CASE NO. 1455 CRB-3-92-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 7, 1994
JOSEPH A. MONGILLO
TERMINAL TAXI CO.
LIBERTY MUTUAL INS. CO.
The claimant appeared pro se.
The respondents were represented by Scott Williams, Esq., Maher and Williams, P.O. Box 269, Bridgeport, CT 06601.
This Petition for Review from the July 2, 1992 Ruling on Motion to Set Aside Stipulated Award and Reopen the Matter of the Commissioner (former Chairman acting as Commissioner At Large) for the Third District heard March 12, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle.
JESSE FRANKL, CHAIRMAN. The claimant appeared pro se seeking review of the former chairman acting for the Third District’s July 2, 1992 Ruling on Motion to Set Aside Stipulated Award and Reopen the Matter. In that motion the claimant sought to set aside a Stipulated Agreement which was signed by the claimant and his wife on May 3, 1989. The executed Agreement and Petition to Compromise and Order (Joint Exhibit 1) was approved by the commissioner on June 9, 1989.
The pertinent facts are as follows. On February 1, 1986 the claimant was involved in an automobile accident which arose in and out of the course of his employment. The auto accident gave rise to a third party negligence suit. The claimant pursued his rights under both the Workers’ Compensation Act and a third party action. A Voluntary Agreement was approved by the Third District Commissioner May 16, 1986 in which liability was accepted for a compensable injury of February 1, 1986 due to a “musculigamentous sprain lumbosacral muscle.”
Thereafter, negotiations were conducted between claimant’s counsel, who represented claimant in the third party action, and the insurer for the purported negligent party. The third party insurer offered to settle the negligence claim for $77,500.00. The claimant accepted that offer.
The commissioner then held an informal hearing on April 4, 1989 in which reimbursement pursuant to Sec. 31-293 to the workers’ compensation insurer, Liberty Mutual Insurance Company for benefits paid to the claimant in the amount of $55,101.02 was discussed. The claimant was represented in his workers’ compensation claim by legal counsel.
An agreement was reached by the parties as to the repayment of the proceeds paid by the respondent Liberty Mutual in which “in exchange for a final settlement of all remaining workers’ compensation claims, Liberty would accept $36,165.00, $18,936.02 less than the $55,101.02 which was due it under Sec. 31-293 and that the claimant would release the respondent employer and insurer from all remaining workers’ compensation claims.” See Paragraph #11.
In Paragraph #12 of his July 2, 1992 ruling the commissioner found that above agreement and settlement “was explained to the claimant by the commissioner.”1 In Paragraph 13 of his factual findings, the commissioner stated that he was satisfied that the claimant understood the settlement agreement and that the settlement agreement would thereafter be memorialized in writing. The commissioner further found, that as the agreement had been explained to the claimant, the claimant could then sign the agreement without having to appear before the commissioner for another explanation.
The respondents counsel then prepared an “Agreement and Petition to Compromise and Order” which was forwarded to claimant’s counsel. The commissioner found that on May 3, 1989, the claimant, his wife and attorney met and the Stipulated Agreement was, again, explained and signed by the claimant and his wife. The claimant then signed a statement listing the disbursements of the $77,500 proceeds from the third party negligence settlement which noted that a check in the amount of $16,400.13 was payable to the claimant and was “in full and final settlement of above claims.”
The Agreement signed by the claimant was approved by the commissioner June 9, 1989. The claimant then sent letters to the Third District Commissioner in which he sought a hearing as it was the claimant’s belief, that an evaluation by Dr. John Shine in May, 1987 indicating a 10% disability to his back, and a February 3, 1989 report of Dr. Willard Greenwald reflecting a 15% disability, entitled the claimant to permanent partial disability payments under the law. The claimant also indicated that he ceased to be represented by the attorney who represented him in his workers’ compensation claim.
Informal hearings were conducted and finally, formal hearings were held December 23, 1991 and December 30, 1991. The issue before the commissioner was whether the claimant should be permitted to reopen his claim. The claimant contends that his former attorney closed claimant’s case without his permission and that the terms of the Stipulated Agreement were not explained to him by the commissioner before he signed the document.
The claimant, as noted, appeared pro se and the commissioner who ruled on the claimant’s Motion to Re-Open was the same commissioner who was alleged to have explained the terms of the stipulated agreement to the claimant. As we noted in Rondini v. Tectonic Industries, 10 Conn. Workers’ Comp. Rev. Op. 210, 1231 CRD-6-91-5 (1992), “[A]n Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless Sec. 31-315, which allows for modification, is satisfied. See e.g., Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538 (1969); Sugrue v. Champion, 128 Conn. 574 (1942); Wallace Lux Clock Co., 120 Conn. 280 (1935).” Also in Chrystal v. Richardson Construction Co., 7 Conn. Workers` Comp. Rev. Op. 36, 728 CRD-2-88-4 (1989) this tribunal noted that a stipulation would not be opened in the absence of an allegation of fraud or misrepresentation.
The claimant contends that a stipulation is not binding until the stipulation is explained to the claimant by the commissioner, and that this event did not occur. The testimony of claimant’s attorney clearly provides evidentiary support that the terms of the Stipulated Agreement were explained to the claimant by the commissioner at the April 4, 1989 informal hearing. However, what we find as unacceptable is that the commissioner who explained the stipulation, also served as the fact-finder as to whether the stipulation was explained to the claimant. While we appreciate that the commissioner exercised great patience and concern for the pro se claimant’s understanding of certain legal concepts and terms, we think that the commissioner should have disqualified himself from ruling on the motion to re-open once it was clear that the claimant was challenging the fact that the stipulation was not explained to him. In Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 545 (1969) our Supreme Court noted, “Approval of such a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts in the case before entering an award, and this is particularly true when the stipulation provides for a complete release of all claims under the act . . . . ‘The provisions of the Compensation Act make clear that it is the underlying scheme and purpose of the law to protect the employee, even to the extent of rendering nugatory his own agreement when it fails to assure him of the compensation which the law intends . . . .’” Welch quoting Sugrue v. Champion, 128 Conn. 574, 579 (1942).
In the instant case the trier was arguably in the unique position of having first hand knowledge as to whether the stipulation was explained to the claimant. Thus, it would appear on the face of the matter that the commissioner’s impartiality as to the factual allegations in the Motion to Re-Open might well be questioned. Specifically, we note that constitutional procedural due process concerns require that a claimant be given a fair hearing. Given the particular circumstances of the instant matter, we are concerned that there are those who might rightfully question if a fair hearing on the claimant’s Motion to Re-Open could have occurred where the commissioner had particular knowledge as to certain factual events alleged by the claimant and which were material to the claimant’s claim, Cf. Romeo v. H & L Chevrolet, Inc., 10 Conn. Workers’ Comp. Rev. Op. 72, 1149 CRD-7-90-12 (1992). While we do not question the integrity and fairness of the trier, in the instant matter we think due process requires a remand for a hearing before another commissioner who does not share the same unique personal knowledge of events as the trier in the instant matter. We also think the concerns expressed in Judicial Canon 3(C)(1)(a), although not specifically applicable to workers’ compensation commissioners, and which provides: “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has . . . personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” supports our conclusion that a remand is in order.
Commissioner Angelo L. dos Santos and Donald H. Doyle concur.
1 Paragraph #12 also provides, “The commissioner explained that the respondent insurer was only being reimbursed about two-thirds of every dollar in benefits it had paid. The commissioner also explained what claimant’s rights were under the workers’ compensation law.” BACK TO TEXT