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CASE NO. 5070 CRB-4-06-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 17, 2007
TOWN OF STRATFORD
WEBSTER RISK SERVICES, INC.
The claimant was represented by Susan G. Cartier, LLC, 24 Holly Mar Hill Road, Northford, CT 06472. Notice also sent to Daniel P. Hunsberger, Esq., Maurer & Associates, PC, who represented Stratford Fire Fighters Local 998, 871 Ethan Allen Highway, Ridgefield, CT 06468.
The respondents were represented by Thomas G. Cotter, Esq., Cotter Rooney LLP, 2336 Main Street, Stratford, CT 06615.
This Petition for Review from the March 13, 2006 Finding and Award of the Commissioner acting for the Fourth District was heard September 22, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. Both parties to this case have petitioned for review from the March 13, 2006 Finding and Award of the Commissioner acting for the Fourth District. The respondents challenge the trier’s award of lost time compensation under § 31-312 C.G.S. to a firefighter who received 100% of his salary pursuant to a union contract, while the claimant argues that the trier’s award incorrectly omitted certain attorney’s fees, § 31-312 payments for time spent attending the formal hearing, § 31-312 payments for therapy sessions whose length was miscomputed, interest pursuant to § 31-295(c), and orders authorizing treatment for future exacerbations to the underlying injury. With respect to both appeals, we affirm in part, and remand for further findings on the remaining issues.1
The trial commissioner found the following relevant facts. The claimant works as a firefighter for the respondent Town of Stratford. He sustained a back injury arising out of and in the course of his employment on May 5, 2004. A voluntary agreement approved on April 12, 2005, identifies the treating physician as Edward Kudej, D.C., and provides that the claimant sustained a 5% permanent impairment of the back. The claimant also belongs to the International Association of Fire Fighters union (Local 998), and receives his wages and benefits in accordance with the union’s collective bargaining agreement with the Town of Stratford, under which the claimant is an hourly employee.
The claimant collected temporary total disability benefits from May 5, 2004 to June 28, 2004, when he returned to light duty work and began receiving full weekly wages. The claimant continued chiropractic treatment with Dr. Kudej from June 28, 2004 through March 26, 2005. Because his work schedule often prevented him from attending aquatherapy and appointments with Dr. Kudej during work hours (i.e., when the claimant worked nights and weekends), the claimant requested benefits pursuant to § 31-312 C.G.S.2 He sought 49.5 hours of lost time from work, along with $126.68 owed in additional mileage reimbursement.3 The respondents contested the claim, arguing that the claimant receives a full salary under his union contract, and is not entitled to payment under § 31-312 for time spent in medical treatment outside working hours because he is already receiving more money from the town than is required to be paid by § 31-307 and § 31-308 C.G.S. The respondents also filed a Form 43 contesting chiropractic treatment provided after the January 7, 2005 maximum medical improvement date on the ground that it was palliative.
The trial commissioner determined that the claimant should be compensated for the time involved for medical treatment as though it were time lost from his job at the rate of his average hourly earnings. He also ordered the mileage reimbursement of $126.68. Benefits were awarded for 24.5 hours of earnings covering medical appointments from June 28, 2004 through November 3, 2004. This number was based on the trier’s calculation that the claimant visited Dr. Kudej 17 times at one hour per visit, and went to aquatherapy five times at 1.5 hours per visit. The trier found that the claimant had testified he was free to go to work after spending an hour with Dr. Kudej; see Claimant’s Exhibit D; and that he would lift weights of his own volition during the hour following those visits. As for medical treatment provided beyond the claimant’s maximum medical improvement date, the trier ordered an updated evaluation by Dr. Kudej, who continued to be the authorized treating physician.
The trier also found that the respondents unreasonably contested liability in this matter, and allowed a reasonable attorney’s fee and interest. He cited this Commission’s Claimant’s Attorney’s Fee Guidelines (See Memorandum No. 2001-03), which state that every attorney seeking a fee from an injured worker is required to enter into a written fee agreement at the time the injured worker engages the attorney’s representation. Noting the fee agreement between the claimant and his counsel, Attorney Colleen P. Zingaro, the trier ordered payment for the 9.75 hours that she expended preparing for and attending formal hearings (while declining to award fees for the other 3.05 hours of time billed for meetings, telephone calls, and writing letters). See Claimant’s Exhibits F, G, K. The trier did not mention attorney’s fees for Attorney Susan G. Cartier, which had been requested. Both parties have filed petitions for review from the trier’s decision.
