ANGLERO v. STATE DEPT. OF ADMINISTRATIVE, 03457 CRB-08-96-11 (3-5-1998)


CASE NO. 03457 CRB-08-96-11 CLAIM NO. 0800002701Workers’ Compensation Commission
MARCH 5, 1998

The claimant was represented by John Boccalatte, Esq.

The respondent was represented by Lisa Guttenberg Weiss, Esq.

This Petition for Review from the October 29, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard June 27, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.



The respondent has petitioned for review from the October 29, 1996 Finding and Award of the Commissioner acting for the Eighth District. It argues on appeal that the commissioner erred by concluding that the claimant was entitled to temporary partial disability benefits pursuant to § 31-308 (a) C.G.S., and by awarding the claimant interest and a $2500 attorney’s fee for the respondent’s undue delay in the payment of benefits. We affirm the trial commissioner’s decision.

The claimant, an employee of the state Department of Administrative Services, injured his lower back during the course of his employment on April 11, 1988. The respondent accepted this injury by a voluntary agreement approved on November 29, 1988. The claimant received a 10% permanent partial disability payment for this injury pursuant to a subsequent agreement approved on October 2, 1990. The trier found that he suffered numerous exacerbations of this injury, and claimed various periods of temporary total and temporary partial disability from February 17, 1995 through October 26, 1995.

On the morning of the May 31, 1996 formal hearing, the parties reached an agreement with regard to payments of compensation for dates through November 26, 1995. The parties also agreed that a work-related incident occurred on November 27, 1995, which “may be a new injury” — to be determined after medical opinions by the treating physician and an independent medical examiner were received. They resolved that the claimant was entitled to temporary total disability benefits through December 25, 1995, and a combination of total and partial disability benefits for the three weeks following that date.

Effective January 16, 1996, the claimant was advised by his employer not to report to work because of his inability to perform his job and the unavailability of a light duty position there. He became eligible for, and began to receive, unemployment compensation on April 29, 1996, in the amount of $111.00 per week. The respondent agreed that he was entitled to temporary partial benefits as of April 29, 1996, at a rate to be determined once liability between the original injury and the 1995 incident had been apportioned (if at all). At the formal hearing, the claimant also sought temporary partial benefits for the interim period between January 17 and April 28, 1996. Although the claimant did not submit written job search documentation until his union representative advised him to do so in connection with his application for unemployment benefits, the trier found that the claimant cooperated with his employer’s request that he participate in a re-employment program and also made independent efforts to find alternative employment. Thus, he awarded the claimant temporary partial compensation for the January-April period.

The trial commissioner also made a finding that the respondent’s failure to pay benefits (which they ultimately agreed were payable) in a timely manner had caused the claimant significant financial hardship. He thus awarded the claimant 12% interest per annum on such payments pursuant to § 31-300 C.G.S. The trier further noted that the claimant and his attorney had agreed that 20% of his total benefits recovered would be paid to the attorney as a fee, and ordered the respondent to pay the claimant’s attorney $2,500 in fees. The respondent has appealed the commissioner’s decision and his denial of its Motion to Correct.

In reviewing the decision of a trial commissioner, this board is not empowered to conduct a de novo hearing of the facts. Instead, we examine the record to ensure that the facts found by the trier are supported by the evidence, and that the trier has not omitted material facts that are admitted and undisputed. Hanson v. Transportation General, Inc.,45 Conn. App. 441, 447 (1997). If those standards are met, the commissioner’s findings may not be disturbed. Likewise, the conclusions that the commissioner has drawn from the facts found must stand unless he has incorrectly applied the law to the subordinate facts or has drawn an unreasonable or illegal inference from those facts. Dorsey v. UnitedTechnologies Corp., 45 Conn. App. 707, 711 (1997), citing Six v.Thomas O’Connor Co., 235 Conn. 790, 798-99 (1996).

We begin by noting our disagreement with the respondent’s description of the benefits that the trial commissioner awarded to the claimant. The respondent argues that “the only conclusion one can draw from the underlying facts is that the commissioner’s conclusion to award temporary partial disability benefits must be in the form of . . . § 31-308a
post-specific discretionary benefits.” Brief, p. 3. Thus, it would follow that the respondent could not have unduly delayed payment, as the benefits that the claimant received were discretionary, and could just as easily have been denied.

However, the parties agreed in writing that a work-related incident occurred on November 27, 1995 at the claimant’s job “which may be a new injury,” pending the receipt of doctors’ reports. The respondent also agreed that the claimant was entitled to benefits from the date of that injury through January 15, 1996, and temporary partial benefits commencing on April 29, 1996. The only disputes were over whether the claimant had suffered a new injury, and whether he had satisfied the requirement that he be “willing and able to return to gainful employment” during the contested January-April time period. Transcript, 7. The latter standard is specifically discussed in § 31-308 (a) C.G.S., which prescribes the requirements for partial incapacity benefits.

Upon review, it is apparent that the trial commissioner’s denial of the respondent’s Motion to Correct operated to refute any notion that the benefits he awarded were granted pursuant to § 31-308a. The fact has been established by agreement that the claimant suffered some sort of injury on November 27, 1995, which qualifies as either a new injury or a recurrence of the previous injury. Either way, the claimant would be eligible to receive benefits to compensate him for lost wages during any period of temporary partial incapacity. See §§ 31-307b, 31-308 (a) C.G.S. It is also noteworthy that the discussion among the various participants at the formal hearing concerned case law and language relevant to § 31-308
(a), rather than a discretionary award of the type available under §31-308a. See, e.g., Transcript, 6-8, 27-30. Considering the nature of the parties’ discussion and the language of the parties’ agreement, we do not believe that the commissioner erred in treating this claim as a §31-308 (a) award.

