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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 commis-
sioner, 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’ Compensa-
tion 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 deci-
sion 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 appel-
lant (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 success-
ful claimant before the Workers’ Compensation Com-
mission, the law firm of Wofsey, Rosen, Kweskin &
Kuriansky, LLP (Wofsey Rosen) appeals from the deci-
sion of the Compensation Review Board (board) vacat-
ing a decision of the Workers’ Compensation Commis-
sioner (commissioner) to award 50 percent of the
attorney’s fees to Wofsey Rosen and the other 50 per-
cent 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 fifty-
fifty 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 deci-
sion 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 . . . repre-
sented 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 per-
cent, 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 repre-
sentation. 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 Wof-
sey Rosen.
‘‘Vaccaro then appealed from the decision to the
board, which on February 24, 2016, affirmed the com-
missioner’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 tele-
phone 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 attor-
neys, Judith Rosenberg and Adam Blank, appeared
before the commissioner on behalf of Wofsey Rosen
and submitted evidence to support its claim for attor-
ney’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 communi-
cate to the commissioner regarding his purported
scheduling conflict with the hearing date.
On March 30, 2016, the commissioner issued her rul-
ing, 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 commission-
er’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 accumu-
lated 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 con-
cluded 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 founda-
tion’’ 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 particu-
larity the alleged insufficiencies in the evidence or fur-
ther explain its reasoning. Rather, according to Wofsey
Rosen, the board’s decision was based on mere specula-
tion 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 commis-
sioner. . . . [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 commis-
sioner is the sole arbiter of the weight of the evidence
and the credibility of witnesses . . . . Where the sub-
ordinate facts allow for diverse inferences, the commis-
sioner’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 simi-
larly limited. . . . The conclusions drawn by [the com-
missioner] 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 unrea-
sonably 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 evi-
dence 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 deci-
sion. 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 con-
ceded 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 commis-
sioner’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 representa-
tion. 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 underly-
ing 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 conclu-
sion 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 com-
missioner’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 improp-
erly vacated and remanded the matter to the commis-
sioner 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 commission-
er’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’ Com-
pensation 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 hav-
ing 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 Cur-
rency, 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 com-
missioner’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 inter-
twined 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 there-
fore follows that there was no justification to postpone the formal proceed-
ings 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 conclu-
sion 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’’).