Previti v. Monro Muffler Brake, Inc. ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
GIUSEPPE PREVITI v. MONRO MUFFLER
BRAKE, INC., ET AL.
(AC 35849)
Lavine, Alvord and Harper, Js.
Argued October 16, 2014—officially released January 13, 2015
(Appeal from Workers’ Compensation Review Board.)
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
Anne Kelly Zovas, for the appellees (defendants).
Opinion
LAVINE, J. The plaintiff, Giuseppe Previti, appeals
from the decision of the Workers’ Compensation
Review Board (board) affirming the corrected finding
and award of the Workers’ Compensation Commis-
sioner (commissioner) in favor of the plaintiff. The
plaintiff claims that the board improperly concluded
that the commissioner did not abuse his discretion
when he reduced the amount of attorney’s fees awarded
to the plaintiff from $1481 to $1. We affirm the decision
of the board.
The following facts and procedural history are rele-
vant to this appeal. On August 13, 2007, the plaintiff
suffered a back injury while in the course of and as a
result of his employment with the defendant Monro
Muffler Brake, Inc.1 A formal hearing before the Work-
ers’ Compensation Commission commenced on March
9, 2010, and the record was closed at a hearing session
on March 6, 2012. On July 3, 2012, the commissioner
issued his finding and award. The issues before the
commissioner were whether: (1) the plaintiff is entitled
to temporary partial disability benefits from May 19,
2009, forward; (2) to authorize pain management treat-
ment and a psychiatric evaluation for the plaintiff; and
(3) to order the defendants to pay the plaintiff interest
and attorney’s fees due to their undue delay in adjusting
compensation and/or unreasonably contesting the
plaintiff’s claim. The commissioner concluded that the
defendants owed the plaintiff $7681.80 in temporary
partial disability benefits for the period of May 19, 2009,
to December 11, 2009, and an interest amount of $88.96
because the defendants unreasonably contested their
liability to pay temporary partial disability benefits. The
commissioner denied the plaintiff’s requests for pain
management and a psychiatric evaluation. He also
ordered the defendants to pay the plaintiff attorney’s
fees in the sum of $1481,2 pursuant to General Statutes
§ 31-300.3
On July 26, 2012, the plaintiff filed a motion to correct,
pursuant to Section 31-301-4 of the Regulations of Con-
necticut State Agencies, seeking a future hearing on
the amount of attorney’s fees he was due because ‘‘[t]he
evidence and the law does not support the commission-
er’s finding of $1481.’’4 The commissioner denied the
plaintiff’s proposed changes in his ruling on the motion
to correct. The commissioner, however, corrected his
award of attorney’s fees and determined that it must
be vacated. He reduced the attorney’s fee award to a
nominal amount of $1 because the plaintiff failed to
put forth any evidence of the time his attorney expended
as a result of the defendants’ unreasonable contest of
his temporary partial disability claim. Moreover, the
commissioner concluded that the issue of attorney’s
fees could not be the subject of future hearings. The
plaintiff, thereafter, filed a motion for articulation,
which the commissioner granted. In the commissioner’s
articulation, he reiterated that it was the plaintiff’s bur-
den to enter evidence of his attorney’s fees but he failed
to do so at the formal hearing sessions, over the course
of two years. The commissioner noted that, ‘‘no party
is entitled to try [its] case in a piecemeal fashion’’ and
determined that the plaintiff’s failure to proffer the nec-
essary evidence prevented the commissioner from sus-
taining his award of $1481.
The plaintiff appealed to the board from the commis-
sioner’s corrected finding and award. The board was
presented with the issue that is now facing this court:
Whether the commissioner abused his discretion by
correcting the amount of attorney’s fees awarded to a
nominal amount. In affirming the commissioner’s find-
ing and award, the board emphasized that, on appeal,
the board gives great deference to the commissioner
and only overturns findings of the commissioner that
are lacking evidentiary support, are contrary to the law,
or based on unreasonable inferences. See Kish v. Nurs-
ing & Home Care, Inc., 248 Conn. 379, 384, 727 A.2d
1253 (1999). The board found that the commissioner
reached a reasonable award on the basis of the record.
This appeal followed.
At the outset, we set forth the applicable standard
of review. ‘‘A party aggrieved by a commissioner’s deci-
sion to grant or deny an award may appeal to the board
. . . . The board is obligated 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 law
to the subordinate facts or from an inference illegally
or unreasonably drawn from them.’’ (Internal quotation
marks omitted.) Kinsey v. World Pac, 152 Conn. App.
116, 121–22, 93 A.3d 66 (2014). ‘‘Although [this] court
may not supplant its own conclusions for those of the
board, the court retains the ultimate obligation to deter-
mine whether the administrative action was unreason-
able, arbitrary, illegal, or an abuse of discretion.’’
(Internal quotation marks omitted.) Arcano v. Board of
Education, 81 Conn. App. 761, 765, 839 A.2d 589 (2004).
The plaintiff claims that the board improperly
affirmed the commissioner’s corrected finding and
award because the commissioner abused his discretion
by correcting his award of attorney’s fees from $1481
to $1 in his ruling on the plaintiff’s motion to correct.5
Given the commissioner’s frank admission that he ‘‘[did]
not have a factual basis in the record for the award
[he] made’’ in favor of the plaintiff, we disagree.
