Arcano v. Board of Education, 81 Conn. App. 761 (Conn. App. 3/2/2004)

• Decision Date: 02 March 2004
• Docket Number: (AC 23605)
• Citation: 81 Conn. App. 761
• Court: Connecticut Court of Appeals
• Parties: FRANK A. ARCANO, JR. <I>v.</I> BOARD OF EDUCATION OF THE CITY OF STAMFORD ET AL.

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81 Conn. App. 761

FRANK A. ARCANO, JR.v.

BOARD OF EDUCATION OF THE CITY OF STAMFORD ET AL.

(AC 23605)

Appellate Court of Connecticut

Argued January 8, 2004

Officially released March 2, 2004

Foti, Flynn and DiPentima, Js.

Syllabus

The defendant employer, the board of education, and its defendant workers' compensation insurance carrier appealed to this court from the decision of the workers' compensation review board affirming the commissioner's finding that the plaintiff employee was totally disabled as a result of a stroke that he suffered while moving furniture in a school. The defendants also claimed that the commissioner did not articulate the method of calculating the attorney's fees that were awarded to the plaintiff and that the defendants were not given an opportunity to cross-examine the plaintiff's counsel about the amount of his fee petition. Held:

1. The defendants could not prevail on their claim that the board improperly affirmed the commissioner's conclusion that the plaintiff was totally disabled; the plaintiff's physician and his podiatrist testified that the stroke had caused or exacerbated conditions that prevented the plaintiff from working during the relevant time periods, and, thus, sufficient evidence existed to support the commissioner's determination.

2. The board properly affirmed the award of attorney's fees and did not deny the defendants the opportunity to cross-examine the plaintiff's counsel about the amount of his requested fee; the commissioner detailed the number of hours that counsel claimed to have worked and counsel's hourly rate, the amount awarded did not exceed the 20 percent cap set forth in the workers' compensation fee guidelines, and the defendants waived their right to cross-examine counsel by failing to object to the request for fees and by not requesting an opportunity for cross-examination.

Procedural History

Appeal from the decision by the workers' compensation commissioner for the seventh district granting the plaintiff certain disability benefits, brought to the workers' compensation review board, which affirmed the commissioner's decision, from which the defendants appealed to this court. Affirmed.

Kevin J. Maher, with whom, on the brief, was James D. Moran, Jr., for the appellants (defendants).

William B. Bilcheck, Jr., for the appellee (plaintiff).

Opinion

FLYNN, J.

The defendants, the board of education of the city of Stamford and Kemper Insurance Group, appeal from the decision of the workers' compensation review board (board) affirming the findings and award of the workers' compensation commissioner (commissioner) in favor of the plaintiff, Frank A. Arcano, Jr.¹ The defendants argue on appeal that the board improperly affirmed the commissioner's finding that the plaintiff was totally disabled from March 6, 1998, until the close of the evidentiary record. The defendants also argue that the method of calculation of attorney's fees awarded was not articulated by the commissioner and that the defendants were not given an opportunity to cross-examine the plaintiff's counsel regarding the amount of his fee petition. Because there is substantial evidence in the record to support the board's decision, and because we find that the claim regarding attorney's fees is without merit, we affirm the decision of the board.

The basic facts of this case as found by the commissioners² are not in dispute. The plaintiff was employed by the defendant board of education as a custodian. On January 13, 1997, the plaintiff suffered a cerebral vascular accident (stroke) while working in his capacity as an employee of the board of education at Rogers Magnet School. The plaintiff had been lifting credenzas weighing between 250 and 400 pounds with the assistance of his coworkers. Just after lifting one credenza by himself, he began to feel ill. He was subsequently taken to see Leonard Vinnick, his physician. Vinnick examined the plaintiff and found that he had speech difficulty and referred him to Evangelos Xistris, a neurologist, who concluded that the plaintiff had suffered a stroke. The plaintiff began to suffer paralysis to his left side, particularly to his head, arm and leg. As a result of the paralysis, the plaintiff began to drag his left foot and developed an infectious ulcer on the bottom of his foot.

