State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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CRB Case Annotations re: Section 31-315

Modification of award or voluntary agreement.

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THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY

Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Van Fleet v. Balfour Beatty Construction, 5801 CRB-4-12-11 (March 17, 2014).

Claimant asserted various dental injuries were related to compensable injury. Trial commissioner found claimant’s evidence on issue unpersuasive. CRB affirmed on appeal. See also, Van Fleet, § 31-301 Appeal procedure; § 31-301 Factual findings; § 31-294d.

Garvey v. Atlas Scenic Studios, Inc., 5493 CRB-4-09-9 (February 14, 2012).

Claimant injured while being paid by two different theatrical firms. Trial commissioner found one firm (Atlas) solely liable but claimant entitled to concurrent employment benefits. Commissioner set date to calculate benefits at date of injury, not point months later when claimant deemed totally disabled. On appeal CRB upheld finding re: concurrent employment but reversed and remanded on date to set such benefits. Mulligan v. F.S. Electric, 231 Conn. 529 (1994) cannot be distinguished on the facts from the present case and stands for a “date of incapacity“ standard to set benefit levels. See also, Garvey, § 31-301 Appeal procedure; § 31-310.

Gilbert v. Ansonia, 5342 CRB-4-08-5 (May 14, 2009).

CRB affirmed trial commissioner’s decision to deny Respondents’ Medical Examination. Respondents alleged claimant, a volunteer fireman who was rendered a paraplegic when he fell from a ladder while fighting a fire, no longer satisfied the statutory conditions for collecting total incapacity benefits pursuant to § 31-307(c) C.G.S. Respondents contended that because medical reports indicated claimant’s paralysis was not complete and video surveillance showed claimant was able to walk and ambulate, trial commissioner’s refusal to authorize respondents’ medical examination constituted denial of due process. Trial commissioner found respondents had failed to challenge a prior trial commissioner’s finding in 2004 establishing claimant’s eligibility for permanent total incapacity benefits and also determined respondents had not adduced sufficient evidence of a change in claimant’s disability to warrant opening the voluntary agreement pursuant to § 31-315 C.G.S. See also, Gilbert, § 7-314a, § 31 294f, § 31 301. Factual findings, § 31-307.

Mohamed v. Domino’s Pizza, 5352 CRB-6-08-6 (April 22, 2009).

Respondents sought to void an executed stipulation and obtained an ex parte order voiding the stipulation. CRB held binding order granting such relief must occur following formal hearing. See also, Mohamed, § 31-297, § 31-298, § 31-301. Appeal procedure.

Jones v. Redding, 5223 CRB-7-07-4 (October 15, 2008).

Parties entered into two stipulated agreements to pay claimant heart and hypertension benefits pursuant to § 7 433c C.G.S. Following publication of Genesky v. East Lyme, 4600 CRB 8 02 12 (December 8, 2003), employer sought to modify awards pursuant to provisions of § 31 315 C.G.S. arguing that trier never had subject matter jurisdiction to approve the awards because provisions of § 7- 433c C.G.S. were not applicable to the Redding police department. Trier agreed both stipulated agreements were void ab initio but, per Salmeri v. Department of Public Safety, 70 Conn. App. 321 (2002), cert. denied, 261 Conn. 919 (2002), determined claimant’s initial incorrect selection of statutory remedy was irrelevant and, per DeMello v. Cheshire, 3633 CRB-8-97-6 (August 26, 1998), claimant’s Form 30C provided employer with sufficient notice of his application for benefits. Trier ordered parties to administer claim as if it had been brought pursuant to Chapter 568; trier also concluded respondent employer had improperly terminated payments and ordered further proceedings to determine amount of additional benefits due the claimant. CRB found conditions for modification pursuant to § 31 315 C.G.S. were not satisfied, in that publication of Genesky neither constituted a “changed condition of fact” nor warranted extension of equitable relief to respondents because of accident, mistake of fact, or fraud. CRB reversed and remanded. See also, Jones, § 7-433c, § 31-294c, § 31 296 (discontinuance of payments).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

Claimant did not meet criteria for modification of voluntary agreement. Fact that claimant was not represented by counsel during preparation and approval of agreement did not absolve her from its terms. See also, McMahon, § 31-301. Factual findings, § 31-301-4, 31-307, also cited at McMahon, § 31-294d.

Marandino v. Prometheus Pharmacy, 4986 CRB-1-05-8 (September 29, 2006).

Commissioner did not formally reopen former voluntary agreement prior to awarding benefits for total disability. CRB found no error. Section 31-308(b) benefits under prior agreement had been fully exhausted and parties had notice § 31-307 benefits were under consideration at the formal hearing. No prejudice to respondent occurred. See also, Marandino, § 31-301. Factual findings, § 31-307.

Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006).

Original Finding and Award was made after alleged employer did not appear at Formal Hearing. Respondent Second Injury Fund later discovered alleged employer denied employing claimant. This issue of subject matter jurisdiction can be raised at any time. If trier concludes injury did not occur in the course of employment, claim must be dismissed, See Del Toro v. Stamford, 270 Conn. 532, 543 (2004). Commissioner has power to reopen judgment under these circumstances to correct awards entered by mistake. Since issue of employment not actually litigated in previous hearing, no collateral estoppel exists. See also, Mankus, § 31-275(9), § 31-301. Factual findings.

Berry v. State/Dept. of Public Safety, 4866 CRB-4-04-9 (August 19, 2005).

CRB affirmed commissioner’s granting of claimant’s motion to present additional evidence when issue of jurisdiction arose after closing of the record but before issue was decided. See also, Berry, § 31-294c.

Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003).

Claimant raised several issues that were decided in prior proceedings. No showing made that circumstances had changed in such a way that voluntary agreement or prior award could be opened. See also, Krajewski, § 31-278, § 31-284b, § 31-290a, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-301-9, § 31-312, § 31-313. prior decisions at Krajewski, 15 Conn. Workers’ Comp. Rev. Op. 44, 2120 CRB-6-94-8 (November 28, 1995), § 31-308a; Krajewski, 11 Conn. Workers’ Comp. Rev. Op. 54, 1387 CRD-6-92-2 (April 1, 1993), § 31-290a.

Fiore v. House & Garden Shop, 4494 CRB-7-02-2 (February 28, 2003).

No basis under § 31-315 to reopen prior award, as claimant merely sought to retry facts. See also, Fiore, § 31-301. Factual findings. prior decision at Fiore, 3747 CRB-7-97-12 (April 5, 1999), § 31-301. Factual findings; § 31-301-9.

Quesada v. T.J. Germaine Tree Service, 4471 CRB-7-01-12 (January 17, 2003).

Employer moved to modify award, in which potential principal employer was found not to have control of premises on date of injury, thereby relieving it of any liability under § 31-291. Employer alleged changed circumstances, as pertinent evidence was not presented to trier at time of trial. Motion to open denied absent proof that said evidence was not then available. CRB affirmed. Significant evidence came in at formal hearings relevant to role of Sunshine Supply Co. as possible principal employer, and deposition of Sunshine Supply’s owner was admitted without objection. Given information available, parties could have sought presence of principal employer and/or property-owner at formal hearing. See also, Quesada, § 31-291.

Drew v. Sears Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002), appeal dismissed, A.C. 23094 (August 21, 2002).

CRB affirmed denial of motion to reopen stipulation where pro se claimant had shown neither changed condition of fact nor duress. Official record contained nothing to counter findings. See also, Drew, § 31-301. Appeal procedure, § 31-301-9.

Rodriguez v. State/Dept. of Correction, 4317 CRB-1-00-11 (October 23, 2001), rev’d, 76 Conn. App. 614 (2003).

Trier’s reopening of stipulation affirmed. Record did not establish mutual mistake of fact regarding inclusion of 1989 injury date in language of compromise, which was primarily intended to settle 1994 injury claim, and claimant did not testify that he failed to apprehend meaning of stipulation at time of approval hearing. However, counsel of record on 1989 hand injury claim was excluded from stipulation approval proceedings, and claimant never took necessary steps to officially replace him as counsel on that case. Stipulation invalidated because claimant’s attorney on 1994 claim lacked authority to settle 1989 claim. Appellate Court agreed that record was insufficient to establish mutual mistake of fact, but disagreed with CRB’s invalidation of stipulation due to non-participation of claimant’s prior attorney. Claimant possessed authority to enter into stipulation with or without attorney present, and his signature on stipulation was sufficient to make it valid.

Bergin v. State/Department of Correction, 4200 CRB-8-00-3 (August 23, 2001), aff’d, 75 Conn. App. 591 (2003), cert. denied, 264 Conn. 903 (2003).

Board found no error in trial commissioner’s denial of claimant’s Motion to Reopen. Claimant contended that trier decided only claimant’s § 5-145a claim, but failed to address her Chapter 568 claim. Board, however, found that trier dismissed both claims. See Bergin, § 5-145a and § 31-301. Appeal Procedure.

Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001).