The respondents argue that the claimant was not entitled to payment under § 31-312 because he was receiving his full salary. Initially, we observe that § 31-312(a) allows compensation for time spent at medical treatment for both time lost from the injured employee’s job, and time outside of working hours, as long as the employee is not otherwise receiving or eligible to receive weekly compensation. An employee who sustained no disability following his injury and continued working his regular hours would thus be entitled to his regular salary, along with lost time benefits for medical treatment obtained outside of regular working hours.
Eileen Murphy, the overseer of the Town of Stratford’s workers’ compensation program, testified that the claimant’s collective bargaining contract required that he receive his workers’ compensation benefit with salary continuation while he was out of work. August 1, 2005 Transcript, p. 60; see also, Claimant’s Exhibit I (select portions of IAF contract with city). Neither a trial commissioner nor this board is empowered to interpret a collective bargaining agreement to determine whether a claimant is contractually entitled to enhanced benefits. Boulay v. Waterbury, 27 Conn. App. 483, 487 (1992). This Commission’s limited role is to determine what benefits are due a claimant under the provisions of chapter 568, and to ascertain the amount that the claimant has actually been paid. Id., 486-87; Hammick v. Hartford, 4608 CRB-1-03-1 (December 29, 2003); see also, Sbona v. Middletown, 3449 CRB-8-96-10 (April 23, 1998), aff’d, 55 Conn. App. 906 (1999)(per curiam)(municipal employer was ordered to pay full amount of specific award that extended beyond claimant’s retirement date, where employer had conceded that part of award had not been paid; assertion that amount due after retirement should be offset from disability pension payments was issue for trial court to decide); Obier v. North Haven, 4020 CRB-3-99-4 (August 4, 2000). In cases involving salaries paid pursuant to collective bargaining agreements, such as Boulay, supra, and Sweeney v. Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 240, 1225 CRD-5-91-5 (January 7, 1993), this Commission has looked at the payments received by the claimant during the period of eligibility for weekly disability benefits, and has determined whether those payments were sufficient to cover the full amount of benefits due under the Act. Contractual language regarding salary continuation is immaterial.
In Sweeney, the claimant was entitled to both total disability benefits under § 31-307 and lost time benefits under § 31-312. As noted above, § 31-312 compensation is only payable when a claimant is otherwise ineligible for weekly benefits. Thus, a claimant’s receipt of regular wages on the dates of treatment would not be relevant under § 31-312, as those payments cannot be construed as benefits under chapter 568. In correspondence to the four-week total disability period in question, the claimant in Sweeney had been paid both his full salary and four weeks of § 31-307 benefits. The Compensation Review Division held that the relevant legal question was whether the combination of those payments exceeded the combined amount owed for the temporary total disability benefits and the hours spent in medical treatment.
Here, the claimant is alleged to have received salary continuation benefits as a supplement to workers’ compensation benefits during his period of total disability.4 Still, in applying the Sweeney precedent, we must ask whether the town of Stratford has already paid the full amount of chapter 568 benefits due under the Act.
To answer that question, the trial commissioner must look at the payments received by the claimant during his period of total disability, which would include both workers’ compensation payments and additional amounts. The trier would then determine what other sums have been paid to the claimant as compensation under chapter 568 (such as permanency benefits and mileage). On the other side of the ledger sheet, the trier must determine the full value of benefits owed to the claimant under chapter 568,5 including temporary and permanent disability compensation, benefits under § 31-312, mileage reimbursement, and interest on those amounts. If the payments that have already been made by the respondents exceed the full amount of benefits that the claimant is owed under chapter 568, this agency has no jurisdiction to order further payments.
