CASE NO. 4317 CRB-1-00-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 23, 2001
STATE OF CONNECTICUT
DEPARTMENT OF CORRECTION
The claimant was represented by Cynthia Crockett, Esq., and Dennis G. Hersh, Esq., Hersh & Ritson, 21 Oak Street, Suite 603, Hartford, CT 06106.
The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 16, 2000 Finding and Award of the Commissioner acting for the First District was heard June 22, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the November 16, 2000 Finding and Award of the Commissioner acting for the First District. It contends on appeal that the trier erred by allowing the claimant to reopen a stipulation pursuant to § 31-315. We affirm the trial commissioner’s decision.
The claimant in this matter has sustained at least eight alleged compensable injuries with his employer, the respondent State of Connecticut. He retained the law firm of Hersh & Ritson to represent him regarding his August 5, 1994 back injury. In a stipulation dated March 26, 1999 that was prepared and signed by a representative of the respondent’s insurance administrator, Berkeley Administrators, the claimant’s injuries are listed as having occurred on or about “11/3/88, 9/19/89, 6/19/92, 2/26/93, 8/5/94, 2/24/96, 5/3/96 and 8/8/96.” Pursuant to the agreement, the respondent consented to pay the claimant $4,250.00 “as a full and final settlement of all compensation for said injuries and any other injuries the claimant may have sustained while in the employ of the State of Connecticut . . . .” The claimant signed this stipulation, which was witnessed by Cynthia Crockett, an attorney with Hersh & Ritson, on April 1, 1999. The settlement was contemporaneously approved as per § 31-296 C.G.S. by Commissioner Michael S. Miles acting on behalf of the First District. See Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 30-31 (1996) (ability to compromise a compensation claim is inherent in the power to make a voluntary agreement).
Exactly six months later, on October 1, 1999, the claimant moved to reopen the stipulation in accordance with § 31-315 C.G.S., which provides in relevant part:
Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . , 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 the measure of dependence on account of which the compensation is paid has changed, 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. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
The claimant also cited § 52-212a C.G.S.1, which concerns the setting aside of civil judgments or decrees. According to the claimant, a mistake had been committed that would justify reopening the settlement because Hersh & Ritson did not represent him for the September 19, 1989 injury. He had been represented by Attorney Ronald L. LePine on that case, and had never informed Hersh & Ritson of that fact.
A different trial commissioner held two formal hearings on the Motion to Reopen. He found that, prior to the stipulation hearing on April 1, 1999, an informal hearing was held on March 11, 1999 at which medical treatment and a proposed settlement for an August 5, 1994 back injury were scheduled for discussion. The respondent was represented at that hearing by Linda Passanisi, an employee of Berkley Administrators, while the claimant was represented by Attorney John Ritson. Passanisi testified that she recalled other injuries being discussed at the informal hearing, though she had no copy of the file or a report of that hearing, and she handles hundreds or thousands of hearings for Berkley every year. The trier did not credit this testimony. He cited instead the comments of Laurie Foster, the Berkley claims adjuster who prepared and signed the stipulation, insofar as she testified that the March 11, 1999 hearing dealt only with the 1994 back injury as indicated by the hearing notice. Commissioner Miles testified that his notes indicated that he had recommended a settlement of between $4,000 and $4,500 for the case, which to his knowledge only concerned an August 5, 1994 back injury. He stated that, if he had been aware of the 1989 case (in which the claimant had received over $21,000 in benefits for a right hand injury), he would not have approved the stipulation for $4,250, and would have required Attorney LePine to be present.
The trial commissioner ruled that § 52-212a did not directly apply to workers’ compensation awards or agreements. However, he found that § 31-315 did apply in the instant case, and ordered that the stipulation be reopened and set aside “in that the Claimant and his attorney thought they were settling only the back case which had a date of injury of August 5, 1994, and not any other case,” and in light of Commissioner Miles’ testimony. The respondent then filed an appeal from that ruling and from the denial of its Motion to Correct, leading to the involvement of this board.