CRB affirmed reopening of voluntary agreement and Form 36 where claimant was virtually illiterate and spoke very little English, and relied upon instructions of insurance company representative to sign forms whose nature he did not understand. “Mistake” in signing agreement not due to negligence of claimant. See also, Audi, § 31-298, § 31-301-9, § 31-296 voluntary agreements (discontinuance of payments), § 31-307. See prior decision Audi, 3418 CRB-3-96-9 (August 4, 1997), § 31-349 and also See subsequent decision Audi, 4311 CRB-3-00-10, 4624 CRB-3-03-2 (February 10, 2004), § 31-278, § 31-284(b), § 31-288, § 31-300.

Kudlacz v. Lindberg Heat Treating, 3407 CRB-8-96-8 (June 26, 2001), aff’d, 70 Conn. App. 559 (2002), cert. denied, 261 Conn. 927 (2002).

CRB affirmed trier’s decision vacating voluntary agreement that had been issued by employer Lindberg, as agreement was based upon mutual mistake of fact. Voluntary agreement listed injury as compression fracture at L2 and L3 with injury date of June 3, 1992. Claimant testified at formal hearing that June 3, 1992 injury occurred while working for United Parcel Service, not Lindberg. Moreover, trier found that claimant’s testimony was not credible, and thus concluded that claimant did not meet burden of proof that he sustained a compensable injury. See also, Kudlacz, § 31-298. prior decision at Kudlacz, 16 Conn. Workers’ Comp. Rev. Op. 214, 3407 CRB-8-96-8 (June 6, 1997), aff’d, 49 Conn. App. 1 (1998) (with dissenting opinion), rev’d, 250 Conn. 581 (1999), appeal reinstated, 3407 CRB-8-96-8 (July 21, 2000).

Ciocci v. Morrison Knudsen, Inc., 4244 CRB-1-00-5 (June 1, 2001).

Motion to modify average weekly wage and, ergo, compensation rate in voluntary agreement denied by trier. CRB affirmed. No mutual mistake of fact found by trier or CRB. Alternative argument resting on misapplication of law at time rate was set in voluntary agreement rejected, as subsequent changes in legal interpretation via Supreme Court decision are not retroactively applicable to non-pending cases. Also, no finding regarding necessary subordinate fact. See also, Ciocci, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-310.

Tomaszek v. Girard Motors, 4166 CRB-2-99-12 (February 23, 2001), aff’d, 70 Conn. App. 122 (2002).

CRB affirmed trier’s denial of claimant’s Motion to Open approved full and final stipulation. Claimant contended mental incompetence at the time he signed stipulation; however, trier found otherwise. See also, Tomaszek, § 31-301-9.

Gary v. State/Department of Correction, 4208 CRB-8-00-3 (January 4, 2001), rev’d, 68 Conn. App. 590 (2002).

Trier denied respondent’s Motion to Reopen, finding that respondent had accepted liability for claimant’s § 5-145a hypertension claim with August 10, 1993 date of injury, and had paid indemnity and medical costs for several years without investigating injury. In support of appeal, respondent argued that claimant’s notice of claim was untimely, and thus trier did not have subject matter jurisdiction over claim. No error. Board noted that trier found no evidence that claimant suppressed or withheld information, or misled respondent, and that information later found by respondent was easily discoverable and was not a newly discovered or changed condition of fact. As a result of respondent’s lack of diligence and inattention to claim investigation, claimant relied to his detriment on its actions and was not unjustly enriched. Thus, respondent was estopped from revoking acceptance of hypertension claim or seeking reimbursement. See also, Gary, § 31-301-4.

Gagne v. Tilcon Inc., 4031 CRB-3-99-3 (May 25, 2000).

CRB affirmed trier’s denial of claimant’s request to open approved stipulation for 1984 injury. Trier found that claimant’s multiple sclerosis, which was diagnosed in 1996, was not caused by his 1984 injury.

Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000).

Board affirmed trier’s decision allowing reopening of voluntary agreement to compensate claimant for increased permanent partial disability. See also, Saleh, § 31-279-3, § 31-298, § 31-300, § 31-301-9.

Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (January 13, 2000), aff’d, 64 Conn. App. 301 (2001), cert. denied, 258 Conn. 917 (2001).

CRB affirmed trier’s refusal to reopen award of attorney’s fees. No changed conditions of fact or mistakes were apparent within the meaning of § 31-315. See also, Prioli, § 31-278, § 31-290a, § 31-301. Appeal procedure, § 31-301-9, § 31-327. Subsequent ruling at Prioli, 3955 CRB-6-98-12 (October 16, 2000), § 31-301c.

Pantanella v. Enfield Ford, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001)(along with Case No. 3377).

See, Pantanella, § 31-299b, § 31-300, § 31-301. Factual findings. See also, Pantanella, § 31-298. Subsequent decision at Pantanella, 4220 CRB-1-00-4 (December 19, 2000), § 31-298, § 31-300. prior decision at Pantanella, 3377 CRB-1-96-7 (January 28, 1998), § 31-298, 31-299b, § 31-301. Factual findings, § 31-355(e).