As it stands, the trier’s award extends from June 28, 2004 through the January 7, 2005 maximum medical improvement date, when the claimant began receiving permanent partial disability benefits. The trier accordingly limited his award of § 31-312(a) benefits to hours the claimant spent in treatment between June 28, 2004 and November 3, 2004. See Claimant’s Exhibit D (asserting claims between May 10, 2004 and March 26, 2005). We affirm the trier’s holding that the claimant was qualified to receive payment for medical treatment outside of work hours under the plain terms of the statute. Fournier v. Sears, Roebuck & Co., 9 Conn. Workers’ Comp. Rev. Op. 51, 908 CRD-7-89-8 (February 4, 1991). The matter is remanded for the trier to determine whether the claimant has already been paid the benefits he is due under the Act, as discussed above.6
In discussing the several issues raised by the claimant’s appeal, we begin with the claimant’s argument that he is entitled to interest pursuant to § 31-295(c) because the respondents did not begin paying him compensation for his 5% permanent partial disability award within 30 days of his January 7, 2005 maximum medical improvement date. In his brief, he objects that they did not begin paying until 20 days after the filing of the voluntary agreement on April 13, 2005. Brief, p. 18. The trier found that the claimant was receiving permanent partial disability benefits pursuant to § 31-308(b) as of January 7, 2005. Findings, ¶ H. The only evidence regarding the payment of permanency is testimony by Eileen Murphy, who described herself as the person who authorized the payment of indemnity benefits by the town of Stratford. August 1, 2005 Transcript, p. 77. She testified that, in her belief, permanency benefits were paid in April 2005. Id., p. 80. We are unable to identify any evidence to support the trier’s factual finding in ¶ H. Because the payment of 10% interest per annum for untimely permanency payments is mandatory under § 31-295(c); Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004), we request the trial commissioner to clarify the date of payment on remand, and award interest accordingly.
The claimant contends that the trier erred by finding that the length of his therapy sessions with Dr. Kudej was only one hour, insofar as § 31-312(a) compensates for the “time involved for the medical treatment.” He states that the trier failed to give proper weight to a letter that the doctor wrote to Eileen Murphy on September 1, 2004, stating that “Mr. Liebel needs to continue his course of physical therapy 2 times a week for the next 4 weeks, with each visit lasting approximately 2 hours.” Claimant’s Exhibit A. The claimant testified that his appointments with Dr. Kudej lasted for two hours, with one hour for treatment that involved heat, electrical impulses, back stretching and realignment, and one hour for supervised workouts. August 1, 2005 Transcript, pp. 11-13. He also stated that Dr. Kudej did not charge him a fee to work out, and he could opt not to exercise after his appointments. Id, pp. 14-15. The trier noted the latter fact in ¶ F of his Findings. The trier’s analysis of this evidence involved a question of fact, and he was not asked to reconsider the inferences he drew in a Motion to Correct. See Admin. Reg. § 31-301-4.7 Because the trier’s finding is rationally based on the record, we must affirm his factual finding that the “time involved” for the claimant’s medical appointments with Dr. Kudej was one hour per visit.
The claimant next argues that the respondents should be precluded from maintaining any defenses to this claim because they did not file a notice of intention to contest liability pursuant to § 31-294c(b). The provisions of § 31-294c(a) direct a claimant to file a written notice of claim for compensation, such as the Form 30C promulgated by this Commission. See Pereira v. State, 228 Conn. 535, 543 n.8 (1994)(notice of claim must be sufficient to allow employer to make timely investigation of claim in order to trigger employer’s obligation to file disclaimer). Section 31-294c(b) requires a respondent to file a notice contesting liability within 28 days in response to the filing of a written notice of claim, or in the alternative, to commence payment of compensation within that time. If the latter course is chosen, the respondent is given one year to “contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim.” Until a written notice of claim is filed, the claimant cannot invoke § 31-294c(b) against the respondent, as such notice is a “sine qua non of the conclusive presumption provisions.” Foley v. New Britain, 5 Conn. Workers’ Comp. Rev. Op. 68, 404 CRD-7-85 (April 28, 1988), no error, 17 Conn. App. 834 (1989)(per curiam).
