Fletcher v. Sikorsky Aircraft Corporation

Attorney Dennis W. Gillooly of Kennedy, Johnson, D’Elia & Gillooly, LLC, Long Wharf Maritime Center, 555 Long Wharf Drive, New Haven, CT 06511, appeared on his own behalf.

This Petition for Review from the October 30, 2009 Finding and Award of the Commissioner acting for the Fourth District was heard September 24, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Award finding that his former attorney was entitled to a legal fee for representation. The trial commissioner concluded the factual evidence presented on the record substantiated the claim for attorney’s fee. The claimant has appealed challenging this conclusion. We find that this was a factual determination by the trial commissioner and as it was based on evidence he found probative, we cannot overturn this determination. In addition, we find that the claimant’s appeal was filed late and therefore, pursuant to statute we lack jurisdiction over this appeal.

The following facts were found by the trial commissioner and are pertinent to our consideration. The claimant was represented by Attorney Dennis Gillooly from December 2002 through December 2008. During that period the trial commissioner found that Attorney Gillooly or a member of his firm attended twenty-nine informal or pre-formal hearings and three formal hearings totaling sixty hours of time during that period. An additional thirty and one-half hours were spent in connection with the deposition of a doctor, a medical/legal conference, correspondence and telephone conferences with the claimant, physicians and opposing counsel. Attorney Gillooly testified the claimant’s most significant issue involved his unsuccessful back surgery, which left the claimant suffering from depression and chronic pain. Attorney Gillooly testified that he sought cost of living adjustments in 2007 after the claimant had been on temporary total disability for five years, which was a demand the respondent contested. A number of hearings were held at the Bridgeport workers’ compensation office, including a May 5, 2008 formal hearing before Commissioner Cohen. A forty-three minute hearing was held on the COLA issue, as well as on whether the claimant should receive a scooter. Before a decision was issued by the trial commissioner, counsel for the respondents voluntarily agreed to pay the cost of living adjustment, both retroactively and going forward, and decided to authorize the motorized scooter.

Attorney Gillooly also testified that about the time of the COLA hearing the respondents offered approximately $750,000 to the claimant to settle all his claims, including the COLA dispute. About one or two months after that the attorney-client relationship broke down and he withdrew as counsel. Shortly thereafter the respondents’ check in the amount of $83,357.57 for the COLA adjustment arrived, which he forwarded to the claimant’s new attorney, Timothy Schafer, with a request to hold 20% in escrow for his legal fee.1

The claimant testified and presented written exhibits in support of his position that Attorney Gillooly was not due a fee. The claimant testified that he terminated Attorney Gillooly’s services and further stated he had only retained the attorney for his spine claim, and not his elbow or hearing claims. The claimant presented two letters, one dated November 1, 2005 and the other dated December 31, 2008 where Attorney Gillooly said he would not represent the claimant any further. The claimant testified Attorney Gillooly would go months without returning phone calls, thus delaying the claimant’s treatment. The claimant further stated he had procured the cost of living adjustment by having his own discussions with an insurance adjuster; and that he procured the approval of the scooter through his own efforts. Due to a “total breakdown of communication” the claimant testified he was unaware of many of the hearings that were held and which he would have wanted to attend; and there could have been sixty hearings as far as he knew.

Based on this record the trial commissioner found that Attorney Gillooly was credible and persuasive. He found he had represented the claimant on his back claim and his two elbow claims. Attorney Gillooly or a representative of his firm attended thirty-one hearings and spent ninety-five hours of time on the claimant’s file. The trial commissioner found the transcript of the May 8, 2008 hearing demonstrates that Attorney Gillooly sought the cost of living adjustment and the motorized scooter in a contested proceeding. The trial commissioner therefore found that Attorney Gillooly was entitled to 20% of the $83,357.57 COLA award. In his Finding and Award of October 30, 2009 he directed Attorney Timothy Schafer to immediately release the $16,671.51 in his escrow account that had been held in connection with this claim to Attorney Gillooly.

The claimant filed a Petition for Review of this decision on November 23, 2009. Attorney Gillooly filed a Motion to Dismiss on December 1, 2009, asserting that the claimant’s appeal was late. The claimant did not file a Motion to Correct or Reasons of Appeal. Both parties have filed briefs in this matter. The claimant also has filed a Motion to Submit Additional Evidence before this panel.

