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CASE NO. 4447 CRB-7-01-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 10, 2002
FRANK A. ARCANO, JR.
CITY OF STAMFORD
BOARD OF EDUCATION
KEMPER INSURANCE GROUP
The claimant was represented by William Bilcheck, Esq., P.O. Box 281, Madison, CT 06443. (Note: Subsequent to the filing of this appeal with the Compensation Review Board, the claimant died.)
The respondents were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430. The respondents waived their right to oral argument and the matter was decided on the basis of the papers submitted.
This Petition for Review from the October 2, 2001 Finding and Award of the Commissioner acting for the Seventh District was decided on the basis of the papers submitted to Compensation Review Board and was considered at the April 26, 2002 convening of a panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents-appellants have petitioned for review from the Commissioner Acting for the Seventh District’s October 2, 2001 Finding and Award. In that Finding and Award the trial commissioner ordered the respondents to pay temporary total benefits to the claimant.1 The trial commissioner additionally ordered the respondents to provide an accounting of vacation/sick/personal days used by the claimant during his period of total disability and to reimburse the claimant for any such time used during the period of his total incapacity. The trier also ordered the respondents to pay attorney’s fees on the basis of unnecessary and undue delay.
The pertinent facts giving rise to this appeal are as follows. The claimant was a custodian who on January 13, 1997 suffered a cerebral vascular accident. The trial commissioner in this matter, Commissioner James J. Metro, took administrative notice of Commissioner Robin L. Wilson’s June 7, 2000 Finding and Award. In that June 7, 2000 Finding and Award, Commissioner Wilson concluded, inter alia, that the claimant’s cerebral vascular accident was compensable. She found that the claimant’s cerebral vascular accident occurred while the claimant, along with some other coworkers, was in the course of moving furniture credenzas each weighing between 250-400 pounds. This June 7, 2000 Finding and Award was not appealed by the respondents.
In the June 7, 2000 Finding and Award the commissioner noted that the claimant sustained a number of physical impairments resulting from the cerebral vascular accident including left-sided weakness and dragging of the left foot. In the October 2, 2001 Finding and Award the trial commissioner also concluded that the claimant sustained a number of medical problems stemming from the January 13, 1997 cerebral vascular accident. Among these was the left foot ulcer, which resulted in the claimant undergoing surgery to treat the ulcer. At some point as a result of the left foot ulcer surgery the claimant developed an infection. The trier found that the claimant’s condition of congestive heart failure was aggravated by and resulted from the postoperative infection suffered by the claimant. The trier found that the claimant was totally disabled from January 14, 1997 to August 3, 1997 and from March 6, 1998 to the date of the last formal hearing. The trier concluded, inter alia, that the periods of claimant’s total disability were the result of the claimant’s January 13, 1997 cerebral vascular accident.
The respondents filed this appeal. The respondents present the following issue for review: (1) whether the trial commissioner erred as a matter of law in concluding that the claimant was entitled to temporary total disability from March 6, 1998 through the evidentiary record’s closing. A sub issue presented for review by the respondents is whether the trial commissioner erred in awarding the claimant attorney’s fees on the basis of undue delay. As the respondents note in their brief, the success of their argument as to the legal appropriateness of the trier’s award of attorney’s fees first hinges on our ruling on the primary issue presented for review, i.e., whether the trier’s award of temporary total disability from March 6, 1998 was erroneous as a matter of law.
The respondents argue that the evidence before the trial commissioner is legally insufficient to support his findings and conclusion that the claimant is entitled to temporary total disability for the period in question. Whether the claimant was disabled from the period of March 6, 1998 through the date of the last formal hearing is a question that is largely dependent upon the trial commissioner’s factual findings. Carlson v. Bic Corp., 4364 CRB-3-01-2 (Jan. 29, 2002); LaPierre v. UTC/ Pratt & Whitney, 4305 CRB-8-00-10 (Oct. 23, 2001). As such the trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
In this particular case, the respondents waived their right to appear at oral argument and have left us to consider the merits of their appeal on the basis of papers submitted. From the record it appears that the claimant suffered his cerebral vascular accident on January 13, 1997 and was totally disabled from the time until August 3, 1997. The claimant attempted to return to work and did so until March 6, 1998. However the repeated ulceration of his left foot resulted in the claimant again being totally disabled. The trier found that the claimant remained totally disabled from March 6, 1998 through the date of the last evidentiary hearing.
