State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Regan v. City of Torrington

CASE NO. 4456 CRB-5-01-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 25, 2002

THOMAS REGAN

CLAIMANT-APPELLEE

v.

CITY OF TORRINGTON

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Roger Frechette, Esq., Frechette & Frechette, 12 Trumbull Street, New Haven, CT 06511-6301.

The respondent was represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the October 26, 2001 Finding and Award of the Commissioner acting for the Fifth District was heard May 31, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the October 26, 2001 Finding and Award of the Commissioner acting for the Fifth District. They contend on appeal that the trier exceeded his jurisdiction by making a determination with regard to the reinstatement of the claimant’s sick days, that he erred by ordering the respondents to pay temporary total disability benefits and by awarding interest on those benefits, and that he improperly awarded attorney’s fees without conducting sufficient inquiry on the matter. We affirm the trial commissioner’s decision in part, and remand for further proceedings on the subject of attorney’s fees.

The claimant was employed by the respondent City of Torrington as an electrical inspector on September 11, 1998, when he was involved in a motor vehicle accident while performing his inspection duties. He sustained injuries from that accident that disabled him, causing him to lose time from work, and to incur medical expenses. Upon first examination, he complained of neck and low back pain. Dr. McCarthy recommended consideration of a lumbar fusion on December 23, 1998. On December 30, 1998, the claimant notified the respondent insurer that he expected his accident to be treated as compensable, and requested that his lost time from work not be treated as sick time. The city joined as a co-plaintiff in the claimant’s third-party action against the driver of the other car on April 27, 1999, relying on its capacity as an employer. Yet, the city continued to pay the claimant benefits based on sick time through April 18, 2001, which were taxable to him, unlike workers’ compensation benefits.

Several doctors related the claimant’s treatment to his automobile accident of September 11, 1998. Dr. Sella, who examined the claimant at the respondents’ request, rendered such an opinion on January 28, 1999. Dr. McCoy related the claimant’s subsequent complaints of left shoulder pain to the motor vehicle accident in a report dated December 14, 1999, and continued him on total disability as a result of those symptoms and his concomitant neck pain. Dr. McCarthy stated on April 22, 2000, that the cervical spine problems were affecting the left shoulder, and stated on August 9, 2000 that the neck was the most serious problem and the cause of the claimant’s disability. Dr. Luchini performed a commissioner’s examination on June 28, 2000. He attributed the claimant’s neck, back and shoulder injuries to the September 11, 1998 accident, and rated him with a 10% permanent partial disability of the cervical spine, 20% of the lumbosacral spine, and 10% of the left shoulder, which combined to render him permanently totally disabled. Both he and Dr. McCarthy recommended a two-level cervical discectomy and fusion to reduce pain and possibly increase employability, which was performed in late August. As of December 27, 2000, Dr. McCarthy felt that the claimant was still totally disabled, and he ultimately rated the claimant with a 30% permanent partial disability of the cervical spine, 6% of each shoulder, and 25% of the lumbar spine.

The trial commissioner noted that hearings were held to discuss proper payment pursuant to the Workers’ Compensation Act on five different occasions between December 2000 and April 2001. He noted that the respondents had filed a notice of intent to discontinue payment based upon a “single-page, fill-in-the-blanks form that addressed only [the claimant’s] back problem,” and that the respondents continued to refuse acceptance of the neck injury as compensable. Findings, ¶ 37. The trier concluded that the claimant continued to be totally disabled as per the reports of his treating physicians, and also concluded that the respondents had unduly delayed the payment of proper compensation by virtue of their “intransigence” in handling the claim. See Findings, ¶ 45. He ordered the respondents to pay total disability benefits together with interest at a 12% per annum rate, and also awarded the claimant a $32,400 attorney’s fee. The respondents have filed an appeal from that decision.

This board has often had occasion to set forth the standard of review that we apply to a trial commissioner’s factual findings. Generally speaking, the trier of fact is charged with the duty of resolving all issues that implicate the credibility of the evidence, whether that evidence be in the form of documentary exhibits or testimony by lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). On review of a trial commissioner’s decision, our role is not to retry the facts of the case by weighing the evidence anew, or by seeking to draw varying inferences from those drawn by the trier in response to the testimony of the parties. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Instead, if there is affirmative evidence in the record to support the inferences that the trier has drawn, we cannot disturb the findings absent the omission of admitted, material facts. Phaiah, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). With regard to the trier’s legal conclusions, we will find error only if said conclusions result from an incorrect application of the law to the facts found, or from an inference unreasonably or illegally drawn from those facts. Mosman, supra; Warren, supra.

