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*********************************************** 
EDWARD FRANTZEN v. DAVENPORT

ELECTRIC ET AL.

(AC 43627)

Alvord, Prescott and Suarez, Js.

Syllabus

W Co., a law firm that had previously represented the claimant in proceedings

before the Workers’ Compensation Commission, appealed to this court

from the decision of the Compensation Review Board, which vacated

the decision of the Workers’ Compensation Commissioner that divided

equally the attorney’s fees between W Co. and V, an attorney who had

also successfully represented the claimant in the matter before the

commission. W Co. claimed on appeal to this court that the board

improperly vacated the commissioner’s ruling and remanded the case

for a new evidentiary hearing on the ground that there was insufficient

evidence in the record to support the commissioner’s distribution of

attorney’s fees. Held that there was sufficient evidence in the record

from which the commissioner reasonably could have based her ruling

on attorney’s fees and, accordingly, the board improperly vacated the

commissioner’s decision: the board incorrectly applied the appropriate

legal standard to its review of the commissioner’s decision by vacating

her ruling on the basis of its speculation that her ruling could have

rested on a more solid evidentiary foundation, thereby substituting its

judgment for the conclusion of the commissioner; moreover, the board’s

decision was devoid of any analysis of the facts found by the commissioner, and the board improperly encroached on the commissioner’s

discretion without making any findings as to whether her conclusions

were based on an incorrect application of the law or unreasonable

inferences drawn from the facts found; furthermore, the commissioner’s

decision to divide the attorney’s fees equally was made on the basis of

the record and evidence presented at the hearing, the scheduling of

which both parties were properly notified, and V failed to appear before

the commissioner and presented no evidence in his favor.

Argued March 9—officially released August 3, 2021

Procedural History

Appeal from the decision by the Workers’ Compensation Commissioner for the Seventh District ordering

the equal division of certain attorney’s fees between

the claimant’s counsel, brought to the Compensation

Review Board, which vacated the commissioner’s decision and remanded the case for further proceedings,

and Wofsey, Rosen, Kweskin & Kuriansky, LLP,

appealed to this court. Reversed; judgment directed.

Zachary J. Phillipps, with whom were David M.

Cohen, and, on the brief, Adam J. Blank, for the appellant (Wofsey, Rosen, Kweskin & Kuriansky, LLP).

Andrew S. Knott, with whom, on the brief, was Robert

J. Santoro, for the appellee (Enrico Vaccaro).
Opinion

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 fiftyfifty 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 commis-
sioner 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. 848–49. 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., 853–55.

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 divi-
sion 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 appel-
late 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 must interpret

[the commissioner’s finding] with the goal of sustaining

that conclusion in light of all of the other supporting

evidence. . . . Once the commissioner makes a factual

finding, [we are] bound by that finding if there is evidence in the record to support it.’’ (Emphasis added;

internal quotation marks omitted.) Story v. Woodbury,

159 Conn. App. 631, 636–37, 124 A.3d 907 (2015). In the

context of an administrative appeal, ‘‘the sufficiency of

the evidence to support a finding . . . clearly presents

a question of law’’ that ‘‘we examine . . . under the

plenary standard of review.’’ (Internal quotation marks

omitted.) Raymond v. Zoning Board of Appeals, 76

Conn. App. 222, 256, 820 A.2d 275, cert. denied, 264

Conn. 906, 826 A.2d 177 (2003).

On the basis of our review of the record, we conclude

that there is sufficient evidence in the record from

which the commissioner reasonably could have based

her ruling on attorney’s fees and, accordingly, the board

acted improperly in vacating the commissioner’s decision. Although the board acknowledged that the ‘‘trial

commissioner’s factual findings and conclusions must

stand unless they are without evidence, contrary to

law or based on unreasonable or impermissible factual

inferences,’’ the board incorrectly applied that legal

standard to its review of the commissioner’s decision

by vacating the commissioner’s ruling on the basis of

its speculation that the ruling could have ‘‘rested on a

more solid evidentiary foundation.’’ The board conceded that its review of the commissioner’s decision

‘‘ ‘requires every reasonable presumption in favor of the

action, and the ultimate issue for us is whether the trial

[commissioner] could have reasonably concluded as it

did.’ ’’ Despite this apparent understanding of the legal

standard, the board improperly reversed the commissioner’s ruling by substituting its own judgment for the

conclusion of the commissioner.

The law does not require, as the board asserted in
its decision, ‘‘a more solid evidentiary foundation’’ than

that on which the commissioner relied. The law,

instead, requires the board to determine whether there

was evidence before the commissioner to support her

factual findings, and whether the inferences drawn from

the facts found were illegal or unreasonable. The board

is required to hear the appeal on the basis of the record

presented, not to retry the facts or to speculate about

facts outside of the record that may have been proven.

Moreover, although the board based its decision on

an alleged insufficiency of the evidence, the board’s

decision was devoid of any analysis of the facts found

by the commissioner. The board improperly encroached

on the commissioner’s discretion without making any

findings as to whether the commissioner’s conclusions

were based on an incorrect application of the law or

unreasonable inferences drawn from the facts found.6

The commissioner’s decision to divide the attorney’s

fees award evenly between the parties was made on

the basis of the record as a whole as well as the evidence

presented at the March 22, 2016 hearing, of which both

parties were properly notified. At the hearing, Wofsey

Rosen presented extensive evidence to support the

firm’s considerable work on the claimant’s underlying

workers’ compensation claims, namely, the claimant’s

fee agreement with the firm, contemporaneous time

records, correspondence, and testimony by Rosenberg

regarding the professional services rendered to the

claimant during Wofsey Rosen’s period of representation. The commissioner drew reasonable inferences

from the evidence before her, specifically that Wofsey

Rosen ‘‘presented more than adequate justification’’ for

an award of 50 percent of the attorney’s fees and that

‘‘by virtue of [Vaccaro’s] failure to attend the March

22, 2016 formal proceedings on remand, [Vaccaro] has

presented no evidence that would warrant a greater

percentage of the escrowed attorney’s fees other than

the 50 [percent] share previously awarded . . . .’’ As

we have stated previously in this opinion, Vaccaro failed

to appear before the commissioner and, accordingly,

presented no evidence in his favor.7 Despite the board’s

speculation that further proceedings would provide a

more solid evidentiary foundation, Vaccaro has never

offered any evidence substantiating his time spent and

expenses incurred in his representation of the underlying claimant. Moreover, at oral argument before this

court, when asked whether Vaccaro has ever produced

a competent record regarding his time spent on the

matter, counsel for Vaccaro conceded that he has not.

On the basis of the evidence presented at the hearing,

as well as the underlying record available to her, the

commissioner concluded that a fifty-fifty split of the

escrowed attorney’s fees was appropriate.

Moreover, the commissioner’s decision to split the

attorney’s fees equally was not based on an incorrect

application of the law to the subordinate facts or on
an inference illegally or unreasonably drawn from those

facts. It was well within the commissioner’s authority

to award attorney’s fees on the basis of the evidence

presented at the hearing.8 The commissioner was not

obligated to hold any further evidentiary hearings, and

properly relied on the evidence presented by Wofsey

Rosen to demonstrate what portion of the claimant’s

award that was previously set aside for attorney’s fees

should be awarded to it. Vaccaro was notified properly

of his opportunity to present evidence to support his

own claim to a portion of the escrowed attorney’s fees,

and failed to do so on his own accord. The board, and

we in turn, cannot disturb the commissioner’s conclusion as long as it is supported by the underlying facts.

See, e.g., Six v. Thomas O’Connor & Co., 235 Conn.

