayed the payment of interest for several months following the tender of a check for overdue COLAs and total disability benefits, evidence of good faith efforts to reach a compromise as to the amount of interest due may be considered relevant. Section 31-300 allows, but does not require, the inclusion of interest when adjustments or payments are unduly delayed due to fault-free circumstances. Balkus, supra, 181. Where the only unpaid portion of a claim is the disputed amount of interest, it is reasonable for the commissioner to look carefully at those circumstances in deciding whether the claimant should be reimbursed for the respondents’ temporary use of that money. Here, where a prior commissioner recommended that the parties reduce the amount of interest owed to writing before making payment; Transcript, p. 8; the trier was not unreasonable in ruling that the respondents’ failure to pay that interest during several months of negotiations did not require even more interest to be paid. See Findings, ¶ H. We find no error in that portion of the trial commissioner’s decision.

As for the admission of Wausau’s interest calculations into evidence as part of Respondent’s Exhibit 1, we do not believe that the claimant was placed at an unfair disadvantage because the accountant who prepared those numbers was not present for cross-examination. Though having the accountant available for questioning might have been helpful in clarifying the nature of his calculation method, his attendance at the formal hearing was not crucial to the introduction of his tables into evidence. One can discern the accountant’s calculation method by comparing the two tables that he prepared: one that used a 6% interest rate for the entire interest calculation, and one that applied a 10% interest rate only to those weekly payments due on or after October 1, 1989. (As we will discuss below, neither of these methods is correct under our law.) The claimant was able to submit her own figures to counter the respondents’ evidence. Claimant’s Exhibits B. Even more importantly, the process used in figuring interest under § 31-300 and § 37-3a is ultimately a ministerial operation of law, and the accuracy of the calculation methods may be reviewed independently by any presiding legal authority. Indeed, this board is perfectly able to engage in such review here. We thus affirm the trier’s evidentiary rulings.

II. Amounts of Interest, Penalties and Attorney’s Fees

The claimant/appellant raises objections to virtually all of the trier’s award: his denial of § 31-303 penalties, various facets of his ruling regarding interest, and his decision reducing the requested fee of her attorney. We will address these issues in that same order.

Section 31-303 requires that payments agreed to under a voluntary agreement or due under an award commence within ten days of the date of said agreement or award. Failure to comply with this section mandates a twenty percent penalty per late payment (in addition to any other penalties prescribed by Chapter 568). Subsequent cases have established that this provision applies to cases that are resolved by stipulation, and that it applies to cases involving injuries that predate the July 1, 1993 enactment of the statute, being merely a procedural provision. Davis v. Forman School, 54 Conn. App. 841 (1999); see also, Casey v. Northeast Utilities, 249 Conn. 365 (1999) (Second Injury Fund is subject to penalty regardless of whether payment was due under “fully executed agreement” or award).

In the instant case, there is a key element of § 31-303 absent: an award, stipulation or agreement making it clear that the respondents had an obligation to pay back COLAs and interest prior to the date of the trial commissioner’s January 14, 2000 decision. The respondents’ obligation to pay the claimant her base compensation rate was clear as of the July 15, 1970 Finding and Award, but its obligation to pay COLAs and attorney’s fees did not become apparent until much later. The receipt date of a voluntary agreement and the date of issuance of an award have been chosen as the moments when the ten-day payment period begins running under § 31-303 because those events constitute definite notice of one’s obligation to pay an amount specified by the agreement or award. Casey, supra, 372-73. No such identifiable event has occurred in this case, save the January 14, 2000 award from which the claimant appealed. We decline to extend § 31-303 to apply to the situation before us here, as the language of the statute does not clearly mandate such a penalty.

