Kinsey v. Pac

152 Conn.App. 116

98 A.3d 66

Jerome KINSEY

v.WORLD PAC et al.

No. 36159.

Appellate Court of Connecticut.

Argued April 21, 2014.

Decided Aug. 12, 2014.

Alan Scott Pickel, Stamford, for the appellant (petitioner).

Colette S. Griffin, Hartford, for the appellees (respondents).

LAVINE, KELLER and SULLIVAN, Js.

SULLIVAN, J.

The petitioner, Jerome Kinsey, appeals from a decision rendered by the Workers' Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner (commissioner) ordering the respondents, World PAC and ACE USA, to pay past due benefits and attorney's fees. On appeal, the petitioner claims that the board erred in affirming the commissioner's conclusions that (1) attorney's fees awarded pursuant to General Statutes §§ 31–300 and 31–327(b) cannot include paralegal fees, (2) the respondents could not be sanctioned pursuant to General Statutes § 31–288 due to insufficient notice, (3) attorney's fees should not be awarded for time expended pursuing sanctions, and (4) the commissioner's knowledge of settlement negotiations did not necessitate recusal. Because we agree with the petitioner's first claim, we reverse the board's decision in part and remand the case for further proceedings as to paralegal fees. We affirm the board's decision in all other respects.

An examination of the board's record reveals the following relevant facts. In 2000, the petitioner was injured during the course of his employment with World PAC. Since then, the petitioner has been receiving temporary total disability payments. Since 2005, the petitioner has been entitled to cost of living adjustment (COLA) payments.

On December 5, 2011, the petitioner requested an informal hearing before the commissioner for benefits, sanctions, interest, and attorney's fees, as a result of the respondent's discontinuance of payments without warning and failure to provide a series of COLA adjustments. This request was triggered by the respondents' failure to adjust his weekly benefit checks to include the necessary COLA of $7.26 since October, 2011. Also, on November 6, 2011, the petitioner had received his weekly benefit check, and then the payments had stopped for approximately four weeks. The respondents had not filed a form 36 advising the petitioner that they were discontinuing payments or that COLA would not be provided. On December 8, 2011—a date after the petitioner's request for an informal hearing before the commissioner—the petitioner received a check for the time period of November 9, 2011 to December 6, 2011. The petitioner did not receive any COLA adjustments until December 13, 2011, which was a period of seventy-three days from when they were due.

Evidence submitted before the commissioner indicated that these stoppages were not the first time that the respondents had failed to timely provide the petitioner with his benefits. For example, on June 22, 2007, the petitioner received a check for $6000 as compensation for benefits owed for the time period of October 1, 2006 through June 5, 2007. On April 2, 2008, the petitioner received a check for $1448.60 as compensation for benefits owed for the time period of February 27, 2008 through April 1, 2008.

Although all past due benefits were paid by December 13, 2011, an informal hearing before the commissioner was held on December 27, 2011, at which the respondents' counsel offered the petitioner $1000 to settle his claim for attorney's fees and sanctions. Counsel for the petitioner declined the offer and pressed for $1500. On January 5, 2012, the petitioner requested a preformal hearing for benefits, sanctions, improper discontinuance of benefits, interest, and attorney's fees. On January 18, 2012, counsel for the petitioner received a check dated January 10, 2012, in the amount of $1500. The check for $1500 did not dissuade the petitioner from his pursuit of sanctions, and on February 17, 2012, the petitioner requested a formal hearing for an “award of sanctions, interest and attorney's fees for undue delay.”

A formal hearing was held before the commissioner for sanctions, interest and attorney's fees pursuant to § 31–300 on March 12, 2012. Counsel for the petitioner sought $23,118.75 in sanctions and attorney's fees, plus interest. On September 21, 2012, the commissioner, in a written decision, ordered the respondents to pay the petitioner the sum of $26.96 as and for interest on unpaid temporary total disability benefits and unpaid COLA increases, and to pay the petitioner's attorney the sum of $525 as and for a reasonable attorney's fee in connection with his preparation and attendance at the December 27, 2011 preformal hearing.

