Wednesday, March 4, 2015

A Reasonable Fee in a Connecticut Court

There rages in Florida a debate as to appropriate claimant's attorney fees. Castellanos v. Next Door Company is pending in the Florida Supreme Court. It involves a constitutional challenge to the computation of attorney’s fees under Section 440.34. There are those who say that Castellanos is merely a logical extension of the last Supreme Court fee statute challenge in Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008).

In Murray, the Court resorted to statutory construction, and therefore did not reach the question of whether Fla. Stat. §440.34 is or is not constitutional. The Court in Murray concluded that the word "reasonable" in Fla. Stat. §440.34 contradicted the formulaic constriction on attorneys fees in that section, and thus held that the Judges of Compensation Claims could deviate from that statutory formula if the calculation yielded a fee that was not "reasonable." 

The Florida Legislature responded to the Murray decision by amending Fla. Stat. §440.34. Effective July 1, 2009, the word "reasonable" was removed. The challenges are therefore back before the Court in Castellanos, apparently without the statutory construction alternative outcome on the table. 

Some thought that the Castellanos decision would be published rapidly. Some questioned how the legislature might react to that decision, if at all. Florida has a relatively short legislative session; it got underway March 3, 2015. It will be over in a "60 day sprint." Workers' compensation watchers wonder if the Supreme Court will rule in that time. I have predicted that the decision will instead come sometime between July and December 2015; I could certainly be wrong.

The word "reasonable" recently came to mind when I read Previti v.Monro Muffler Brake, No. AC 35849, 01/13/2015, a decision of Connecticut's appellate court affirming the decision of the Workers' Compensation Review Board. 

In Previti an injured worker sought benefits, and the Workers’ Compensation Commission conducted a hearing. The proceedings began March 9, 2010 and concluded two years later on March 6, 2012. That seems like a long time. About 90 days later, the commissioner issued his finding and award. 

The injured worker was awarded $7,681.80 in temporary partial disability (TPD) benefits for the period of May 19, 2009, to December 11, 2009, and an interest amount of $88.96 because the employer/carrier unreasonably contested their liability to pay TPD benefits. Other claims were denied, but the employer/carrier was ordered to pay the injured worker's attorney’s fees in the sum of $1,481. 

The attorney filed a motion to correct, and sought a 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 $1,481." The motion was denied, but a corrected order was entered reducing the fee 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."

The commissioner "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." He declined to conduct a hearing on fees, concluding that "no party is entitled to try [its] case in a piecemeal fashion." 

The injured worker appealed to the Review Board. The Board found that the commissioner reached a reasonable award on the basis of the record. The Court then reached essentially the same conclusion. It reiterated that "the 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."  

The Court noted that the injured worker, "in his motion to correct" admitted that "he failed to offer any proof of attorney resources expended on account of the defendants’ unreasonable contest of the temporary partial benefits." Essentially, with an award of $1,481 in his favor, he moved for rehearing arguing that the award was not supported by the evidence. The commissioner and Board agreed, finding there was no evidence to support that award, concluding in fact there was no evidence. 

Because here was no evidence, the commissioner vacated the award of $1,481 and instead awarded $1. Is there a circumstance in which $1.00 is a reasonable fee? One point that this reminds us of is that Parties Must Protect their Due Process. In that post there are examples of rights being waived. In this context, the injured worker had the opportunity to adduce evidence in regard to an attorney fee, but over the course of hearings throughout two years apparently did not do so. 

Another point may be the critical analysis that goes into the decision to file a motion for reconsideration or rehearing. In this instance, the award of $1,481 was deemed to be error, and on rehearing it was therefore reduced. Not the outcome that was sought by moving for reconsideration, but an effect of that decision nonetheless. 

A couple of lessons or reminders in this case. First, know the elements of your case. Prepare the evidence to prove each of those elements. Second, think about the potential results of your actions. Be prepared to address each of the potentialities that could result from a motion, request, or evidentiary objection. Sometimes you may be better served not to make a particular point. 

In this instance, the Plaintiff pointed out there was no fee evidence. The commissioner and Board agreed. But since there was no evidence, the Plaintiff got $1, not the second chance to prove a fee which was sought. Things do not always work out predicted. The court affirmed the decisions of the commissioner and the Review Board. The fee award of $1 stands. A "reasonable" fee?

For an interesting read regarding attorneys fees, there was a May 2014 order in 05-003486 right here in Florida. That order likewise awarded $1. 

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