Our records show that the claimant first filed a written notice of claim with this Commission on February 22, 2005, less than two months prior to the first formal hearing. The Form 30C alleges a work-related lower back injury causing two herniated discs. By the time it was filed, the respondents had furnished the claimant with medical care and benefits, and he had returned to work. Compensability of the injury was not being challenged, and it was unnecessary for the respondents to reply with a Form 43 in order to contest issues related to the extent of disability. Gardella v. The Torrington Co., 5 Conn. Workers’ Comp. Rev. Op. 33, 471 CRD-5-86 (April 6, 1988). At that time, unresolved issues included the claimant’s eligibility for benefits under § 31-312, the payment of his permanency award, and the compensability of continuing medical treatment.
Permanency was addressed by a voluntary agreement signed by the claimant on February 14, 2005, and by a representative of the respondents on March 7, 2005, and approved on April 12, 2005. Meanwhile, the claimant returned to Dr. Kudej on February 23, March 5, March 25 and March 26, 2005. Claimant’s Exhibit D. The respondents’ April 13, 2005 Form 43 then challenged continuing chiropractic treatment as being palliative in nature rather than curative, as the claimant had reached maximum medical improvement on January 7, 2005.
In his brief, the claimant exhorts that the language of the January 7, 2005 medical report “served as written notice . . . of the need for periodic treatment of exacerbations,” and faults the respondents for not reacting prior to April 13, 2005. Brief, p. 12. He argues that the January 7, 2005 report is part of the approved voluntary agreement, to which it is attached. He seeks a ruling that the respondents are bound to pay for any medical treatment required by back injury exacerbations, because the report states that those exacerbations are part of the claimant’s permanent condition. The report, however, does not directly state that the claimant will need further treatment. It is the March 7, 2005 amendment to that medical report which states, “Due to the patient’s injury of May 5, 2004 and positive MRI results at L4/L5, the patient is prone to exacerbations and flare-ups due to this injury and will require treatment for these flare-ups as deemed medically necessary.” Claimant’s Exhibit A. There is no indication in the record when that amended report was sent to the respondents.
Given these facts, we disagree that the respondents should be faulted for not having challenged the compensability of Dr. Kudej’s continuing treatment prior to April 13, 2005. We also disagree that the respondents are precluded from challenging future medical treatment for exacerbations based on the contents of that report. The cause of a future exacerbation cannot be determined prior to the event, even if a physician deems it likely that flare-ups will periodically occur. An intervening injury or illness may also be responsible for future symptoms. In the context of an open claim, this issue cannot be fully resolved on a prospective basis. Evolving circumstances could also change the curative effect of the physician’s course of treatment, which must be designed to repair health damage caused by the compensable injury, or to eliminate pain so that the claimant can work. See, e.g., Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003); Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001). Once a claimant has reached maximum medical improvement, there is often a valid ground to ask whether a physician’s course of treatment is “reasonable and necessary” within the meaning of § 31-294d. If it develops that contest is unreasonable or payment is being unduly delayed under the circumstances, sanctions remain available under § 31-300 C.G.S.
The trial commissioner’s decision to order another evaluation of the claimant by Dr. Kudej reveals that he found the evidence insufficiently clear to resolve the issue regarding the purpose of further treatment. We note, for example, that Dr. Kudej’s reports—including the March 7, 2005 addendum to the January 7, 2005 report—do not state whether these physical therapy treatments enable the claimant to continue working. The respondents may have failed to obtain their own medical evidence in defense of this claim, but the claimant carried the burden of offering prima facie evidence to prove it compensable under § 31-294d. The trier had the authority to request an additional report by Dr. Kudej to help resolve this question, though we agree with the claimant that it would help if the doctor were asked to explain the medical value of additional treatment.8 We recognize also that this situation was likely to recur in the near future, as the claimant was seeking ongoing authorization to treat anticipated exacerbations of his back injury. Thus, the trial commissioner used reasonable foresight in seeking further evidence.