Attorney Gillooly has argued in his brief that the appeal is procedurally deficient as a result of having been filed too late. As this argument goes to the jurisdiction of this board to hear the appeal, we must address this prior to considering the merits of the claimant’s case. He argues that the appeal had to be filed within twenty days of the issuance of the Finding and Award; therefore making November 23 beyond the statutory 20-day appeal window. He cites Kulig v. Crown Supermarket, 250 Conn. 603 (1999) for the proposition that § 31-301(a) C.G.S. requires an appeal to be filed within the statutory timeline in order to provide this panel with jurisdiction to consider the appeal.2

We considered a very similar situation in Byczajka v. Stamford, 5023 CRB 7-05-11 (March 26, 2008). In that case we pointed out that the statutory time period to commence an appeal commences “on the day on which the party wanting to appeal is sent meaningful notice of the decision” citing Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999). A party may be able to show that they were deprived of opportunity to file a timely appeal due to failure of notice. We have been presented with no documentation that the claimant had late notice of the decision. As we are not persuaded the claimant was deprived of timely notice of the trial commissioner’s decision, we conclude that even though he chose to proceed unrepresented, he had sufficient time to file his appeal within the statutory time period.3

Even were we to have considered the merits of this matter, we would have been bound to affirm the trial commissioner’s decision. The claimant did not file a Motion to Correct to challenge the factual findings of the trial commissioner As a result, we are bound by the facts found by the trial commissioner and would be limited to a determination as to whether these facts were supported by sufficient evidence and whether the trial commissioner properly applied the law. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008).4

We find in this matter there were no issues of legal interpretation. The sole question before the trial commissioner was whether the attorney was responsible through his efforts in obtaining the COLA adjustment for the claimant. This constituted a question of fact, where we must uphold the trial commissioner unless his conclusions were “clearly erroneous” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The trial commissioner cited a number of exhibits in the Finding & Award, in particular the May 8, 2008 hearing transcript. He also found Attorney Gillooly credible and persuasive. We are not in a position as an appellate panel to revisit questions as to witness credibility. Burton v. Mottolese, 267 Conn. 1, 40 (2003). We are satisfied that the trial commissioner had sufficient probative evidence to support his conclusions. Fair v. People’s Savings Bank, 207 Conn. 535 (1988) stands for the proposition that under such circumstances we may not offer relief to the claimant.

We find no error, and affirm the Finding and Award. The appeal is dismissed.

Commissioners Stephen B. Delaney and Daniel E. Dilzer concur in this opinion.

1 Commissioner Barton approved this arrangement at a pre-formal hearing. BACK TO TEXT

2 We understand that Mr. Fletcher is pursuing this appeal pro se. As we explained in Claros v. Keystone Pipeline Services, Inc., 5399 CRB-1-08-11 (October 28, 2009) “[w]hile we acknowledge the difficulties pro se claimants may have in advancing an appellate argument, and generally extend considerable leeway to such litigants, there must still be a reasonable effort to comply with the rules to enable this panel to take action.” We do not believe that absent a compelling justification by the claimant we are in a position to waive the statutory deadline for commencing an appeal. BACK TO TEXT

3 We note that the Appellate Court in Stec v. Raymark Industries, 114 Conn. App. 81 (2009), cert granted, 293 Conn. 905 (2009), stated that this panel was not obligated to grant a motion to dismiss challenging jurisdiction unless it was filed within the time requirements of Practice Book § 63-1. In the present case a motion to dismiss within the time period delineated in the Practice Book was filed challenging our jurisdiction to hear the appeal. Under the Appellate Court’s rationale in Stec we have no discretion, and must grant the Motion to Dismiss. BACK TO TEXT

4 The claimant did submit a Motion to Admit Additional Evidence at oral argument before this tribunal. However, “[s]uch a motion cannot be granted unless the new evidence is material to the case, and the party submitting it has good reasons for not having made it available at trial.” Krajewski v. Atlantic Machine Tool Works, 4500 CRB-6-02-3 (March 7, 2003), citing Drew v. Sears, Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002), appeal dismissed, A.C. 23094 (August 21, 2002), Mele v. Hartford/Board of Education, 5495 CRB-1-09-9 (September 13, 2010). As the documents in question were documents the claimant states were contained in the 4th District file, we are not satisfied the requirements to admit additional evidence have been met in this matter. BACK TO TEXT