Frantzen v. Davenport Elec.

206 Conn.App. 359

261 A.3d 41

Edward FRANTZEN

v.DAVENPORT ELECTRIC et al.

AC 43627

Appellate Court of Connecticut.

Argued March 9, 2021

Officially released August 3, 2021

Zachary J. Phillipps, Stamford, with whom were David M. Cohen, Stamford, and, on the brief, Adam J. Blank, Stamford, for the appellant (Wofsey, Rosen, Kweskin & Kuriansky, LLP).

Andrew S. Knott, Cheshire, with whom, on the brief, was Robert J. Santoro, for the appellee (Enrico Vaccaro ).

Alvord, Prescott and Suarez, Js.

PRESCOTT, J.

In this fee dispute between successive counsel concerning their representations of a successful claimant before the Workers’ Compensation Commission, the law firm of Wofsey, Rosen, Kweskin & Kuriansky, LLP (Wofsey Rosen) appeals from the decision of the Compensation Review Board (board) vacating a decision of the Workers’ Compensation Commissioner (commissioner) to award 50 percent of the attorney's fees to Wofsey Rosen and the other 50 percent to Attorney Enrico Vaccaro.¹ On appeal, Wofsey Rosen claims that the board improperly vacated the commissioner's ruling and remanded the matter for a new evidentiary hearing on the ground that there was insufficient evidence in the record to support the fifty-fifty distribution of the attorney's fees.² We agree and, accordingly, reverse the board's decision and remand the case to the board with direction to affirm the decision of the commissioner.

The following facts and procedural history, as set forth in this court's decision in Frantzen v. Davenport Electric , 179 Conn. App. 846, 848–49, 181 A.3d 578, cert. denied, 328 Conn. 928, 182 A.3d 637 (2018) ( Frantzen I ), are relevant to our disposition of the present appeal. "Both Vaccaro and Wofsey Rosen represented Edward Frantzen, the claimant, in claims for compensation brought against his employer, Davenport Electric, for work-related injuries sustained in 1994, 1998, and 2003. Wofsey Rosen represented the claimant from March 18, 1998, to April 1, 2005. Attorney Allan Cane ... represented the claimant from April 27, 2005, to July 13, 2007. Vaccaro represented the claimant from July 13, 2007, to May 8, 2014. On May 8, 2014, a stipulation was approved by Commissioner Charles F. Senich pursuant to which $850,000 was awarded to the claimant. The commissioner also approved attorney's fees of 20 percent, with instruction for Vaccaro to hold the amount of the fees in escrow until the fee dispute was resolved. On June 13, 2014, Vaccaro filed a brief that challenged the commission's subject matter jurisdiction over the fee dispute and attacked Wofsey Rosen's claim to any portion of the escrowed fees.

"On September 30, 2014, a hearing was held before Commissioner Michelle D. Truglia on, among other things, Vaccaro's challenge to the commission's subject matter jurisdiction. Vaccaro was given the opportunity to submit evidence of his fee arrangement with the claimant, along with a statement of time and charges attributable to this representation. Vaccaro submitted a copy of his fee agreement but did not provide any evidence of time or charges attributable to this representation. Wofsey Rosen, on the other hand, provided substantial evidence regarding its representation of the claimant. After finding that the commission had subject matter jurisdiction over the fee dispute, the commissioner decided that, because of Vaccaro's failure to document his time and charges, it was impossible to determine the scope and value of his representation of the claimant, and ordered a [fifty-fifty] split of the escrowed attorney's fees between Vaccaro and Wofsey Rosen.

"Vaccaro then appealed from the decision to the board, which on February 24, 2016, affirmed the commissioner's decision as to subject matter jurisdiction but reversed as to the division of the fees, and remanded the matter to the commissioner for a full evidentiary hearing on the issue. Vaccaro thereafter appealed to this court." (Footnote omitted.) Frantzen v. Davenport Electric , supra, 179 Conn. App. at 848–49, 181 A.3d 578. In Frantzen I , this court affirmed the decision of the board, holding that the commissioner had the authority to adjudicate the fee dispute between Wofsey Rosen and Vaccaro. See id., at 853–55, 181 A.3d 578.