Coppola v. L.G. DeFelice, Inc., 3850 CRB-3-98-6 (August 30, 1999).

CRB affirmed trial commissioner’s decision granting claimant’s Motion to Reopen an approved stipulation under which respondents had agreed to pay claimant $40,000 as a full and final settlement of his workers’ compensation claim. Trier found that at the time stipulation agreement was approved, none of the parties were aware that claimant had sustained brain damage, and claimant would not have agreed to the settlement if he had known of the brain injury.

Harris v. UTC/Pratt & Whitney, 3762 CRB-1-98-1 (February 23, 1999), aff’d, 56 Conn. App. 912 (2000)(per curiam), cert. denied, 253 Conn. 907 (2000).

Trier appropriately declined to reopen decision where claimant had already filed an appeal from that ruling with CRB. See also, Harris, § 31-294f, § 31-301-9. Additional evidence. prior decision at Harris, 15 Conn. Workers’ Comp. Rev. Op. 357, 3143 CRB-5-95-8 (June 26, 1996), § 31-275(17), § 31-298.

Chase v. Honeywell, Inc., 3717 CRB-1-97-11 (January 28, 1999), rev’d sub nom., O’Neil v. Honeywell, Inc., 66 Conn. App. 332 (2001), cert. denied, 259 Conn. 914 (2002).

CRB affirmed trier’s granting of Fund’s Motion to Reopen approved stipulation based upon equitable grounds. The stipulation had been approved at a time when Second Injury Fund had not been informed of the claimant’s death, and Fund would not have agreed to the approval if it had been so advised. Appellate Court noted that the stipulation approval hearing was held without notification of said hearing to the Fund, without any representative of the Fund present, and without informing the Fund of the claimant’s death. The court held that the trial commissioner exceeded his power by setting aside the approved stipulation on equitable grounds because there was no evidence that the Fund was prevented from making a defense by fraud, accident, mistake, surprise or improper management of the opposite party. Moreover, the court explained that neither the commission nor the claimant had a duty to inform the Fund of either the approval hearing or the claimant’s death after the agreement had been signed. Secola v. State/Comptroller’s Office, 3102 CRB-5-95-6 (February 26, 1997) distinguished.

Kent v. Pratt & Whitney, Inc., 3648 CRB-1-97-7 (October 13, 1998).

CRB affirmed trial commissioner’s denial of claimant’s Motion to Reopen. The claimant claimed negligence and (unsubstantiated) fraud on the part of his counsel and his treating physician. The claimant sought to reopen a 1994 Finding and Award from which he did not file a timely appeal. In order to address the merits of that decision, the claimant should have filed a timely appeal in 1994.

Mulligan v. NCH Corporation/Chemsearch Division, 3653 CRB-4-97-7 (September 17, 1998).

CRB affirmed trial commissioner’s decision to reopen approved stipulation where trial commissioner did not follow canvassing procedure or obtain a completed “Stipulation and What It Means” form before approval. Claimant subsequently evinced a lack of understanding of the effect of the stipulation on his long-term disability claim caused by the respondents’ failure to discuss that issue and by the imprecision of the stipulation itself.

Hyatt v. Milford, 3646 CRB-3-97-7 (August 28, 1998), aff’d, 57 Conn. App. 472 (2000), cert. denied, 254 Conn. 901 (2000).

See, Hyatt, § 7-433c.

Bowman v. Jack’s Auto Sales, 3622 CRB-8-97-6 (August 26, 1998).

Commissioner granted motion to reopen Finding and Award in light of medical evidence that the claimant’s doctor first obtained after the case was closed. CRB ruled that trier erred by reopening award simply because claimant’s doctor changed mind regarding causation, especially where claimant did not show that his doctor could not have proved causation some other way in 1993. (Miles, C., DISSENTING) Findings in trier’s award, standing unchallenged (respondents did not file Motion to Correct), are sufficient to support reopening of case under § 31-315. Trier’s conclusions merit deference. See also, Bowman, § 31-301. Appeal procedure.

Riedel v. F & F Concrete Corp., 3529 CRB-8-97-2 (July 24, 1998).

Claimant was pro se at the time he signed two voluntary agreements and had not yet obtained Dr. Becker’s opinion that his disability was due to a combination of two compensable injuries rather than the second one alone. This did not amount to a changed condition of fact or a mistake of fact as a matter of law, and the trial commissioner was within his authority to deny the claimant’s motion to open the voluntary agreements. Affirmed.

