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Southard v. Southard Development

CASE NO. 1891 CRB-4-93-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 27, 1995

MARK SOUTHARD

CLAIMANT-APPELLEE

v.

SOUTHARD DEVELOPMENT

EMPLOYER

and

CNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Norma Johnson, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondents were represented by Stephen Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was not represented at oral argument. At the proceedings below, the Fund was represented by Richard Hines, Esq., Assistant Attorney General, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 1, 1993 Decision on Motion to Reopen Voluntary Agreement of the Commissioner acting for the Fourth District was heard October 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents appeal from the Fourth District Commissioner’s denial of their request to reopen a voluntary agreement approved on November 4, 1991. They argue that the commissioner unreasonably exercised his discretion in denying their Motion to Reopen and that the commissioner incorrectly applied the law to the facts of this case. We affirm the trial commissioner’s decision.

The parties stipulated to certain facts. The claimant suffered a back injury on May 31, 1991, for which a voluntary agreement between the claimant, the respondent employer and the respondent insurer (CNA) was approved on November 4, 1991. The voluntary agreement listed the date of injury as May 31, 1991. CNA filed a notice of cancellation of insurance with the Workers’ Compensation Commission on May 22, 1991 with an effective date of May 29, 1991. The respondent employer was uninsured for workers’ compensation liability on May 31, 1991. CNA subsequently sought to reopen the voluntary agreement on the ground that it was not the insurer on the date of injury. The commissioner refused CNA’s request in a decision dated November 1, 1993.

In an accompanying memorandum, the commissioner explained that ten months transpired between the date of injury and the March 1992 request by the carrier to reopen the voluntary agreement. “Although no evidence was taken on the subject, it would appear that the carrier had been making payments well before the date of the voluntary agreement and continued to make those payments thereafter.” He also noted that CNA had filed a Form 36 Notice of Intention to Discontinue Payment of § 31-307 C.G.S. benefits which was approved on November 25, 1991.

The commissioner relied on Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180 (1923) in denying the request to reopen, stating that “CNA through its negligence lasting for some ten months acted as [the employer’s] insurer.” He noted that there was no ground under § 31-315 C.G.S.1 that would permit him to reopen the voluntary agreement. “The dispute would seem to be between CNA and the employer resolvable by action at law for the sums expended by CNA in the employer’s behalf.”

The respondents argue that the commissioner erred in denying the Motion to Reopen because there was no evidence that CNA was negligent in failing to ascertain the employer’s uninsured status on the date of injury. They argue that several other possible explanations, including fraud and mistake, might just as easily explain the error, and without any evidence as to the cause of the error, the commissioner should not have inferred negligence. They also cite Kearns v. Torrington, 119 Conn. 522 (1935), as authority for the position that a commissioner should reopen an award if a party has only committed “mere negligence” as opposed to the intentional withholding of evidence, particularly where there is no prejudice to the adverse party.

Section 31-315 permits modification of an award or a voluntary agreement if the claimant’s condition changes, or if changed conditions of fact arise which necessitate an alteration of the agreement to further the spirit of the Workers’ Compensation Act. Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541 (1992). “While a workers’ compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner.” Id., citing Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 645 (1936). We cannot overrule the commissioner’s decision on a Motion to Reopen unless his decision constitutes an abuse of that discretion. Davis v. Al’s Auto Service, 7 Conn. Workers’ Comp. Rev. Op. 3, 4, 612 CRD-6-87 (June 9, 1989).

In our view, the commissioner correctly relied on Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180 (1923), in denying the Motion To Reopen. In both cases, there was no change alleged in the claimant’s condition, nor were changed conditions of fact alleged by the party seeking to reopen the award. Compare Loehn v. Vallerie Transportation Service, 12 Conn. Workers’ Comp. Rev. Op. 267, 271, 1544 CRB-7-92-10 (June 2, 1994). Therefore, both the defendant in Hayden and the respondents here were forced to rely on the language in the statute granting the commissioner the same power to open and modify an award that a state court has to open and modify its own judgment.

In Hayden, our Supreme Court stated that “equity will not interfere to grant a new trial in an action at law, however unjust the judgment or great the hardship, unless the judgment was obtained through fraud, accident or mistake, unconnected with any negligence or inattention on the part of the judgment debtor.” Id., 186. In this case, there was no evidence presented by the respondents that the voluntary agreement was obtained through fraud, accident or mistake unconnected with CNA’s own negligence or inattention. Although there may not have been enough evidence to conclude that CNA was negligent,2 there was certainly less than sufficient evidence to show as a matter of law that CNA was not responsible for the mistake. The commissioner was therefore not required to grant the Motion to Reopen under § 31-315.

As for Kearns v. Torrington, supra, that case merely states that “mere inadvertence on [the claimant’s] part, mere negligence, without intentional withholding of evidence, particularly where there is no more than technical prejudice to the adverse party, should not necessarily debar him of his rights, and despite these circumstances a commissioner in the exercise of his discretion might be justified in opening an award.” Id., 529-30 (emphasis added). This less than mandatory language can hardly be read as an edict requiring a commissioner to open any award, much less the voluntary agreement in this case.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 Section 31-315 provides “[a]ny award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, . . . 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.” BACK TO TEXT

2 We agree with the respondents that the commissioner did not have evidence in the record to support his finding of negligence on the part of CNA. The commissioner should not presume the existence of evidence that is not in the record without giving notice to both parties, as such a unilateral presumption deprives the parties of due process. Although the commissioner’s error in concluding that CNA was negligent did not affect the outcome of this case, as CNA did not meet its burden of proof under § 31-315, we nonetheless find it necessary to hold that the commissioner did not have sufficient evidence to draw a conclusion as to CNA’s negligent conduct. BACK TO TEXT

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