We note that, in the instant case, no testimony was taken. The parties agreed to file briefs at a pro forma hearing on July 26, 2001, having conceded that there was no factual dispute requiring live testimony, as reflected in a July 5, 2001 letter from the trial commissioner to both attorneys of record. The trier subsequently rendered his Finding and Award based on those briefs and their appended exhibits. The absence of any formal hearing transcripts makes it more difficult for this board to review a case, as we are left without a record of any of the conversations that took place among the commissioner and the attorneys. We also recognize that the trier, having taken no testimony, did not perform the quintessential factfinding function of evaluating the demeanor of witnesses. However, we still grant deference to his factfinding discretion insofar as he drew inferences from the exhibits attached to the parties’ briefs.

The first issue we address on appeal is the respondents’ challenge to the trier’s jurisdiction to address the issue of the claimant’s request for a reinstatement of sick days, which is an issue governed by a collective bargaining agreement. The respondents contend that the trier lacked jurisdiction to consider this ostensibly contractual issue, and that any claims associated with the reimbursement of sick time were not properly before the trial commissioner. A formal hearing was at one time scheduled in this matter for July 5, 2001, whereupon the respondents objected that this Commission lacks jurisdiction “with regard to a contractual issue as to reinstatement of sick time. The claimant has a remedy, in another administrative [forum], on the issue of any alleged breach of contract for reinstatement of sick time.” June 22, 2001 Objection to Formal Hearing. That formal hearing was eventually recast as the pro forma hearing mentioned above.

While the claimant argues that the Workers’ Compensation Act is the exclusive remedy for employees who are injured during the pursuit of their employment, thereby vesting the trier with jurisdiction to decide whether the claimant was entitled to be receiving Chapter 568 benefits for any specific period, the respondents have framed this as an issue arising out of the collective bargaining agreement between the City of Torrington and the claimant’s union. We have stated that a workers’ compensation commission may interpret a contract such as a collective bargaining agreement when an explication of its terms is incidentally necessary to resolve a case whose core issue falls within the scope of Chapter 568. Pascarelli v. Moliterno Stone Sales, 3925 CRB-4-98-11 (Dec. 22, 1999), citing Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438 (1997). “Still, a commissioner does not generally preside over issues of contractual interpretation, and lacks the authority to adjudicate the terms of a collective bargaining agreement absent a specific statutory relationship between the case and the Workers’ Compensation Act. Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 764 (1999).” Pascarelli, supra.

Though this principle remains true here, we disagree with the respondents’ assertion that the question raised by the claimant was one of contractual interpretation. The commissioner’s decision to award the claimant total disability benefits under the Workers’ Compensation Act was not legally identical to an order against the respondents to reinstate his sick days based upon a linguistic interpretation of his union contract, as the commissioner did not need to make specific findings regarding the provisions of that agreement in order to make his award. Instead, once the claimant was found to be totally disabled under § 31-307 C.G.S. as the result of a compensable injury, he became entitled to total disability benefits as a matter of course. The trier simply ordered the respondents to pay those benefits, without having to discuss the collective bargaining agreement at all.

Insofar as the trier found that the respondents had in fact been paying the claimant benefits based upon accumulated sick time, he was able to draw that conclusion from the evidence submitted by the claimant along with his July 5, 2001 Memorandum Re: Formal Hearing and the statements of both parties in their trial briefs. Numerous pay stubs indicated that some of the claimant’s compensation had been provided by his employer via “sick pay” earnings, rather than “workers comp.” Claimant’s Exhibit E. There is no dispute that said benefits were paid as “sick time,” resulting in negative tax consequences for the claimant. As the claimant was in fact entitled to total disability benefits continuously from September 11, 1998 forward, the trier did not err in reaching this issue and making this finding. We thus discern no error in the commissioner’s exercise of jurisdiction over this matter.

The respondents’ second claim of error is that the trier erred in awarding total disability benefits because the issue was not before him and because the payment record reflects that the carrier had paid said benefits, “as required by the Collective Bargaining Agreement.” As we just noted, the payment of benefits under the rubric of “sick time” rather than “workers’ compensation,” thereby subjecting said benefits to taxation, does not satisfy the mandate of § 31-307, which entitles a claimant to non-taxable total disability benefits equal to seventy-five percent of his average weekly earnings after the appropriate deductions called for by the statute. If the claimant’s collective bargaining agreement happens to allow for the payment of full wages in these circumstances, then the claimant could reasonably be taxed on the portion of his pay that exceeds his workers’ compensation entitlement. However, it is the duty of this Commission to ensure that the claimant receives his workers’ compensation benefits under Chapter 568 in the statutorily required manner upon the entry of a finding that he is totally disabled.