Czujak v. Bridgeport, 3535 CRB-4-97-2 (June 10, 1998), aff’d, 55 Conn. App. 789 (1999), cert. denied, 252 Conn. 920 (2000).

CRB discussed Supreme Court holding in Marone v. Waterbury, 244 Conn. 1 (1998), which states that an award may not be reopened because of a mistake of law as opposed to a mistake of fact. See also, Czujak, § 7-433c, § 31-300, § 31-301. Appeal procedure, § 31-307a. Subsequent decision at Czujak, 4371 CRB-4-01-3 (April 8, 2002), § 31-297, § 31-301(g).

Courtright v. State/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998).

No abuse of discretion for trial commissioner to decline to reopen claimant’s voluntary agreement. Claimant elected to receive benefits under § 5-142(a) instead of § 31-307, and did not offer evidence that circumstances had changed in any way, or that a mistake had been made. See also, Courtright, § 5-142(a), § 31-301-4. Correction of finding.

Aubin v. Union City Steel, 3463 CRB-7-96-11 (May 14, 1998).

CRB affirmed trial commissioner’s decision to grant claimant’s motion to set aside dismissal order, primarily relying on Murray v. Black Tie Limousine, 3306 CRB-3-96-3 (August 21, 1997). Claimant’s attorney had believed that formal hearing was rescheduled, and did not attend; respondents moved to dismiss, and trial commissioner granted that motion. One month later, claimant moved to set aside dismissal order, and commissioner granted that motion. See, Murray, infra.

Bailey v. Stripling Auto Sales, 3461 CRB-3-96-11 (April 9, 1998).

Trial commissioner did not err by dismissing claimant’s Motion to Reopen Finding and Award, which alleged that the previous trial commissioner was not competent to render a decision. The issue of another commissioner’s physical and mental fitness to hold office is beyond the subject matter jurisdiction of a trial commissioner. The evidence offered by the claimant was incapable of materiality in this forum. Discussion of § 51-51i(c) C.G.S., which places authority to review a commissioner’s competence with the Judicial Review Council. See also, Bailey, 15 Conn. Workers’ Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996). Also See subsequent Bailey, 4516 CRB-2-02-4 (May 8, 2003), § 31-298, § 31-307a.

Marriott v. Northington Builders, 3357 CRB-1-96-5 (November 7, 1997).

CRB affirmed the trial commissioner’s denial of the claimant’s request to reopen an approved stipulation. In support of his appeal, the claimant reiterated the contentions presented to the trier that the stipulation was entered into due to accident and mutual mistake. Specifically, the claimant contended that it was an abuse of discretion for the trial commissioner to deny his motion to reopen because the Fund’s discontinuance of health insurance premiums and the Fund’s reduction in weekly benefit checks caused a significant, unanticipated change in conditions.

Murray v. Black Tie Limousine, 3306 CRB-3-96-3 (August 21, 1997).

After trial commissioner dismissed case for failure of claimant’s attorney to appear and diligently prosecute claim, he suggested to claimant that he immediately file documents to reopen the matter. Nothing came forward, and the commissioner made a formal finding and dismissal. One month later, the claimant filed a motion to reopen the dismissal, and the commissioner granted it despite the respondents’ arguments that the trier’s jurisdiction terminated when the claimant failed to appeal his prior decision within ten days. CRB affirmed trier’s decision. Section 31-315 does not prohibit a commissioner from reopening a case when a default dismissal has been entered. Subsequent decision at Murray, 3899 CRB-3-98-9 (November 4, 1999), § 31-275(9), § 31-294d, § 31-307.

Stickney v. Sunlight Construction, Inc., 3205 CRB-6-95-11 (April 25, 1997), rev’d, 48 Conn. App. 609 (1998), aff’d, 248 Conn. 754 (1999).

Trier granted motion to substitute Commercial Union for Aetna as the liable insurer on this claim. Affirmed. Facts of case clearly showed that Commercial Union was on the risk at the time of the injury, and that Aetna (which had not received a premium) had accepted the claim by mistake and in good faith, not being aware of other coverage. Commercial Union had also paid some hospital bills on this claim, and had not shown actual evidence of prejudice. Fact that Aetna waited 7½ years to move to reopen the award did not categorically bar a § 31-315 motion, as the statute sets no time limit on a motion to reopen. Both parties made errors here, including failing to notify this commission of insurance changes pursuant to § 31-348. Decision to open agreement was within commissioner’s discretion, which was not abused. See also, Stickney, § 31-348. Appellate Court reversed on ground that CRB should not have reversed trier’s decision that he lacked jurisdiction over this issue in Stickney, 12 Conn. Workers’ Comp. Rev. Op. 364, 1738 CRB-6-93-5 (August 2, 1994).

Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (April 14, 1997).

Decision to open and modify a voluntary agreement falls within the discretion of the trial commissioner. At least one medical report existed stating that the claimant’s injury had stabilized, which supported the trier’s finding that she had reached maximum medical improvement. See also, Hines, § 31-301. Appeal procedure, § 31-308a.

Santora v. A.C.E.S., 2299 CRB-3-95-11 (February 26, 1997).

Motion to reopen award legally insufficient where it alleged neither changed conditions of fact, fraud, accident or mistake in the judgment. However, ambiguous ruling left disposition of original case unclear. See also, Santora, § 31-298 and § 31-349.

Perez v. Franklin Mushroom Farm, 3177 CRB-2-95-10 (January 24, 1997).

CRB affirmed decision of the trial commissioner which granted the claimant’s request to reopen an approved stipulation. In support of their appeal, the respondents contend that any misunderstanding or mistake regarding the terms of the stipulation occurred between the claimant and his attorney, but not between the parties. CRB explained that 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. In the instant case, the claimant contended that a significant change to the stipulation was made without his knowledge or consent.

Pinto v. General Signal Corp., 2277 CRB-5-95-1 (January 22, 1997), dismissed for lack of final judgment, A.C. 16874 (October 30, 1997).

After record had closed and parties had filed proposed findings, claimant obtained new counsel, who sought to reopen the formal hearing in order to introduce additional evidence. Trial commissioner granted that motion, stating that he had a right to reopen the case if he felt there was insufficient evidence to make a decision. CRB reversed; once record was closed and proposed findings were filed, commissioner did not have same discretion to reopen case that he would have before record was closed. Evidence that claimant sought to introduce was available at the first formal hearing; no good reason alleged to introduce further evidence. (Vargas, C., DISSENTING) (majority is overemphasizing procedural details. Commissioner has discretion under § 31-298 to accept more evidence if he thinks it helpful, and respondents alleged no prejudice from granting of motion to open).

Matey v. Dember, 3153 CRB-5-95-8 (January 10, 1997), aff’d in part and rev’d in part, 256 Conn. 456 (2001).

Fund filed two petitions for review from denial of Motion to Reopen, having failed to appeal from the Finding and Award itself. Errors that might have been assigned on that appeal are no longer open to review. Further, Fund cannot reargue jurisdictional issue addressed in CRB’s prior decision in this case (Matey, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988)). No error in denial of Motion to Reopen, as no changed conditions of fact, etc., alleged. Supreme Court reversed on these issues, holding that neither the commissioner nor the board had ever addressed in any substantive way the Fund’s claim that it was entitled to an offset for claimant’s civil suit settlement. In footnotes 9-11, the Supreme Court noted that there seemed to be no basis in the record for board’s assertion that the Fund had not raised these issues in a timely manner. See also, Matey, § 31-301. Appeal procedure and § 31-355(a). prior decision at Matey, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988), appeal dismissed, 210 Conn. 626 (1989)(per curiam), § 31-278, § 31-310. Subsequent decision at Matey, 3848 CRB-7-98-6 (July 7, 1999), aff’d in part and rev’d in part, 256 Conn. 456 (2001), § 31-355(b), Matey, 4488 CRB-7-02-2, 4532 CRB-5-02-5 (May 14, 2003), appeal dismissed for failure to comply with Supreme Court’s directive, 85 Conn. App. 198 (2004).

Marone v. Waterbury, 3117 CRB-5-95-7 (January 10, 1997), aff’d, 244 Conn. 1 (1998).

See, Marone, § 7-433c notes. Discussion of inapplicability of modification procedure to subsequent changes in case law.

Fabian v. Pitney Bowes, Inc., 3104 CRB-7-95-6 (December 23, 1996).

In dicta, the CRB addressed the issue of the claimant’s request to reopen an approved stipulation of his workers’ compensation claim for $82,500. The claimant filed a motion to reopen the stipulation on the basis that the claimant would not have entered into the stipulation if he had known that the proceeds would offset his pension benefits. The trial commissioner found that the employer’s pension plan specifically provided that the pension benefits would be offset by any workers’ compensation benefits, and that this provision contained in the pension plan was available to the claimant prior to the approval of the stipulation. The trial commissioner concluded that “there was no mutual mistake, fraud, or misrepresentation involved in reaching the stipulation....” The CRB affirmed the trial commissioner’s denial of the claimant’s motion to reopen the stipulation pursuant to § 31-315. See also, Fabian, § 31-301. Appeal procedure.

Infante v. Mansfield Construction, 3067 CRB-4-95-5 (December 18, 1996), aff’d, 47 Conn. App. 530 (1998).

