CASE NO. 4456 CRB-5-01-11 CLAIM NO. 700119610Compensation Review Board WORKERS’ COMPENSATION COMMISSION
DECEMBER 6, 2002
RULING ON MOTION TO REARGUE
JOHN A. MASTROPIETRO, CHAIRMAN.
The claimant in this matter has filed a Motion to Reargue dated November 11, 2002, in response to the October 25, 2002 decision of the Compensation Review Board in Regan v. Torrington, 4456 CRB-5-01-11. He seeks to reargue the issue of his counsel’s entitlement to a $32,400 attorney’s fee, as originally determined by the trial commissioner in an October 26, 2001 Finding and Award, which finding this board reversed so that a formal hearing could be conducted on the matter. The respondents have countered by filing an objection to this motion dated November 22, 2002.
In our October 25, 2002 decision, this board affirmed the trier’s finding that the claimant was entitled to interest and attorney’s fees on account of undue delay in the payment of compensation. However, with regard to time spent by claimant’s counsel on this case and the amount of his fee, the only proof offered was an eight-page affidavit that the claimant submitted in conjunction with his proposed findings. By way of history, a formal hearing had been scheduled in this matter for July 5, 2001, to which the respondents objected on jurisdictional grounds. A letter from the trial commissioner dated July 5, 2001 reflects that the parties agreed to the commissioner’s suggestion that briefs be submitted at a pro forma hearing on July 26, 2001, as there was at that time no factual dispute requiring live testimony. Thus, no formal hearings were held. The parties then submitted proposed findings on a number of issues, including subject matter jurisdiction over the underlying claim, medical bills, temporary total disability, and sanctions for undue delay pursuant to § 31-300 C.G.S. The trier rendered a decision on all of those issues based upon the contents of the proposed findings, including the amount of the attorney’s fee due claimant’s counsel.
In their Motion to Correct, the respondents requested that a formal hearing be held regarding “time spent by claimant’s counsel, with regard to the prior fee arrangement which counsel had with his client and with regard to an appropriate hourly rate which should be awarded.” ¶ XVII. This correction was denied. On appeal, we accepted the respondents’ argument that they did not have sufficient opportunity to address the accuracy of the fee calculations, and reversed the trier’s $32,400 attorney’s fee award with direction that it be remanded for a formal hearing at which the respondents would have an opportunity to cross-examine counsel regarding his bill for services.
The claimant now seeks to reargue that matter before this board, citing a recent decision of our Supreme Court as primary authority for its motion; Shapero v. Mercede, 262 Conn. 1 (2002); while also contending that the parties’ agreement to decide the case on the papers encompasses the amount of the attorney’s fee, and makes inapposite the cases cited by this board in its October 25, 2002 opinion. See Balkus v. Terry SteamTurbine, 167 Conn. 170 (1974); Lapia v. Stratford, 47 Conn. App. 391
(1997); Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001); Toth v. American Frozen Foods, Inc., 4069 CRB-4-99-6 (Aug. 9, 2000). We are unpersuaded by the respondents’ arguments.
The Shapero case indeed stands for the proposition that a trial referee (or, by extension, a judge or a workers’ compensation commissioner) may rely on her own general knowledge of the reasonable value of legal services in setting an attorney’s fee. However, the underlying cause of action in that case was a suit by a tax attorney against his former client seeking to recover legal fees for services previously rendered under several different theories of liability, including quantum meruit, breach of contract, and unjust enrichment. Though the plaintiff presented no evidence regarding his hourly rate during the hearing, he did testify that he had reasonably spent 100 hours on the defendant’s case, thereby raising the issue of time spent in a setting that allowed for cross-examination on the matter. In the case now before us, the issue of attorney’s fees was not directly in dispute at a contested hearing, with the respondents having the opportunity to cross-examine the attorney regarding either time spent on the case, or the proper amount of his fee. Thus, we are not convinced that Shapero should be interpreted as a basis for reargument in this matter.
As for the cases cited by this board in our October 25, 2002 decision, we believe that the principles articulated in those cases are indeed applicable to the instant case, even if there was an agreement between the parties to bypass the formal hearing procedure. At the time of that agreement, the claimant had not yet submitted its itemization of attorney’s fees, and there were numerous other issues pending that were of more immediate concern to the parties. We stand by our decision that due process favors a remand in this matter, so that the respondents may have an opportunity to address the fee request of claimant’s counsel at a formal hearing. The claimant’s motion is thereby denied, and the respondents’ objection is sustained.
Commissioners Amado J. Vargas and Jesse M. Frankl concur.
CERTIFICATIONTHIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 6th day of December 2002 to the following parties:
THOMAS REGAN
ROGER FRECHETTE, ESQ. 7099 3400 0008 5539 1291
CITY OF TORRINGTON
WILLIAM C. BROWN, ESQ. 7099 3400 0008 5539 1285
___________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission