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CASE NO. 3955 CRB-06-98-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 13, 2000
STATE OF CONNECTICUT/CONNECTICUT STATE LIBRARY/ARTS COMMISSION
The claimant was represented by Joshua Hawks-Ladds, Esq., Sorokin, Gross & Hyde, P.C., One Corporate Center, Hartford, CT 06103. Notice also sent to Joy C. Bylan, C.E.U.I., 110 Randolph Road, P. O. Box 1268, Middletown, CT 06457.
The claimant’s former counsel, the appellant Dwight O. Schweitzer, Esq., was represented by Steven L. Seligman, Esq., Katz & Seligman, 130 Washington St., Hartford, CT 06106.
The respondent was not represented at oral argument. Notice sent to the Office of the Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the December 7, 1998 denial of the appellant’s November 25, 1998 Motion to Modify Finding by the Commissioner acting for the Sixth District was heard June 25, 1999 before a Compensation Review Board panel consisting of Commissioners John A. Mastropietro, Leonard S. Paoletta, and Ernie R. Walker.
JOHN A. MASTROPIETRO, COMMISSIONER. The claimant’s trial counsel, Dwight O. Schweitzer, Esq. (“appellant”), has petitioned for review from the December 7, 1998 Order of the Commissioner acting for the Sixth District, which order was a denial of the appellant’s November 25, 1998 Motion to Modify Finding. His petition for review also states that he is appealing from the trial commissioner’s November 17, 1998 Memorandum of Decision. The appellant contends before this board1 that the trial commissioner erred by failing to heed the terms of a contract between the claimant and her trial counsel in establishing the proper attorney’s fee, as the trier lacked jurisdiction to ignore that agreement. We affirm the trial commissioner’s decision.
The claimant in this action suffered a compensable injury on September 27, 1984, and her employment was terminated by the respondent in March, 1986. She subsequently decided to seek redress from her employer, and her union filed a grievance on her behalf, which led to the filing of a § 31-290a wrongful discharge action with this Commission. When the case became too complicated for a union representative to handle alone, the claimant sought the services of an attorney. After several candidates declined to take her case, she met with the appellant, who agreed to be her lawyer. See March 23, 1998 Transcript, p. 13-14. He diligently and productively represented the claimant over the course of the next few years. Findings, ¶ D.
On August 2, 1995, the appellant procured a finding that the claimant was discharged in a retaliatory manner because she filed a workers’ compensation claim, which was followed by a February 16, 1996 Finding and Award ordering the reinstatement of the claimant in her job, the remittance of $145,675.60 in back pay ($203,575.84 in lost wages minus an offset of $57,900.24 for wages earned after termination), and the re-accreditation of the claimant’s accumulated sick and vacation time and her retirement contributions. The claimant testified that, when she first retained the appellant as counsel, he indicated that he was going to charge her the standard 20% attorney’s fee. Transcript, pp. 11, 15. Once the August 1995 retaliatory discharge finding was issued, however, the appellant requested that the claimant sign a form agreeing to pay him one-third of the gross award as an attorney’s fee. Id.; Claimant’s Exhibit A. The claimant signed that document. She testified that she “didn’t want to rock the boat because, after all, this matter wasn’t even finished yet,” and that she had simply accepted the change in the fee agreement after the appellant explained it to her, without fully understanding the legal basis for it. Transcript, pp. 18, 20.
In the 1996 Finding and Award, the trier awarded the appellant an attorney’s fee of $50,000, taking into account the complexity of the case, the appellant’s skill, and the time that he spent on the matter. Both parties filed appeals from that decision to the Appellate Court, which were withdrawn when the parties entered into a settlement agreement on July 2, 1996. There, the respondent agreed to pay the claimant her back wages owed (minus taxes due and retirement contributions that would have been deducted had she continued working for that employer), and consented to reinstate her as an employee, with accommodations to be made for her lifting restrictions, and credit given for over ten years’ worth of accrued vacation and sick leave. The settlement also prescribed that the respondent would pay $90,000 in attorney’s fees.
