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Loehn v. Vallerie Transportation Service

CASE NO. 1544 CRB-7-92-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 2, 1994

RICHARD S. LOEHN

CLAIMANT-APPELLEE

v.

VALLERIE TRANSPORTATION SERVICE

EMPLOYER

and

NATIONWIDE MUTUAL INS. CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant, whose attorney of record is Ernest L. Josem, Esq., Bove, Milici & Josem, 111 East Avenue, Norwalk, CT 06851, made default of appearance.

The respondents were represented by David D. Chapman, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

The Second Injury Fund was represented by Ernie R. Walker, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 21, 1992 Finding and Order of the Commissioner for the Seventh District was heard November 19, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The Seventh District Commissioner granted the respondents’ motion to modify the Voluntary Agreement between the claimant and the respondents in order to change the maximum medical improvement date set forth in that Agreement. Because the change in the date of maximum medical improvement approved by the commissioner rendered the respondents’ notice of transfer to the Second Injury Fund timely, the Second Injury Fund has appealed from the commissioner’s decision.

The Second Injury Fund contends that the commissioner lacked authority to modify the prior agreement under the circumstances of this case. The respondents contend that the commissioner’s powers of modification pursuant to General Statutes Sec. 31-3151 extend to the circumstances of this case and that the Second Injury Fund lacks standing to challenge the commissioner’s action. We conclude that the Second Injury Fund has standing to challenge the commissioner’s action and that the commissioner improperly granted the respondents’ motion to modify.

The claimant sustained a compensable injury on September 22, 1986 while in the employ of the respondent-employer. Pursuant to a Voluntary Agreement approved by the commissioner on October 29, 1990, the claimant was determined to have sustained a 21.66% permanent partial disability to his lumbar spine for which he was paid 112.63 weeks of compensation commencing January 4, 1988, the date set forth in the Voluntary Agreement as the date when the claimant reached maximum medical improvement.

The respondents sought to transfer liability to the Second Injury Fund pursuant to General Statutes Sec. 31-349. The Second Injury Fund acknowledged that the case meets the medical qualifications for transfer but claimed that the respondents’ notice to the Second Injury Fund was not timely. Based on the date of maximum medical improvement set forth in the Voluntary Agreement, the respondents’ notice to the Second Injury Fund was in fact late by a matter of a few days.

The respondents filed a motion to modify the Voluntary Agreement to change the date of maximum medical improvement from January 4, 1988 to August 8, 1989, on the ground that the maximum medical improvement date was agreed to by the respondents for the convenience of the claimant and was not based on any medical report. Evidence before the commissioner in the form of medical reports showed the following: (1) that, as of January 4, 1988, the claimant had returned to work but that the extent of the claimant’s permanent partial disability could not be determined at that point; (2) that various permanency ratings were assigned to the claimant’s injury later in 1988, in mid-1989 and in early-1990, by the several physicians involved in the claimant’s treatment and examination; and (3) that the claimant’s treating neurosurgeon rated the claimant’s permanent partial disability on August 8, 1989.

Based on this evidence, the trial commissioner found that “changed conditions of fact, namely the information contained in the [medical] reports . . ., have arisen which necessitates a change of the maximum medical improvement date set forth in the Voluntary Agreement approved on October 29, 1990 in order to properly carry out the spirit of Chapter 568, C.G.S.” After granting the respondents’ motion to modify and changing the maximum medical improvement date to August 8, 1989, the trial commissioner ordered the transfer of liability to the Second Injury Fund pursuant to Sec. 31-349 as of the expiration of the 104th week of benefits paid by the respondents. This appeal by the Second Injury Fund followed.

Before addressing the merits of the Second Injury Fund’s arguments on appeal, we must address a preliminary jurisdictional issue raised by the respondents. The respondents contend that the Second Injury Fund lacks proper standing to challenge the modification of a voluntary agreement between an employer and an injured employee. We disagree.

