DiLieto v. City of New Haven

The claimant was represented by John Keyes, Esq., 201 Orange Street, New Haven, CT 06510.

Interested party, Patricia Cofrancesco, Esq., 89 Kimberly Avenue, East Haven, CT 06512 represented herself.

The respondent was represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. Respondent was not involved with the issue on appeal and did not file a brief or appear before the board.

This Petition for Review from the July 31, 2003, Findings of Fact of the Commissioner acting for the Third District was heard February 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Michelle DiLieto, has appealed from the July 31, 2003, Findings of Fact of the Commissioner acting for the Third District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant, Michelle DiLieto, filed her Workers’ Compensation claim pro se. The respondent contested compensability of the claimant’s bilateral carpal tunnel and bilateral basal joint arthritis injuries. Thereafter, Attorney Patricia Cofrancesco represented the claimant on a contingency fee basis from May 31, 2001 until February 28, 2002. During Attorney Cofrancesco’s representation of the claimant she performed many tasks which advanced the claimant’s case and addressed the ongoing issues that arose as a result of the respondent’s original denial of the claim. Attorney Cofrancesco attended five informal hearings for the claimant and represented the claimant at formal hearings on August 21, 2001 and December 10, 2001. As a result of the August 21, 2001 hearing the respondent agreed to accept the claimant’s bilateral carpal tunnel claims.

Attorney Cofrancesco succeeded in persuading the respondent to refrain from deducting time from the claimant’s sick days for physical therapy visits taken during work hours upon her return to work in September of 2001. Attorney Cofrancesco attended two expert witness depositions on December 23 and December 27, 2001. She had contact with the claimant’s physicians in order to obtain documentation. She convinced the respondent to continue the claimant’s medical coverage for eight weeks after the claimant’s termination. Attorney Cofrancesco wrote many letters and file notes throughout the representation. She talked to Ms. DiLieto on almost a daily basis.

On or about February 2002, the claimant contacted Attorney Cofrancesco regarding the settlement of all of her claims against the respondent which included, but was not limited to, her workers’ compensation claim. The claimant had a hearing scheduled before the State Board of Mediation and Arbitration concerning her termination and was represented by her union at that proceeding. Therefore, Attorney Cofrancesco was invited to a meeting prior to that hearing so that she could be involved in the compensation aspect of any proposed settlement. On February 9, 2002, arbitration was held concerning the non-compensation portions of the claimant’s termination case. At that time, the claimant’s union began to negotiate a settlement of all of the claimant’s claims which included the claimant’s compensation claim. On February 10, 2002, a meeting with union representatives was held at Attorney Cofrancesco’s office in regards to a global settlement of the claimant’s claims. At that time Attorney Cofrancesco strongly urged the claimant not close out her Workers’ Compensation claim because information that was crucial to the determination of the claim’s value was not yet available. The claimant was still within the course of treatment, had not yet reached maximum medical improvement, and had not been rated by her physicians. However, the claimant was insistent that Attorney Cofrancecso assign a value to her claim at that time. Attorney Cofrancesco did so, but warned those in attendance at the meeting that the numbers were rough given the lack of medical information.

On or about February 28, 2002, the claimant refused to endorse a check which represented an advance of eight weeks of temporary total disability benefits because she did not believe that Attorney Cofrancesco was entitled to a fee representing the eight week advance. The professional relationship broke down at that time and the claimant terminated Attorney Cofrancesco.

On or about February 29, 2002, the claimant retained Attorney John E. Keyes to represent her in the Workers’ Compensation matter. The claimant eventually entered into a Full and Final Stipulation of all of her claims. The case was settled by way of a Stipulation dated April 9, 2002 in the amount of $69,375 which was approved on May 15, 2002.

The issue before the trial commissioner was Attorney Cofrancesco’s petition for payment of attorney’s fees. Attorney Cofrancesco presented evidence that she spent 60.8 hours in her representation of the claimant. The claimant and Attorney Cofrancesco entered into a contingency fee agreement dated November 17, 2001. The trial commissioner found Attorney Cofrancesco was entitled to a fair and reasonable fee of $9,500. He made this determination on the basis of Attorney Cofrancesco’s extensive involvement in the case. He found the customary and allowable contingency fee is 20 per cent and that Attorney Cofransceso represented the claimant for approximately nine months while Attorney Keyes represented the claimant for approximately three months.

The claimant has appealed this award. The claimant contends the trial commissioner should have only looked to the contingency fee agreement and should not have used any quantum merit analysis. Under the fee agreement, the claimant argues Attorney Cofrancesco should only be entitled to 20 per cent of any benefits received during the representation, in this case 20 per cent of the eight weeks of temporary total disability benefits. Attorney Cofrancesco suggests because the contingency fee agreement was broken by the claimant, the trial commissioner should be free to use a quantum merit analysis.

Section 31-327(b) C.G.S. gives the trial commissioner the authority to review all attorney fees. This includes the power to order a distribution of fees between two law firms or attorneys that represented the claimant through out the duration of the case. Smith v. SRS Communications Corp., 4661 CRB-8-03-4 (March 31, 2004). The trier has the discretion to determine a reasonable fee. Contreras v. Montana Bakery, 3819 CRB-7-98-5 (June 16, 1999). We will not overturn a fee award unless there is evidence of the trial commissioner’s abuse of that discretion. Tartakovsky v. Sohmer/Pratt & Read, 7 Conn. Workers’ Comp. Rev. Op. 46, 666 CRD-8-87 (August 9, 1989). The reasonableness of a fee includes factors such as “the preparation required, the novelty and intricacy of the case, the results obtained, and customary charges.” Ayala v. Konover Residential Corp., 14 Conn. Workers’ Comp. Rev. Op. 87, 1931 CRB-2-93-12 (May 12, 1995) citing Balkus v. Terry Steam Turbine, 167 Conn. 170, 179-80 n.8 (1974).

Although the claimant argues that Attorney Cofrancesco should only receive a portion of the monies that were obtained during her representation of the claimant, it is well within the trial commissioner’s discretion to award Attorney Cofrancesco a fee that represents the work that she performed on behalf of the claimant. “Often, cases take time to resolve, maturing only after the parties have been negotiating for a long period of time.” Contreras, supra. As we similarly stated in Contreras, the time period when the payments are received is not necessarily germane to the value of each attorney’s services.

The trial commissioner here did exactly what he was supposed to do. He sifted through the details of the case in order to determine a fair and equitable attorney’s fee. He went through a detailed analysis of the time Attorney Cofrancesco spent and the efforts that she utilized on the claimant’s behalf. We see no reason to substitute our judgment for his.

Therefore, we affirm the July 31, 2003, Findings of Fact of the Commissioner acting for the Third District.