Shortly thereafter, the appellant submitted to the claimant a two-page statement intended to reconcile her account. According to the statement, the total value of the claimant’s award was $390,762.12, composed of $203,575.84 in back wages (including credit deducted for her interim earnings), a $50,000 attorney’s fee award, a $40,000 interest award2, $65,471.20 in retirement benefits, and $31,715.10 in vacation and sick day awards. The appellant deducted one-third of the total award as the attorney’s fee ($130,254.04), along with an additional $7,997.50 charge for support services and outside research. Pursuant to the settlement, he had received a total of $236,675.50 in cash from the respondent. He then deducted from that amount his attorney’s fees, $46,115.58 in state and federal income taxes that had to be withheld, a $6,014.20 FICA deduction, a $5,403.00 retirement contribution, and the $7,997.50 bill for support services and research costs. This left the claimant with $40,890.76 in cash from the settlement.
This “reconciliation” displeased the claimant, who hired another attorney and disputed the appellant’s requested fee. She asked for a hearing before this commission on attorney’s fees, and there argued that the appellant should be limited to the amount provided in the trial commissioner’s 1996 award, plus payment for additional time and costs not to exceed a total of $75,000. Findings, ¶ 17. Another commissioner presided over the issue of attorney’s fees, at which proceedings the only witness was the claimant. The appellant chose to rely principally on the memorandum of the one-third fee agreement in support of its position. He introduced no evidence supporting his claim for additional attorney’s fees, other than the claimant’s acknowledgement that the appellant represented the claimant very well in her case, and obtained a desirable result.
The commissioner found the claimant’s testimony credible and persuasive, concluding that the appellant had initially agreed to accept a 20% legal fee in exchange for representing her. He rejected the appellant’s claim that this Commission lacks jurisdiction to determine attorney’s fees in a § 31-290a action, as the claimant and her attorney chose this forum to try their case. He also rejected the assertion that the contingency fee agreement was reasonable pursuant to In Re Estate of Salerno, 42 Conn. Sup. 526 (1993). The trier ruled that a reasonable attorney’s fee in this case was $75,000.00, inclusive of the previous commissioner’s reasonable $50,000 award. The appellant then filed a November 24, 1998 Motion to Open and Modify that decision under § 31-315, seeking to offer as evidence a decision of the Statewide Grievance Committee, along with other evidence “whose relevance was not apparent to [the appellant] at the time of the March 23, 1998 hearing.” That motion was denied on December 7, 1998. Ten days later, the appellant filed a petition for review with this board from that decision, and from the trier’s November 17, 1998 opinion.
The first few matters we must address here are procedural: the claimant has filed two Motions to Dismiss the instant appeal, while the appellant has filed a Motion to Submit Additional Evidence. With respect to the claimant’s motions, we concur in her observation that the appellant did not file his appellate brief within the time prescribed by this board. Instead, the appellant attempted to submit a brief at oral argument, thereby giving the claimant no opportunity to respond. Though this board has the discretion to dismiss the appeal on that ground; see Schilling v. New Departure-Hyatt Div., 3290 CRB-6-96-3 (Aug. 4, 1997); we elect not to do so in this case. We will simply refrain from considering the contents of the late brief. The appellant’s failure to file a Motion to Correct with the trial commissioner is likewise not an omission that warrants dismissal of the appeal. The absence of a Motion to Correct merely prevents this board from disturbing the trial commissioner’s findings unless, as a matter of law, they lack even an iota of support in the evidence. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Review Op. 135, 136-37, 2196 CRB-3-94-10 (Jan. 17, 1996). Accordingly, the findings here will be reviewed with extreme deference.
