State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cirrito v. Resource Group Ltd. of Conn.

CASE NO. 4248 CRB-1-00-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 19, 2001

MICHAEL R. CIRRITO

CLAIMANT-APPELLEE

v.

RESOURCE GROUP LTD. OF CONN.

EMPLOYER

and

CRAWFORD & CO.

INSURANCE ADMINISTRATOR

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

The respondents were represented by Erick Roberts, Esq., Gordon, Muir & Foley, Hartford Square North, 10 Columbus Boulevard, Hartford, CT 06106.

This Petition for Review from the June 5, 2000 Finding and Award of the Commissioner acting for the First District was heard January 26, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 5, 2000 Finding and Award of the Commissioner acting for the First District. They raise challenges on appeal to the trier’s award of attorney’s fees and interest, his authorization of epidural injections, and his finding that the claimant had not reached maximum medical improvement. We affirm the trial commissioner on two of these three grounds, but remand this matter for further proceedings related to the amount of the attorney’s fee that he imposed against the respondents.

The trier found that the claimant sustained a compensable injury to his back on January 14, 1999. He began treating with Dr. Becker on January 21, 1999, who restricted him to an eight-hour workday, and eventually referred him to Dr. Druckemiller for surgical consultation. Dr. Druckemiller evaluated the claimant on April 12, 1999, and pronounced him totally disabled with herniated discs at L4-5 and L5-S1. He performed a discectomy and a hemilaminectomy at those spinal locations on July 13, 1999. The claimant was returned to a 40-hour work week with bending and lifting restrictions effective on August 23, 1999, as per a Form 36 that the respondents had filed three days earlier. The claimant offered no objection. On October 11, 1999, Dr. Druckemiller reported that the claimant had reached maximum medical improvement with a 20% permanent impairment to the lumbar spine. On February 10, 2000, Dr. Becker stated that the claimant had not reached maximum medical improvement, and opined that he would be an acceptable candidate for epidural steroid injections.

Because of his work restrictions, the claimant was unable to continue the concurrent employment with a marketing research firm that he had maintained before his injury. He contends that he was entitled to temporary partial disability benefits after August 23, 1999, and that any reduction of such benefits would require the filing of an additional Form 36. A representative of the employer’s insurance administrator testified that, upon learning that the August 20, 1999 Form 36 had been approved, she reduced temporary partial benefits to $88.22 per week in order to reflect the claimant’s concurrent employment compensation rate. Then, after receiving Dr. Druckemiller’s October 11, 1999 report, she unilaterally converted the claimant’s benefits from temporary partial to permanent partial disability without filing a Form 36. October 11, 1999 is also the date that the claimant took a part-time job with American Frozen Foods.

In addition to other benefits, the claimant sought sanctions in the form of attorney’s fees and interest against the respondents on several grounds: their alleged unreasonable contest of his temporary partial benefit claim from the date of his injury through April 11, 1999; their unilateral reduction of temporary partial benefits; and their unilateral shifting of his compensation from temporary partial to permanent partial disability benefits. He also sought sanctions based on delays he had endured in receiving his weekly benefit checks. The trier found that the claimant was entitled to temporary partial benefits through April 11, 1999, and from August 24, 1999 to October 8, 1999. He also found that the claimant had not reached maximum medical improvement, as Dr. Becker’s report was more credible than that of Dr. Druckemiller, and he authorized a course of epidural injections. As to sanctions, he identified a pattern of inappropriate claims administration (implicating both Crawford & Company and the Shelby Mutual Insurance Company of Alabama), insofar as checks had been delayed and benefits had been discontinued or reduced without the filing of a Form 36. He accordingly awarded interest on the unpaid benefits and the delayed weekly checks, as well as an attorney’s fee of $10,000.00. The respondents have appealed that decision to this board.

We first address the respondents’ challenges to the trial commissioner’s reliance on the medical opinion of Dr. Becker concerning maximum medical improvement, and the trier’s order that the claimant receive epidural steroid injections. Our analysis of these claims of error entails the application of a highly deferential standard of review, as the “quintessence of a trier’s factfinding prerogative is the power to determine the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses.” Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001), quoting Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). As long as a doctor avers his opinion within a reasonable degree of medical probability (based upon the substance of the opinion, rather than the presence of a particular word or phrase), it may serve as the foundation for a trial commissioner’s findings. Struckman v. Burns, 205 Conn. 542, 555-56 (1987); Kisson, supra. Both the reasonableness and necessity of treatment under § 31-294d C.G.S. and the establishment of maximum medical improvement are factual issues to be decided by the trier based upon such medical evidence. Caprio v. Stop & Shop, 4028 CRB-3-99-4 (July 26, 2000); Kluttz v. Howard, 3738 CRB-4-97-12 (Feb. 18, 1999). This board may not retry the case on appeal and substitute its own evaluation of the various doctors’ diagnoses for that of the trial commissioner. Kisson, supra.

