Pantanella v. Enfield Ford

The claimant was represented Patrick Tomasiewicz, Esq., Fazzano, Tomasiewicz & Paulding, L.L.C., 836 Farmington Avenue, Suite 109, West Hartford, CT 06119.

The respondent employer and Transamerica Insurance were represented by Colette Griffin, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

The respondent employer and St. Paul Fire & Marine Insurance were represented by Timothy G. Zych, Esq., Smith, Ketaineck, Robertson & Musco, 9 Washington Avenue, Suite 3-A, P. O. Box 5035, Hamden, CT 06518-0035.

The respondent employer and Utica Mutual Insurance were not represented at oral argument. Notice sent to Avery & Crone, 25 Third Street, Stamford, CT 06905.

The respondent-appellant CIGA was represented by David A. Kelly, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033. Accompanying him was Colin Hoddinott, Esq.

These Petitions for Review from the September 21, 1999 Finding and Award and the April 14, 2000 Ruling of the Commissioner acting for the First District were heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Connecticut Insurance Guaranty Association (CIGA) has petitioned for review from the September 21, 1999 Finding and Award of the Commissioner acting for the First District. It has also appealed from an April 14, 2000 ruling by that commissioner on a motion to quash the deposition of an attending physician that were filed by the claimant and by the respondents Enfield Ford and St. Paul Fire & Marine Insurance. This is the third time that this appellant has appeared before this board in this matter. See Pantanella v. Enfield Ford, 3937 CRB-1-98-11 (Jan. 7, 2000); Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (January 28, 1998).1 On this occasion, the appellant takes issue with the trier’s order that it pay the claimant $800 in attorney’s fees, and the trier’s granting of the Motion to Quash. We affirm the decision of the trial commissioner.

Rather than recount the entire history of this case, we simply refer the reader to the facts set forth in Pantanella I and Pantanella II for much of that background information, and move into a discussion of the issues on appeal. In a November 20, 1998 Finding and Award, the trier ruled that CIGA had expressly waived a statute of limitations defense in § 38-841(1)(a)(ii)(B) that it sought to assert against the claimant. This board affirmed that finding, which was largely a factual matter involving the interpretation of the attorney’s remarks at trial, in Pantanella II. Because the trial commissioner found that this defense had been waived, he was not required to make a finding as to the date notice of claim was provided by the claimant to CIGA, as had been suggested in Pantanella I. (See May 11, 1999 Transcript, p. 10, where counsel wonders if CRB has “lost interest” in this issue). We also note that this board in Pantanella II affirmed the trier’s finding that CIGA’s inclusion of the notice issue in its appellate brief constituted evidence of undue delay (along with other actions).

Meanwhile, following the November 28, 1998 Finding and Award, CIGA’s counsel had moved to correct the award by requesting that the trial commissioner specifically make a finding as to when CIGA was notified of the claimant’s workers’ compensation claim. The trier responded by reiterating that CIGA’s counsel had agreed at trial that notice to his client was timely, and criticized counsel for first raising this issue after the trial had completely concluded, describing his practice in this instance as being productive of “ongoing and excessive litigation.” The claimant then moved for further attorney’s fees in light of the undue delay caused by CIGA’s belated assertion of the statute of limitations defense. A formal hearing was held on May 11, 1999, after which briefs were filed, and the claimant was awarded $800 in fees for four hours’ work by his attorney. This sequence of events occurred prior to the release of this board’s decision in Pantanella II.

CIGA’s counsel now challenges the $800 attorney’s fee award, alleging that no evidence was submitted to support the fee award, the award is premature because this case is on appeal before the Appellate Court, and the commissioner partially based the award upon matters that were not before him at the time of the formal hearing. We disagree with these assertions of error. First, a trier is no more precluded from awarding attorney’s fees before the merits of a case have been appealed to the Appellate Court than he is from awarding attorney’s fees before the merits of a case have been appealed to this board. Awards frequently direct the payment of both compensation and attorney’s fees. Practice Book § 61-11, which CIGA cites in support of its contention, proscribes proceedings to carry out or enforce a civil judgment pending the resolution of an appeal. Not only is an attorney’s fee award under § 31-300 fundamentally different from an execution order, but the Workers’ Compensation Act itself provides that a commissioner may “include in his award interest . . . and a reasonable attorney’s fee” in cases of undue delay and unreasonable contest due to the fault or neglect of the employer or insurer. (Emphasis added.) The Act also provides for the payment of compensation pending appeal under § 31-301(f), which is an exception to the general notion that an appeal stays the payment of a money judgment. Thus, P.B. § 61-11 has no practical application here.