Insurer sought to modify compensation rate after 6 years of making payments. Commissioner found no mutual mistake of fact, and declined to modify rate. Affirmed; no showing that finding was arbitrarily reached. See also, Infante, § 31-294d, and § 31-296.

Costa v. United Nuclear Corp., 16 Conn. Workers’ Comp. Rev. Op. 101, 2296 CRB-2-95-1 (November 20, 1996).

Trial commissioner was not precluded from considering Motion to Reopen simply because three of her earlier rulings in the case had been appealed. Policy of state is to recognize continuous jurisdiction over award by commissioner during the whole compensable period. Also, decision to open stipulation fell within discretion of trier of fact; commissioner here testified to circumstances indicating claimant understood terms of agreement. See also, Costa, § 31-297a and Rules of Professional Conduct.

Scalora v. Dattco Bus Co., 16 Conn. Workers’ Comp. Rev. Op. 28, 2059 CRB-1-94-5 (October 9, 1996), appeal dismissed, A.C. 16522 (December 31, 1996).

Trial commissioner’s decision not to reopen stipulation affirmed. Claimant executed affidavit stating that he understood he was still receiving treatment for dental problems, and would not be compensated for those future treatments. Commissioner was not required to accept claimant’s testimony that he and his wife understood doctor had “guaranteed” life of claimant’s dental splints. Whether stipulation was properly executed is question of fact, and commissioner found that prior commissioner had fully explained the terms of the stipulation to the claimant in his native Italian prior to approving it. Although review of the findings shows no testimony to indicate that commissioner actually spoke to the claimant rather than his wife, the claimant did sign an affidavit that demonstrated significant measures were taken to accommodate the claimant and insure his understanding of the stipulation. Also, allegation that claimant’s wife was incompetent to represent him not irrefutable; party alleging incapacity must meet burden of proof, and that was not done here. Affirmed.

Jaworski v. Four Seasons Limousine, 15 Conn. Workers’ Comp. Rev. Op. 438, 2200 CRB-7-94-11 (September 5, 1996).

CRB affirmed trial commissioner’s denial of claimant’s request to reopen a voluntary stipulation. The decision whether to open a stipulated agreement falls within the trier’s discretion and will be overturned only if such discretion was abused or if an unreasonable result was reached.

Petraroia v. City News & Tobacco, 15 Conn. Workers’ Comp. Rev. Op. 268, 2211 CRB-5-94-11 (June 14, 1996).

See, Petraroia, § 31-352.

Bruce v. Bert Miller Associates, 15 Conn. Workers’ Comp. Rev. Op. 47, 1872 CRB-1-93-10 (December 1, 1995).

See, Bruce, § 31-348.

Wallin v. Danbury, 14 Conn. Workers’ Comp. Rev. Op. 353, 1940 CRB-7-93-11 (September 22, 1995).

CRB affirmed commissioner’s denial of claimant’s motion to reopen an approved voluntary agreement. In support of his appeal, the claimant argued that diagnostic tests show that the fusion sight of the claimant’s surgery was not successful. However, the diagnostic tests which the claimant referred to were all issued prior to the approval of the voluntary agreement. Alleged change in conditions was based upon evidence which was known to the claimant at the time the voluntary agreement was approved.

Murphy v. West Haven, 14 Conn. Workers’ Comp. Rev. Op. 300, 2197 CRB-3-94-10 (September 11, 1995).

Commissioner ordered Fund to reimburse insurer for § 7-433c benefits paid to dependent widow under § 31-306. Subsequent decision in McNulty v. Stamford, 37 Conn. App. 835 (1995), held Fund not liable for § 7-433c benefits, as they are outside Workers’ Compensation Act. However, Fund filed a late appeal, and no supporting documents. Held, CRB overlooked poor appellate practice of Fund attorney, and construed appeal as motion to modify award based on changed conditions of fact under § 31-315. Remanded.

Fazzina v. Shepard Steel, 14 Conn. Workers’ Comp. Rev. Op. 253, 1831 CRB-1-93-9 (August 31, 1995).

Commissioner denied claimant’s motion to reopen an approved stipulation for the payment of an unpaid medical bill. The commissioner’s determination that claimant understood stipulation when he signed it is a factual determination which is supported by the record. The claimant in the instant case does not allege that a change of conditions has occurred, or that any new evidence has been discovered.

Southard v. Southard Development, 13 Conn. Workers’ Comp. Rev. Op. 348, 1891 CRB-4-93-11 (April 27, 1995).

