State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gage v. State of Connecticut/Western Connecticut State University

CASE NO. 5470 CRB-7-09-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 8, 2010

DONALD GAGE

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/WESTERN CONNECTICUT STATE UNIVERSITY

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS OF NORTH AMERICA, INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Ryan M. Henry, Esq., Guendelsberger, Collins, Henry

& Guendelsberger, LLP, 28 Park Lane, New Milford, CT 06776.

The respondent was represented by Francis C. Vignati, Jr., Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 4, 2009 Finding Re: Moratorium of the Commissioner acting for the Seventh District was heard on December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 4, 2009 Finding Re: Moratorium of the Commissioner acting for the Seventh District. We find error and accordingly remand the decision of the trial commissioner for additional proceedings consistent with this opinion.1

The following factual background is pertinent to our review. The claimant was injured in a work-related motor vehicle accident on July 29, 1993. His employer, the State of Connecticut, paid the claimant $41,814.94 in indemnity benefits and $32,857.97 in medical benefits for a total amount of $74,672.91. As a result of the motor vehicle accident, the claimant brought a third-party lawsuit pursuant to § 31-293(a) C.G.S.2 The evidentiary record contains a “Release of all Claims and Demands” dated March 24, 1999 and signed by the claimant. Claimant’s Exhibit G. The release purports to settle all claims between the claimant and Leonard W. Silva, Western Connecticut State University, the Department of Administrative Services for the State of Connecticut, the State of Connecticut, c/o the Attorney General, and ITT Specialty Risk Services for $104,672.91. The release also states, “[i]t is understood that the settlement amount in total represents a workers’ compensation lien in the amount of $74,672.91 and $30,000 in settlement proceeds.” Id. At his deposition held on November 20, 2008, however, Assistant Attorney General Philip Schulz testified that he did not know who drafted the release, Claimant’s Exhibit B, pp. 19-20, and that he was “confident” that the release had not been drafted by the workers’ compensation division of the Attorney General’s office. Id., at 21.

The record also contains a settlement statement signed by the claimant showing the breakdown of a settlement amount of $30,000. Claimant’s Exhibit C. After the subtraction of attorneys fees in the amount of $10,000 and miscellaneous fees and expenses totaling $2,698.21, the claimant received net proceeds in the amount of $17,301.79. At trial, the claimant testified that he remembered receiving a settlement of approximately $17,000 but didn’t remember ever seeing the settlement sheet. December 2, 2008 Transcript, p. 7. The claimant stated, “I don’t remember signing this because I never saw all this, not the fees.” Id., at 8.

Neither party was able to produce a final agreement memorializing the disposition of the compensation lien of $74,672.91. The record does contain correspondence dated March 24, 1999 from Attorney Schulz to claimant’s thencounsel wherein Attorney Schulz indicated he would draft an agreement between the State of Connecticut and the claimant waiving the State’s lien in exchange for a credit against any future workers’ compensation medical or indemnity benefits. Claimant’s Exhibit E. However, no such agreement is contained in the record. Moreover, although Attorney Schulz was able to testify with some specificity regarding his usual pattern and practice relative to workers’ compensation lien waivers, he was unable to recall whether he had ever drafted an agreement in this particular matter; nor did he know whether the State had ever filed a Motion to Intervene in the third-party action to protect its lien. Claimant’s Exhibit B, p. 25. Attorney Schulz also testified that he could not remember ever attending a pretrial conference on this matter, although it was “entirely possible” that he might have. Id., at 28.

On the basis of the foregoing, the trial commissioner concluded that the testimony of Attorney Schulz was credible and his March 24, 1999 correspondence persuasive with respect to the State’s intent to waive its lien in exchange for a credit or moratorium against future workers’ compensation benefits.3 The trial commissioner also determined that no evidence had been presented refuting the intent expressed in Attorney Schulz’ March 24, 1999 correspondence. The trial commissioner further concluded that the claimant’s third-party settlement in the amount of $104,672.91 included satisfaction of the $74,672.91 workers’ compensation lien, but then also determined that a moratorium or credit existed in the amount of $74,672.91.

The claimant filed a Motion to Correct which was denied in its entirety, and this appeal followed. On appeal the claimant asserts that the trial commissioner committed reversible error because her conclusions of law are contrary to her factual findings and to relevant statutory and/or case law. The claimant also avers that “the Commissioner erred by ruling that the Respondent is entitled to a $74,672.91 moratorium arising from a third party settlement, when it is undisputed that the Respondent was repaid its entire lien, and the Claimant received only $17,301.79 in net proceeds from the settlement.” Appellant’s Brief, p. 2.

We begin our analysis with a recitation of the well-settled standard of review this board is obliged to apply to a trial commissioner’s findings and legal conclusions.

The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences…. Nevertheless, where there are inconsistent factual findings and conclusions this board is often obligated to order a remand, as we are not authorized to make our own findings from conflicting facts…. (Citations omitted.)

Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004).

As discussed previously herein, the trial commissioner found the third-party settlement to have been in the amount of $104,672.91, of which $74,672.91 “represented the workers’ compensation lien.” Findings, ¶ E. However, the trial commissioner also determined, presumably predicated on her determination of the credibility of the testimony of Attorney Schulz and the persuasiveness of his correspondence dated March 24, 1999, that the amount of the moratorium or credit due the State of Connecticut was $74,672.91. Findings, ¶ F. Unfortunately, these two findings would appear to be mutually inconsistent. Moreover, our review of the record does not support the claimant’s contention that the ultimate disposition of the workers’ compensation lien is “undisputed.” We have previously remarked that “where the findings of a trial commissioner appear to be inherently inconsistent amongst themselves, or with the trier’s conclusions, the correct approach is to remand the matter for clarification.” Ortiz v. Highland Sanitation, 4439 CRB-4-01-9 (November 12, 2002). In addition, should the trier determine that the introduction of further evidence is necessary in order to ascertain the ultimate disposition of the workers’ compensation lien, it may be advisable to schedule additional hearings on that issue.

The claimant filed a Motion to Correct which was denied in its entirety. Insofar as the corrections sought pertain to findings which we have determined were erroneous, the trier’s decision to deny those corrections also constituted error.

Having found error, we accordingly remand this matter for clarification of the trial commissioner’s decision.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 We note that several motions for extension of time were granted during the pendency of this appeal. BACK TO TEXT

2 Section 31-293(a) C.G.S. (Rev. to July 1, 1993) states, in pertinent part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee…. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury…. Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from his employer or its workers’ compensation insurance carrier pursuant to the provisions of this chapter, the employer or insurance carrier shall have a lien upon any judgment received by the employee against the third party or any settlement received by the employee from the third party, provided the employer or insurance carrier shall give written notice of the lien to the party prior to such judgment or settlement.” BACK TO TEXT

3 This board has previously observed that “[i]n cases involving third-party recovery, we have recognized that it has long been settled law that a ‘moratorium’ exists wherein a claimant’s award from a third party tort action must be credited against the claimant’s workers’ compensation award.” Gallagher v. John A. Dudley, DMD, 5067 CRB-4-06-3 (March 20, 2007). In addition, in Enquist v. General Datacom, 218 Conn. 19 (1991), our Supreme Court stated, “our conclusion that an employer is entitled to a credit for unknown future benefits against the net proceeds of a third party recovery comports with other well established principles of workers’ compensation law.” Id., at 26. BACK TO TEXT

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