Second, in his July 3, 1996 award, the trier ordered that the respondent CIGA pay the claimant $3,500 in attorney’s fees on account of CIGA’s undue delay in paying benefits. At that time, the issue of § 38-841 notice had not yet been raised by CIGA as a defense against the claimant. In his November 20, 1998 decision, the trier confirmed the $3,500 award based on CIGA’s trial tactics, such as its disregard of the commissioner’s order denying its request to depose Dr. Mazzara and its subsequent attempt to introduce that deposition into evidence. We affirmed that award in Pantanella II. Now, a second fee award has been made. This $800 award appears to be based on the trier’s observation that CIGA originally raised the statute of limitations issue after the completion of the initial trial, resulting in many additional proceedings (including this board’s remand in Pantanella I). Indeed, he states in his September 21, 1999 award that the issue was a “moot point” by the time CIGA first raised it due to its express waiver of that defense, and laments CIGA’s insistence on reasserting this defense “time and time again.”

Although the trier mentioned in his 1998 award that CIGA’s untimely raising of this defense before the CRB was “further evidence of undue delay,” he did not then take the step of making a second award of attorney’s fees or increasing the existing award on account of that conduct, which postdated his original award. The claimant’s request for additional attorney’s fees followed the 1998 award and the trier’s harshly-worded denial of CIGA’s Motion to Correct, which we discussed above. It follows that the $800 award was premised on the trier’s finding that CIGA had adopted this additional dilatory tactic, and the language of his decision bears that out. Though the trier cited some of CIGA’s previous conduct as evidence of a pattern of dilatory strategy, he did not rely on issues that were not currently before him in making this second award of attorney’s fees. Thus, we find adequate support in the facts for this finding of further undue delay.

Finally, we note that the claimant’s counsel filed a brief in support of his request for attorney’s fees on June 2, 1999, requesting $800 as payment for the four hours he spent preparing for and attending a preformal hearing on March 25, 1999 and a formal hearing on May 11, 1999. The appellant did not contest this calculation, despite having had several months to consider this brief and make an objection to the amount claimed. This $200 hourly fee is hardly extravagant by current community standards, and CIGA had sufficient opportunity to respond if it felt otherwise. See Lapia v. Stratford, 47 Conn. App. 391 (1997) (parties must have notice of claim for fees and opportunity to present relevant evidence); Simmons v. Temporary Labor Corp., 3975 CRB-6-99-2 (May 25, 2000) (CRB reversed the award where respondents had only two business days to object to counsel’s request for fees and his affidavit itemizing legal costs). We thus find no error in the rather modest amount of the trier’s fee award.

CIGA’s other argument on appeal is that the trier improperly granted a Motion to Quash its notice that it intended to take the deposition of Dr. Becker, the claimant’s treating physician. According to CIGA, this request to depose was necessary in order for it to address the treater’s current determination of disability, as the case remains active, and CIGA did not have Dr. Becker’s medical report. Further developments have since occurred regarding this matter. CIGA’s counsel stated at oral argument that he had learned only a few days earlier that the claimant’s counsel had in his possession a report by Dr. Becker, which the claimant then shared with CIGA’s counsel. June 12, 2000 Transcript p. 12.2 The claimant’s counsel replied that CIGA’s attorney had met with Dr. Becker, and already knew the contents of that report. Id., 27. He explained that he thought it pointless to confront CIGA with the report (which detailed a slight increase in disability), as they were refusing to pay any compensation in this matter. Id., 24-28. During rebuttal, the appellant said, “now that I know what Doctor Becker’s opinion is I don’t need the deposition, I didn’t need that hearing, I didn’t need this appeal.” Id., 35. He made it clear that, had he been in possession of this report, he would not have sought this deposition in the first place. As the appellant has declared that the deposition underlying the disputed Motion to Quash is now a moot point, it would be inappropriate for this board to consider this issue any further. See Twitchell v. Guite, 53 Conn. App. 42 (1999) (appellate courts may not render advisory opinions where no practical relief may be awarded). Thus, we end our discussion here.

The trial commissioner’s decision is affirmed. Insofar as any portion of this award has remained unpaid pending the resolution of this appeal, interest is awarded as required by § 31-301c(b).

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 This opinion is a revision of the original decision that was released on December 11, 1997. Because we inadvertently failed to address the issue of CIGA’s Motion to Reopen in our initial ruling on that appeal, we released another version of that ruling once the oversight was made apparent. BACK TO TEXT

2 Oral argument before this board was actually conducted on June 16, 2000. However, the transcript of those proceedings is dated June 12, 2000, so it is that date that we are using for reference to the transcript. BACK TO TEXT