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Gonzalez & Center for Physical Therapy v. Electric Transport (PENSKE)

CASE NO. 1729 CRB-1-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 13, 1994

JOSE GONZALEZ

CLAIMANT-APPELLEE

and

CENTER FOR PHYSICAL THERAPY

MEDICAL PROVIDER

APPELLANT

v.

ELECTRIC TRANSPORT (PENSKE)

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Patricia A. O’Neil, Esq., 38-40 Hungerford Street, Suite 300, Hartford, CT 06106 who did not file a brief but did appear at oral argument.

The medical provider was represented by Bernard Poliner, Esq., Poliner, Poliner & Rosen, P.C., 221 Main Street, Hartford, CT 06106.

The respondents were represented by John M. Walsh, Jr., Esq. and Richard W. Lynch, Esq., Lynch, Traub, Keefe and Errante, P.C., P.O. Box 1612, New Haven, CT 06506.

This Petition for Review from the May 11, 1993 Oral Ruling at Conclusion of Formal Hearing of the Commissioner At Large acting for the First District was heard October 29, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN A. ARCUDI, COMMISSIONER. This appeal is unique in that it is by a medical provider, Center for Physical Therapy, rather than by a claimant or respondent. Claimant suffered an admittedly compensable injury August 6, 1991. He received benefits and then on September 8, 1992 after some dispute as to what benefits might be due, he entered into a Stipulation and Agreement with the respondents. The respondents agreed to pay $6,829.47 in exchange for the release of all claims, past, present and future.

On October 29, 1992, the Center for Physical Therapy filed an Informal Hearing Request concerning payment of past medical bills. Claimant’s attorney requested April 28, 1993, that the commissioner open the stipulation on grounds of mutual mistake. The attorney’s letter explained: “Center for Physical Therapy indicates that they never billed my client nor did they ever bill our office and as a result we were unaware of their outstanding bill. We would never have stipped this case had we known the figure included the payment of this bill.”

At the May 11, 1993 formal hearing, claimant’s attorney pursued the motion to open the stipulation based on mutual mistake. Respondents opposed, arguing that the claim had been properly settled and any mistake was the fault of the medical provider in failing to notify the claimant or his attorney of the outstanding bill. The medical provider expressed its desire to present testimony. The commissioner refused that request, noting that “until the motion is heard and the matter reopened, I don’t think anybody has standing to do anything.” (May 11, 1993 Transcript, p.9) The commissioner explained: “[I]f there’s an open case, [medical] providers are entitled to come to the Commission to pursue their reasonable and necessary charges. In this case there isn’t any open case; it’s closed . . . . [T]here is no jurisdiction unless the matter is re-opened.” (May 11, 1993 Transcript, p.10,11) The commissioner made no written decision on the motion. Instead he ruled orally: “But as far as I understand it now, the Claimant has been paid, he has the money, he’s out of the Country, there’s no reasonable expectation that the Respondent carrier could recoop [sic] the money paid in consideration of the stipulation. I think it would be inequitable to them to re-open the matter even though I think there may very well have been a mutual mistake of [fact]. On the strength of that feeling of inequity, I’m going to deny the Motion to Reopen the Stipulation ....” (May 11, 1993 Transcript, p.11,12) The claimant did not appeal, but the medical provider did.

We disagree with the commissioner. If the claimant had wished to present evidence showing mutual mistake about the amount of the disability or the computation of the weekly compensation rate, the claimant would have standing to pursue the claim and present evidence. Under Sec. 31-327,C.G.S.,1 now Sec. 31-327(a), the medical provider stands in the shoes of the claimant. It has the same right to a hearing and award as does the claimant.

In this particular case besides the mention of mutual mistake, there was the further allegation that the medical provider, in compliance with Administrative Regulation Sec. 31-279-9(e), had sent its bill for services to the respondent carrier and the carrier had neither paid the bill nor notified the claimant it was not paying it. If this were true, it is certainly evidence the commissioner should have heard on the motion to open the Stipulation.

Like a stipulated judgment in Superior Court, an Award by Stipulation may be set aside without the consent of all parties only if it was obtained by fraud, misrepresentation, accident or mistake. Housing Authority v. Lamothe, 225 Conn. 757, 767 (1993); Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 543-44 (1969); Bryan v. Reynolds, 143 Conn. 456, 460-61 (1956); Mongillo v. Terminal Taxi Co., 1455 CRB 3-92-7 (decided March 7, 1994); Chrystal v. Richardson Construction Co., 7 Conn. Workers’ Comp. Rev. Op. 36, 728 CRD-2-88-4 (1989). “[A] decision to open or not to open a judgment falls within the trial court’s discretion and will be overturned on appeal only if such discretion was abused or if an unreasonable result was reached.” Housing Authority v. Lamothe, supra, 767.

In seeking to open the stipulation, claimant’s burden was “to do more than assert an unadorned claim that she had entered into the stipulation by mistake ....” Id. at 769. Because such a motion, grounded on a claim of mistake or misrepresentation, necessarily requires the commissioner to make a factual determination before it can exercise its discretion to grant or deny the motion, “due process requires a hearing to provide the parties with an opportunity to present evidence. (citation omitted) Id. Although the claimant did not seek to offer evidence in support of his motion, the Center for Physical Therapy was prepared to go forward with the presentation of evidence to support the claimant’s request for relief. The commissioner should have permitted such evidence, not to decide on the payment of bills but for the purposes of claimant’s motion to open the stipulation.

We , therefore, reverse the trial commissioner and remand for further proceedings on the claimant’s motion to open the stipulation.

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

1 Sec. 31-327 provides: Award of fees and expenses. Whenever any fees or expenses are, under the provisions of this chapter, to be paid by the employer or insurer and not by the employee, the commissioner may make an award directly in favor of the person entitled thereto, which award shall be filed in court, shall be subject to appeal and shall be enforceable by execution as in other cases. Such award may be combined with an award for compensation in favor of or against the injured employee or the dependent or dependents of a deceased employee or may be the subject of an award covering only such fees and expenses. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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