Next, we reach the core dispute in this case: the proper means of calculating the interest due the claimant under § 31-300. At the time of the claimant’s injury, § 31-300 provided that undue delay in the adjustment of compensation because of employer fault or neglect could merit an award of six percent interest per annum. As of October 1, 1989, that amount became ten percent due to a legislative amendment.2 Meanwhile, the amount of interest available for undue delay in the payment of compensation increased from six to twelve percent in 1979. It is clear from caselaw that a statutory change in the § 37-3a interest rate affects all existing debts, but only from the date that the amendment takes effect. Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 690-92 (1986) (award of interest spanning 1973-1980 should have been calculated at 6 percent through September 30, 1979, and at 8 percent from October 1, 1979 forward). As there is no contrary legislative intent expressed by § 31-300 regarding calculation of interest payments, we are of the opinion that any statutory changes in the applicable interest rate over the life of this claim must apply prospectively to all unpaid benefits, effective on the date of the relevant amendment. Cf. Taylor v. P.J. Ladola’s, 12 Conn. Workers’ Comp. Rev. Op. 378, 1526 CRB-1-92-10 (Aug. 17, 1994) (1991 amendments to COLA statutes applied retrospectively, as they merely changed the procedure by which COLAs were calculated, and did not initiate the underlying entitlement to COLAs themselves).

There are two primary concerns that we have identified in the trier’s decision regarding the appropriate amount of interest. First, he concludes in ¶ B that “no argument exists with regard to the amount of interest due (6%) from 1977 through 1989 on said principal sum.” Meanwhile, it also appears that a small portion of the interest award was, or was intended to be, based on the late payment of weekly total disability benefits rather than COLAs. Findings, ¶¶ 5, 7; Transcript, p. 3. These sums were reportedly included in the $127,998.57 check issued by the respondents on June 10, 1999. We are unable to discern from the decision how much of that payment was based on unpaid weekly benefits, and whether the trier recognized that the parties’ respective interest calculations did not account separately for delayed temporary total disability benefits. However, if the trier did wish to award interest on these unpaid weekly benefits, he should have applied a 12% per annum interest rate to such payments beginning on October 1, 1979, as per the changes enacted by P.A. 79-80. Unpaid base compensation is not an adjustment under § 31-300, but a “payment,” and a higher interest rate applies in cases of undue delay. This issue must be articulated upon remand, specifically the amount of any unpaid weekly benefits (as opposed to COLAs) and the trier’s discretionary ruling as to whether interest should be awarded on such sums.

Second, the figures prepared by Wausau’s accountant that were adopted by the trier in ¶ E of his findings clearly fail to apply the 10% interest rate effective as of October 1, 1989, to any of the unpaid COLAs that became due prior to the enactment of P.A. 89-17. We have already discussed Neiditz, supra, which implies that the statutory change in the § 31-300 interest rate that took effect on October 1, 1989, apply to all payable COLAs that were then being detained. Thus, not only did the COLAs which became due after October 1, 1989 accrue 10% interest per annum from that point until the date of their payment; the previously outstanding COLAs also began to accrue further simple interest at the 10% rate, rather than at the prior rate of 6%. Neiditz, supra; see also, Solar Kinetics Corp. v. Joseph T. Ryerson & Son, Inc., 48 F.Supp. 1237 (D.C. Conn. 1980)(simple interest was computed on judgment as per § 37-3a). This case must be remanded with instruction that the trier employ a method of interest calculation that utilizes the 10% statutory rate for all unpaid COLAs as of October 1, 1989. Neither of the accountant’s formulations in Respondents’ Exhibit 1 employs this approach.

Finally, we reach the issue of attorney’s fees, which the claimant has also raised on appeal. She and her attorney signed a fee agreement on November 9, 1999 stating, “With respect to the hearing on November 15, 1999 . . . I agree to pay Gruskin & Gruskin twenty (20%) percent of any interest, COLA or penalty recovered. There will be no legal fees taken from any attorney’s fees recovered from Wausau.” Claimant’s Exhibit A. Pursuant to this Commission’s attorney’s fee guidelines, twenty percent is the maximum contingency fee that any attorney may normally charge for a contested case or formal hearing. Of course, all attorney’s fees remain subject to the approval of the trial commissioner under § 31-327(b). A trier might reasonably decide that the circumstances of a given case warrant a fee of less than 20% of a claimant’s recovery, even in the presence of a fee agreement. Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (Jan. 13, 2000); Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 1931 CRB-2-93-12 (May 12, 1995). Here, the trier awarded the claimant’s attorney a fee of 20% of the original payment of back COLAs and other benefits, but only 12% of the interest payment ordered in his Finding and Award. Findings, ¶ J. This sum came to $34,594.23, of which the trier ordered the respondents to pay $20,000. Id., ¶¶ K-L.