There is no question that the instant case does not concern a change in the claimant’s incapacity, measure of dependence, or the pertinent conditions of fact, as contemplated by § 31-315. The claimant’s motion to open here relies upon the trier’s power to modify an award in the same manner that a state court has the authority to open and modify one of its judgments in instances of fraud, misrepresentation, accident, and mutual mistakes of fact, though not in instances of a mistaken construction of the law. Marone v. Waterbury, 244 Conn. 1, 17 (1998); Gonzalez v. Electric Transport (Penske), 13 Conn. Workers’ Comp. Rev. Op. 6, 1729 CRB-1-93-5 (Oct. 13, 1994). Also, in the workers’ compensation forum, great pains are taken to ensure that a claimant understands the scope of a stipulation before it is approved. The trier must canvass the claimant to ensure that he has considered certain issues, and that he meaningfully understands the document that purports to embody the parties’ compromise. Mulligan v. N.C.H. Corp. Chemsearch Division, 3653 CRB-4-97-7 (Sept. 17, 1998). If such a procedure were not followed, and confusion subsequently resulted to the detriment of either party, reasonable grounds would exist for a subsequent commissioner to open the agreement. Id. In any § 31-315 case, this board will not disturb a trier’s ruling on a motion to open unless the appellant is able to demonstrate that said ruling constitutes an abuse of discretion. Besade v. Interstate Security Services, 212 Conn. 441, 453 (1989); Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001).
In most cases that are opened due to mutual mistake, neither party is aware of a particular relevant fact prior to the signing of the stipulation. See, e.g., Coppola v. L.G. DeFelice, Inc., 3850 CRB-3-98-6 (Aug. 30, 1999) (MRI had been misread, and neither party knew that it actually showed brain injury); Gonzalez, supra (both parties unaware of outstanding medical bill). The trier’s decision to open the settlement in the instant case, though premised on the theory of mistake, was essentially based on the perspective of the claimant alone, along with the testimony of the commissioner who approved the stipulation. In order to open a stipulation pursuant to the common-law theory of mistake, the mistake must be mutual rather than unilateral. Solomon v. Keiser, 22 Conn. App. 424, 427 (1990), citing Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466 (1981). In Solomon, the plaintiff in a real-estate contract action had successfully sought to open a stipulated judgment more than four months after it was entered on the ground that there was a mistake as to the meaning of the judgment. Though the court agreed that a party may open a stipulated judgment at any time if it was obtained by fraud, duress, accident or mistake; Celanese Fiber, supra; it reversed the trial judge’s decision to open the Solomon judgment because the defendant had continuously maintained that there was no mistake on its part, and the trial court had made no finding of mutual mistake.
Here, the facts found by the trier suggest that everyone involved in the signing of the stipulation was to some degree aware of the inclusion of the September 19, 1989 injury date at the time it was approved, but that none of them fully apprehended the nature of that particular claim as having its own significant history. This would seem to include Laurie Foster, the stipulation’s drafter, as per ¶ 9 of the findings. However, Foster testified that she was aware of the $21,000 in benefits that had been paid out on behalf of the September 19, 1989 claim; May 31, 2000 Transcript, pp. 64-65. She explained that a department regulation required her to figure in all dates of injury when drafting a full and final settlement of a pending claim, though she had been unaware that the claimant had retained a different attorney in the 1989 injury case. Id., pp. 58, 64. Whether this would make her a party to a “mutual mistake” is very unlikely, even taking into account the trier’s discretion to disregard part or all of the testimony of any witness. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Like the defense in Solomon, the respondent here asserts that it was well aware that it was trying to settle all of the claimant’s outstanding injury claims. We do not believe that the evidence supports a finding that the respondent was unaware of the stipulation’s nature, and thus hold that the commissioner should not have opened the agreement on the theory of mutual mistake.
Notwithstanding the absence of mutual mistake, there have been rare cases in which a stipulation has been reopened after a claimant has demonstrated that his lack of capacity to understand the nature of the agreement caused him to compromise his own rights to his unfair detriment. See, e.g., Audi, supra (claimant’s lack of sophistication and English comprehension led him to simply sign documents at request of insurer’s representative, without understanding their significance); Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 3052 CRB-3-95-4 (Oct. 16, 1996) (hypoglycemia attack left claimant dizzy and confused at time of stipulation approval hearing, unbeknownst to commissioner). One might expect that the claimant’s allegations of mistake in the instant case would include an attempt to prove a similar incapacity on his part.