The claimant next contends that he should be paid for the time he spent attending the formal hearing under § 31-312(b), which states:
When a claimant is given notice to appear at a conference or an informal hearing before a commissioner and does appear, he shall be entitled to reimbursement of wages lost by reason of the appearance if he is not then receiving compensation for the appearance as provided in this subsection. When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for services rendered him by a competent physician or surgeon for examination, x-ray, medical tests and testimony in connection with the claim, the commissioner to determine the reasonableness of the charges, and he shall be entitled to receive payment of one-fifth of the weekly compensation, as computed in accordance with section 31-310, for each day, or part thereof, that he is in attendance at the formal hearing if he is not then receiving compensation.
The claimant requested this benefit in his proposed findings, seeking $521.30 for two days of formal hearings. The trial commissioner did not make a finding in this regard, even though the claimant prevailed on many aspects of his claim.9 On remand, the trier is directed to address the claimant’s assertion that he is entitled to payment for attendance at the April 14, 2005 and August 1, 2005 formal hearings.
We now turn to the award of attorney’s fees. Although we held in section II of this opinion that a remand is necessary to determine the amount that was paid to the claimant as salary continuation, this does not require reversal of the trial commissioner’s finding that the respondents unreasonably contested liability “[g]iven the plain language of C.G.S. Section 31-312 and the testimony of Eileen Murphy. . . .” Findings, ¶ I. The claimant here established that he was legally entitled to an additional benefit, and the respondents’ adherence to an inappropriate line of reasoning kept the parties from being able to move beyond that point and attempt to resolve the issue. See n.9, supra. A finding of unreasonable contest here would not be an abuse of discretion. In addition to providing financial recovery, the establishment of the claimant’s right to compensation also establishes a basis for payment of potential future medical appointments, and the fee award reinforces the policy discouraging respondents from maintaining inappropriate theories of defense. Public policy goals are relevant to the decision to award fees. See Simms v. Chaisson, 277 Conn. 319, 336 (2006)(in § 52-571c action, award of costs against defendants helps deter acts of intimidation and harassment based on bias or bigotry).
We note, however, that an attorney’s fee often correlates to the amount of a claimant’s financial recovery, as “compensation . . . obtained for the injured worker as a result of the representation by the attorney” is listed as the basis for the standard fee in our Claimant’s Attorney’s Fee Guidelines. With regard to contingency fees in contested cases where an attorney seeks an above-normal fee, our guidelines also cite language derived from § 1.5(a) of the Rules of Professional Conduct, which states that the reasonableness of a lawyer’s fee is based on eight different factors, including “The amount involved and the results obtained.” Because the amount of the claimant’s recovery here is likely to change following proceedings on remand, the trial commissioner has the option to reconsider the amount of the attorney’s fee awarded if, in his discretion, he considers it appropriate to do so.
We must also address the claimant’s assertion that the trial commissioner erred by not awarding certain claimed attorney’s fees, as this issue remains relevant on remand. Under § 31-327(b), attorney’s fees are subject to the approval of the commissioner, who has the power to examine all attorney’s fee agreements to ensure that they are consistent with this Commission’s fee guidelines. Day v. Middletown, 59 Conn. App. 816, 820 (2000). Our guidelines were enacted in accordance with § 31-280(B)(11)(C), and they set the maximum fee payable by a claimant for any legal services rendered by an attorney in connection with chapter 568. Where a respondent has unreasonably contested liability, a commissioner has the option to award an attorney’s fee greater than the guidelines allow, as long as the charges seem reasonable based on the evidence. Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (January 8, 1999). The existence of this discretion does not negate the value of other protections that the guidelines provide.
The guidelines open by stating that “Every attorney seeking a fee from an injured worker in a workers’ compensation claim is required to enter into a written fee agreement at the time the injured worker engages the attorney’s representation. The attorney representing an injured worker shall notify such worker in the written agreement that all fees charged are subject to the approval of a Workers’ Compensation Commissioner.” Memorandum No. 2001-03 (July 20, 2001). They go on to specify which types of benefits may and may not be used as the basis for attorney’s fees. The contingency fee is capped at 20%, though as we alluded to above, the guidelines allow fees up to 25% in formal hearing situations where certain factors are satisfied, and the written agreement discloses that the claimant has given informed consent to the higher rate.
