CASE NO. 3850 CRB-03-98-06
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 30, 1999
L.G. DEFELICE, INC.
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by William Gallagher, Esq., Gallagher, Gallagher & Calistro, 1377 Ella T. Grasso Boulevard, P.O. Box 1925, New Haven, CT 06509-1925.
The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.
This Petition for Review from the June 23, 1998 Ruling on Claimant’s Motion to Reopen Settlement of the Commissioner acting for the Third District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 23, 1998 Ruling on Claimant’s Motion to Reopen Settlement of the Commissioner acting for the Third District. In that decision the trial commissioner granted the Claimant’s Motion to Reopen an approved stipulation under which the respondents had agreed to pay the claimant $40,000.00 as a full and final settlement of the claimant’s workers’ compensation claim. The trial commissioner found that at the time the stipulation agreement was approved, none of the parties were aware that the claimant had sustained brain damage, and the claimant would not have agreed to the settlement if he had known of the brain injury. The respondents argue on appeal that the trial commissioner erred by granting the Motion to Reopen.
The trial commissioner found the following relevant facts. On August 31, 1993, the claimant sustained a compensable injury when he fell into a hole approximately five feet deep, landing on his feet but complaining of upper back and neck pain. Thereafter, the claimant experienced physical symptoms involving pain and limitation in the cervical area. Additionally, following the injury the claimant experienced marked physical and emotional symptoms such as irritability, outbursts of anger, inability to concentrate, dizziness, forgetfulness, and disorientation. The claimant initially treated with Dr. Sumner, an orthopedist, who could find nothing neurologically wrong with the claimant. He therefore referred the claimant to Dr. Einbinder, a neurologist. Dr. Einbinder noted that the claimant had a multitude of neurological symptoms and opined that he had developed post-concussive syndrome which occurred as the result of a head injury which he did not recall, or was the result of the rapidity with which he fell, or perhaps as a result of a flexion/extension of the neck.
In order to find an explanation for the claimant’s symptoms, Dr. Einbinder ordered a brain MRI. The scan was performed at the Temple Radiology Group on December 31, 1993 and was read by Dr. Friedman to be normal. On January 20, 1994, the claimant was again seen by Dr. Einbinder, who noted the claimant’s multitude of neurological symptoms and cognitive abnormalities, and “found this to be anomalous in light of the MRI scan of the head which was reported to be normal.” (Finding ¶12). Dr. Einbinder referred the claimant to Dr. Berv for psychiatric treatment of his emotional problems.
Dr. Berv noted that the brain MRI was normal and referred the claimant to the Yale Psychiatric Institute for care where he was admitted on March 15, 1994 and discharged on March 29, 1994. Initially, when he entered the institute he lost control and smashed a chair, and had to be confined to locked seclusion. He was diagnosed with organic personality disorder, explosive type, and found to have a post-concussive syndrome and post multiple lumbar disc injuries. A staff psychologist at the Institute, Dr. Quinlan, noted that the claimant’s MRI examinations were reported to be negative, and that he had cognitive losses, dizziness, limited fine motor coordination, impaired sequencing, difficulty with verbal memory and concentration. The claimant was examined by Dr. Prevey, a clinical neuropsychologist, who found that the claimant’s symptoms “might indicate damage to the left temporal region of the brain, although, paradoxically, there was no evidence of contusion to the left temporal region as reported on the MRI.” (Finding ¶ 16) (emphasis added).
Dr. Berv treated the claimant throughout the first half of 1995, and in May of 1995 he found that although some of his symptoms had improved with medication, the claimant’s brain functioning problems were such that he recommended that he stop driving. The claimant was examined by Dr. Rubenstein, a psychiatrist, on October 27, 1994 and on April 6, 1995 at the request of the respondents. He noted the normal MRI of the brain and concluded that the claimant had not suffered a true concussion because there was no head injury reported, although he acknowledged the possibility that the claimant may have suffered a brain injury from an acceleration/deceleration injury. He concluded by exclusion that the claimant’s fall on August 18, 1993 must have been the cause of his significant mental and emotional changes.
The claimant was referred to Dr. Merikangas, board certified in neurology and psychiatry, who had experience reading MRIs since 1985. He read the December 31, 1993 MRI as abnormal and opined that it had been incorrectly read as normal by the original radiologist. Dr. Merikangas stated that the December 31, 1993 MRI showed a gross enlargement of the third ventricle and enlargement of the sylvan fissure which indicated extensive brain atrophy or damage. He stated that he showed the MRI to two neurologists at the Temple Radiology Group who agreed with his reading, and agreed that the original radiologist, who had been newly hired, had misread the scan. Dr. Merikangas testified that a second MRI performed on January 16, 1996 showed a progression of brain atrophy from the 1993 MRI, and that both scans show permanent brain damage. He opined that the compensable injury was the cause of the brain damage.
The stipulation which was approved on September 25, 1995 documents a five percent permanent partial impairment of the cervical spine. Attorney D’Elia, who represented the claimant from 1993 through 1995, testified that he would not have accepted the settlement for $40,000.00 if he had known that the December 31, 1993 MRI was in fact abnormal. He explained that the case was settled based on the relatively minor accepted cervical injury and the contested psychological injury, rather than a claim for brain damage. Attorney D’Elia further explained that the claimant’s psychiatric claim was based on post-traumatic stress disorder or concussive syndrome but not on brain atrophy or actual brain damage. At the September 25, 1995 settlement hearing, Commissioner White noted that the two claims asserted were for a cervical injury and a psychological injury arising from it, that the psychological injury was disclaimed, and that there was no head injury.
