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Dowling Considine v. Sol V. Slotnik & Diane Reverand

CASE NO. 3468 CRB-04-96-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 6, 1998

VICTORIA DOWLING CONSIDINE

CLAIMANT-APPELLEE

v.

SOL V. SLOTNIK & DIANE REVERAND

EMPLOYERS

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Brenden P. Leydon, Esq., Tooher, Puzzouli & Wocl, 1100 Summer St., Stamford, CT 06905.

The respondents Sol Slotnik and Diane Reverand, 295 Madison Avenue, 39th Floor, New York, NY 10017, appearing pro se, both failed to attend oral argument.

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

This Petition for Review from the October 31, 1996 Supplemental Finding, Award and Order Pursuant to C.G.S. § 31-355 by the Commissioner acting for the Fourth District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the October 31, 1996 Supplemental Finding, Award and Order Pursuant to C.G.S. § 31-355 by the Commissioner acting for the Fourth District. The claimant has also filed a Motion for Sanctions dated June 13, 1997, in response to that appeal. The respondents argue on appeal that the commissioner erred by entertaining the claimant’s application for supplemental benefits because the parties reached an agreement to settle the case one month before the formal hearing. The trial commissioner refused to approve that agreement. We affirm the trial commissioner’s decision, and grant the claimant’s motion for sanctions.

The claimant, Victoria Dowling Considine, was found to be entitled to workers’ compensation benefits pursuant to a February 9, 1996 Finding and Award, including attorney’s fees based on the respondents’ undue delay of the payment of compensation. The respondents, who have vehemently argued that the claimant should not get benefits because she was an illegal alien at the time of her injury, were also fined $10,000 for failure to have workers’ compensation insurance. In a supplemental award dated October 31, 1996, the trial commissioner cited the jurisdictional facts of this case, and set forth the temporary total disability benefits and the medical bills that were due the claimant. The parties stipulated that the respondents had not yet paid the claimant any of the benefits she was awarded over eight months earlier, although they were entitled to a credit of $7,000 for payments made without prejudice.1 The claimant requested that, due to the respondents’ nonpayment of the award, the Fund be ordered to pay pursuant to § 31-355 C.G.S. The commissioner made that order, and the respondents filed an appeal.

Several months later, this board issued a decision in Dowling v. Slotnik, 3062 CRB-4-95-5 (Feb. 5, 1997), affirming the trial commissioner’s decision to award the claimant benefits despite her illegal alien status, and his $10,000 fine against the respondents for failure to carry workers’ compensation insurance. That decision was appealed to the Appellate Court, and then transferred to the Supreme Court, where the case is pending at the time of this writing. We agree with the respondents’ contention that, if the decision in Dowling is reversed, and the claimant is prevented from collecting compensation because of her status as an illegal alien, she would no longer be entitled to the benefits discussed in the supplemental award.

We do not concur, however, with the respondents’ main argument on appeal. It concerns the fact that, on October 3, 1996, the claimant and the respondents entered into a stipulation that would have settled the instant case for a lump sum settlement. When the stipulation was presented to the trial commissioner for his approval pursuant to § 31-296, he refused to sign the agreement. In a September 25, 1996 letter to the respondents, the claimant’s counsel indicated that his clients would not proceed against the respondents in any further workers’ compensation or Superior Court proceedings, even if the stipulation was not signed by the reviewing commissioner.

First, pursuant to § 31-296, a settlement in a workers’ compensation case must be approved by the trial commissioner before it is effective. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480 (1994); Secola v. State of Connecticut Comptroller’s Office, 3102 CRB-5-95-6 (Feb. 26, 1997). The commissioner must find that an agreement regarding compensation conforms to the provisions of Chapter 568 in every regard before he can approve it. “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.” Id., quoting Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 545 (1969). The important policy of protecting an employee’s right to compensation can result in the invalidation of the employee’s own agreement when it fails to assure him appropriate compensation. Id.; Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 48, 3052 CRB-3-95-4 (Oct. 16, 1996).