Commissioner Robin L. Wilson concluded in her June 7, 2000 finding and award that the plaintiff's stroke had been caused by lifting the credenzas and therefore was work related and compensable. Commissioner Wilson also determined that the plaintiff's foot ulcer was caused by his paralysis, which resulted from the stroke, and was therefore also compensable. Commissioner Wilson ordered the defendants to issue voluntary agreements accepting liability for the plaintiff's injuries, to reimburse the plaintiff for any sick or vacation time used while he was out on total disability, to pay the plaintiff temporary total and temporary partial disability benefits as determined, to reimburse the plaintiff for any out-of-pocket medical expenditures, to pay all reasonable and necessary medical bills related to the claim and to reimburse the plaintiff for the cost of deposing a particular physician. The commissioner's finding and award was not appealed.

After a formal hearing was held to determine the type and amount of benefits due the plaintiff, Commissioner James J. Metro issued his finding and award on October 2, 2001. Commissioner Metro concluded that the plaintiff was totally disabled from January 14 to August 3, 1997, and from March 6, 1998, to July 12, 2001, and ordered the defendants to pay the plaintiff temporary total disability benefits owed to him for these time periods at the stipulated base compensation rate of $364.67 per week. Commissioner Metro determined that the plaintiff was entitled to statutory interest on unpaid temporary total disability benefits during these periods and was also due attorney's fees as a result of the undue delay caused by the defendants' lack of compliance with Commissioner Wilson's June 7, 2000 order. He awarded attorney's fees in the amount of $3850, i.e., 22 hours at the rate of $175 per hour. Commissioner Metro broke down the hours as follows: 9.5 hours at workers' compensation hearings; 4 hours of office conference time; and 8.5 hours of telephone conference time. The case was then appealed to the board.

The board was presented with the primary issue that is now facing this court: Whether the commissioner had sufficient evidence on which to find that the plaintiff was totally disabled after March 6, 1998. In affirming Commissioner Metro's finding and award, the board emphasized the deposition testimony of Vinnick, which it found sufficient to support the finding of total disability. On the matter of attorney's fees, the board concluded that the record amply supported Commissioner Metro's conclusion of undue delay by the defendants and held that the defendants effectively had waived their right to cross-examine the plaintiff's counsel. This appeal ensued.

At the outset, we set forth the applicable standard of review. "When the decision of a commissioner is appealed to the board, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . The commissioner has the power and duty, as the trier of fact, to determine the 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." (Internal quotation marks omitted.) Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670, 673, 836 A.2d 1268 (2003). Although the court may not supplant its 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.) Safford v. Owens Brockway, 262 Conn. 526, 534, 816 A.2d 556 (2003).

I

The defendants first claim that the board acted improperly as a matter of law by affirming Commissioner Metro's conclusion that the plaintiff was totally disabled as of March 6, 1998. The defendants rely entirely on Vinnick's deposition testimony in support of their claim. Specifically, the defendants argue that Vinnick testified that the plaintiff was disabled after March 8, 1998, only by virtue of medical conditions that pre-existed his work-related accident, namely, hypertension, congestive heart failure, diabetes and nephrotic syndrome. The defendants noted that Vinnick testified that the plaintiff's foot ulcer did not exist prior to his work-related accident, but that it had "healed" as of March 3, 1999, and did not "break down" again until January, 2001. The defendants argue that because Vinnick testified that the other conditions were not a result of the compensable injury and that the foot ulcer had healed, the plaintiff was not disabled during the relevant time periods because of his work-related accident, but rather as a result of his other preexisting conditions.

We agree with the plaintiff that the defendants presented only the portion of Vinnick's testimony that was favorable to their position. The defendants' argument that the plaintiff did not suffer from any work-related disability as of March 6, 1998, presupposes that the foot ulcer suffered by the plaintiff did not result from his stroke.³ However, accepting this argument ignores Vinnick's testimony that the plaintiff's stroke caused the foot ulcer in that the damage done to his central nervous system by the stroke triggered a change in his ambulatory pattern wherein more weight was placed on one of his feet. The physician further testified that even if the plaintiff had not suffered from a foot ulcer, he could not have gone...