Our review indicates that the deposition of Dr. Leonard Vinnick, M.D., a specialist in endocrinology and diabetes, clearly provides evidence from which the trial commissioner could reasonably conclude that the claimant was totally disabled from March 6, 1998 and that claimant’s status as totally disabled was related to the January 13, 1997 cerebral vascular accident. On appeal the respondents contend that the source of claimant’s total disability status is found in other medical conditions and problems sustained by the claimant. The respondents argue these other medical conditions are not causally related to the claimant’s January 13, 1997 cerebral vascular accident and thus, liability for the claimant’s total disability should not be assigned to the respondents.
There is no question that the claimant in this matter suffered from a myriad of medical problems and conditions. Among these were his pre-existing diabetes, the consequent nephrotic syndrome, hypertension and congestive heart failure. The respondents argue in this appeal that these conditions are in fact the basis for claimant’s total incapacity and that as these conditions were not “traumatic in origin,” liability for the claimant’s total incapacity does not rest with the respondents. See Respondents’ Brief, p. 6.
However, the trier did not concur with the assessment proffered by the respondents. In support of the trial commissioner’s findings and conclusion that the claimant was entitled to temporary total disability for the period appealed by the respondents, we refer to the March 26, 2001 Deposition of Dr. Leonard Vinnick. Specifically we note that in Dr. Vinnick’s deposition the following colloquy took place on cross-examination by Atty. Bilcheck.
Atty. Bilcheck: Did he [the claimant] suffer some form of paralysis in that [the left] leg following the cerebrovascular accident?
Dr. Vinnick: He had a disequilibrium, not a paralysis. He wasn’t able to sense exactly where his feet were at that time.
Atty. Bilcheck: But did he have that equilibrium prior to the cerebrovascular accident?
Dr. Vinnick: No, he did not.
Atty. Bilcheck: So, in your opinion, the equilibrium was as a result of the cardiovascular accident?
Dr. Vinnick: Yes. I think the sequence of events is simple. I think he developed a stroke, a cerebrovascular accident. As a result of that stroke, he developed this disequilibrium and other effects on his mentation, he developed a foot ulcer. This foot ulcer has been the harbinger of all sorts of bad things for him. It has prevented him from working because as result of his foot ulcer and after his surgery for the foot ulcer, the surgery that was performed at Beth Israel in Boston in 1998, he went into congestive heart failure, and from then on it has been nothing but a spiral downhill for him.
Mar. 26, 2001 Deposition of Dr. Vinnick pp. 30-31.
Additionally, Dr. Vinnick’s letter to claimant’s counsel dated February 2, 2001 stated that the claimant “has tremors in his right hand which makes handwriting difficult. He has certainly been affected mentally in that his processing is delayed since the cerebrovascular accident. He also states that his sense of direction and his mathematical reasoning are both also impaired.” See Claimant’s Exhibit A.
Our review of the record indicates that the trial commissioner’s conclusion as to the period of the claimant’s period of total disability is supported by the evidence and is not the result of impermissible or unreasonable factual inferences. Thus, the trier’s conclusion stands.
Having concluded as we have as to the legal appropriateness of the trier’s award for total disability from March 8, 1998, we do not believe we have cause to consider either a reversal or remand on the award of attorney’s fees. The record amply supports the commissioner’s conclusion as to a finding of undue delay. After the respondents received the June 7, 2000 Finding and Award, they were on notice that (a) the claimant’s cerebral vascular accident entitled him to benefits under chapter 568 and (b) that the June 7, 2000 Finding and Award imposed certain orders on the respondents; e.g., report back to the commission with an accounting of the vacation/sick/personal time used by the claimant for periods for which he was temporarily and totally disabled, as well as to pay the costs associated with the deposition of Dr. Charles Needham, M.D. and to issue voluntary agreements reflecting the claimant’s injuries and their compensability. Yet the record indicates that the respondents did not provide a full accounting for the claimant’s vacation/sick/personal time, nor did respondents pay the deposition costs for Dr. Charles Needham. See Paragraph G-H October 2, 2001 Finding and Award.