As such, there was sufficient evidence to support the award of benefits from January 17, 1996 through April 28, 1996. The claimant testified that he attempted to obtain employment by cooperating with the respondent’s efforts to obtain “less arduous duty” reemployment for him. He also responded to “help wanted” advertisements in the newspaper, and approached various local businesses with inquiries as to whether they could use any help. We observe that the respondent is correct in noting that the trier’s decision inaccurately states that the claimant “went to places with `Help Wanted’ signs and other locations,” as the claimant testified that none of the businesses he visited displayed “Help Wanted” signs. Transcript, 23. However, we do not believe that the commissioner’s failure to grant the corresponding correction amounts to error. This fact is relatively minor, and would be very unlikely to change the outcome of the case. See Hanson, supra. The trier was entitled to evaluate the credibility of the claimant’s testimony, and to decide whether suitable work was unavailable to him pursuant to §31-308(a). Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979);Shimko v. Ferro Corp., 40 Conn. App. 409, 413-14 (1996). There is enough evidence in the record to support the commissioner’s decision, and we cannot reverse his findings.

Turning to the finding of undue delay, we observe that § 31-300
states that a commissioner “may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.” The statute gives the trier of fact wide discretion to award interest and attorney’s fees in such cases, and this board cannot disturb such an award absent an abuse of discretion.Artkop v. East Coast Office Systems, Inc.,
15 Conn. Workers’ Comp. Rev. Op. 419, 421, 2252 CRB-2-94-12 (Aug. 29, 1996). The commissioner found here that the respondent unduly delayed payment of benefits to the claimant. The respondent argues that this finding was made because it entered into an agreement with the claimant concerning periods of claimed disability on the morning of the formal hearing. It argues that this award is both unfounded in fact and, as a policy matter, likely to be detrimental to the future willingness of parties to settle cases. The respondent also insinuates that it was denied due process because the case proceeded directly from an informal hearing to a formal hearing without a “preformal hearing” being held first.

We disagree with the respondent’s contention that it has been somehow punished for settling the case, and that it would have been better served to continue contesting the claim in formal hearings. There is no language in the stipulation noting that the portions of the claim that were settled were ever the subject of reasonable dispute, and the facts found by the commissioner do not suggest that there was a strong basis for denying the claimant benefits since February 1995. Had this claim been wholly resolved through formal hearings, the respondent would still have been subject to penalties for undue delay and possibly unreasonable contest as well.

In fact, the respondent itself admits that counsel for the state does not become involved in the claim resolution process until “matters are scheduled for preformal hearings.” First, we note that there is no statutory entitlement to a “preformal hearing.” Although this commission often utilizes that practice to facilitate the settlement of claims and preparation of a claim for trial, in some cases, such as this one, the commissioner may believe that the claimant is suffering financial hardship, and needs to have his claim resolved as quickly as possible. Scheduling a preformal hearing might also operate to delay the ultimate disposition of a claim, after all. It certainly is not always required.

Second, we remind the respondent that informal hearings are not simply held as warm-up exercises. They are attempts to resolve issues between the parties without having to proceed to the formal hearing stage. The respondent’s argument suggests that such hearings are unimportant, and do not need to be attended by representatives who have the authority or ability to resolve significant issues. However, the Workers’ Compensation Act encourages the settlement of claims as early as possible. See, e.g., § 31-296 C.G.S., § 31-297 C.G.S., § 31-297a C.G.S. Employers should not delay serious attempts to resolve claims until the formal hearing stage of the process is reached. Yet, it appears that the respondent here has chosen to downplay the importance of the informal stages of administering its workers’ compensation claims. It is very likely that the commissioner realized that in this case, and accordingly penalized the respondent by awarding the claimant additional sums on account of the undue delay this “wait until the last minute” policy caused him. We cannot say that this penalty was unwarranted.

The reasonableness of an attorney’s fee depends on many factors, including the amount of preparation required in a case, the novelty and intricacy of the questions presented, and customary charges for similar services. Grillo v. Prestige Enterprises. Inc.,
13 Conn. Workers’ Comp. Rev. Op. 311, 315, 1704 CRB-1-93-4 (April 25, 1995), citing Balkus v. Terry v. Steam Turbine Co., 167 Conn. 170, 179-80 n. 8 (1974). In Grillo, supra, we held that the commissioner’s award of $14,602.94 in attorney’s fees was reasonable because it corresponded to 20 percent of the claimant’s total award, pursuant to the Chairman’s guidelines regarding maximum attorney’s fees. Here, the commissioner awarded the claimant $2500. Although the exact amount of benefits due the claimant has not been settled yet, as his compensation rate still awaits calculation, we agree with the claimant that $2500 appears to be a fair, perhaps even conservative, approximation of 20% of the value of the claimant’s award.[1] Thus, we find said fee to be reasonable.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

[1] We do not believe the recent decision of our Appellate Court inLaPia v. Stratford, 47 Conn. App. 391 (1997), is controlling in this case, as the issue of attorney’s fees was included in the hearing notice and raised at the formal hearing. May 31, 1996 Transcript, p. 3, 9. The respondent simply chose not to ask questions or introduce evidence regarding those fees. Unlike LaPia, we think that this case does feature a record through which the basis of the commissioner’s decision regarding the amount of fees can be determined by a reviewing body such as this one. Thus, we do not believe it necessary to remand this case for another hearing regarding attorney’s fees.