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Scalora v. Dattco Bus Company

CASE NO. 2059 CRB-1-94-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 9, 1996

PAOLA SCALORA

CLAIMANT-APPELLANT

v.

DATTCO BUS COMPANY

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Angelo Paul Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794. Notice also sent to Edmund T. Grady, Jr., Esq., Trantolo & Trantolo, 50 Russ St., Hartford, CT 06106.

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

This Petition for Review from the May 17, 1994 Finding and Denial of the Commissioner acting for the First District was heard February 23, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 17, 1994 Finding and Denial of the Commissioner acting for the First District. He argues on appeal that the commissioner erroneously denied his request to reopen a stipulation he entered into with the respondents in 1984. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to his head, jaw and mouth area on December 3, 1976, when a tire exploded while he was repairing it during the course of his employment. See Scalora v. Dattco Inc., 39 Conn. Sup. 449, 450 (1983) (Appellate Session of Superior Court determined scarring award was payable simultaneously with total disability benefits). The claimant and respondents entered into a stipulation on April 26, 1984, which was approved by Commissioner Arcudi, and required the respondents to pay the claimant $120,000. The claimant now seeks to reopen that stipulation under § 31-315 C.G.S., which allows modification of an award of compensation “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 [the Workers’ Compensation Act].”

The claimant’s trial attorney argued that the following factors led to a mistake of fact that warrants reopening the agreement: the claimant was misled by his treating dentist, Dr. Leckowicz, as to payment for future treatment; the claimant, an Italian immigrant, speaks poor English, and his wife, who translated for him and signed the stipulation, was taking medication for psychiatric problems at that time; and the claimant was in Italy at the time of the stipulation. The trial commissioner found that Dr. Leckowicz had stated in a February 13, 1979 report that the claimant’s dental splints should last between 15 and 25 years, but that the claimant had continued to have problems with his teeth and mouth, and received dental treatment, up to and through the date of the stipulation. He also found that language in the stipulation reflected that the claimant would need further dental work, and that the $120,000 payment included “claims for past and present and future medical, surgical, hospital and incidental expenses.” Further, the claimant executed an affidavit stating that he understood he was still treating for dental problems, and that he was no longer entitled to be compensated for those future treatments.” This affidavit demonstrated to the trial commissioner that the claimant knew the preclusive effects of the stipulation on any future claim.

Normally, language covering “future claims” is construed to cover inchoate claims that are in being at the time of release, but which have not manifested themselves, in contrast to claims based on events that have not yet occurred. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481-82 (1994). The language in the instant stipulation that encompasses “future medical expenses” would most logically be read to include the dental treatment required by the claimant, which was caused by known effects of the 1976 compensable injury. Further, the commissioner was not required to accept the testimony of the claimant and his wife to the effect that, in their understanding, the doctor had “guaranteed” the life of his dental splints as part of the stipulation. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995) (commissioner determines credibility of witnesses). Thus, as long as the stipulation was properly executed, it cuts off the claimant’s right to future benefits for that injury. See Muldoon, supra, 469.

Whether or not the claimant understood the meaning of the stipulation when he signed it is a question of fact. Fazzina v. Shepard Steel, 14 Conn. Workers’ Comp. Rev. Op. 253, 255, 1831 CRB-1-93-9 (Aug. 31, 1995). This board will not disturb a factual determination unless it is found without evidence, is contrary to law, or is based on impermissible inferences drawn from the evidence. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Similarly, the decision to open a stipulated agreement falls within the discretion of the trier of fact, and will not be overturned unless such discretion was abused and an unreasonable result was reached. Fazzina, supra, 254.

The trial commissioner noted that Commissioner Arcudi, who speaks Italian fluently, testified that he approved the stipulation on April 26, 1984. The claimant was in Siracusa, Sicily when he signed the stipulation and the aforementioned affidavit, but his signature was notarized by an Italian court officer. The commissioner found the affidavit stated that the claimant’s attorney had explained to him the effects of stipulating his case, and that the documents were read to him and his wife in both English and Italian. A similar affidavit was signed by the claimant’s wife, who also signed an Addendum to the Stipulation acknowledging that $31,000 of the settlement was for future dental treatment, both in her own right and as attorney-in-fact for the claimant. The commissioner found that Commissioner Arcudi had fully explained the terms and ramifications of the stipulation to the claimant in Italian prior to approving it, and had further obtained affidavits to ensure the claimant understood the agreement, even though such affidavits were not required by law. He thus concluded that the claimant had knowingly, willingly and intelligently entered into the stipulation.

We acknowledge on review of these findings that there is no testimony to support the finding that Commissioner Arcudi directly spoke to the claimant about the stipulation (although he had spoken to the claimant several times beforehand). Instead, the record shows that Commissioner Arcudi spoke to the claimant’s wife, and that he relied on that conversation, his familiarity with the case, and a review of the signed stipulation and affidavit in approving the settlement. (Dec. 27, 1993 Tr., pp. 12, 24-26. However, the fact that the commissioner was unable to directly canvass the claimant at the time of the stipulation does not require its invalidation now.

The procedures currently used by Connecticut workers’ compensation commissioners before approving stipulations, such as interviewing the claimant in accordance with the “Stipulation and What It Means” form, had not yet been instituted in 1984. As the respondents point out, no law required the presence of the claimant at the approval hearing. In fact, the affidavit signed by the claimant was also not required. The use of that document demonstrates that significant measures were taken to accommodate the claimant and assure his comprehension of the stipulation at the same time. Both Commissioner Arcudi and the trial commissioner had room to find that the claimant’s acknowledgments on the stipulation and affidavit were reliable, and that the stipulation had been explained to the claimant in his native language and in English. See Fazzina, supra. We have no grounds to reverse that decision on appeal.

The trial commissioner was also not required to find that the claimant’s wife was incompetent to represent his interests at the approval hearing just because she was under psychiatric care. Both the existence of such a condition and its effects must be proved by the party alleging incapacity. The trial commissioner did not make any findings indicating that this burden of proof was met here. We will not disturb that decision on review either.

The trial commissioner’s denial of the claimant’s motion to modify the stipulation is affirmed.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

Page last revised: May 11, 2005

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