Both motions to dismiss also address the fact that the appellant’s petition for review was filed within ten days of the denial of his Motion to Open and Modify the trier’s decision, but not within ten days of the Memorandum itself. Under § 31-301(a), a petition for review must be filed no later than ten days after the date that notice is sent of the ruling that a party seeks to appeal, or else that decision is final. Gyadu v. D’Addario Industries, Inc., 53 Conn. App. 179, 181 (1999). In a recent case in which a party filed a motion to reopen 16 days after an award was issued, and then filed a timely petition for review from the denial of the motion, this board held that, as no seasonable appeal from the initial award had been taken, the only matter properly before the CRB was whether the trier had abused his discretion in denying the motion to reopen. Matey v. Dember, 3153 CRB-5-95-8 (Jan. 10, 1997). Subject matter jurisdiction was otherwise lacking. The claimant argues that a similar analysis applies here, and that the appellant’s attempted “end run around the statutory requirement” justifies dismissal of his appeal.
The appellant counters, however, by correctly noting that his motion to open and modify the trier’s November 17, 1998 order was filed within ten days of the date that the parties were sent notice of that decision. Practice Book § 63-1(b), a part of the Rules of Appellate Procedure, states, “If within the appeal period, including any extension thereof, . . . any party files any motion which, if granted, would render the judgment or decision appealed from ineffective, a new appeal period shall commence upon the issuance of notice of the decision on the last outstanding motion. [Such] motions . . . include . . . motions to open judgment . . . .” (Emphasis added.) The policy behind this rule is sound. It prevents a party who has failed to file a timely appeal from circumventing the statutory appeal period by simply filing a motion to open, while at the same time recognizing the redundancy of requiring a party that seeks to reopen a decision to also file an appeal from the initial ruling before the motion to open has been decided. As the appellant filed his motion to open within the ten-day appeal period, and filed his petition for review within ten days of the denial of that motion, we hold that his appeal from the underlying decision was also timely under Practice Book § 63-1(b). Matey, supra, does not control here.
Regarding the Motion to Submit Additional Evidence: this board may grant such a request whenever a party to an appeal alleges that such evidence is material and that there were good reasons for its failure to present it in the proceedings before the trial commissioner. Admin. Reg. § 31-301-9. The appellant here seeks permission to introduce testimony that would allegedly contradict the claimant’s recounting of her understanding of the fee agreement. He explains that he did not testify previously because he “could not anticipate that the Commission would find unenforceable a writing signed by the claimant” based on the mere facts that the claimant did not receive consideration for the agreement, and that it was not adequately explained to her.
The appellant’s choice not to testify at the formal hearing because he did not anticipate the need for additional evidence beyond the agreement itself does not amount to a “good reason” within the meaning of § 31-301-9. Plainly, he could have testified had he chosen to do so, but instead made the tactical decision that he did not need further evidence to prevail in his argument. That decision was incorrect. We will not grant him another attempt to try the case, this time by proceeding in a different manner. Kennedy v. Heavy Duty Nelson Electric, 15 Conn. Workers’ Comp. Rev. Op. 88, 2139 CRB-5-94-9 (Dec. 8, 1995). The Motion to Submit Additional Evidence is therefore denied.
Before we continue on, we must address a second concern regarding subject matter jurisdiction. As stated above, the claimant brought a § 31-290a action against her employer, opting to file a complaint with this Commission rather than with the Superior Court. Under § 31-290a(b), a commissioner may award an employee “the reinstatement of [her] previous job, payment of back wages and reestablishment of employee benefits to which [s]he otherwise would have been eligible if [s]he had not been discriminated against or discharged.” The statute also mandates that a prevailing employee receive reasonable attorney’s fees, and provides that “any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”
Despite the general language of § 31-301(a) that makes a trial commissioner’s award or decision upon a motion appealable to this board, § 31-290a(b) implies that we do not have jurisdiction over appeals from the decisions of commissioners in wrongful discharge cases. We have held as such in previous decisions, beginning with Rondini v. Tectonic Industries, 10 Conn. Workers’ Comp. Rev. Op. 210, 1231 CRD-6-91-5 (Dec. 4, 1992).3 The fact that the initial award of attorney’s fees in this case was mandated by § 31-290a, however, does not necessarily place a later dispute over the correct amount of those fees outside the appellate jurisdiction of this board. It is not § 31-290a, but § 31-327(b), that makes attorney’s fees for services under chapter 568 subject to the approval of the commissioner, and it is § 31-327(a) that entitles a commissioner to make a separate award of such fees directly in favor of the person entitled to them. When the proceedings below, and the trier’s subsequent award, solely concern the reasonableness of an attorney’s fee for representation before this Commission, as they do here, their res falls within the appellate jurisdiction of the CRB. See LaPia v. Stratford, 47 Conn. App. 391 (1997) (commissioner could adjudicate dispute between claimant and his former counsel over attorney’s fees, and issue was appealable to CRB).
