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Tomaszek v. Girard Motors, Inc.

CASE NO. 4166 CRB-2-99-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 23, 2001

THOMAS TOMASZEK

CLAIMANT-APPELLANT

v.

GIRARD MOTORS, INC.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se, and was represented by his wife.

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

This Petition for Review from the December 8, 1999 Ruling on Claimant’s Motion to Open the Full and Final Settlement of the Commissioner acting for the Second District was heard September 15, 2000 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the December 8, 1999 Ruling on Claimant’s Motion to Open the Full and Final Settlement of the trial commissioner acting for the Second District. In that decision, the trial commissioner denied the claimant’s request to reopen the approved stipulation, finding that the claimant was competent when he signed the stipulation. In support of his appeal, the claimant reiterates his contention that he was mentally incompetent at the time he signed said stipulation. We find no error.

The trial commissioner found the following relevant facts. A formal hearing was held on June 17, 1997, before Commissioner Santos, in order to litigate the claimant’s alleged workers’ compensation claim. The claimant was represented by Attorney Mark Grater and the respondents were represented by Attorney Lucas Strunk. After a recess, Commissioner Santos announced on the record that there was an agreement between the parties to settle the claim for $35,000. Attorney Grater recommended this settlement to his client. Commissioner Santos questioned the claimant as to his date of birth and social security number, both of which were correctly provided by the claimant. “Commissioner Santos then fully explained to the Claimant that a stipulation resolved the matter on a full and final basis” and the claimant “responded that he was aware of this and still wanted to settle his claim.” Finding ¶ 47. At the time of the explanation of the settlement agreement by Commissioner Santos, the claimant was in the formal hearing room along with his wife, his attorney, and Attorney Strunk.

Attorney Grater testified that he prepared the stipulation after Commissioner Santos had explained the settlement to the claimant. Attorney Grater testified that on June 17, 1997, the Stipulation and What it Means Form was signed by the claimant. He further testified that he went over the form with both the claimant and his wife, explaining that the settlement resolved on a full and final basis all claims for future medical bills, and that he had the wife sign a separate Stipulation and What it Means Form. Attorney Grater testified that if he had felt that the claimant was not competent, he would not have presented the settlement agreement for approval.

Regarding his competency, the claimant presented the testimony of his treating neurologist, Dr. David Moalli, and by deposition he presented the testimony of Dr. John Urbanetti, a pulmonologist. On January 20, 1997, an independent medical examination was performed by Dr. James Donaldson, a board certified neurologist. In addition to examining the claimant, Dr. Donaldson reviewed the transcript from the formal hearing held on June 17, 1997. “Dr. Donaldson testified that the Claimant was competent to understand the workers’ compensation settlement that was presented to him at the time of the 1997 formal hearing.” Finding ¶ 39. The trial commissioner found the opinion of Dr. Donaldson to be more persuasive than that of the doctors presented by the claimant.

The claimant argued in support of his Motion to Reopen that he could not understand the stipulation as it was explained to him on June 17, 1997, and the claimant now reiterates this argument on appeal to this board. “[A]n Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless Sec. 31-315 1, which allows for modification, is satisfied.” Mongillo v. Terminal Taxi Co., 12 Conn. Workers’ Comp. Rev. Op. 197, 199, 1455 CRB-3-92-7 (March 7, 1994) (citations omitted). “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, 8, 1729 CRB-1-93-5 (Oct. 13, 1994). Furthermore, 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.” Id. (citing Housing Authority v. Lamothe, 225 Conn. 757, 767 (1993)).

In the instant case, the facts as found by the trial commissioner indicate that the trial commissioner who approved the stipulation on June 17, 1997 fully performed his duties, specifically questioning the claimant regarding his acceptance of the terms of the stipulation. See Duni v. United Technologies Corp./ Pratt & Whitney Aircraft Division, 239 Conn. 19, 27, fn. 9 (1996); see also Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480, fn. 9 (1994). During the stipulation approval process, neither the claimant nor his wife notified the trial commissioner as to any concerns regarding the claimant’s mental competency. Whether the claimant was mentally competent at the time of the stipulation approval is a factual issue which was fully reviewed by the trial commissioner in this case, who reviewed extensive medical evidence, the transcript of the June 17, 1997 hearing, and the testimony of people present at the June 17, 1997 hearing.

We have consistently held that it “is the trial commissioner, as the trier of facts, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 349, 1675 CRB-2-93-3 (July 29, 1994), aff’d., 39 Conn. App. 935 (1995) (citations omitted). As the trial commissioner’s conclusion regarding the claimant’s competency is fully supported by the record, it must be upheld. Thus, we affirm the trial commissioner’s conclusion that there was insufficient reason pursuant to § 31-315 to reopen the approved voluntary stipulation.

Finally, we note that the claimant has attached numerous documents to his appeal. “A motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions regarding the presentation of evidence at a formal hearing.” Roy v. General Dynamics Corp./ Electric Boat Division, 3284 CRB-1-96-2 (April 14, 1997), aff’d., 47 Conn. App. 924 (1997), cert. denied, 244 Conn. 907 (1998), citing Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). “Moreover, it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing.” Roy, supra.

In the instant case, the claimant has failed to offer any reason for presenting evidence after the formal hearing had been closed. See Lesczynski, supra. Moreover, the claimant offers no indication that the evidence which he seeks to present is really new or that it was undiscoverable with due diligence at the time of the original hearings. Id., see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). We thus conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9.

The trial commissioner’s decision is affirmed.

Commissioners Leonard S. Paoletta and Ernie R. Walker concurs.

1 Section 31-315 provides, in pertinent part, that an award or voluntary agreement may be modified “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 changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.” BACK TO TEXT

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