790, 801, 669 A.2d 1214 (1996). We conclude that,

because there is sufficient evidence to support the commissioner’s finding that Wofsey Rosen was entitled to

50 percent of the attorney’s fees awarded as part of the

workers’ compensation settlement, the board improperly vacated and remanded the matter to the commissioner on the ground that the ruling could have ‘‘rested

on a more solid evidentiary foundation.’’ Therefore, it

was improper for the board to reverse the commissioner’s ruling and remand the case for a new hearing.

The decision of the Compensation Review Board is

reversed and the case is remanded to the board with

direction to affirm the decision of the Workers’ Compensation Commissioner.

In this opinion the other judges concurred.

1 Although neither Wofsey Rosen nor Vaccaro was a party with respect

to the workers’ compensation claim itself, they were parties with respect

to the fee dispute proceeding underlying the present appeal. See Day v.

Middletown, 245 Conn. 437, 440–42, 716 A.2d 47 (1998) (because underlying

compensation claim settled, leaving only matter of attorney’s fees to be

resolved, aggrieved firm entitled to appeal); see also State v. Salmon, 250

Conn. 147, 157, 735 A.2d 333 (1999) (explaining that, ‘‘in the context of

appeals from the decisions of administrative agencies, we have construed

the term ‘party’ more broadly than its ordinary, technical legal meaning’’).

2 Wofsey Rosen also claims on appeal that the board improperly vacated

the commissioner’s ruling on the ground that the commissioner should

have granted Vaccaro’s implicit request for a continuance of the evidentiary

hearing. It is not necessary to address the merits of this claim, however,

because we disagree with its underlying premise. Specifically, the record

demonstrates that the board did not rely on the commissioner’s decision

not to grant Vaccaro’s request to postpone the hearing as a basis for reversal.

To the contrary, the board specifically stated, ‘‘we are not persuaded that

the commissioner’s decision to proceed with the formal hearing of March

22, 2016, constituted error in and of itself. It is well settled that the decision

to grant or deny a request for continuance lies well within a commissioner’s

discretion.’’ Although the board later commented that the evidentiary record

could have been improved had the commissioner granted the continuance,

we construe the board’s decision as having been based only on the perceived

lack of sufficient evidence before the commissioner when it made its ruling

regarding the attorney’s fees, and not on the commissioner’s decision to

deny Vaccaro’s implicit request for a continuance.

3

In her decision, the commissioner stated that Vaccaro ‘‘waited until four

days prior to the commencement of the formal proceedings to alert the

commission to a purported conflict . . . .’’ See footnote 7 of this opinion.

This discrepancy appears to be an error by the commissioner given the date

on the fax, which is part of the record. This error was not raised to the

board and it has no significance to our resolution of the claims before us.
4 The commissioner’s determination of how to divide the attorney’s fees

equitably between the attorneys was not made solely on the basis of her

consideration of the evidence presented by Wofsey Rosen at the evidentiary

hearing. The commissioner also had the entire underlying record available

to her for review and, thus, was able to assess Wofsey Rosen’s evidentiary

submissions in the context of the legal work reasonably performed in this

matter as reflected by the record as a whole.

5

In his appellate brief, in addition to responding to Wofsey Rosen’s claims,

Vaccaro makes three claims of his own. Specifically, he claims that the

commissioner improperly failed (1) to recuse herself in this matter, (2) to

stay the hearing until this court had rendered a final decision in Frantzen

I, in which he had challenged the commissioner’s authority to decide the

fee dispute, and (3) to comply with the board’s remand order to hold an

evidentiary hearing because she reached her decision without Vaccaro having proffered any evidence. We note, as a preliminary matter, that to the

extent that Vaccaro was aggrieved by the board’s rejection of any claims

raised before it, Vaccaro failed to file a cross appeal. See Practice Book

§ 61-8. Furthermore, he also failed to file a preliminary statement of issues

properly raising these claims or any others as potential alternative grounds

for affirmance. See Practice Book § 63-4 (a) (1). For those reasons, in

addition to those that follow, we decline to review his claims.