In accordance with the remand from the board, the commissioner scheduled a formal evidentiary hearing on attorney's fees (hearing). On February 29, 2016, notice of that hearing was sent to all parties, informing them that the hearing would be held on March 22, 2016. On March 16, 2016, six days before the hearing,³ Vaccaro faxed a letter advising the commission that he could not attend the hearing because he was scheduled for trial in the Superior Court. The commissioner requested confirmation of the alleged conflict, but Vaccaro never responded to that request. During the six days leading up to the hearing, the commission made additional telephone calls to Vaccaro to notify him that his implicit request for a continuance of the hearing had not been granted. Vaccaro, however, never responded.

On March 22, 2016, the hearing was held. Two attorneys, Judith Rosenberg and Adam Blank, appeared before the commissioner on behalf of Wofsey Rosen and submitted evidence to support its claim for attorney's fees, which included the claimant's fee agreement with Wofsey Rosen, contemporaneous time records, and testimony by Rosenberg regarding the professional services rendered to the claimant during Wofsey Rosen's period of representation. Wofsey Rosen entered into evidence an exhibit further detailing the work done for the claimant. Vaccaro did not appear, formally request a continuance, or otherwise communicate to the commissioner regarding his purported scheduling conflict with the hearing date.

On March 30, 2016, the commissioner issued her ruling, again awarding a fifty-fifty split of the $170,000 in attorney's fees on the basis of the entirety of the record before her, including the evidence presented at the March 22, 2016 hearing.⁴ Vaccaro again appealed to the board, this time challenging the commissioner's denial of his request for a continuance and decision to proceed in his absence, and the commissioner's fifty-fifty division of the escrowed attorney's fees between Wofsey Rosen and Vaccaro.

On November 4, 2019, the board issued its decision vacating the commissioner's award and again remanding the matter back to the commissioner for a new hearing. The board concluded that the commissioner's denial of Vaccaro's request to postpone the hearing did not "[constitute] error in and of itself." The board stated, however, that "the commissioner elected to issue her ruling solely on the basis of evidence accumulated during the March 22, 2016 hearing, and we are not persuaded that the evidence garnered at that time [constitutes] a sufficient basis for affirming the ruling. Had the commissioner chosen to continue the formal proceedings in order to allow [Vaccaro] the opportunity to appear at a later date and present his arguments regarding the proper allocation of the disputed fee, and to allow the parties to conduct cross-examination if they so chose, then the ruling would have rested on a more solid evidentiary foundation. This did not happen and, as a result, we are compelled to vacate the ruling and remand this matter for a trial de novo." This appeal followed. Additional facts will be set forth as necessary.

Wofsey Rosen claims that the board incorrectly concluded that there was insufficient evidence upon which to affirm the commissioner's March 30, 2016 ruling, in which she awarded 50 percent of the attorney's fees to Wofsey Rosen and the other 50 percent to Vaccaro. Wofsey Rosen argues that, in fact, there was sufficient evidence presented at the March 22, 2016 hearing to support the commissioner's distribution of attorney's fees. Specifically, Wofsey Rosen contends that the board's statements that it was "not persuaded that the evidence garnered at that time [constituted] a sufficient basis for affirming the ruling" and that "the ruling [could] have rested on a more solid evidentiary foundation" indicate that the board improperly retried the facts and substituted its own inferences for those of the commissioner, which is contrary to the appropriate legal standard applicable to the board's review of a commissioner's decision. Moreover, Wofsey Rosen argues that the board did not address with any particularity the alleged insufficiencies in the evidence or further explain its reasoning. Rather, according to Wofsey Rosen, the board's decision was based on mere speculation that further proceedings would have provided "a more solid evidentiary foundation." For the reasons that follow, we agree with Wofsey Rosen that the board improperly vacated the decision of the commissioner on the basis of an allegedly insufficient evidentiary record.⁵

As a threshold matter, we first set forth the applicable standard of review. "The principles that govern our standard of review in workers’ compensation appeals are well established. ... The board sits as an appellate tribunal reviewing the decision of the commissioner. ... [T]he review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts. ... [T]he power and duty of determining the facts rests on the commissioner .... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Where the subordinate facts allow for diverse inferences, the commissioner's selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ...

"This court's review of decisions of the board is similarly limited. ... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... [W]e...