Doctor Becker issued a report on February 10, 2000, stating that the claimant had not yet reached maximum medical improvement. Claimant’s Exhibit B. The respondents contend that it was erroneous for the trier to rely on this report because Dr. Becker later testified that he would defer to Dr. Druckemiller’s opinions in matters regarding the claimant’s back surgery, including the post-operative healing phase; Respondents’ Exhibit 2 (March 21, 2000 Deposition of Dr. Becker, p. 28) and Dr. Druckemiller had consistently maintained that the claimant attained maximum improvement as of October 11, 1999. Claimant’s Exhibits C, L. Certainly, the respondents recognize that the trier’s factfinding role allows him to disregard some or all of any doctor’s testimony, even if it appears to be uncontradicted. Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This authority would encompass the power to reject the opinion of Dr. Druckemiller here.

Moreover, the respondents conveniently overlook the fact that, immediately after expressing his intent to defer to Dr. Druckemiller’s opinions, Dr. Becker stated that he had been unaware that his colleague had pronounced the claimant to be at maximum medical improvement, and professed his disagreement with that diagnosis based on the brief amount of time that had elapsed since the claimant’s surgery. Respondents’ Exhibit 2, pp. 28-30. Though he acknowledged that Dr. Druckemiller was “probably in a better position to make the call with regard to MMI,” as he had performed the claimant’s surgery; Id., p. 30; he nevertheless adhered to his own clearly reasoned opinion that it was too early in the recuperative process for the claimant to have reached maximum medical improvement. Id., p. 40. The trial commissioner was not required to disregard this opinion, which independently meets the “reasonable degree of medical probability” standard. Thus, we affirm the trier’s finding regarding maximum medical improvement.

As for epidural injections, both doctors recommended that the claimant pursue such therapy, even if the odds of its successfully furthering his recovery were relatively low. Dr. Becker described these injections as “a shot in the dark” given the amount of scar tissue present in the claimant’s back, but thought it reasonable to try at least one injection anyway, as it could conceivably be curative. Id, p. 41; see also, Exhibit B, supra. Dr. Druckemiller offered a similar opinion, stating that it was reasonable to try an epidural steroid injection, but that the efficacy rate is about five percent in situations like the claimant’s. Exhibit L, supra (Feb. 25, 2000 report). There is nothing in § 31-294d limiting “reasonable and necessary” medical care to courses of treatment that will probably be successful, nor would the humanitarian spirit of the Workers’ Compensation Act be furthered by our reading such a limitation into the statute. If a doctor believes that, under the circumstances of a case, a particular type of treatment is worth attempting, the trial commissioner would normally be justified in approving such treatment. It follows that we find no error in the trier’s approval of a course of epidural injections.

We next address the respondents’ protest against the commissioner’s imposition of interest and attorney’s fees pursuant to § 31-300. The trier levied such sanctions in response to “inappropriate claims administration” by the insurer and administrator. Findings, ¶ G. The respondents challenge both the notion that they administered this claim improperly and the $10,000.00 amount of the attorney’s fee award.

Pursuant to § 31-300, there are four separate circumstances in which the trial commissioner is empowered to penalize an employer or insurer. Where adjustments or payments of compensation have been unduly delayed due to the fault or neglect of the employer or insurer, the commissioner may award interest and a reasonable attorney’s fee. Where adjustments or payments of compensation have been delayed in the absence of fault by the employer or insurer, the commissioner may allow interest “as may be fair and reasonable.” Where the claimant prevails in an action and the trier finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. Finally, where total or partial incapacity payments are discontinued without (1) the issuance of proper notice as required by § 31-296 and (2) a written approval of such cessation by the commissioner, the trier is required to award the claimant a reasonable attorney’s fee and interest on the prematurely halted or reduced payments.

