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10.17.2014

Howd & Ludorf, LLC Successfully Defends an Appeal at the Appellate Court re Attorney Seeking Sanctions.

  Howd & Ludorf, LLC partner, Colette S. Griffin, has successfully defended an appeal at the appellate court pursued by a claimant’s attorney seeking sanctions and attorney’s fees in the workers’ compensation context. In Kinsey v. World Pac, Inc., (2014) the claimant appealed from a decision rendered by the Workers’ Compensation Review Board (“Board”) affirming the decision of the Workers’ Compensation Commissioner ordering the Respondents, World Pac and ACE USA, to pay minimal past due benefits and attorney’s fees. The claimant sustained a compensable injury in the course of his employment in 2000 and since that time had been receiving temporary total disability benefits. The claimant had been entitled to cost of living adjustment payments (COLA), since 2005. On December 5, 2011 the claimant requested a hearing for benefits, sanctions, interest and attorney’s fees, as a result of the respondent’s discontinuance of payments without warning for a period of four weeks and failure to provide a series of COLA adjustments at the amount of $7.26 per week beginning in October of 2011. Three days after this hearing request the claimant received a check for the outstanding total disability benefits, however received the COLA adjustments on December 13, 2011, 73 days after they were due. At a hearing on December 27, 2011 the respondents offered $1,000 to resolve his claim for attorney’s fees and sanctions. Claimant’s counsel declined and demanded $1,500. Two weeks later, claimant’s counsel received a check for $1,500 from respondents’ counsel. This check, however, did not dissuade the claimant from his pursuit of sanctions and a formal hearing on the issue. A formal hearing was held addressing sanctions, interest and attorney’s fees pursuant to C.G.S. § 31-300 in March of 2012. At this proceeding, claimant’s counsel sought $23,118.75 in sanctions and attorney’s fees, plus interest. The commissioner ordered the respondents to pay the sum of $26.96 for interest and $525 for attorney’s fees in connection with his preparation  for and attendance at the December 2011 hearing.

    The trial commissioner found that all work performed in pursuit of the claimant’s benefits beyond 1.5 hours in preparation for the December 2011 hearing was performed by the attorney’s paralegal and that she lacked statutory authority to award paralegal fees or charges. The CRB affirmed this ruling and determined that the commissioner’s findings were supported by evidence in the record and were a proper exercise of her discretion. The appellant argued on appeal that the Board erred in affirming the commissioner’s conclusions that: (1) attorney’s fees awarded pursuant to C.G.S. §§ 31-300 and 31-327 cannot include paralegal fees, (2) the respondents could not be sanctioned pursuant to C.G.S. § 31-288 due to insufficient notice, (3) attorney’s fees should not be awarded for time expended pursuing sanctions, and (4) the commissioner’s knowledge of settlement negotiations did not necessitate recusal. The Appellate Court agreed with the claimant that a trial commissioner could award paralegal fees pursuant to her authority to award reasonable attorney’s fees under C.G.S. §§ 31-300 and 31-327(b). The Appellate Court was persuaded by the respondent, however, that sanctions pursuant to C.G.S. § 31-288 could not be entered against the respondents due to lack of notice as said statute was not listed on any of the hearing notices and no attempt was made to amend the notices. The Appellate Court further agreed with the respondents that it was well within the commissioner’s discretion to refrain from awarding claimant’s counsel attorney’s fees for time spent pursuing sanctions against the respondents. Finally, the Appellate Court concurred with the respondent that the commissioner was not required to recuse herself due to: (1) her knowledge of discussions to resolve the issue of penalties and attorney’s fees, and (2) the claimant having received a check for $1,500 following the claimant’s demand for that sum to resolve the claim.

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HARTFORD, CT | WELLESLEY, MA
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