We also note that in the trial commissioner’s October 2, 2001 Finding and Award, the trier found that the respondents had not complied with Commissioner Wilson’s June 7, 2000 Finding and Award’s directive to issue Voluntary Agreement(s) regarding the claimant’s January 13, 1997 compensable injury nor had the respondents paid any benefits to the claimant “either with or without prejudice.” See Finding, ¶¶ 3-4
We think the respondents handling of this matter is troubling. The prior commissioner’s orders2 for payments related to deposition costs and to provide information were items that were within the respondents’ ability to ascertain and to produce. However, it is clear from the trier’s findings in paragraphs 3 and 4, that this was not done.
This leads us to consider the final issue presented by the respondents in their appeal, i.e., the legal appropriateness of the trier’s award of $3,850 in attorney’s fees. The respondents argue in their brief that the trier’s award of $3,850 in attorney’s fees was not sufficiently detailed “so as to enable . . . the method of calculation” . . . .
Respondents Brief, p. 8. In support of their contention, the respondents cite this tribunal’s opinion in Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001). However, we think the trier’s award is consistent with our ruling in Cirrito. Unlike the proceedings in Cirrito, the respondents here did not raise an objection when claimant’s counsel provided the trial commissioner with his fee request and the justification.3 Paragraphs E-F of Commissioner Metro’s October 2, 2001 Finding and Award state, “I find that the Claimant is entitled to attorney’s fees for the unnecessary and undue delay resulting from the Respondents’ failure to comply with Commissioner Robin Wilson’s Finding of June 7, 2000. In furtherance of paragraph E, I find that the Claimant is entitled to have his attorney’s fees, i.e., 22 hours at the rate of $175.00 per hour for a total of $3,850.00 paid to Attorney William Bilcheck.”
In their brief the respondents state that they were not given an opportunity to cross-examine Atty. Bilcheck as to the time spent or the basis for his hourly fee. Yet our review of the transcript reflects that the respondents failed to object to Atty. Bilcheck’s request for attorney’s fees nor did they request the opportunity to question him concerning same. As the respondents gave no indication that they wished to inquire further of Atty. Bilcheck as to his assertions regarding his fee, they waived their right to cross-examine Atty. Bilcheck.
We therefore affirm the Commissioner acting for the Seventh District’s October 2, 2001 Finding and Award. We also award interest pursuant to Sec. 31-301c(b).
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.
1 We note that the subsequent February 5, 2002 Finding and Order of the Commissioner Acting for the Seventh District reflects that the named claimant, Frank A. Arcano, Jr., died on December 26, 2001. Further a Fiduciary’s Probate Certificate was submitted by the named Executrix, Jacqueline B. Arcano, the claimant’s spouse. Thus, in the February 5, 2002 Finding and Order, the Commissioner ordered that the payments ordered in his October 2, 2001 Finding and Award be paid to the Estate of Frank Arcano. Additionally in the February 5, 2002 Finding and Order, the trier in this matter, Comm. Metro, ordered the respondents to pay benefits pending this appeal pursuant to § 31-301(f). BACK TO TEXT
2 Commissioner Robin Wilson’s June 7, 2000 Finding and Award. BACK TO TEXT
3 February 20, 2001 Transcript, pp. 28-29.
ATTY. BILCHECK: Finally, Commissioner, I’m requesting attorney’s fees. These are attorney’s fees that had been accrued since June 7, since Commissioner Wilson’s order-Finding and Award. I have calculated, once again, I’ve been to, essentially, what was supposed to be two formal hearings and one informal hearing, one informal hearing before Commissioner Sherman. There was supposed to be a formal hearing last time around with you, and also this formal hearing.
I have just for the formal hearings, alone, it came to 9.5 hours. Once again, that’s travel time, and time spent at the hearings.
Additional correspondences, and receipt and review of medical records, and letters that comes to four hours.
I have had-been on a weekly basis, if not more than once, with telephone conversations with Mr. Arcano. I’ve looked in my log book-24 different conversations at .25 per hour. So, that comes to six hours right there, Commissioner. With Attorney Maher’s office, I put in approximately 10 calls to his office, basically, requesting, you know, follow-up on this case-10 calls at .25. That’s two and half hours. So, I have a total of 23.25 hours at my rate $175.00 per hour. That comes to a total of $4,068.75.
THE COMMISSIONER: Okay. BACK TO TEXT
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