Here, the commissioner awarded interest on “unpaid temporary partial benefits and delayed weekly checks.” Findings, ¶ I. There were two periods of allegedly unpaid temporary partial benefits at issue: January 21, 1999 to April 11, 1999, and August 24, 1999 to October 8, 1999. With regard to the former, there is an approved voluntary agreement in the claimant’s file listing the inception date of his incapacity as January 15, 1999. There is no record that the claimant was paid any partial disability benefits prior to his being declared totally disabled on April 12, 1999, and the trial commissioner accordingly found that he was entitled to $88.22 per week in temporary partial disability benefits for the eleven-week period preceding that date. Findings, ¶ A; see also, Claimant’s Exhibit M. The claimant’s concurrent employment with the Telereach marketing research firm is listed on the voluntary agreement, where the name of Dr. Becker also appears as the Connecticut-licensed treating physician. Dr. Becker limited the claimant to an 8-hour-per-day work week as of January 21, 1999. Exhibit B, supra; March 7, 2000 Transcript, p. 13. No contrary evidence exists regarding the claimant’s work capacity for the next three months. The claimant’s attorney testified that he had raised the issue of temporary partial disability benefits for this time frame at several informal hearings dating back to April 1999, but such benefits had still not been paid. Id., pp. 26-27. The trier was entitled to take all of this into account, and award interest and attorney’s fees for that time period on the basis of an undue delay in the payment of benefits due to the fault or neglect of the respondents.

The second time period, August 24, 1999 through October 8, 1999, was also one in which the claimant was entitled to temporary partial disability benefits “at the base compensation rate [$492.24] less credit for wages earned” during this time period. Findings, ¶ B. The respondents filed a Form 36 on August 23, 1999, which indicated that the claimant was able to return to a 40-hour work week, and that the respondents were assuming that he could return to his usual work. No mention was made of any attempt to discontinue the claimant’s concurrent employment-based compensation, which would have been required by § 31-296, or to reduce his weekly benefit rate to any particular amount. A claims adjuster for the respondent Crawford & Co. testified that, upon approval of the Form 36, she recommended that the claimant’s weekly rate be reduced to $88.22, which was apparently done posthaste. March 23, 2000 Transcript, pp. 67-68.

The claimant was, in fact, continuing to claim entitlement to his full base rate, and had offered medical evidence to support the existence of continued restrictions at the September 10, 1999 hearing on the Form 36. Claimant’s Exhibit D (September 15, 1999 letter). The adjuster who recommended the reduction was aware of the claimant’s position on this issue. Transcript, p. 70. In fact, his full base rate was restored in October 1999. Exhibit M, supra. As a temporary but substantial reduction in the claimant’s rate was effected without heed to § 31-296, and the claimant was entitled to a higher rate pursuant to the trier’s ultimate findings, § 31-300 requires that interest be paid on the unpaid portions of those benefits, as well as a reasonable attorney’s fee. Soares v. Glass Industries, 4140 CRB-3-99-10 (April 10, 2001); Pelletier v. M&M Builders, Inc., 13 Conn. Workers’ Comp. Rev. Op. 266, 1740 CRB-5-93-5 (April 19, 1995).

We also observe that Crawford & Co.’s adjuster recommended that the claimant begin receiving specific indemnity benefits instead of temporary partial disability benefits as of October 15, 1999, for they had received a report by Dr. Druckemiller stating that the claimant had reached maximum medical improvement. Again, such a transference should not have been undertaken without the filing of a Form 36, whether or not there was contrary evidence concerning maximum medical improvement available at the time. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997). The significance of this procedure is only amplified by the fact that, in this case, the trier ultimately found contrary to Dr. Druckemiller’s opinion regarding maximum improvement. Similar sanctions would thus be warranted under § 31-300. Finally, the evidence regarding the delays in the claimant’s receipt of checks is clearly delineated in the record, with no corresponding evidence to dispute the existence of such problems. Exhibit M, supra. We thus find no error in the trial commissioner’s ruling that the claimant was entitled to interest on unpaid temporary partial disability benefits and delayed checks pursuant to § 31-300, as well as an attorney’s fee.

The last of the respondents’ assertions that we need address is their challenge to the amount of the $10,000.00 attorney’s fee that the trier imposed in his award. They contend that they were prohibited from cross-examining the claimant’s counsel with respect to the evidence he submitted in support of his requested fee, and protest that the award does not explain how the $10,000 fee was derived. The circumstances are as follows: at the March 7, 2000 formal hearing, the claimant’s counsel introduced into evidence a contingency fee agreement and a partial fee petition that outlined the number of hours he had spent preparing for and attending informal hearings on this matter. Claimant’s Exhibits H, I; Transcript, pp. 53-54. Counsel noted that the issue of temporary partial disability benefits was raised at each of those hearings, along with other issues. Id., 55-56. Respondents’ counsel objected that the proposed Exhibit I provided no way to parse out what amount of time was spent on the actions that were alleged to be subject to sanction. For example, the September 10, 1999 entry simply listed 6.25 hours multiplied by a $200 hourly rate as the requested fee (totaling $1,250) for that day. However, the hearing itself was only 15 minutes long. The trier overruled his objection, stating that this factor would affect the weight of the fee petition. Transcript, p. 57.

