State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Krol v. A. V. Tuchy, Inc.

CASE NO. 5562 CRB-4-10-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 1, 2011

RUSSELL KROL

CLAIMANT-APPELLANT

v.

A. V. TUCHY, INC.

EMPLOYER

and

ARROWPOINT CAPITAL CORPORATION f/k/a ROYAL & SUNALLIANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Laurence V. Parnoff, Esq., 3392 Huntington Road, Stratford, CT 06614.

The respondents were represented by Brian E. Prindle, Esq., P.O. Box 1208, Manchester, CT 06045.

This Petition for Review from the June 8, 2010 Finding and Denial of the Commissioner acting for the Fourth District was heard December 17, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Denial which denied his motion to reopen a previously executed settlement agreement in this matter. The claimant bases his argument on the fact that a related federal case was dismissed based on what the claimant charges were misrepresentations made in that forum as to the intent of the settlement agreement. The trial commissioner found respondents’ counsel in the workers’ compensation matter did not know of the alleged misrepresentation or participate in the alleged misrepresentation. He further determined the settlement agreement accurately memorialized the agreement between the parties and it had not been obtained by misrepresentation, accident or mistake. Therefore, the trial commissioner decided grounds did not exist pursuant to § 31-315 C.G.S. to reopen the settlement agreement. This decision was based on a determination of fact which an appellate panel cannot second-guess. We affirm the Finding and Denial and dismiss this appeal.

The commissioner found the following facts after the completion of the formal hearing. The claimant had suffered a work related injury in 1998 and while the respondents had accepted the injury and paid benefits, a voluntary agreement had not been approved for the injury. The Law Firm of Maher & Williams represented the respondents in the workers’ compensation action and at an informal hearing in August of 2005 the parties discussed settlement of the case. The claimant commenced a court action against the respondent-employer’s insurance carriers, Royal & SunAlliance in state court in January 2006. The action was moved to federal court in March 2006. The respondents, in the federal action, were represented by the law firm of Halloran & Sage. In July 2006 the claimant amended his complaint and included among his averments that the respondents had violated § 31-294d C.G.S.(d)(a)(1) by not providing necessary medical care. The complaint also alleged intentional and negligent infliction of mental distress and a violation of the Connecticut Unfair Insurance Practices Act.

On April 21, 2006, counsel for the respondents in the workers' compensation claim, James L. Sullivan from Maher & Williams, forwarded a proposed settlement agreement to claimant’s counsel. The cover letter stated that a contingency prior to executing the agreement was for the claimant to withdraw his “bad faith” suit, and such a provision was included in the terms of the agreement. The parties discussed settlement at an informal hearing held on June 19, 2006. Claimant’s counsel sent a letter dated November 28, 2006 to Attorney James Moran at Maher & Williams which indicated the claimant would only execute a settlement agreement for his workers’ compensation claim if it did not require a withdrawal of the pending federal lawsuit.

At a hearing held on December 5, 2006, Commissioner Charles Senich approved a stipulated agreement entered into between the parties. The stipulated agreement provided a payment to the claimant in the amount of $79,150.00 as a “full accord and satisfaction” of the workers' compensation claim. Finding, ¶ 12. The agreement said it was a full and final discharge of all claims under the Workers’ Compensation Act and further stated it was “not induced or entered into by fraud, mistake, accident or duress on the part of either party.” Finding, ¶ 13-14. The stipulated agreement did not include any language indicating that the claimant had to withdraw his civil action as a necessary condition of the agreement; and the commissioner’s notes indicated that the agreement was explained fully to the parties and that it was understood prior to the commissioner’s approval. Finding, ¶ 15-16.

Following execution of this agreement, on January 10, 2007, the Federal District Court dismissed three counts from the claimant’s complaint asserting that the Connecticut Workers’ Compensation Act was the exclusive remedy for those claims. On March 14, 2007 counsel for the respondents moved for summary judgment on the other two counts of the claimant’s federal lawsuit, asserting that the settlement agreement constituted a full release of those claims. Judge Vanessa Bryant of the U.S. District Court granted this motion for summary judgment on October 22, 2007, stating “the language of the settlement agreement is clear and unambiguous” in that it “released Royal from all claims under the Connecticut Workers’ Compensation Act.” The claimant appealed this ruling, but on April 28, 2009 the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s decision “de novo” finding the claims in the federal complaint were either barred by the exclusivity provisions of the Workers’ Compensation Act or were released in the plain text of the settlement agreement.

