Opinion
CASE NO. 1262 CRD-1-91-7
MAY 6, 1992
The claimant was represented pro se and did not appear at either the trial level or at oral argument.
Claimant's counsel was Henry Marcus, Esq. who represented himself. Attorney Marcus did not appear at oral argument.
The respondents did not appear as the issue involved a dispute on fees between the claimant and his attorney.
This Petition for Review from the May 6, 1991 Finding and Award of the Commissioner for the First District was decided on the basis of papers submitted for the December 13, 1991 hearing before a Compensation Review panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Thomas White, Jr. and George Waldron.
OPINION
Claimant seeks review of the commissioner's approval of attorney's fees under Sec. 31-319. The sum approved was $9,680.00. The claimant had already paid $9,040.78 of that amount, and the commissioner's decision awarded an additional $639.22. The claimant is pro se, but neither he nor the attorney whose fee is in question appeared at oral argument. On the basis of claimant's untitled document dated August 13, 1991, we understand this to be a fee dispute between counsel and claimant and have so treated the proceeding.
While no transcript of the February 15, 1991 hearing was prepared, Attorney Marcus did submit exhibits to the trial Commissioner. Among those exhibits were the "Retainer Agreement — Worker's (sic) Compensation" Claimant's [Counsel's] Exhibit 1, "Attorney's Statement Re: Fee Claimed", Claimant's [Counsel's] Exhibit 3 and "Summary of Time Sheets" Claimant's [Counsel's] Exhibit 4. The trial commissioner found that the retainer agreement stated Attorney Marcus was to be paid the greater of an hourly fee of $150.00 per hour, 20% of any recovery or 25% of any recovery if the claim was contested. In his Attorney's Statement, Attorney Marcus set down the recovery to which claimant was entitled from the date of injury (September, 1988) through August, 1990 was $73,409.00, i.e. $45,113.00 of temporary total benefits, $20,800.00 of specific indemnity for a 10% loss of back function (52 weeks at $400.00 per week) and $7496.00 of medical bills paid. Attorney Marcus' time sheet summary detailed 36.8 hours of work on behalf of the claimant at $150.00 per hour, totaling $5,520.00. The commissioner approved the payment of for the 36.8 hours worked and also added $4,160.00 (20% of the $20,800.00) to reach the total of $9,680.00 in approved fees.
Sec. 31-319 gives a commissioner the authority to review and approve the fees charged by attorneys in Workers' Compensation matters. Here, the basis for the fees she approved is not clear. Under the Retainer Agreement the attorney was to get a fee based either on hours worked or on a percentage of the recovery. Unless there is considerable litigation surrounding a claimant's right to receive weekly temporary total benefits, it not usual for an attorney to obtain any fee or part of a fee based on weekly temporary total benefits received. Also, our perusal of the file indicates Attorney Marcus was not the claimant's attorney when the specific entitlement for $20,800.00 was resolved. Given that fact, it may very well be that it would have been better to base the fee on the hours worked. The matter needs to be remanded in order to ascertain the proper basis for the fee award. If necessary, a further evidential hearing may be had. In proceedings concerning contested attorneys' fees, it is necessary that the greatest discretion be exercised. See Robinson v. Allied Grocers Cooperative, 1 Conn. Workers. Comp. Rev. Op 132, 68 CRD-1-81 (1982) aff'd, 39 Conn. Sup. 386 (1983) (per curiam).
We sustain the appeal and remand for further proceedings consistent with this opinion.
Commissioners A. Thomas White, Jr. and George Waldron concur.