“Standing is . . . a rule of judicial administration based upon the principle that the appropriate parties to litigate a dispute are those who are injured or about to be injured.” Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 65 (1981). It is undisputed that the respondents sought to modify the voluntary agreement in order to make timely their otherwise untimely notice to the Second Injury Fund. In the proceedings below, the commissioner understood that the proposed modification would not affect the claimant’s rights and was therefore “strictly a matter of the issue of transfer,” and the respondents’ counsel argued that “the MMI has to be modified so that we can pursue a transferable case.” Transcript of October 6, 1992, p. 13. While, as a general rule, a Voluntary Agreement cannot affect the rights of persons who are not a party to the agreement; Haluschak v. J.F. Barrett & Sons, Inc., 9 Conn. Workers’ Comp. Rev. Op. 93, 925 CRD-3-89-10 (1991); this rule must yield under the circumstances of this case where the only effect of the modification would be to affect the timeliness of notice to, and therefore the liability of, the Second Injury Fund. Because “the giving of timely notice [to the Second Injury Fund] is the condition precedent to an effective transfer of liability to the Fund under Sec. 31-349”; (emphasis in original) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 396 (1993); it cannot be seriously disputed that the Second Injury Fund is a proper party to challenge the commissioner’s decision. In fact, as the commissioner and the respondents recognized at the hearing on the motion, the only party whose legal interests could have been adversely affected by the decision to grant the motion was the Second Injury Fund. Consequently, the respondents’ contention that the Second Injury Fund lacks standing to appeal from the commissioner’s decision is without merit.

We turn now to the question of whether the commissioner properly granted the respondents’ motion to modify. The commissioner’s power to modify an agreement or award is governed by General Statutes Sec. 31-315. See footnote 1, supra. The commissioner based his decision to modify the Voluntary Agreement on that part of Sec. 31-315 which permits modification “whenever it appears . . . that changed conditions of fact have arisen which necessitate a change of such agreement or award in order to properly carry out the spirit of this chapter.” General Statutes Sec. 31-315.2 Yet, in this case, the documentary evidence (medical records) relied on by the respondents to support their claim for modification all predated October, 1990, when the Voluntary Agreement was signed by the parties and approved by the commissioner. “The condition [  ] upon which the motion is based [was] existent when the [  ] agreement [  ] . . . [was] made, and hence do[es] not fall under the second ground — changed conditions — which the statute specifies as a basis for modification of the agreement or award.” Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 185 (1923); Grabowski v. Miskell 97 Conn. 76, 83 (1921). Consequently, the commissioner was without authority to grant the requested modification.

We, therefore, reverse the trial commissioner and remand the case to the Seventh District with direction to deny the respondents’ motion to modify and to dismiss the respondents’ claim to transfer liability to the Second Injury Fund pursuant to General Statutes Sec. 31-349.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 General Statutes Sec. 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.” BACK TO TEXT

2 This case does not involve a claim under the first ground for modification set forth in Sec. 31-315, namely, that the incapacity of an injured employee increased, decreased or ceased or that the measure of dependence on account of which the compensation is paid has changed. Nor does this case involve a claim under the third statutory ground for modification set forth in Sec. 31-315, namely, a commissioner’s power to open and modify an award similar to the power of the judiciary to open and modify a judgment of court. This power is generally limited to claims of fraud, accident or mutual mistake. Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 544 (1969); Sugrue v. Champion, 128 Conn. 574, 580 (1942); Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 5 (1927); Chrsytal v. Richardson Construction Co., 7 Conn. Workers’ Comp. Rev. Op. 36, 728 CRD-2-88-4 (1989). The respondents acknowledge that the date of maximum medical improvement established by the Voluntary Agreement was not the result of mistake. See Transcript of October 6, 1992, p. 6. Consequently, the only ground of modification in issue here is that based on changed conditions of fact. BACK TO TEXT

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