With regard to the question of whether sufficient notice was provided to the respondents that the issue of total disability would be determined in the trier’s award, we begin by confirming that a party to an action is entitled to fair notice of the scope of the issues to be addressed at a hearing. Mosman, supra; Palm v. Yale University, 3923 CRB-3-98-10 (Jan. 7, 2000). “Notice 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.” Hartford Electric Light Co. v. Water Resources Comm., 162 Conn. 89, 110 (1971)(citations omitted). However, as this commission is not bound by strict pleading rules, we recognize that a party may be apprised of a pending issue by other means than this agency’s hearing notices, such as statements made at trial, the evidence in the record, or papers that have been filed. Siebold v. Helicopter Support, Inc., 4392 CRB-3-01-5 (Sept. 6, 2002); Mosman, supra.

Though the hearing notices in this case do not list “temporary total disability” as one of the issues to be discussed by the parties, the record leaves little doubt that the claimant’s lack of a work capacity was no longer in question at the time that the parties’ trial briefs were submitted. The respondents’ objection to the July 5, 2001 scheduled formal hearing described the listed issue for litigation as “reimbursement of sick time” with alleged claims for sanctions associated therewith. As noted, this is essentially an inverted way of characterizing the central issue that was before the trier, i.e., whether the claimant had been totally disabled from the date of his injury forward, and hence was entitled to such benefits. The collection of exhibits appended to the claimant’s trial brief is replete with medical records detailing the claimant’s physical condition, and identifying him as temporarily totally disabled. The respondents filed no objection to the inclusion of such exhibits in the claimant’s trial brief, nor did they attempt to bifurcate the proceedings below to ensure that the matter of total disability would not be included in the trier’s decision. Compare Spatafore v. Yale University, 3969 CRB-3-99-1 (May 29, 2001)(CRB found error in disability finding where parties specified on the record that trier should postpone ruling on “lost time and vacation time and personal time”); Palm, supra (error to rule on temporary partial disability issue where claimant’s counsel repeatedly asserted that claimant was not seeking temporary partial disability benefits, and sought to limit issue at formal hearing to Form 36 procedure).

Moreover, two of the listed issues in the hearing notice for July 26, 2001 concerned possible penalties for undue delay, including interest and attorney’s fees. These claims resulted from the respondents’ denial of the underlying compensation claim, manifested in part by their insistence on paying the claimant “sick pay” rather than workers’ compensation pay. The inclusion of such issues bespeaks an implicit recognition of an entitlement to compensation that, in the claimant’s view, has not been properly honored. We do not believe that the respondents can fairly claim to have been surprised by the trier’s award of a period of total disability, as the issues raised before the trier and the exhibits offered by the claimant amply foreshadowed such a potential finding once the trier overruled the respondents’ jurisdictional objection.

The respondents’ final argument is that the trier erred by awarding interest and attorney’s fees on the ground that the respondents unduly delayed the payment of proper compensation in this matter. With regard to the former, the trier awarded the claimant total disability benefits along with interest at the rate of 12% per annum, after finding that the respondent insurer had been guilty of unduly delaying payments. Section 31-300 entitles a claimant to “interest at twelve percent per annum and a reasonable attorney’s fee” in cases where the payment of compensation has been unduly delayed through the fault or neglect of the employer or insurer. Our scope of review on such a question is a bit limited, as “[w]e have repeatedly held that whether to award attorney’s fees and interest for [undue] delay and unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” Sharkey v. Stamford, 4068 CRB-7-99-6 (Nov. 17, 2000); McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (Nov. 12, 1998).

The respondents protest that this finding of undue delay was improper because there were good reasons for any delays in payment that occurred. These include an absence of evidence prior to March 10, 1999 that the requested temporary total disability benefits were causally connected to the claimant’s compensable injury rather than an unrelated carpal tunnel injury, and the initial absence of a statement by Dr. Luchini reflecting that the claimant (who had reached maximum medical improvement as of June 28, 2000) might need further medical treatment such as cervical surgery, which led to the denial of authorization for said surgery until January 18, 2001. The trier made several subordinate findings indicative of a pattern of delay, however, that counter the inferences the respondents would have us draw from these arguments.