Moreover, unlike the primary elements of § 31-290a (discrimination and wrongful discharge), which resemble a civil action in tort, the proper amount of attorney’s fees for a lawyer appearing before a workers’ compensation commissioner is a matter specifically regulated by this Commission. Section 31-280(11)(C) requires the Chairman to issue guidelines for the maximum fees payable by a claimant for any legal services rendered by an attorney in connection with chapter 568, which was accomplished in a directive dated September 10, 1993. The decision of the trial commissioner on appeal here is primarily the result of his application of those guidelines, rather than an attorney’s fee scale solely intrinsic to § 31-290a. Also, unlike the award made in Brick v. Cyr, 51 Conn. App. 662 (1999), the commissioner’s award in this case concerns the amount of money that the claimant will receive from her settlement with her employer. The resolution of this matter is not beyond the statutorily-created jurisdiction of the commissioner. Thus, the law pertinent to this case is that surrounding this board’s interpretation of § 31-327, and the trier’s implementation of that law is properly before this board on appeal.
Our analysis of the merits of this case primarily centers on whether the trier correctly applied the law to the facts in this case, and on whether he abused his discretion in setting the appellant’s attorney’s fee. None of the subordinate factual findings are completely without support in the evidence, and without a Motion to Correct, we must adopt those findings on review. This includes the finding that the claimant initially agreed to pay the appellant a 20% attorney’s fee, and the finding that the claimant signed the subsequent one-third retainer agreement without much of an explanation, and without separate consideration. Findings, ¶¶ 11-14, E. The trial commissioner also gave deference to the $50,000 attorney’s fee award made in the February 1996 Finding and Award, which was perfectly acceptable, as there is no evidence that the previous commissioner neglected any of the factors relevant to a determination of that sum.
Those factors are numerous, as the actual amount that a commissioner may award for attorney’s fees is a matter within his or her discretion. Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 89-90, 1931 CRB-2-93-12 (May 12, 1995). They include the amount of preparation required to try the case, the novelty and intricacy of the issues, the results obtained, and the customary charge for similar services. Id., citing Balkus v. Terry Steam Turbine, 167 Conn. 170, 179-80 n.8 (1974). As the trier observed, there appellant presented no evidence regarding his expertise and ability, the time he spent on the case, the results he achieved in that time, the standard billing rate for such a workers’ compensation case, or the novelty of the legal questions he addressed—any of which might have justified additional fees under § 31-327. A note from the claimant stating that he deserved “every penny” of his fees hardly constitutes such evidence as a matter of law. The $75,000 awarded by the trial commissioner seems quite generous in light of these undisputed factual findings.
Though additional fees in a workers’ compensation matter may be awarded under § 31-327 (and we stress that, for the purpose of calculating fees, any proceeding held in this forum using its relaxed evidentiary and procedural rules is a workers’ compensation matter), the trial commissioner chose not to do so in this case. See Robinson v. Allied Grocers Cooperative, 1 Conn. Workers’ Comp. Rev. Op. 132, 136-40, 68 CRD-1-81 (July 13, 1982) (discussing theory of reduced attorney’s fees in workers’ compensation proceedings), affirmed, 39 Conn. Sup. 386 (1983). As we stated in Ayala, supra, a commissioner is entitled to award an attorney’s fee that is less than the amount stated in a fee agreement. Where an attorney seeks to justify an unusually large recovery, or seeks to modify a previous award of fees, he must offer evidence that supports his claim for a higher amount. Id., 90. The trier’s Memorandum evinces reasonable grounds to support the conclusion that the appellant did not meet that evidentiary burden here.