However, the claimant did not personally testify as to his understanding of this stipulation or his mental state at the time it was signed. Without such testimony, it is virtually impossible to ascertain his actual level of knowledge regarding the terms of the contract. The testimony of Attorney Crockett and Commissioner Miles regarding their assumptions concerning the stipulation, though informative, is incapable of definitively revealing the claimant’s state of mind, and there is nothing else in the record that lends insight into his subjective understanding of the agreement’s contents.2 The maxim interest reipublicæ ut sit finis litium favoring the finality of judgments may not strictly apply to the awards of workers’ compensation commissioners; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 356 (1920); but § 31-315 still creates meaningful restrictions to the reopening of rulings based on criteria that embody a showing of changed conditions, fraud or mutual error or misunderstanding. The extra protection that has been afforded claimants via our use of the canvassing procedure and a “Stipulation and What It Means” form is geared to ascertain the intent of the claimant, and to protect his interests. See, e.g., Mulligan, supra. Without direct evidence regarding a claimant’s understanding of a proposed compromise, a trial commissioner is in no position to reopen an approved stipulation on the ground that the claimant was unaware of one of its material terms.
If our analysis of the instant case were to stop at this point, we would be obliged to reverse the decision of the trial commissioner. There is, however, an additional legal issue that was raised by the claimant in his motion to open: the fact that he was represented by Attorney LePine on his 1989 injury claim, while Hersh & Ritson only appeared with respect to his August 5, 1994 injury. As Attorney LePine did not withdraw his appearance as the claimant’s attorney on the prior matter, nor did the claimant or Hersh & Ritson ever suggest that he was being succeeded as counsel, the question arises as to whether the parties’ ostensible settlement of the 1989 injury claim is legally valid. If authority to represent the claimant remained with the claimant’s counsel of record, and was not held concurrently by Hersh & Ritson, then it may be the case that Attorney LePine’s absence precluded any binding resolution of that claim.
Practice Book § 3-1 prescribes a simple procedure by which an attorney may file an appearance for a plaintiff in a civil suit. According to Practice Book § 3-7, “no attorney shall be permitted to appear in court or to be heard in behalf of a party until the attorney’s appearance has been entered,” except by leave of judicial authority. See, e.g., Hill v. Hill, 135 Conn. 566, 569 (1949) (court may deal with counsel as previously unrepresented party’s attorney prior to entry of formal appearance). Generally, this practice is followed in the workers’ compensation forum, though a special procedure also exists for ratifying non-attorneys as “accredited representatives” on a case-by-case basis. See Cutler v. State/DMR Region 4, 3506 CRB-7-96-12 (April 28, 1998). Once a litigant has retained counsel, a change in representation cannot be made without some sort of affirmative act, even though the litigant may change attorneys at any time during a legal proceeding, and for any reason. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 648 (1987); Cole v. Myers, 128 Conn. 223, 229-30 (1941). Where a party is already represented by counsel, another attorney seeking to appear in lieu of or in addition to said counsel is required to send existing counsel a copy of his or her appearance. Practice Book § 3-8. We note, too, that an attorney retains a self-executing possessory lien against the file of any client whose bill remains unpaid, absent the advance payment of security for the fee or the possibility of prejudice against the claimant’s rights. Marsh, Day & Calhoun, supra, 645-46.
Meanwhile, from the perspective of the court, the actions of counsel taken in furtherance of the business that his client entrusts to him are imputed to the client. Higgins v. Karp, 239 Conn. 802, 810 (1997). This does not automatically give an attorney implied or apparent authority to compromise or settle his client’s cause of action, as the granting of such a broad license by the client is optional. Id.; Allen v. Nissley, 184 Conn. 539, 542-43 (1981); German v. German, 125 Conn. 84, 91 (1938). “If an attorney has apparent authority to settle a case, and opposing counsel has no reason to doubt that authority, the settlement will be upheld.” Musso v. Seiders, 98 F.Supp.2d 197, 199 (D. Conn. 1999), quoting Janneh v. GAF Corp., 887 F.2d 432, 436 (2d Cir. 1989). Apparent authority is created by the representations of the principal to the third party, and not by the actions or representations of the agent alone. Musso, supra, 200.