The trier noted in his findings that the respondents initially rejected Dr. Wisch’s prescription for an MRI. Two months later, Dr. McCarthy (an associate of Dr. Wisch) recommended that the claimant consider a lumbar fusion. In January 1999, Dr. Sella examined the claimant and found that his symptoms were directly connected to the September 11, 1998 injury. These facts would justify the drawing of an inference contrary to the respondents’ complaint that no evidence existed prior to March 10, 1999 to link the claimant’s disability with his compensable injury as opposed to his carpal tunnel symptoms. The trier also found that cervical surgery was discussed by Dr. McCarthy on August 9, 2000. Dr. Luchini, meanwhile, had not been asked in the commissioner’s examination request to give an opinion on cervical surgery. The trier could have reasonably concluded that it was disingenuous for the respondents to refuse authorization for surgery on the ground that Dr. Luchini had found the claimant to have reached maximum medical improvement, when he was not initially asked about surgery, and when he concurred with the recommendation for surgery as of September 5, 2000.

These are not the only findings that would support an award of interest and attorney’s fees on the ground of undue delay. The trier also made note of the respondents’ conduct in failing to authorize a prescription for sleeping pills (¶ 34), in filing of a March 2000 notice of intent to reduce or discontinue payments based on a single-page form that addressed only the claimant’s back problem while ignoring his significant neck and shoulder problems (¶ 37), and in ignoring the claimant’s repeated requests that his benefits be paid properly (¶ 33). Given the inferences that the trier drew from these facts, we cannot fault the trier for labeling the attitude of the respondents’ insurer as “intransigent,” and for finding that they unduly delayed the payment of compensation under § 31-300.

With respect to the amount of the $32,400 attorney’s fee award, the respondents question the appropriateness of the trier’s finding regarding time spent on this matter, in light of the trier’s acknowledgement of the claimant’s attorney as being entitled to a high hourly rate ($250.00) due to his experience and reputation. An eight-page affidavit appended to the claimant’s trial brief as Exhibit M lists the amount of time that counsel spent on various matters, totaling 129.6 hours. The respondents take issue with some of these charges, such as the billing of 36 minutes for the preparation of a one-sentence objection to a Form 43, and the alleged need for 13 hours of preparation and over five hours of attendance time for a 15-minute informal hearing. Claimant’s counsel maintained at oral argument that he could explain any of his bills, and pointed out that a case is won by being well prepared.

Section 31-327 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). A trier has relatively broad discretion to set the amount of such a fee, but a party may still appeal such an award and attempt to show an abuse of that discretion. Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001). It follows that the trier’s decision must 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 substantially differs from the fee regulations that this Commission has promulgated. Id.; see also July 20, 2001 Memorandum No. 2001-03, “Claimant’s Attorney’s Fee Guidelines.” We have also held that the respondents must be afforded a meaningful opportunity to question a claimant’s attorney regarding the accuracy of his figures, where they articulate a desire to cross-examine in that regard. Cirrito, supra, citing Lapia v. Stratford, 47 Conn. App. 399-401 (1997).

At the trier’s request, no formal hearings were held in this case at which testimony was taken. Thus, the respondents did not have the opportunity to address the accuracy of the fee calculations submitted by claimant’s counsel, which were introduced for the first time at the pro forma hearing on July 26, 2001. Though attorney’s fees were listed as an issue on the hearing notice, the respondents had taken the position that a finding of undue delay was not justified, and had not yet been confronted with the accounting of the claimant’s attorney at the time they submitted their trial brief. The trier simply awarded counsel the full amount of his fee request without delving into the question of whether 129.6 hours was a reasonable amount of time for an experienced attorney to have spent on this matter. In their November 9, 2001 Motion to Correct, the respondents requested that a formal hearing be held with regard to “time spent by claimant’s counsel, with regard to the prior fee arrangement which counsel had with his client and with regard to an appropriate hourly rate which should be awarded.” That request was denied, as were the rest of the respondents’ proposed corrections.

We agree with the respondents’ contention that due process would have been better honored by the granting of this request. Thus, we reverse the trier’s award of a $32,400 attorney’s fee, and remand this matter for a formal hearing at which the proper amount of the attorney’s fee may be determined following an opportunity for the respondents to cross-examine claimant’s counsel regarding his bill for services.

The trial commissioner’s decision is accordingly affirmed in part, and reversed on the matter of attorney’s fees, with instructions that further proceedings be held.

Commissioners Amado J. Vargas and Jesse M. Frankl concur.

Workers’ Compensation Commission

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