At the March 23, 2000 formal hearing, claimant’s counsel submitted into evidence an updated attorney’s fee petition, along with a phone log of calls made in relation to his client’s claim “for illustrative purposes.” Transcript, p. 55; Exhibits O, N. Shortly afterward, respondents’ counsel expressed a desire to summon his colleague to the stand, seeking to question him about the fee agreement and his customary charges, along with other issues such as the disputed maximum medical improvement date. Transcript, pp. 75-76. Claimant’s counsel objected to his being called as a witness. With regard to the fee agreement, he stated that he would be willing to respond to any questions about the documents that were in evidence. Id., 76. The trier noted that the fee agreement in evidence had not been signed by anyone from Maher & Williams, the law firm of claimant’s counsel. Id., 80. However, the claimant himself had signed the agreement, which lent it sufficient authenticity in the trier’s eyes. Id., 80-81. The trier then declared that he would not permit respondents’ counsel to put claimant’s counsel on the stand to broach the subject any further. Said counsel took an exception to that ruling. Id., 80. In its Proposed Finding and Award, claimant’s counsel would eventually request a fee of $12,500.00, while the respondents made no mention of the subject in their proposal.

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. Toth v. American Frozen Foods, Inc., 4069 CRB-4-99-6 (August 9, 2000), 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, a party may still appeal such an award, and attempt to show that this discretion was abused. Toth, supra; Contreras v. Montana Bakery, 3819 CRB-7-98-5 (June 16, 1999). 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 differs significantly from the fee regulations that this Commission has promulgated. This requirement applies even in cases of unreasonable contest, where we have held that a commissioner may award more than the guidelines normally contemplate. Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999); Toth, supra, n.1.

Between the attorney’s fee petition, which requests a total of $8100.00, and an extrapolation made from the “illustrative” phone logs in Exhibit N, the commissioner’s award of $10,000.00 does not appear to be a patently unreasonable number. The fee agreement signed by the claimant does set an hourly rate of $200 in the event of counsel’s early discharge, though counsel more generally agreed to accept a 20% contingency fee of the gross settlement, specific compensation and delinquent benefit amount as consideration. Then again, based upon recent precedent, we are given some pause by the fact that the trier did not explicitly set forth the components of his calculation. See Toth, supra, (case remanded even though fee award for unreasonable contest roughly in range allowed by guidelines, as CRB could not discern trier’s thought process in setting precise amount of award). One might assume that the neat $10,000.00 figure indicates that the trier estimated or “rounded off” his assessment of the fees due the claimant’s lawyer.

The larger problem, however, is that the respondents were not afforded the opportunity to question the claimant’s attorney regarding the accuracy of his figures. In a recent case regarding attorney’s fees, our Appellate Court discussed the importance of adhering to procedural due process in adjudicative administrative hearings. Lapia v. Stratford, 47 Conn. App. 391, 399-401 (1997). The court specifically criticized the admission of hearsay material such as letters without affording an opportunity for opposing parties to cross-examine regarding the contents of such documents. Id., 400. Though an attorney’s fee petition is more similar to an affidavit than it is to a letter, the fact is that the respondents’ counsel was in no position to challenge the representation of the claimant’s counsel as to time spent on this case without being able to ask him questions about his fee petition. This casts a shadow of doubt over whether the respondents were afforded a meaningful right to respond to this item of evidence, given their articulated desire to cross-examine the preparer of the document.

We believe that the transcripts show that respondents’ counsel adequately preserved an objection for review given the specificity of the trial commissioner’s ruling in response to his direct statements that he would like to call the claimant’s counsel to the stand. March 23, 2000 Transcript, p. 75; see also, March 7, 2000 Transcript, p. 56. Though desirable in theory, a request for a continuance by respondents’ counsel so that the claimant’s counsel could bring his own attorney to question him on cross-examination would have served little practical purpose. The trier had unequivocally expressed his viewpoint on the impropriety of counsel testifying in the first place, and had gone so far as to rule upon the objections of respondents’ counsel, thereby implying the existence of a reviewable evidentiary ruling. March 23, 2000 Transcript, p. 80; see also, March 7, 2000 Transcript, p. 57. The significance of procedural due process in our legal system compels us to rule that the trier erred by not allowing respondents’ counsel some opportunity to question his adversary regarding the representations contained in his petition for attorney’s fees. Therefore, we reverse the order that the respondents pay claimant’s counsel a $10,000.00 attorney’s fee, and remand this matter to the trier so that the respondents might be given a chance to question the claimant’s counsel regarding the contents of his fee petition.

The trial commissioner’s decision is affirmed in part, and reversed in part with direction that the matter be remanded for further proceedings on the amount of the attorney’s fee.

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

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