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Secola v. State of Connecticut Comptroller’s Office

CASE NO. 3102 CRB-5-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 26, 1997

JOSEPHINE SECOLA (DECEASED)

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT COMPTROLLER’S OFFICE

EMPLOYER

RESPONDENT-APPELLEE

and

ALEXSIS

SELF-INSURED ADMINISTRATOR

APPEARANCES:

The claimant was represented by John Walsh, Jr., Esq., Lynch, Traub, Keefe & Errante, P.C., 52 Trumbull St., New Haven, CT 06510.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 27, 1995 Finding and Award of Dismissal by the Commissioner acting for the Fifth District was heard June 14, 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 representatives of the deceased claimant have petitioned for review from the June 27, 1995 Finding and Award of Dismissal by the Commissioner acting for the Fifth District. They argue on appeal that the trial commissioner erred by refusing to approve a stipulation that the parties had agreed to several days before the claimant died. We affirm the trial commissioner’s decision.

The claimant sustained a work-related injury on October 13, 1987, that was accepted as compensable by the respondent in a 1989 voluntary agreement. On or about January 25, 1990, the claimant’s treating physician, Dr. Duffy, opined that the claimant had reached maximum medical improvement and that she had the following permanent partial disabilities: five percent of her left upper extremity, twelve percent of her right lower extremity, and twenty percent of her left lower extremity. After initiating talk of a settlement with the insurance adjuster, the claimant’s counsel sent voluntary agreements to the adjuster on March 16, 1990 reflecting the disability ratings given by Dr. Duffy. Within the next week, the claimant and the adjuster’s senior hearing representative had agreed to settle the claim for $40,641.32 plus outstanding medical bills. In accordance with that agreement, a stipulation was executed on March 21, 1990.

Three days later, the claimant died as a consequence of cancer. Her brother, who also executed the stipulation on her behalf through his power of attorney, testified that she had entered the hospital around January 1990 because of the effects of that disease. Melissa Snyder, the hearing representative for the insurance adjuster, testified that she was not aware of the claimant’s terminal illness when she executed the stipulation, and that she would not have done so had she known of the claimant’s cancer. She did say that she would have executed the voluntary agreements for permanent partial disability. Snyder testified that the settlement figure was reached by considering the claimant’s permanent partial disability, which would have been at least $25,000, as well as her potential entitlement to future benefits such as those payable under § 31-308a C.G.S. Upon learning of the claimant’s death, the Attorney General’s Office instructed the insurance adjuster not to pay pursuant to the stipulation.

The commissioner found that the insurance adjuster was not informed of the claimant’s terminal illness during settlement negotiations, and that this illness had a direct effect on the nature and extent of future benefits that the respondent might be liable for. He calculated $20,641.32 as the amount due the claimant because of her permanent partial disability, and figured out that $20,000 extra was added to the stipulation because of the expectation of liability for future benefits. He concluded that the insurance adjuster would not have executed the stipulation had it been informed of the claimant’s terminal illness, and ruled that the proposed stipulation and the negotiations surrounding it were not equitable. Thus, he withheld approval of the stipulation, a decision that the claimant’s estate has appealed.1

This is the second time the claimant has appealed this issue to this board. In Secola v. State of Connecticut Comptroller’s Office, 13 Conn. Workers’ Comp. Rev. Op. 121, 1703 CRB-5-93-4 (Jan. 31, 1995), the claimant had appealed from an April 8, 1993 Finding and Award of Dismissal in which the commissioner also declined to enforce the stipulation at issue here. We remanded the matter to the trial commissioner for an explanation of the legal basis on which he denied the claimant’s request for approval of the stipulation. On remand, the commissioner made it clear that in his view, the proposed stipulation and the negotiations leading up to it were not consistent with the equitable nature of the Workers’ Compensation Act, and that the respondent was no longer in agreement with the stipulation at the time it was submitted for approval, thus negating the existence of a valid agreement under § 31-296. The question thus becomes, may a trial commissioner decline to approve a stipulation on those grounds?

Although the Workers’ Compensation Act does not explicitly authorize settlement agreements, our courts have consistently upheld the power to settle a compensation claim as inherent in the power to make a voluntary agreement pursuant to § 31-296 C.G.S. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480 (1994). That statute allows a commissioner to approve an agreement pertaining to compensation if he or she finds that it conforms “in every regard” to the provisions of Chapter 568. “Approval of such a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the act.” Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 545 (1969).

Most of the case law concerning stipulations stresses the remedial purpose of the Act, and the intent of the law to protect a claimant’s interests. See, e.g., Muldoon, supra, 481, 483 (court declined to interpret settlement as releasing claims for new injuries); Welch, supra, 545; Festa v. Town of Hamden, 3052 CRB-3-94-4 (decided Oct. 16, 1996) (commissioner required to take great pains in ascertaining that claimant understands nature and scope of stipulation before it may be approved). However, protecting the employee’s rights does not mean ignoring the rights of the employer or insurer. Fairness and equity are two-way streets, and the commissioner is certainly entitled to consider more than the claimant’s position in deciding whether a stipulation should be approved.

Here, the commissioner specifically found that the respondent was no longer in agreement with the stipulation at the time it was submitted for approval. Without his approval, the stipulation between the parties could not be operative within the confines of the Workers’ Compensation Act. Just as the commissioner is entitled to reject a stipulation if the claimant has second thoughts, he may exercise his authority to withhold approval of a stipulation if the respondent no longer concords with its terms when it is submitted for ratification. In this case, the trial commissioner’s findings support his decision to deny approval of the stipulation. We therefore affirm his decision.

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

1 The respondent has filed a Motion to Dismiss the claimant’s appeal for failure to prosecute with proper diligence pursuant to Practice Book § 4055. Specifically, the respondent points out that the claimant failed to file Reasons of Appeal, and that her brief was both late and identical to the brief the claimant filed in the earlier Secola appeal. As the respondent waited ten months from the due date of the Reasons of Appeal to file its Motion to Dismiss, we may not dismiss the appeal on that ground. See Practice Book § 4056; Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987). The Motion to Dismiss was also filed more than ten days after the late filing of the claimant’s brief, and over a month after it was due. As such, we decline to dismiss the appeal for failure to prosecute in a timely fashion. BACK TO TEXT

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