BODE v. DEITSCH PLASTIC CO., INC., 131-CRD-3-82 (12-9-82)


ALFRED BODE, CLAIMANT vs. DEITSCH PLASTIC CO., INC., EMPLOYER, RESPONDENT

CASE NO. 131-CRD-3-82Workers’ Compensation Commission
DECEMBER 9, 1982

Victor Fasano, Esq., appeared to argue the Appeal from the Decision of the Commissioner for the Third District on the Motion for Attorney’s Fees.

The Claimant appeared pro se.

This Petition for Review from the January 28, 1982 Decision of the Commissioner for the Third District, was argued November 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Frank Verrilli.

OPINION

John Arcudi, Chairman

This matter does not concern compensability or extent of disability. Rather it comes to us as an appeal by the claimant’s attorney from the District Commissioner’s determination of the proper attorney’s fee. In this regard our discussion of the Commissioner’s powers to set fees under Sec. 31-319 C.G.S.[1]
in Robinson vs. Allied Grocers Cooperative, Inc., 68-CRD-1-81, 8 C.L.T. No. 33 (7/13/82) is apropos.

The Claimant-Employee, Alfred A. Bode and the Respondent-Employer, Deitsch Plastic Co., Inc. together with its Insurer, Commercial Union Assurance Companies entered into a Voluntary Agreement approved by the Third District Commissioner May 9, 1977. This Agreement established the occurrence of a compensable injury to the claimant February 24, 1977 in Farmingdale, Long Island, New York consisting of, “Collapsed lung, damaged heart muscles, crushed ribs, contusions, fractured right hip and leg.” It also established that claimant was entitled to the maximum compensation rate when permissible $135.00 per week plus another $30.00 dependency allowances for three children or $165.00 weekly. The file does not show that claimant was represented at this time.

On February 15, 1979 Attorney Robert M. Vogel of New Haven entered an appearance for Bode and requested a hearing concerning specific indemnity that was due claimant. By the time the hearing was held June 21, 1979, Attorney Victor P. Fasano had replaced Attorney Vogel who had died in the meantime. At the June 21, 1979 informal, the Commissioner’s notes show a tentative agreement that claimant was entitled to $17,624.25 for a specific injury of 35% of the leg and 27% of the lung. The Commissioner also issued an informal disfigurement award entitling claimant to an additional seven weeks at $135.00 per week.

The Third District file then shows some correspondence between Attorney John R. McGrail representing the respondents and Attorney Fasano. Also both lawyers asked the Commissioner to set down another hearing. This was held May 5, 1980. The Commissioner’s note of the May hearing shows that the parties finally agreed that specifics would issue for 35% of the leg and 30% of the lung. A Voluntary Agreement reflecting that understanding was approved by the Commissioner May 13, 1980; by virtue of that Agreement claimant received $18,333.00 some seven hundred dollars more than the tentative figure of June 21, 1979.

On June 16, 1980 Claimant Bode requested the Third District to set a hearing concerning the fee charged by Attorney Fassano as the claimant felt one third of the recovery was too large a fee to pay. An informal hearing was held November 4, 1980 before the Honorable Darius J. Spain, Commissioner at Large, Acting for the Third District. Attorney Fasano did not choose to be present on that occasion. Immediately after that hearing Commissioner Spain wrote Attorney Fasano a letter stating that a one third fee was excessive and requesting him to return $2,640.00 to the claimant, leaving a net fee of 20%.

On May 26 and July 2, 1981, Attorney Fasano wrote Commissioner Spain asking for another informal hearing on the fee matter and informed the Commissioner that the claimant had filed a grievance with the New Haven County Bar concerning the same subject. A new hearing was held September 10, 1981 with all parties present, but no resolution was reached.

On January 28, 1982 the Honorable Rhoda Loeb, Commissioner for the Third District issued a decision after a January 6 Formal Hearing ordering Attorney Fasano to remit $2,640.00 to the claimant. The Attorney has appealed that order to this Compensation Review Division.

The Reasons of Appeal filed by the attorney recite: (1) An attack on the jurisdiction of the Commissioner to set a fee because the fee had already been paid when the claimant complained to the Commissioner, (2) Claimant had waived his right to question the fee as he had accepted the share of the proceeds paid over by the attorney, (3) Claimant is estopped from protesting the fee since all the records in the case have been returned to the client by the attorney, (4) the attorney had estimated that he had done over 100 hours of work, (5) Claimant produced no records or evidence and hence the Commissioner’s setting of the fee was arbitrary without factual support.

The tenor of these arguments is naively simplistic at best. In addition to the ethical standards by which a lawyer is bound when setting a fee, vide Robinson vs. Allied Grocers Cooperative, Inc., supra, there is specific statutory authority in Sec. 31-319
C.G.S. cloaking the Commissioner with power to set fees. That authority does not vanish if an excessively large fee has already been paid. Such an argument is akin to saying you can’t lock the barn door after the horse has been stolen. On the contrary it is in precisely such a situation that the Commissioner’s authority should be exercised to protect an unsophisticated lay client from unfair dealing by his counsel. The legislature did not intend to render the Commissioner powerless just because the improper fee had already been collected. Such a view would enshrine an Orwellian view of legal ethics and professional morality.

The assertion that the attorney estimated he spent over one hundred hours of work on the file borders on the ridiculous, not to use a much more pejorative adjective. This panel has painstakingly examined every document in the Third District file and carefully read the transcript of the January 6, 1982 hearing. It is impossible to conceive that more than 15 hours were spent in preparation for the two hearings of June 21, 1979 and May 5, 1980. Long before this attorney’s entry on the scene the Respondents had admitted liability. There never seemed to have been much argument over the major part of the award, the 35% specific of the leg. It would seem that the Respondents were ready to pay that without cavil by June 21, 1979.

The only small area of dispute was over how large the admitted lung incapacity was. That seems to have increased from 27% to 30% by virtue of the attorney’s efforts between June 21, 1979 and May 5, 1980. For these services the attorney certainly deserved to be paid. The Commissioner awarded 20% of the entire recovery. Had we the power to substitute our judgment for the Commissioner we would not have been half so generous.

To protest such an overgenerous fee allowance and to delay for so long to pay the remittitur ordered is shocking. The decision of the Commissioner is affirmed and the appeal is dismissed.

A. Paul Berte, Commissioner

Frank Verrilli, Commissioner

[1] Sec. 31-319. Fees to be approved. All fees of attorneys, physicians, podiatrists or other persons for services under this chapter shall be subject to the approval of the commissioner.