The claimant did not testify at the formal hearing to consider reopening the settlement agreement. Instead, an affidavit was entered explaining that the claimant rejected the original settlement offer due to the inclusion of language requiring him to withdraw the federal action. The respondents represented that notwithstanding the negotiations over the settlement agreement, the execution of this agreement did not remove the ability of the respondent in the civil action to make legal arguments in support of their defense. Attorney Moran testified for the respondents at the formal hearing and said the initial discussions centered on language which would require the claimant to withdraw the lawsuit as consideration for payment under the settlement agreement. He said another attorney at Maher & Williams, Maureen Driscoll, had discussed this issue with an adjuster for Royal Insurance, Eloise Fioravanti. Later, he had spoken to Ms. Fioravanti himself and obtained an agreement to remove the condition precedent from the settlement agreement. Attorney Moran said he did not have any conversations with attorneys from Halloran & Sage regarding the federal lawsuit but understood those attorneys were in contact with Ms. Fioravanti. No representative of Halloran & Sage testified at the formal hearing. Attorney Moran further testified that while he was aware of the federal lawsuit, he was unfamiliar with the specifics of the suit and referred to it as a “bad faith suit.” He further testified that a “290c claim” was not referenced in the settlement agreement. He said he knew the claimant could continue to pursue his court case after his compensation claims were settled.

Based on these facts the trial commissioner concluded the respondents initially wanted the claimant to withdraw the federal court action as consideration for executing the settlement agreement but this provision was removed from the final draft and “the removal of this provision was fairly negotiated between the parties.” Conclusion, ¶ D. He further concluded that the approved December 5, 2006 settlement agreement “does not contain language requiring the claimant to withdraw his civil action. The agreement also does not contain any prohibition against the respondents from legally defending the civil action.” Conclusion, ¶ E. The trial commissioner concluded “the language in the settlement was clear and unambiguous” and “no evidence presented that the settlement agreement was attained pursuant to any mutual mistake or accident.” Conclusion, ¶ K. He further concluded “there was no evidence presented of that the Respondent committed any fraud or misrepresented any material fact in order to obtain the settlement agreement.” Conclusion, ¶ L. He found the testimony of Attorney James Moran to be credible, Conclusion, ¶ M, and that no evidence was presented that as consideration for the settlement agreement the respondents agreed not to legally defend against the pending civil action. Conclusion, ¶ N. Based on these conclusions the trial commissioner determined the claimant failed to meet his burden under § 31-315 C.G.S. to reopen the settlement agreement, finding no fraud or mutual mistake had occurred, and denied the claimant’s request.

The claimant filed a Motion to Correct seeking 50 separate corrections to the Finding and Denial. The Motion was denied in its entirety. The claimant has now pursued the present appeal. The gravamen of his appeal is based on his belief that the respondents’ conduct herein constituted “a fraud on the court” as the attorneys in the compensation claim acted in an inconsistent manner with the respondents’ attorneys in the federal court action. Specifically, he argues that the “bad faith” claim in the federal court action was based on a statute (§ 31-290c C.G.S.) which could not be waived in a settlement agreement for the claimant’s compensable injuries. Claimant’s Brief, pp. 12-13.

The difficulty with this argument is that it essentially argues that the federal tribunal erred in their decision to dismiss the claimant’s court action by reaching an erroneous conclusion of law as to the scope of the settlement agreement. Clearly, we lack jurisdiction to pass judgment on the conduct of counsel in the federal case or to correct any judicial errors alleged to have occurred in that tribunal. The only issue this Commission has jurisdiction to consider is whether the agreement approved by this Commission was procured improperly or constitutes a mutual mistake by the parties.1

We most recently revisited the standard for applying . 31-315 C.G.S. in Macon v. Colt’s Manufacturing, 5505 CRB-1-09-10 (September 27, 2010). Our reasoning in Macon is applicable to this case.