Attorney Cartier, who is the wife of the claimant, sought 6 hours of payment at $225 per hour for telephone calls and attendance at informal hearings; Claimant’s Exhibit E; and also sought $1687 in fees and $230.03 in transcription costs for post-formal-hearing work performed after October 25, 2005. Attorney Cartier and the claimant did not enter into a fee agreement until October 6, 2005, at which time she filed an appearance on his behalf. No agreement was in effect during the term of her representation of the claimant from May 5, 2004 through April 14, 2005, predating the formal hearing and the hiring of Attorney Zingaro.
The claimant alleges that this does not prevent the inclusion of Attorney Cartier’s full fee in the commissioner’s award, based upon § 1.5(b) of the Rules of Professional Conduct, which states in part, “The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.” See also, § 52-251c (directing that contingency fee agreement in personal injury and wrongful death claims comply with applicable provisions of rules of professional conduct). In his brief, he alleges that he had a long-standing attorney/client relationship for hourly representation with Attorney Cartier, which should be recognized by this Commission in order to remain consistent with legislative authority.
In order to collect an attorney’s fee, Attorney Cartier had to establish that she served as the claimant’s legal representative in proceedings before this Commission. This task was made somewhat more complex by the fact that she is also the claimant’s wife, and they share a residence. Attorney Cartier offered an affidavit of her hours spent in representation prior to the formal hearing. Claimant’s Exhibit E. She was also called as a witness by claimant’s formal hearing counsel, and testified that she was claiming attorney’s fees with regard to that representation. August 1, 2005 Transcript, p. 25. When questioned on cross-examination, respondents’ counsel asked her where she maintained her office, and was told that she operated a home office out of her residence. Id., p. 29. Respondent’s counsel then asked if she had a retainer agreement with her husband. She responded that she had a “prior attorney/client relationship with him from the past.” Id., p. 30. She then confirmed that she did not have a written retainer agreement with her husband for his workers’ compensation case, and that she charged him $225 per hour for time spent. Id., pp. 30, 33.
The trier did not refer to any of this testimony in his findings. We again note that the claimant did not file a Motion to Correct requesting the trial commissioner to rectify this omission. The evaluation of testimony involves determinations of credibility that are solely for a trial commissioner. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). If the trier did not find Attorney Cartier’s testimony either reliable or relevant, under Admin. Reg. § 31-301-3, he would not have been required to explain in his findings why he disregarded it. Without the filing of a Motion to Correct to allow the trier an opportunity to clarify his finding, we are unable to determine on appeal if (a) the trier did not find her testimony credible, (b) the trier specifically found that the absence of a fee agreement impacted her credibility as a witness, and/or (c) the trier concluded that the absence of a fee agreement precluded an award of attorney’s fees on her behalf for purely legal reasons (a notion which the claimant challenges in his brief). Perhaps the trier believed that the circumstances of the respondents’ contest only justified an award of attorney’s fees for the formal hearing, at which the claimant was represented by Attorney Zingaro. We would be speculating as to the reason why Attorney Cartier’s fees were not awarded. As it stands, we must assume that the trier made a determination of credibility that was not in Attorney Cartier’s favor.
We also disagree that Attorney Cartier is entitled to an attorney’s fee for services performed after her fee agreement was prepared. Our files show that her Notification of Appearance, to which the fee agreement was attached, was filed on October 6, 2005. However, that fee agreement does not comply with our guidelines, or the statutory language of § 31-327(b). Specifically, rather than notifying the claimant that the fees charged are subject to the approval of a Commissioner, Cartier’s agreement provides something directly contrary: that “any disagreements which arise . . . with respect to fees and costs and expenses due, shall be settled by binding arbitration.” It appears that Attorney Cartier attempted to establish an attorney-client relationship for this period of time by offering a contract that was essentially a surface modification of a standard retainer agreement form that considered neither the specific proceedings applicable to the Workers’ Compensation Commission, nor this Commission’s authority to review fees.
