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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 Commissioner (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 relevant 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 Workers’ 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 treatment 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 Connecticut 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 commissioner’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

putforth any evidence ofthe 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 burden 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 necessary evidence prevented the commissioner from sustaining his award of $1481.

The plaintiff appealed to the board from the commissioner’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 finding 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. Nursing & 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 decision 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 determine whether the administrative action was unreasonable, 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 respondent, 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 rendered. 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 commissioner 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. Itis, however, within the commissioner’s discretion to award a party attorney’s fees pursuant

to the findings of fact. See McFarland v. Dept. of Developmental 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 presumed hourly rate for which there is no evidence in

the record.’’ It was also within the commissioner’s discretion to deny the plaintiff’s request for a future hearing 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 attorney’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 factual predicate to sustain sanctions could not [be] ascertained from the record.’’ (Emphasis added.) Here, the

board properly affirmed the commissioner’s correction

because both the commissioner and the plaintiff concede 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 decision 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 orfails 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 undisputed.’’ (Citation omitted; internal quotation marks

omitted.) Brinson v. Finlay Bros. Printing Co., 77

Conn. App. 319, 324, 823 A.2d 1223 (2003). The commissioner’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 attorney’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 consider claims not properly raised before the board. Practice Book § 60-5. We

therefore, decline to address this claim.