The commissioner noted that the plaintiff, himself,
pointed out in his motion to correct that he failed to
offer any proof of attorney resources expended on
account of the defendants’ unreasonable contest of the
temporary partial benefits, and it was the plaintiff’s
burden to present such evidence. The commissioner
found that ‘‘the [plaintiff] did not submit any evidence
as to the number of hours his attorneys spent on the
case, the number of hours his attorneys claim to have
been expended due to the fault or neglect of the respon-
dent, or the proper hourly rate at which any such time
should be compensated.’’ ‘‘[W]hen a court is presented
with a claim for attorney’s fees, the proponent must
present to the court at the time of trial . . . a statement
of the fees requested and a description of services ren-
dered. Such a rule leaves no doubt about the burden
on the party claiming attorney’s fees . . . .’’ (Footnote
omitted.) Smith v. Snyder, 267 Conn. 456, 479, 841 A.2d
742 (2004). The plaintiff’s bare request for attorney’s
fees was inadequate under this standard, and the com-
missioner properly corrected the award to $1.
The plaintiff argues that the commissioner penalized
him for filing a motion to correct by changing the award
of attorney’s fees. It is, however, within the commission-
er’s discretion to award a party attorney’s fees pursuant
to the findings of fact. See McFarland v. Dept. of Devel-
opmental Services, 115 Conn. App. 306, 323, 971 A.2d
853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).
The commissioner corrected the award of attorney’s
fees because ‘‘the figure of $1480 was based on a pre-
sumed hourly rate for which there is no evidence in
the record.’’ It was also within the commissioner’s dis-
cretion to deny the plaintiff’s request for a future hear-
ing on the amount awarded. ‘‘A party to a compensation
case is not entitled to try his case piecemeal, to present
a part of the evidence reasonably available to him, and
then, if he loses, have a rehearing to offer [evidence]
he might as well have presented at the original hearing.’’
Kearns v. Torrington, 119 Conn. 522, 529, 177 A. 725
(1935). The commissioner noted in his articulation that
‘‘[o]n the first day of the formal hearing the [plaintiff’s]
attorney specifically articulated Section 31-300 attor-
ney’s fees as one of the issues the [plaintiff] was going
to prove.’’ The commissioner found that the plaintiff
cannot now go back and prove the issue of attorney’s
fees when ‘‘there was nothing to keep the [plaintiff]
from putting forth his evidence on this point prior to
the closing of the record at the third session.’’
On appeal, the board found that the commissioner,
in correcting the amount of attorney’s fees awarded,
reasonably reached his decision based on the record
before him. The board emphasized that it is within the
commissioner’s discretion to correct his finding in order
for it to conform to the record. ‘‘Such sanctions [typi-
cally] have been set aside on appeal primarily when
there were due process concerns . . . or when the fac-
tual predicate to sustain sanctions could not [be] ascer-
tained from the record.’’ (Emphasis added.) Here, the
board properly affirmed the commissioner’s correction
because both the commissioner and the plaintiff con-
cede that the factual predicate to sustain the $1481
attorney’s fees award could not be found in the record.
The board concluded that ‘‘[although] the results
herein may be disappointing to the [plaintiff], the deci-
sion is not irrational or arbitrary, especially given the
broad discretion trial commissioners are afforded . . .
to address appropriateness of sanctions.’’ This court
‘‘will not change the finding of the commissioner unless
the record discloses that the finding includes facts
found without evidence or fails to include material facts
which are admitted or undisputed. . . . Similarly, [t]he
decision of the [board] must be correct in law, and it
must not include facts found without evidence or fail
to include material facts which are admitted or undis-
puted.’’ (Citation omitted; internal quotation marks
omitted.) Brinson v. Finlay Bros. Printing Co., 77
Conn. App. 319, 324, 823 A.2d 1223 (2003). The commis-
sioner’s reconsideration of his prior finding and award
and ultimate correction of the award of attorney’s fees
falls within the bounds of his inherent authority. We,
therefore, conclude that the commissioner did not
abuse his discretion in correcting his award of attor-
ney’s fees on the basis of the record and that the board
reasonably affirmed his finding and award.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
The insurer for Monro Muffler Brake, Inc., at the time plaintiff filed his
claim was Travelers Insurance Company. Accordingly, we refer to Monro
Muffler Brake, Inc., and Travelers Insurance Company as the defendants in
this opinion.
2
In awarding the plaintiff attorney’s fees, the commissioner presumed a
reasonable hourly rate of $185 which he multiplied by eight hours spent
at the formal hearing and a deposition, plus $1 nominal damages for the
defendants’ undue delay.
3
General Statutes § 31-300 provides in relevant part: ‘‘In cases where,
through the fault or neglect of the employer or insurer, adjustments of
compensation have been unduly delayed, or where through such fault or
neglect, payments have been unduly delayed, the commissioner may include
in the award interest at the rate prescribed in section 37-3a and a reasonable
attorney’s fee in the case of undue delay in adjustments of compensation
and may include in the award in the case of undue delay in payments of
compensation, interest at twelve per cent per annum and a reasonable
attorney’s fee. . . .’’
4
The plaintiff proposed that the commissioner should order a future
hearing to determine the appropriate amount of attorney’s fees pursuant to
§ 31-300 and did not specify the amount of fees requested.
5
The plaintiff also claims that the board erred in failing to conclude that
the defendants improperly discontinued the plaintiff’s temporary partial
disability benefits in violation of General Statutes § 31-296 (b). The plaintiff
failed to articulate this claim in his appeal to the board and the board did
not address it in its opinion. The claim was not properly preserved for
subsequent review by the Appellate Court. This court is not bound to con-
sider claims not properly raised before the board. Practice Book § 60-5. We
therefore, decline to address this claim.