Riedel v. F&F Concrete Corp.

The claimant was represented by Allan Rothenberg, Esq., Rothenberg Law Offices, 239 Silas Deane Hwy., P. O. Box 290767, Wethersfield, CT 06129-0767.

The respondents were represented by Sharon Ramsay, Esq., Clendaniel, Weddall & LaRose [formerly Law Offices of Christine Harrigan], One Civic Center Plaza, 3CC, Hartford, CT 06103.

The Second Injury Fund was not represented at oral argument. Notice sent to Michael Giammatteo, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 24, 1997 Findings of Facts and Dismissal of the Commissioner acting for the Eighth District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 24, 1997 Findings of Facts and Dismissal of the Commissioner acting for the Eighth District. He argues on appeal that the trier erred by failing to reopen and modify two voluntary agreements signed by the claimant with respect to his compensable injuries. We affirm the trial commissioner’s decision.

The claimant was employed by the respondent F&F Concrete Corp. on August 15, 1989 and on November 28, 1989. He sustained injuries to his low back on both of those dates. In August 1990, the claimant underwent an MRI that showed a central L4-L5 disc herniation with mild compression of the thecal sac. Dr. Lieponis, who had treated the claimant conservatively up to that point, recommended vocational retraining, because he did not think the claimant should return to his job driving tractor trailers. Dr. Lieponis continued his conservative treatment of the claimant, and assigned a 15% permanent partial impairment of the lumbar spine on January 10, 1991, the claimant’s date of maximum medical improvement. The claimant signed a voluntary agreement ascribing a 10% permanent partial disability, which was attributed to the November 28, 1989 back injury, and the agreement was approved by a commissioner on August 1, 1991. A second voluntary agreement for an additional 5% permanent partial disability was approved on June 26, 1992, using the same maximum medical improvement date. The claimant was not represented by counsel at the time he signed either agreement.

Dr. Becker, who first evaluated the claimant on December 21, 1992, reached objective findings consistent with those of Dr. Lieponis and Dr. Roberts (who had performed an independent medical examination on February 21, 1991). Dr. Becker was subsequently authorized as the treating physician in January 1993. He testified that the claimant was temporarily totally disabled from September 1990 through December 21, 1992, and that 25% of his disability was due to the first compensable injury rather than the second. This apportionment of liability was based on the claimant’s representations of the two incidents. When contacted regarding the issue of apportionment, Dr. Lieponis reiterated his opinion that the claimant’s entire back disability was due to the November 28, 1989 injury. The trial commissioner found that the claimant was not asked about the August 15, 1989 injury by any physicians that saw him prior to Dr. Becker, however, and that he did not share that information with any of those medical providers.

According to the claimant, he signed the voluntary agreements so that he would be paid while he attempted to start school at the Porter & Chester Institute. He stated that no commissioner explained to him what he was signing, nor did he receive any advice from an attorney or a member of this Commission. The trier nonetheless found that the claimant had read and signed the two voluntary agreements, and that he had not provided any evidence of changed conditions of fact or of a mutual mistake of fact that would justify reopening the agreements under § 31-315 C.G.S. Thus, the commissioner denied the claimant’s motion to open the voluntary agreements, as well as his subsequent Motion to Correct the findings. The claimant has appealed that decision to this board.

Section 31-315 allows a trial commissioner to modify an award or an approved voluntary agreement where an injured employee’s incapacity has increased, decreased or ceased, or where the measure of dependence on account of which he is paid compensation has changed, or where changed conditions of fact have arisen which necessitate a change of the award. The trial commissioner may also open an modify an award in the same manner as a judge of the superior court, i.e., in cases of accident, fraud, or mistake of fact. Marone v. Waterbury, 244 Conn. 1, 16-17 (1998). The claimant argues on appeal here that the medical evidence did not demonstrate the causal connection of the first injury to his disability until he became represented by counsel, and that this constitutes a mistake of fact sufficient to require modification of the voluntary agreements he had previously signed. He also argues that the voluntary agreements should be opened due to changed conditions of fact, and that equity and the remedial purpose of the Workers’ Compensation Act require the reopening of these agreements.

The decision to open and modify a voluntary agreement falls within the discretion of the trial commissioner, and will not be disturbed by this board unless the trier has arbitrarily reached an unreasonable result. Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997). We cannot say it was unreasonable for the trial commissioner to decline the claimant’s request to reopen in this case. The claimant’s situation at the formal hearing differed from his previous situation only with respect to Dr. Becker’s medical opinion ascribing a percentage of the claimant’s disability to his August 1989 compensable injury. Although this diagnosis may not have been in the claimant’s possession at the time he signed the voluntary agreements, it could have been obtained much earlier. The failure of a claimant to obtain counsel or to anticipate a potential legal argument does not necessarily constitute a “mistake of fact” or a “changed condition of fact” within the meaning of § 31-315. A claimant who proceeds pro se cannot be completely exonerated from the effects of his decisions because a better argument presents itself later in the case. A holding to the contrary would lean toward chaos, as a pro se claimant would be free to rescind his agreements and settlements at any time.

Further, questions concerning the credibility of the claimant’s testimony regarding his understanding of the proceedings, as well as the credibility of Dr. Becker’s medical report, were solely for the trial commissioner to resolve. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). The trier’s observations in ¶¶ 30 and 31 that the claimant did not share information regarding his August 1989 injury with his doctors and that he did not attempt to seek advice with this Commission concerning his claims suggest that, in the opinion of the commissioner, the claimant’s failure to provide or seek information partially explains the resolution of his case. It does not appear that the trier drew every inference in the claimant’s favor, which was certainly within his prerogative as the fact-finder. We cannot reverse that outcome on appeal. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

We accordingly affirm the trial commissioner’s denial of the claimant’s motion to open the voluntary agreements.