The current version of § 31-300 states that the commissioner may include in his award interest and a reasonable attorney’s fee where adjustments or payments of compensation have been unduly delayed because of the fault or neglect of the insurer. However, at the time of the decedent’s injury and death, § 31-300 only allowed attorney’s fees in cases of unreasonable contest. The “undue delay” discretionary award of attorney’s fees was added in 1988. P.A. 88-106. Normally, the law in effect on the date of a decedent’s injury controls the substantive obligations of an employer to the dependents of the decedent. Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). With respect to interest and attorney’s fees, this board has held that a claimant’s entitlement to such sums is dependent upon the language of the statute at the time of the compensable injury. Hicks v. State/Dept. of Admin. Services, 6 Conn. Workers’ Comp. Rev. Op. 111, 429 CRD-5-85 (Feb. 23, 1989) (at time of 1974 injury, mandatory interest and attorney’s fee provision was not yet in effect, and cannot be applied to unlawful discontinuance of benefits that occurred following change in law), no error, 21 Conn. App. 464 (1990), cert. denied, 216 Conn. 804 (1990); Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers’ Comp. Rev. Op. 123, 311 CRD-7-84 (June 27, 1988) (discretionary interest provision in effect at time of 1977 injury applied to trier’s 1983 award). These holdings continue to carry precedential weight. Accordingly, we are constrained to hold that the trial commissioner should not have imposed any portion of the claimant’s attorney’s fee upon the respondents, as there was no finding that they unreasonably contested liability in this case. The 1988 amendment to § 31-300 allowing attorney’s fees in cases of undue delay cannot be applied to the instant matter.

As for the amount of the fee itself, its reasonableness depends upon many factors, including the amount of preparation required, the novelty of the questions presented in the case, its intricacy, the customary charges for similar services, and the results obtained. Balkus, supra, 179-80 n.8; Prioli, supra. At the formal hearing, the claimant’s counsel stated that he was seeking 20% of his client’s award of interest and penalties, as per their fee agreement. The trier observed that this would net counsel $10,000 or $11,000 in fees over the $25,599.70 that he had already collected, which the commissioner deemed “a little high at this point.” Transcript, p. 14. In his award, he later chose a 12% figure over the 20% requested by the claimant’s counsel, which gave him a fee of $8,594.23. No further explanation was given for that ruling. Though a 12% fee on the interest payment is not per se unreasonable; Prioli, supra; we are unable to tell what factors the trier considered in reducing counsel’s fee from 20% to 12% of the balance awarded. If we cannot retrace his thought process in setting the fee, we cannot adequately review his exercise of factfinding discretion. Toth v. American Frozen Foods, Inc., 4069 CRB-4-99-6 (Aug. 9, 2000). Thus, we instruct the trier to articulate the basis of his 12% additional fee award on remand, in addition to recalculating interest.

The trial commissioner’s decision is hereby affirmed in part, and reversed in part with direction that proceedings on remand be conducted in accordance with our above rulings on interest and attorney’s fees.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 At the time of the decedent’s injury and death, § 31-300 stated, “As soon as may be after the conclusion of any hearing, the commissioner shall send to each party a written copy of his award. He shall retain the original award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where, through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at six per cent per annum. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six per cent per annum to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.” BACK TO TEXT

2 The relevant language in § 31-300 now provides, “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.” Also, § 37-3a states that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable.” BACK TO TEXT

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