Doustou v. State of Connecticut Dept. of Mental Health & Addiction Services

The claimant’s counsel, Charles M. Fresher, Esq., Law Office of Charles M. Fresher, LLC, 324 Kings Highway, North Haven, CT 06473 appeared as the appellant on the issue of attorney’s fees awarded by the trial commissioner.

The respondent was represented by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not file a brief or appear at oral argument as the issue did not involve the employer.

This Petition for Review from the October 1, 2008 Finding and Award of the Commissioner acting for the Eighth District was heard March 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The appellant in this matter is claimant’s counsel. The appeal is taken from the October 1, 2008 Finding and Award of the Commissioner acting for the Eighth District. The issue before the trial commissioner was whether the claimant owed the attorney a legal fee and if so in what amount.

The trial commissioner found that the appellant and the claimant entered into a retainer agreement which provided the appellant would receive twenty percent (20%) of any contested temporary partial or temporary total disability benefits. The claimant engaged the appellant as her attorney on September 9, 2004.

The appellant argues that the work he did on behalf of the claimant resulted in her receipt of temporary partial disability benefits in the amount of $10,489.51 and that he was entitled to twenty percent (20%) of that amount consistent with his agreement with the claimant. The claimant disputed counsel’s entitlement to the full twenty percent (20%). Thereafter, proceedings were held before the trial commissioner in the course of which both the appellant and the claimant testified.

After hearing the testimony of both parties and this action and considering the evidence presented, the trial commissioner awarded the appellant a legal fee in the amount of $750. The appellant took this appeal asking whether the trial commissioner erred in failing to award counsel a fee that was consistent with the fee agreement. The appellant argues, inter alia, that the trial commissioner’s award cannot be sustained as it was not supported by any evidence.

The facts as found by the trial commissioner reflect that the claimant became unhappy with the appellant’s representation of her at some point in the course of his representation and ultimately discharged him. The respondent had filed a Form 36 seeking to discontinue the payment of benefits to the claimant. The appellant represented the claimant’s interests at the informal hearing level on the Form 36 issue.

The trial commissioner found that a Form 36 was approved on October 9, 2007. The supporting medical documentation for the Form 36 appears to have been a report by M. Joshua Hasbani, M.D., Ph.D in which he stated the claimant had reached maximum medical improvement. The appellant testified that a report of Dr. Hasbani’s dated September 18, 2007 “unexpectedly showed up November 17, 2007.” Finding, ¶ 5. However, the unexpected appearance of the September 18, 2007 report followed Commissioner Delaney’s October 10, 2007 letter to Dr. Hasbani in which he sought clarification of Dr. Habani’s opinion. Although the appellant requested that Commissioner Delaney re-open his November 13, 2007 ruling on the Form 36, Commissioner Delaney declined to re-open his ruling.

No matter who said what to whom and at what point, the crux of the issue before us is whether the trial commissioner erred in awarding the appellant a fee in the amount of $750. In past considerations concerning attorney’s fees we have noted that there must be some articulated basis by which the trial commissioner determined a particular fee amount. See, Toth v. American Frozen Foods, Inc., 4069 CRB-4-99-6 (August 9, 2000). See also, Arcano v. Board of Education, 81 Conn. App. 761 (2004). As we are unable to discern the basis for the trial commissioner’s determination that $750 was an appropriate fee in this matter, we reverse and remand for a trial de novo on this issue.

We therefore set aside the October 1, 2008 Finding and Award of the Commissioner acting for the Eighth District and remand for further proceedings as stated herein.