More generally, once a claimant hires an attorney to represent him on a matter, notices of court proceedings and correspondence from the other parties are directed to the attorney, who is responsible for protecting his client’s rights while keeping him informed. Vega v. Waltsco, Inc., 15 Conn. Workers’ Comp. Rev. Op. 307, 309, 2078 CRB-2-94-6 (June 21, 1996), aff’d, 46 Conn. App. 298 (1997). Following some types of specified final judgments, an appearance by counsel is deemed withdrawn after a certain period of time has elapsed. See Practice Book § 3-9(c) (180 days after the entry of judgment in any action for dissolution of marriage, annulment, or legal separation). An automatic withdrawal of that type is not presumed in workers’ compensation actions, where a claim often remains open indefinitely. Thus, if a respondent were to seek some sort of action on a workers’ compensation claim that had not been active in some time, but had not been fully and finally settled, this Commission would inform the claimant of that action by sending notice to the attorney of record. Inherent in that course of conduct is a presumption that the same attorney continues to represent the claimant until such time as this agency is otherwise informed. Common practice in the legal community would generally reflect the same assumption; notice would be sent to the attorney of record.
There is no dispute that the claimant hired Hersh & Ritson for the purpose of representing him regarding his August 5, 1994 injury, as reflected by the various hearing notices that were issued in this case. The September 19, 1989 hand injury claim had not previously been settled, and the claimant’s representative on that claim continued to be Attorney LePine, despite the passage of several years since any benefits had been paid on that injury. No attempt was made to inform Attorney LePine of the stipulation approval hearing, and Hersh & Ritson took no steps to replace or join Attorney LePine as counsel of record on that claim, nor is there evidence that the claimant asked them to do so. Under the rules of our Practice Book, particularly § 3-8 and 3-9, Attorney LePine remained the claimant’s attorney on the 1989 injury claim. The concept of “apparent authority” does not avail the respondent here, as the claimant never took the necessary step of repudiating Attorney LePine’s status as counsel on that claim, nor did he state that Hersh & Ritson had authority to settle it. Instead, it appears that the issue was never specifically raised in discussions. Mere silence on this matter was not adequate to terminate the status of designated counsel, or to create a situation of co-representation, regardless of a lack of fault on the respondent’s part. See Practice Book § 3-8. Indeed, by the state’s insertion of the 1989 date into the stipulation, we can only assume that the state believed that Hersh & Ritson represented the claimant for that injury as well.
The respondent raises the point that Attorney LePine failed to attend either of the formal hearings that concerned reopening of the stipulation (for which he was properly noticed), nor did he attempt to submit an objection to the settling of the 1989 claim or a request for attorney’s fees. We do not believe that his inaction in that regard somehow legally operates to ratify the April 1, 1999 compromise. The stipulation purports to settle, inter alia, a claim that the claimant’s counsel lacked the authority to settle. The signature of the claimant on the stipulation does not alter the fact that he was technically unrepresented by the appropriate counsel of record, who likely would have been aware of the intrinsic value of the unsettled 1989 claim. We hold that this deficiency invalidates the stipulation, and requires that it be reopened so that counsel of record may either participate in its preparation or be properly notified of a change in his status as the claimant’s representative on the September 19, 1989 claim.
The trial commissioner’s decision is accordingly affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 Section 52-212a states in relevant part, “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” BACK TO TEXT
2 The claimant’s counsel offered into evidence an affidavit from the claimant that had been signed on March 21, 2000. It states in part, “I was never told at any time by either of my attorneys, by the Commissioner or by the representative of the State of Connecticut that my 1989 claim was included in this stipulation as to the 1994 claim. I never would have agreed to the stipulation . . . if it were to have included the prior claim.” This document was marked as Claimant’s Exhibit B for Identification, but was not admitted as a full exhibit because the claimant was not available for cross-examination. May 31, 2000 Transcript, pp. 44-46. According to counsel, the claimant was in Florida and did not have the means to return to Connecticut (which, as the trier noted, was not reflected in the affidavit). No request was made to devise some other means by which the claimant could have offered testimony. See, e.g., Pietraroia v. Northeast Utilities, 254 Conn. 60, 77 (2000). As the right to cross-examine a claimant is a fundamental component of due process in workers’ compensation proceedings, the trier understandably excluded the claimant’s only direct evidence of his subjective understanding regarding the stipulation. BACK TO TEXT