Again, the claimant did not file a Motion to Correct the findings to challenge the omission of her fees for services rendered after the formal hearing. On appeal, we must respect the possibility that the trier found this retainer agreement inadequate to establish a valid attorney-client relationship for purposes of chapter 568. It is also possible that the trier did not believe that this portion of the claimant’s representation should be included in the fees awarded for unreasonable contest. Without a Motion to Correct, we are left to speculate as to the trier’s reasoning. Our review can thus go no deeper on this record.
The claimant also challenges the exclusion of portions of Attorney Zingaro’s claimed fee. The trier awarded her $1,950, covering 9.75 of her 12.8 billed hours at a $200 hourly rate. Zingaro’s fee agreement with the claimant is dated April 14, 2005. Claimant’s Exhibit G. It appears that the trier excluded the hours of her representation that were accumulated prior to April 13, 2005, when she began preparing for the formal hearing. He also appears to have excluded her $10 charge for a five-minute phone call on July 27, 2005. The trial commissioner has discretion to set an attorney’s fee, and to determine which charges are reasonable. Again, we note that the Attorney’s Fee Guidelines specify that attorneys are required to enter into a written fee agreement at the time the injured worker engages the attorney’s representation, and not afterward. We find no error with respect to the trial commissioner’s citation of that rule in his decision, nor do we find error in the commissioner’s decision to compensate Attorney Zingaro only for her work on the formal hearing.
The trial commissioner’s decision is accordingly affirmed in part, and remanded for further findings as discussed above, based on the evidence in the record. The trial commissioner is authorized to take additional evidence to determine what forms of remuneration have been paid by the respondents to the claimant and when they were paid, insofar as is necessary to determine outstanding issues on this claim.
Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.
1 Two extensions of time were granted during these appellate proceedings, as each of the parties sought additional time within which to file an appellate brief. BACK TO TEXT
2 Section 31-312(a) states in relevant part that “An employee receiving medical attention under the provisions of this chapter and required to be absent from work for medical treatment, examination, laboratory tests, x-rays or other diagnostic procedures, and not otherwise receiving or eligible to receive weekly compensation, shall be compensated for the time lost from the job for required medical treatment and tests at the rate of such employee’s average earnings, but not less than at the minimum wage established by law, provided the amount payable in any one week shall not exceed the employee’s weekly compensation rate. Time lost from the job shall include necessary travel time from the plant to the place of treatment, the time for the treatment, and any other time that is necessary for the treatment, examination or laboratory test. . . . Where the medical attention or treatment is provided at a time other than during the employee’s regular working hours and the employee is not otherwise receiving or eligible to receive weekly compensation, the employee shall be compensated for the time involved for the medical treatment as though it were time lost from the job at the rate of the employee’s average hourly earnings and shall be paid for the cost of necessary transportation as provided in this subsection.” BACK TO TEXT
3 Section 31-312(a) also provides, “. . . The employer shall furnish or pay for the transportation of the employee by ambulance or taxi where transportation is medically required from the point of departure for treatment and return. In all other cases, the employer shall furnish the employee transportation or reimbursement for the cost of transportation actually used, at a rate equal to the federal mileage reimbursement rate for use of a privately owned automobile set forth in 41 CFR Part 301-10.303, as from time to time amended, for a private motor vehicle or the cost incurred for public transportation, from the employee’s point of departure, whether from the employee’s home or place of employment, and return, if the employee is required to travel beyond a one-fare limit on an available common carrier from the point of departure to the place of treatment, examination or laboratory test. . . .” BACK TO TEXT
4 The evidence in the record suggests that, while the claimant was totally disabled from work, he received total disability benefits that were complemented by a salary continuation payment. Together, this combination kept the claimant’s weekly pay at the full salary level during his period of incapacity. See Testimony of Eileen Murphy, August 1, 2005 Transcript, p. 60 (“When out on workers’ comp, they receive their comp benefit with salary continuation for hundred percent of wage”); see also, Respondents’ Exhibit 2 (check history indicating receipt of workers’ compensation benefits of $857.38 and additional payments designated “ABSENC” for five check dates ranging from June 11, 2004 through July 9, 2004). Clarification of this matter will be necessary on remand. BACK TO TEXT