The cases that the appellant has cited throughout these proceedings, such as Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40 (1990), and In Re Estate of Salerno, supra, do not establish that this Commission lacks jurisdiction to disturb a fee arrangement memorialized by a signed contract. Though § 31-290a remedies may not be a standard “part of the overall workers’ compensation benefit package,” they are still intended to “protect and buttress the rights of workers’ compensation claimants,” and fall within the penumbra of workers’ compensation law. Ford, supra, 62. Moreover, Ford lists “the greater expense and effort generally involved in a civil action as opposed to a workers’ compensation proceeding” as justification for the inclusion of punitive damages as a possible remedy when a § 31-290a action is brought in civil court rather than before this Commission. Id., 64. It is a short step from that statement to the inference that, in the eyes of the Ford Court, a § 31-290a action tried before this Commission is presumptively less difficult to maintain procedurally than the same action would be in civil court.
As for Salerno, supra, it merely establishes that, in a civil tort action, the fee cap provisions of § 52-251c C.G.S. may be waived by a plaintiff. That decision does not establish that a workers’ compensation claimant can waive the protections afforded her by this Commission’s attorney’s fee guidelines, nor does it suggest that she can override the general authority of a commissioner to approve fees by simply signing a contingency agreement. The trier reasonably found, nonetheless, that the claimant contemplated no such waiver here. We thus need not delve into the potential scope of such a waiver. This finding was permissible under the commissioner’s role as the finder of fact.
It is worth noting, however, that under § 31-290, an employer cannot evade the obligations of the workers’ compensation act by any contract, other than one authorized by Chapter 568. We are reluctant to conclude that the rights of employees that are so carefully protected against employer duress by this statutory scheme should not be similarly protected in dealings that a claimant has with his or her counsel. Though we do not imply in any way that the appellant here attempted anything improper, the circumstances of this case provide a good example of a situation in which the oversight of a commissioner could prevent an attorney from trying to take advantage of his client by renegotiating a fee agreement right before a settlement is reached, in anticipation of an impending recovery larger than previously expected. Again, there is no suggestion that this happened here. But the potential for such an occurrence illustrates the importance of the commissioner’s continued authority to determine attorney’s fees under § 31-327.
The trial commissioner’s refusal to reopen his award of fees in response to the appellant’s Motion to Open and Modify was also reasonable under our statutes. Section 31-315 allows modification of an award where changed conditions of fact have arisen which necessitate a change in the agreement, or where the award is the product of accident or a mistake of fact. Marone v. Waterbury, 244 Conn. 1, 17 (1998). The appellant sought to reopen the trier’s award in order to introduce “evidence of the Claimant’s prior ratification of a one-third contingent fee,” which, as discussed above, the appellant could have introduced earlier, but did not because he failed to apprehend its importance. He also sought to introduce a finding of the Statewide Grievance Committee dismissing a complaint that the claimant filed against him regarding this matter.4 A finding by that Committee on a grievance complaint is not determinative of the issue of reasonable attorney’s fees before this Commission. In fact, the Committee acknowledged that this commission “will ultimately resolve this dispute over the Respondent’s fee.” Proposed Decision. p. 2. Neither of these items established the existence of a changed condition of fact or a mistake within the meaning of § 31-315, and the trial commissioner did not err in denying the Motion to Open and Modify his ruling.
The trial commissioner’s decision is hereby affirmed.
Commissioners Leonard S. Paoletta and Ernie R. Walker concur.