First, with respect to the recusal claim, Vaccaro argued before the board

that the commissioner should have disqualified herself. The board declined

to review this claim in its November 4, 2019 decision because its ‘‘decision

to remand this matter for a new trial renders this [o]pinion an inappropriate

vehicle to conduct that discussion.’’ Even if this claim were properly before

us, we would decline to entertain the merits of Vaccaro’s claim of recusal

on appeal in light of the fact that Vaccaro never properly raised the issue

of recusal to the commissioner. See State v. $7379.54 United States Currency, 80 Conn. App. 471, 472–73 n.2, 844 A.2d 220 (2003) (stating well

settled rule that appellate courts ordinarily will decline to review on appeal

claim that trier should have recused itself if no such request was made at

trial); Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45–47, 668 A.2d

1346 (1996) (applying rule in workers’ compensation appeal).

Second, Vaccaro argues for the first time before this court that the March

22, 2016 hearing should have been stayed because the question of the commissioner’s subject matter jurisdiction was pending before this court. Our

rules of practice, however, provide that ‘‘there shall be no automatic stay

in actions concerning . . . any administrative appeal . . . . For purposes

of this rule, administrative appeal means an appeal filed from a final judgment

of the trial court or the Compensation Review Board rendered in an appeal

from a decision of any officer, board, [or] commission . . . .’’ (Internal

quotation marks omitted.) Practice Book § 61-11 (b). Accordingly, even if

we were inclined to review the claim, it fails on its merits.

Finally, Vaccaro’s third claim, to the extent that it is cognizable, is intertwined with our resolution of Wofsey Rosen’s appeal and our rejection of

Vaccaro’s other claims, and, thus, it would serve no useful purpose for us

to evaluate it independently of the claim raised by Wofsey Rosen.

6 The procedural facts of the present case are similar in posture to those

in Six v. Thomas O’Connor & Co., 235 Conn. 790, 801–802, 669 A.2d 1214

(1996). In Six, our Supreme Court reversed a decision by the Compensation

Review Board reversing a Workers’ Compensation Commissioner’s decision.

Id. In considering whether the board improperly reversed the commissioner’s

decision, our Supreme Court looked to whether the commissioner’s decision

was based on an incorrect application of the law to the subordinate facts

or on an inference illegally or unreasonably drawn from those facts. Id. The

court concluded that the commissioner’s decision was supported by facts

in the record and reasonable inferences drawn from those facts and was

based on a correct application of the law. Id. Accordingly, our Supreme Court

held that it was improper for the board to have reversed the commissioner’s

decision. Id.

7

In her March 30, 2016 ruling, the commissioner made the following

conclusion: ‘‘Vaccaro was provided with statutory notice of the March 22,

2016 formal proceeding on remand from the Compensation Review Board

nearly four weeks in advance of the scheduled hearing. Despite such advance

notice, he waited until four days prior to the commencement of the formal

proceedings to alert the commission to a purported conflict and, thereafter,

failed and refused repeated requests from the presiding trial commissioner

to substantiate his unavoidable conflict. Accordingly, there was no other

conclusion to draw other than . . . Vaccaro had no legitimate conflict pre-
cluding him from attending the March 22, 2016 formal proceedings. It therefore follows that there was no justification to postpone the formal proceedings on remand before the commission.’’ The board did not base its decision

to vacate the commissioner’s ruling on her conclusions regarding Vaccaro’s

failure to appear. Rather, the board stated that ‘‘we are not persuaded that

the commissioner’s decision to proceed with the formal hearing of March

22, 2016 constituted error in and of itself.’’ Thus, the commissioner’s conclusion that there was no justification to postpone the proceedings must stand,

and, as such, the commissioner was well within her discretion to make a

ruling on the basis of the evidence presented at the March 22, 2016 hearing.

8 See Frantzen v. Davenport Electric, supra, 179 Conn. App. 855 (holding

‘‘that [General Statutes] § 31-327 (b) grants the commission the authority

to adjudicate fee disputes between successive counsel concerning their

representations of a claimant before the commission’’).