5 We observe that the voluntary agreement approved April 12, 2005 sets the claimant’s total disability compensation rate at $866.81, while his partial disability compensation rate is limited to the applicable maximum weekly rate of $726.00 per week. BACK TO TEXT
6 We note that the trial commissioner awarded interest in ¶¶ I and K of his award, after finding that the respondents had unreasonably contested liability. Under § 31-300, the payment of interest is available as a remedy for undue delay of payment, but not for unreasonable contest alone. The trier’s specification of a 12% rate of interest in ¶ 6 of his orders confirms that interest was being awarded for undue delay of payment due to the fault or neglect of the respondents. See McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998)(CRB affirmed interest award, inferring from findings that undue delay of payment had resulted from unreasonable contest of claim). When the trier determines the amount of outstanding unpaid benefits pursuant to this remand order, the amount of interest due will also change. BACK TO TEXT
7 Neither party chose to submit a Motion to Correct the trial commissioner’s factual findings, which filing is required by Admin. Reg. § 31-301-4 of any appellant who desires to make such corrections. McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007); Capezzali v. Bridgeport, 4858 CRB-4-04-9 (September 7, 2005). This motion gives the trial commissioner the opportunity to reconsider or add findings that, in the movant’s opinion, may have resulted from overlooked or misinterpreted evidence. Bombardier v. CT Valley Fitness Center, 4475 CRB-6-02-1 (November 20, 2002). Without such a motion, this board’s ability to assess the facts found is limited, as we lack the power to substitute our own judgment regarding the weight of the evidence for that of the trial commissioner. Id., citing Marcoux v. Allied Signal, 4366 CRB-4-01-3 (January 16, 2002). BACK TO TEXT
8 The trial commissioner has the power under the expanded discovery provisions of § 31-298 C.G.S. to make such an order. We distinguish this case from cases such as Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005), and Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB-3-94-9 (December 7, 1995) in which we held that, in the interest of avoiding lengthy periods of litigation, it was improper for a commissioner to hold the record open in order to allow additional evidence concerning long periods of alleged total disability, where the claimants had not introduced updated medical reports of their condition and there was not enough evidence to support their claims. The claimant in this case did not commit the misstep of failing to offer evidence that was available at the time of the hearing, nor did he neglect to obtain medical reports in a timely fashion. By requesting an additional medical report here, the trial commissioner was not creating a second opportunity for the claimant to introduce evidence that should have been offered at the initial hearing. See Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001). BACK TO TEXT
9 The law suggests that the claimant continues to be a “prevailing party,” despite our decision in Part II of this opinion requiring a remand to calculate the amount of benefits due the claimant, if any. Under statutes that allow litigation costs to be awarded to a “prevailing party,” that term has been interpreted by our courts to include any party who prevails on a significant legal issue, regardless of the extent of financial recovery. Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 303-304 (2001)(plaintiff became prevailing party by securing judgment against defendant, even though it was by acceptance of offer of judgment rather than favorable trial verdict); Simms v. Chaisson, 277 Conn. 319, 325 (2006)(jury award of only nominal damages did not preclude plaintiffs from recovering attorney’s fees under § 52-571c, which prohibits intimidation based on bigotry and bias, as they prevailed before jury on significant legal issues). Other courts have held that a “prevailing party” includes any plaintiff who has secured actual relief on the merits that materially alters the relationship between two parties by modifying the defendant’s behavior in a way that benefits the plaintiff directly. Wallerstein, supra, 304, citing Farrar v. Hobby, 506 U.S. 103, 111-12, (1992). Both the trier and this board have determined that, in contesting this claim, the respondents maintained a legally incorrect position, i.e., that the claimant was not entitled to any benefits under § 31-312(a) because he was receiving full salary at the time. As explained above, a claimant who is receiving salary continuation benefits may be entitled to compensation under § 31-312(a), even if it would result in the claimant receiving in excess of full salary during the period of entitlement. It is the receipt of salary continuation during prior periods of entitlement to weekly disability benefits that may constitute previous payment of the § 31-312 benefit, which is the basis for our remand. Thus, the claimant has prevailed on a significant legal issue. BACK TO TEXT
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