1 The Compensation Review Board panel originally scheduled to hear this appeal on June 18, 1999 included Chairman Jesse M. Frankl and Commissioner Angelo L. dos Santos. On May 19, 1999, the claimant’s appellate counsel, Sorokin, Gross & Hyde, P.C., informed this Commission via letter that Commissioner Santos was a former law partner of Richard D. Tulisano, one of the current partners in Sorokin, Gross & Hyde. Though the commissioner did not feel that a conflict was created by his former partnership with Attorney Tulisano, which ended in 1985, the appellant’s counsel, Steven Seligman, Esq., requested that “to avoid even the appearance of impropriety,” Commissioner Santos recuse himself from the panel. The commissioner agreed to honor that request.
At oral argument on June 18, 1999, the appellant’s counsel made another motion to the CRB panel. He asked another commissioner, Chairman Jesse M. Frankl, to recuse himself on the ground that, seven years ago, he contributed $100 to the political campaign of the same Attorney Tulisano, and that a reasonable, objective person could consider this an indicator of potential bias. Chairman Frankl had been listed as a panel member since the scheduling notice for oral argument was issued several months earlier, but the appellant chose to wait until the day of oral argument to raise this particular objection, and did so without briefing the issue. The Chairman assured the appellant that there was no reason for concern, and noted ironically that he was also a former law partner of Attorney Seligman’s current partner. The appellant continued to press his objection, citing Canon 7 of the Code of Judicial Conduct, a provision that directs judges to refrain from making contributions to political organizations or candidates.
Unlike the Code of Judicial Conduct, the Code of Ethics for Workers’ Compensation Commissioners does not prohibit contributions to political campaigns. In addition, we also do not believe that a relatively small contribution to the 1992 political campaign of a partner in the law firm of the claimant’s counsel creates a situation in which “the Commissioner’s impartiality might reasonably be questioned,” thereby requiring disqualification under § 18 of said Code of Ethics. Nevertheless, in the interest of expediting the resolution of this case, and averting the creation of a new ground for appeal, the Chairman graciously agreed to recuse himself from the instant proceedings. As the appellant’s counsel inappropriately raised this issue for the first time at oral argument, the CRB was forced to postpone further discussion of this matter until another commissioner could be designated as a replacement panelist. One week later, a special CRB session was convened for the sole purpose of hearing this appeal. BACK TO TEXT
2 The settlement agreement itself does not mention interest. Rather, it provides that the state shall pay a $90,000 attorney’s fee. The accounting statement’s characterization of $50,000 of that amount as a fee, and $40,000 as interest, is presumably related to the claimant’s appeal of the 1996 Finding and Award on the ground that the trial commissioner had erred by ruling that she was not entitled to interest under § 31-290a or § 31-300. BACK TO TEXT
3 The appellant in fact represents that it filed an appeal from the November 17, 1998 Memorandum of Decision with the Appellate Court, as the underlying issue in this case arose under § 31-290a. He states that the claimant has moved to dismiss that appeal on the ground that jurisdiction over the pending issue of attorney’s fees lies with the CRB. December 29, 1998 Memorandum in Opposition to Motion to Dismiss. The position of the parties on this issue is immaterial to our discussion, as they lack the power to create subject matter jurisdiction in this forum by their consent or acquiescence. Figueroa v. C&S Ball Bearing, 237 Conn. 1, 4 (1996). We must determine for ourselves whether this board has jurisdiction over the pending dispute. BACK TO TEXT
4 We note that the decision of the Grievance Committee is dated October 16, 1998, one month prior to the trial commissioner’s November 17, 1998 Memorandum of Decision. In his findings, the trier noted that the appellant moved to stay the formal hearing to await the Grievance Committee’s decision. The trier reserved ruling on the motion and requested counsel to advise him of the Grievance Committee’s decision. As of the date of the Memorandum, the trial commissioner reported that “neither counsel ha[s] advised the undersigned of any finding or decision by the Committee.” Yet, the appellant brought the Committee’s decision to the trial commissioner’s attention immediately upon receipt of the trier’s adverse order. BACK TO TEXT
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