Liano v. City of Bridgeport

The claimant was represented by George C. Springer, Jr., Esq., 99 West Main St., Suite 301, New Britain, CT 06051.

The respondent was represented by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the March 7, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard November 21, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the March 7, 1997 Finding and Award of the trial commissioner acting for the Fourth District. In that decision the trial commissioner ordered the respondent employer to pay the claimant’s attorney’s fees in the amount of $6,590.00. In support of its appeal, the employer contends that the trial commissioner failed to make any findings of fact to support an award of attorney’s fees for unreasonable contest. In addition, the employer contends that there are no findings which support the conclusion that $6,590.00 constitutes a reasonable award for attorney’s fees.

A brief procedural history is in order. The Compensation Review Board (“Board”) issued a decision on July 25, 1995 in the case of Liano v. City of Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A. C. 15082 (6/6/96), cert. denied, 238 Conn. 906 (1996). In the Board’s July 25, 1995 decision, the Board concluded that there were sufficient findings of fact to support the trial commissioner’s decision1 that the employer’s conduct constituted unreasonable contest pursuant to § 31-300 C.G.S. The trial commissioner in that matter had awarded interest at a rate of six percent, and “noted that the claimant was entitled to attorney’s fees as well, for which no award was made due to a lack of evidence as to counsel’s fees.” Liano, supra, at 203. Accordingly, the Board held that “a determination must be made regarding the proper sum to be awarded for attorney’s fees.” Id. at 204. The Board therefore remanded the matter “for a determination of the attorney’s fees due the claimant.” Id. at 206. Pursuant to the Board’s July 25, 1995 remand decision, and after the appeal and cross appeal had been dismissed by the Appellate Court for lack of final judgment (A. C. 15082 (6/6/96)), a formal hearing was held on December 18, 1996 and a Finding and Award was issued on March 7, 1997.

In support of its appeal, the respondent employer contends that the award of attorney’s fees in the March 7, 1997 Finding and Award is not supported by the evidence in the record. Our Supreme Court has held that the reasonableness of attorney’s fees “depends upon many factors, including the amount of preparation required, the novelty of the questions presented and the intricacy of the case, customary charges for similar services, and the results actually obtained.” Balkus v. Terry Steam Turbine, 167 Conn. 170, 179-80 n. 8 (1974); see also Ayala v. Konover Residential Corp. 14 Conn. Workers’ Comp. Rev. Op. 87, 1931 CRB-2-93-12 (May 12, 1995). In Ayala, supra, the claimant had entered into a fee agreement with his attorneys for twenty percent of the total amount paid to the claimant. However, the trial commissioner awarded the claimant’s attorneys less than the twenty percent fee agreement, and the Board affirmed the award, explaining that the trial commissioner was entitled to assess the fair worth of the legal services. Moreover, the Board explained that the claimant’s attorneys had “a duty... to present evidence supporting the amount of the fee agreement....” Ayala, supra, at 90.

In the March 7, 1997 Finding and Award, which is the subject of the present appeal, the trial commissioner ordered the respondent employer to pay the claimant’s attorney’s fees in the amount of $6,590.00. The trial commissioner found this amount to constitute a reasonable and customary charge. However, the trial commissioner did not make any findings of fact which articulate the basis for the amount of this award. Where, as here, a trial commissioner has made insufficient findings of fact on a certain issue, we are consequently unable to review that issue on appeal. Cirioli v. Yale University, 16 Conn. Workers’ Comp. Rev. Op. 219, 222, 3318 CRB-3-96-4 (June 18, 1997) (citing Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 936 CRD-6-89-11 (March 19, 1991). As we are unable to determine the basis for the $6,590.00 fee, we must remand this matter to the trial commissioner. See Cirioli, supra.

In further support of its appeal, the employer contends that the Compensation Review Board improperly found that the claimant’s benefit rate should be based upon the twenty-six weeks prior to May 16, 1983, rather than 1979. (Employer’s Brief at p. 16). The employer also presents arguments regarding the inclusion of outside overtime earnings under § 7-433b(b). The employer is addressing2 issues which have been addressed by the Board’s decision in Liano v. City of Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A. C. 15082 (6/6/96), cert. denied, 238 Conn. 906 (1996). We are also aware that our Supreme Court has recently issued Marone v. City of Waterbury, 244 Conn. 1 (1998), which addresses the recalculation of benefits under § 7-433b(b) to include outside overtime earnings.

In the instant case, we have already issued a decision regarding the above issues in Liano v. City of Bridgeport, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A. C. 15082 (6/6/96), cert. denied, 238 Conn. 906 (1996). The July 25, 1995 decision by the Board became the law of the case, subject to a right of appeal to the Appellate Court. See Chase v. State of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 292, 295, 2185 CRB-2-94-9 (June 20, 1996), rev’d. 45 Conn. App. 499 (1997). In Chase, the Board had issued a decision regarding a Motion to Preclude, which was appealed and dismissed for lack of final judgment by the Appellate Court, and subsequently a Supreme Court decision was issued which possibly affected the Board’s decision. The Board, however, declined to reexamine its original decision. Specifically, in Chase, we explained:

We conclude that the above reasoning applies to the instant case. In order to complete the record in this matter so that the Appellate Court may properly review it, we will remand this matter solely on the issue of attorney’s fees. Although future proceedings will likely be initiated by the respondent, we believe this is the most appropriate means of ensuring that all of the issues may be fully resolved.

The trial commissioner’s decision is remanded limited to the issue of attorney’s fees.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The trial commissioner found the following relevant facts in his April 26, 1994 Finding and Award:

18. Under Szudora v. Fairfield, 214 Conn. 552, 559 (1990), all those inside and outside overtime payments must be included in the calculation of “weekly compensation” for the purposes of the Section 7-433b caps.

19. The City’s failure to pay based on these overtime calculations constituted an unreasonable contest, and therefore interest is due at 6% per annum on the unpaid portions of the benefits due the claimant.

20. Insofar as claimant became obligated to obtain legal counsel to pursue these claims for recomputation he is also entitled to attorney’s fees but no evidence has been presented as to when counsel was first obtained and what the counsel’s fees might be. BACK TO TEXT

“V. Whether the CRB in its decision of July 25, 1985 (sic) erred in awarding the claimant-appellee a compensation rate based on the 26 weeks of earnings prior to May 16, 1983 when the evidence revealed that the claimant-appellee initially became disabled in 1979.

VI. Whether the CRB in its decision of July 25, 1985 (sic) erred in concluding that after April of 1990 ‘outside overtime’ earnings of the City of Bridgeport policeman should be includable in the ‘CAP’ as defined under C.G.S. § 7-433b(b).” (Employer’s Brief at p. 9).” BACK TO TEXT