The commissioner made the following factual findings in regard to attorney's fees that are relevant to this appeal. The commissioner determined $350 an hour to be a reasonable rate due to the “facile nature of the matter....” The commissioner found that the respondents failed to provide requisite notice as to their discontinuance of COLA benefits, and failed to make this adjustment for a seventy-three day period, but that the petitioner's counsel had expended no time in the pursuit of these arrearages; rather, all work performed in pursuit of the petitioner's benefits was performed by counsel's paralegal. The commissioner determined that “[t]here is no statutory authority for an award of paralegal fees or charges” and that the facts did not support compensating attorney's fees accrued subsequent to the informal hearing. The petitioner's counsel, specifically, had expended only 1.5 hours of time in preparation for the informal hearing. The commissioner determined that, accordingly, the respondents' offer at the informal hearing of $1000 to resolve the issue was reasonable to compensate counsel for his efforts, and that the demand of the petitioner's counsel of $1500 was unreasonable.

The petitioner appealed to the board from the commissioner's decision, pursuant to General Statutes § 31–301. On September 17, 2013, the board, in a written decision, determined that the commissioner's findings were supported by evidence in the record and were a proper exercise of her discretion. The board determined that it was not persuaded that there was any legal error. The petitioner timely appealed to this court from the board's decision, pursuant to General Statutes § 31–301b. Additional details of the findings and determinations of the commissioner and the board will be presented as necessary.

We set forth the relevant standards of review before turning to the specific claims raised by the petitioner. “A party aggrieved by a commissioner's decision to grant or deny an award may appeal to the board.... The board is obliged to hear the appeal on the record and not retry the facts.... [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.... The conclusions drawn by him 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.... Our scope of review of the actions of the board is similarly limited.... The role of this court is to determine whether the ... [board's] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) McFarland v. Dept. of Developmental Services, 115 Conn.App. 306, 310–11, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).

I

The petitioner first claims that the board erred in affirming the commissioner's determination that she lacked the statutory authority to award paralegal fees. Specifically, the petitioner asserts that the commissioner may award paralegal fees pursuant to her authority to award “reasonable attorney's fees” at her discretion under §§ 31–300 and 31–327(b). We agree with the petitioner.

The following additional facts are relevant to this claim. The board concluded that the commissioner's determination that “[t]here is no statutory authority for an award of paralegal fees or charges” was reasonable, and that her decision not to award paralegal fees was a proper exercise of her discretion. In reaching this decision, the board stated: “We find that the provisions of § 31–327 ... make the determination of what is a reasonable legal fee within the discretion of the trial commissioner.... [The petitioner's] counsel cites Connecticut cases not involving [Workers' Compensation Commission (commission) matters] where judicial awards have included [paralegal fees as an] element of relief. This is unpersuasive, as none of these cases involve sanctions under [the Workers' Compensation Act (act), General Statutes § 31–275 et seq.], and appellate precedent supports the discretion of a trial judge in determining sanctions. Moreover, the statute herein, § 31–327 ... discusses the award of fees for ‘attorneys.’ While this statute does allow for fees to potentially be approved for ‘other persons;’ we also note that the statute utilized by the commissioner in this case, § 31–300 ... calls for ‘a reasonable attorney's fee’ to be awarded when payments are unduly delayed. Our decision in Heilweil v. Board of Education, No. 5161, CRB 8–06–11 (October 24, 2007), is instructive on this issue. In Heilweil, we reversed the award of a witness fee to a vocational expert, as such individuals were not among those enumerated under General Statutes § 31–298 as entitled to a witness fees. We find paralegals are not among the professionals enumerated under [§§] 31–300 ... or 31–327 ... who may receive fees as a component of sanctions against a respondent.” The board determined that, accordingly, the commissioner's decision to not compensate counsel for the time that his paralegal spent pursuing the petitioner's benefits was not reversible error.

The issue presented requires us to determine whether paralegal fees can be awarded...