Based upon the above facts, among others, the trial commissioner in the instant case concluded that when the settlement was approved by Commissioner White on September 25, 1995, the parties were acting under a mutual mistake of fact. The trial commissioner concluded that the true state of facts was not revealed until December of 1995 when it was discovered by Dr. Merikangas that the December 31, 1993 MRI had been misread. The trial commissioner thus concluded that there was sufficient grounds to reopen the settlement so that the claimant may pursue his claim for brain damage.
We now turn to the law regarding stipulations and the legal requirements for a motion to reopen. 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. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-80 (1994). Section 31-296 allows a commissioner to approve an agreement if the commissioner 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).
“Like a stipulated judgment in Superior Court, an Award by Stipulation may be set aside without the consent of all parties only if it was obtained by fraud, misrepresentation, accident or mistake.” Gonzalez v. Electric Transport (Penske), 13 Conn. Workers’ Comp. Rev. Op. 6, 1729 CRB-1-93-5 (Oct. 13, 1994) (citations omitted). A trial commissioner’s decision to open an approved stipulation falls within the trial commissioner’s discretion and will be overturned on appeal only if such discretion was abused or if an unreasonable result was reached. Perez v. Franklin Mushroom Farm, 3177 CRB-2-95-10 (January 24, 1997)(Board affirmed decision of the trial commissioner which granted the claimant’s request to reopen an approved stipulation); Jaworski v. Four Seasons Limousine, 15 Conn. Workers’ Comp. Rev. Op. 438, 2200 CRB-7-94-11 (September 5, 1996); Besade v. Interstate Security Services, 212 Conn. 441, 453 (1989); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541-42 (1992); Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997).
In support of their appeal, the respondents contend that the trial commissioner abused his discretion by relying upon medical evidence which was rendered after the stipulation was approved in order to conclude that there had been a mutual mistake of fact. We disagree with this argument, as it is certainly flawed as it pertains to reopening a stipulation based upon a mutual mistake of fact. Specifically, where a stipulation has been approved based upon a mutual mistake of fact, it logically follows that a party subsequent to the approval of the stipulation must discover that mistake, and where that mistake involved medical evidence the discovery of the mistake may certainly involve medical expertise.
Additionally, the respondents contend that at the time the stipulation was approved, there was medical evidence which showed an “organic brain disorder and suggestion of brain injury and/or psychiatric psychotic problems. . .” (Respondents’ Brief at 10). We note that in fact the respondents, while accepting the neck injury, denied liability for any psychological disorder, post-concussive syndrome, vertigo, or psychological disorder when they filed a notice to contest liability on March 25, 1994. (Finding ¶ 3). Moreover, whether the parties entered into the stipulation based upon a mutual mistake of fact, specifically the misreading of the brain MRI, was a factual determination for the trial commissioner. The respondents are now seeking to retry the facts of the case, which this board may not do. In the instant case, the trial commissioner made specific findings of fact which amply support the conclusion that the parties entered into the stipulation based upon the misreading of the December 31, 1993 brain MRI.
This board is required to give deference to a trial commissioner’s conclusions if they are reasonably based on the evidence before him. Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). If the findings can be interpreted to either support or contradict the trier’s decision, this board must not disturb the commissioner’s conclusion by drawing its own inference from the findings. Six, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); see also Mazzone v. Connecticut Transit Co., 240 Conn. 788, 796 (1997). Here, the findings of fact amply support the trier’s conclusion that the stipulation was entered into based upon a mutual mistake of fact.
In further support of their appeal, the respondents contend that the trial commissioner erred in concluding that Attorney D’Elia was unaware that the claimant had sustained brain damage at the time the stipulation was approved. This determination was clearly a question of fact, and was dependent upon the trial commissioner’s assessment of the evidence, including the credibility of the witnesses. We may not disturb such a factual determination where there is sufficient evidence in the record to support it. Six, supra; Fair, supra. In the instant case, the record amply supports the trial commissioner’s findings and conclusion. Specifically, Attorney D’Elia testified that he would not have recommended a settlement of $40,000.00 if he had been aware of an MRI which showed brain damage. (12/4/97 TR. at 13-15). Rather, he explained that he “settled the case based on the idea that there was a minor injury to the neck. . . and that there was in addition to that some potential exposure for the company for psychological problems which may or may not have been related to the accident, that being post traumatic stress disorder and other diagnoses that have appeared in the medical reports.” (12/4/97 TR. at 13).
Attorney D’Elia further explained:
But, we certainly would not have recommended a settlement at that amount if in fact there was objective evidence of a brain injury which could be demonstrated by diagnostic tests and underscored by an opinion of a medical expert.
Id. at 14.
Attorney D’Elia testified that if there had been such objective evidence of a brain injury, he would have requested the necessary medical treatment1 and would have requested compensation for permanent partial disability of the brain which would have entitled the claimant to an award “substantially in excess” of the settlement amount. Id.
We conclude that the trial commissioner’s decision is fully supported by the findings of fact and by the record in the instant case. We thus find no abuse of discretion by the trial commissioner in granting the claimant’s Motion to Reopen the stipulation.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 The claimant was referred to the Jill Cohn Center for Head Injury Rehabilitation but could not arrange treatment there because the respondents disclaimed liability for the condition. (Finding ¶ 18; see also Respondents’ Brief at 15). BACK TO TEXT