Where the commissioner has reason to suspect that the claimant does not understand the nature and scope of the stipulation, or that the stipulation is no longer agreed to by both parties at the time it is being offered for approval, or that the claimant is being coerced into signing the stipulation, he is entitled to reject that agreement. See Secola, supra; Festa, supra, 48-49. The respondents offer no explanation for the commissioner’s rejection of the agreement here, nor do they contend that the claimant herself understood the terms of the agreement, and demonstrated that understanding to the trial commissioner. Instead, the respondents merely assert that the commissioner should have approved the agreement because the claimant and her lawyer signed it. This is incorrect; the commissioner’s approval of a stipulation is more than a ministerial act. Without some proof to the contrary, we must assume that the commissioner had good reason for denying approval of the stipulation.

Second, § 31-290 provides that “no contract, expressed or implied, . . . shall in any manner relieve any employer, in whole or in part, of any obligation created by this chapter, except as herein set forth.” As the Workers’ Compensation Act does not provide a mechanism whereby a claimant and respondent can create a binding settlement to a claim without the approval of the trial commissioner, it is safe to say that the letter to the respondents from the claimant’s attorney did not bargain away the claimant’s rights to pursue her workers’ compensation claim. See also § 31-320 C.G.S. (sums due for compensation are not assignable before or after award). Consequently, the respondents must fail in their contention that the trial commissioner lacked jurisdiction to make a supplemental award in this case.

We now turn to the claimant’s motion for sanctions. The claimant contends that the respondents have filed an appeal solely in bad faith to harass her. She specifically brings up their appeal from the § 31-355 order, as the respondents made no arguments as to why the statute was inapplicable at trial or on appeal. It is worth noting that the respondents have offered no defense to the motion for sanctions, nor did they attend oral argument on their own appeal. According to the Rules of Appellate Procedure, a party may have costs and attorney’s fees imposed against it for presenting unnecessary or frivolous issues on appeal. Practice Book §§ 4165.4, 4184B(4), (5); In re Veterans Memorial Medical Center, 3063 CRB-8-95-5 (March 14, 1997).

Whether or not the respondents’ reasons for contesting the commissioner’s supplemental award had merit, it is clear that the claimant was entitled to be paid pending appeal under § 31-301(f) by the employer or its insurer. Coley v. Camden Associates, Inc., 243 Conn. 311 (1997). However, with the exception of the $7000 payment without prejudice that the respondents have made to the claimant, she had received nothing as of the time of the formal hearing on October 29, 1996 (although the Second Injury Fund indicated at oral argument that it had assumed payment pending appeal of approximately $70,000). The respondents’ attorney stated at the formal hearing that his clients did not want any payments to be made until the entire appellate process of this case was complete, regardless of how long it took. Transcript, p. 6-8. The respondents stated in their appellate brief their fear that any payments made to the claimant will prove unrecoverable if they prevail on appeal. This includes money that the Fund might pay under § 31-355, which is recoverable from the uninsured respondents under that statute.

We comprehend the respondents practical, financial concerns. However, the Workers’ Compensation Act does not give employers and insurers whom the trial commissioner orders to pay benefits free rein to withhold compensation until all appeals have been exhausted. Such a license would inevitably result in claimants not getting paid until years after their injuries, and would cause unfathomable hardship to thousands of people. The respondents do not have the right to ignore the laws of the state of Connecticut because they are concerned that they might have a hard time getting their money back from the claimant if they ultimately win this case. That is not the way our legal system works.

The judgment of this board is that the claimant’s motion for sanctions against the respondents should be granted. This case is remanded for a hearing on the proper amount of the claimant’s attorney’s fees and associated costs in defending this appeal, including the claimant’s $8.75 charge for parking in the garage below the administrative offices of this Commission on the date this appeal was argued. We note that this ruling is independent of the success or failure of the respondents’ appeal on the merits of the claimant’s case, as benefits should have been paid while that case was pending.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The Second Injury Fund was ordered to pay benefits pending the respondents’ appeal pursuant to § 31-301(f) C.G.S. on March 26, 1996. Due to recent changes in the language of § 31-301(f), that was not done. See Coley v. Camden Associates, Inc., 243 Conn. 311 (1997) (Fund no longer responsible for payment of benefits pending appeal in light of P.A. 95-277, § 9). BACK TO TEXT

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