The trial commissioner concluded the claimant failed to establish that the Stipulation was procured improperly or the result of mutual mistake. We most recently discussed the statutory requirements under § 31-315 C.G.S. to reopen a Stipulation in Mohamed v. Domino’s Pizza, 5352 CRB-6-08-6 (April 22, 2009). In Mohamed, we cited the Appellate Court holding in O’Neil v. Honeywell, 66 Conn. App. 332, 337-38 (2001).
Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed. . . Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. . . . Third, [t]he 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. Id.
Based on the argument presented by the claimant the only issue under which the trial commissioner could offer relief to the claimant was under the theory that the initial Stipulation was voidable. As we pointed out in Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008), citing, Marone v. City of Waterbury, 244 Conn. 1, 17 (1998) “[t]his provision extends the commission’s power to open and modify judgments to cases of accident, to mistakes of fact, and to fraud” [Internal citations omitted]. The trial commissioner did not believe the claimant was misled prior to executing the Stipulation and the claimant specifically testified the respondents had not acted improperly at the time the agreement was executed. Therefore, unlike Mankus, supra, the record is devoid of any argument the original action of the Commission was a result of misrepresentation or artifice by the part of the adverse party.

Macon, supra.

The trial commissioner herein heard testimony from the attorney for the respondent as to the circumstances which led to the execution of the 2006 settlement agreement. The trial commissioner found Attorney Moran a credible witness. That is his prerogative as the trier of fact. Burton v. Mottolese, 267 Conn. 1, 40 (2003). Based on Attorney Moran’s testimony the trial commissioner found that the respondents did not procure the settlement agreement through fraud or misrepresentation. We do not condone the use of misrepresentation or artifice by claimants or respondents before this Commission, Mankus, supra, and the trial commissioner reached a factual determination that such conduct had not occurred in this case. Such a factual determination may only be reversed by an appellate court if it is found to be unsupported by the evidence or otherwise “clearly erroneous.” Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006). We are not persuaded the trial commissioner made such an erroneous factual determination.

The settlement agreement could have been reopened if the claimant had persuaded the trial commissioner that it had been executed as a result of a mutual mistake. As the Supreme Court pointed out in Marone, supra, such relief is generally limited to mistakes of fact. Id., 17-18. A mistaken expectation as to how another tribunal would apply the law would not be within the scope of relief under § 31-315 C.G.S. Id. The trial commissioner specifically found that the settlement agreement contained no limitation on the respondents’ ability to litigate the pending federal court action. Our precedent disfavors revisiting approved agreements to correct such ambiguities after a party decides they failed to properly address an issue at the time the agreement was drafted. See Ouelette v. New England Masonry Company, 5424 CRB-7-09-2 (January 14, 2010) and Milewski v. Town of Stratford, 5483 CRB-4-09-7 (July 20, 2010). As to the issue as to whether a mistake of fact occurred in this matter it is a factual decision for the trial commissioner to resolve, Macon, supra, and we must defer to the commissioner’s judgment. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

We finally turn to the issue of the Motion to Correct. The trial commissioner denied the motion in its entirety. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id. We are not persuaded that the trial commissioner erred in his determination, given the “abuse of discretion” standard an appellate panel must apply to such decisions. In re Shaquanna M., 61 Conn. App 592, 603 (2001). The claimant, in this case, sought to substitute their view of the facts for the conclusions found by the trial commissioner, and pursuant to D’Amico v. State/Department of Correction, 73 Conn. App. 718, 728 (2002) the trial commissioner properly denied this motion.

We find no error and affirm the Finding and Denial. The appeal is dismissed.

Commissioners Nancy E. Salerno and Stephen B. Delaney concur in this opinion.

1 The respondent also argues that the decision in the federal tribunal constitutes “collateral estoppel” over the issues in the state forum. Respondents’ Brief pp.16-18, citing Sellers v. Sellers Garage, 110 Conn. App. 110 (2008). We decline to address this theory of the case herein as it was not relied upon by the trial commissioner in his decision. BACK TO TEXT

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