Trial commissioner did not abuse discretion in denying respondents’ motion to reopen where insurer mistakenly entered into voluntary agreement even though insurance had been canceled on date of injury. Ten months had transpired between date of injury and request to reopen, and no change was alleged in the claimant’s condition, nor were changed conditions of fact alleged by insurer. See, Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180 (1923). No evidence presented that voluntary agreement obtained fraudulently or mistakenly in a manner unconnected with CNA’s own inattention to correct date of injury. See also, Southard, § 31-298.

Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 1608 CRB-1-92-12 (February 6, 1995).

“Changed factual condition” consisted of post-settlement revision of medical report. As commissioner saw both reports and expressly stated that original report disposed of issue, commissioner was not required to reopen settlement agreement. See also, Knoblaugh, § 31-301. Factual findings, § 31-349, and § 31-355(b).

Gonzalez v. Electric Transport (PENSKE), 13 Conn. Workers’ Comp. Rev. Op. 6, 1729 CRB-1-93-5 (October 13, 1994).

Trier erred in denying motion to reopen stipulation based on mutual mistake where claim was settled absent knowledge of an outstanding medical bill. See also, Gonzalez, § 31-327.

Vigneri v. Utility Industrial Company, 12 Conn. Workers’ Comp. Rev. Op. 402, 1433 CRB-2-92-6 (September 9, 1994).

Absent a request by any party the trial commissioner has the power to reopen and modify a voluntary agreement after notice and hearing and evidence presented. See also, Vigneri, § 31-299b and § 31-301. Appeal procedure.

Santiago v. Metropolitan Insurance Co., 12 Conn. Workers’ Comp. Rev. Op. 388, 1631 CRB-6-93-1 (September 4, 1994), appeal dismissed, (February 3, 1995).

CRB held evidence before trier was of such character and force that it was proper for the trial commissioner to vacate his earlier approval of an uncontested Form 36. See also, Santiago, § 31-296 and § 31-307.

Stickney v. Sunlight Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 364, 1738 CRB-6-93-5 (August 2, 1994), rev’d, 48 Conn. App. 609 (1998), aff’d, 248 Conn. 754 (1999).

On remand trier must address whether voluntary should be reopened to substitute potentially liable insurer by addressing merits of the claim and equitable defenses raised. Reversed by Appellate Court, which held that the trial commissioner lacked subject matter jurisdiction over what was essentially an issue of contract law that did not implicate the rights of the injured employee. See also, Stickney, § 31-278, and § 31-348. Subsequent decision at, Stickney, 3205 CRB-6-95-11 (April 25, 1997), § 31-348 and this section.

Loehn v. Vallerie Transportation Service, 12 Conn. Workers’ Comp. Rev. Op. 267, 1544 CRB-7-92-10 (June 2, 1994).

Reversed and remanded. Commissioner without authority to grant motion to modify voluntary agreement where documented evidence to support claim to modify agreement predates commissioner approval of said agreement. See also, Loehn, § 31-349.

Freeman v. Hull Dye & Print, 12 Conn. Workers’ Comp. Rev. Op. 259, 1516 CRB-5-92-9 (June 2, 1994), rev’d on other grounds, 39 Conn. App. 717 (1995).

Evidence supports trier’s findings and conclusion, within reasonable medical probability, that decedent was exposed to Benzedrine in the workplace during his employment which exposure was a substantial factor in causing his bladder cancer and subsequent death. See also, Freeman, § 31-294c.

Soares v. Glass Industries, 12 Conn. Workers’ Comp. Rev. Op. 189, 1377 CRB-3-92-1 (May 4, 1994).

CRB held proper vehicle to open voluntary where argument is made that benefits were paid by mistake is a motion to open. See also, Soares, § 31-297, § 31-300 and § 31-307b.

Moxon v. State/Board of Trustees, Regional Community Colleges, 12 Conn. Workers’ Comp. Rev. Op. 246, 1485 CRB-1-92-8 (March 29, 1994), aff’d, 37 Conn. App. 648 (1995).

Record supports finding that calculation of compensation rate previously approved in voluntary agreement was correct. Time lost for medical visits and receipt of sick pay for time lost from work due to chemical exposure supports trier’s conclusion regarding date of injury, first incapacity to work, and applicable compensation rate. See also, Moxon, § 31-295 and § 31-310.

Mongillo v. Terminal Taxi Co., 12 Conn. Workers’ Comp. Rev. Op. 197, 1455 CRB-3-92-7 (March 7, 1994).

Remanded as trier erred in ruling on claimant’s motion to reopen stipulation where claimant contended trier failed to explain said document before it was executed and approved. CRB held trier should have disqualified himself from ruling on motion to reopen as it was clear claimant was challenging the fact that the trier failed to explain the stipulated agreement.

Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. 255, 1226 CRD-4-91-5 (January 13, 1993), rev’d, 33 Conn. App. 695 (1994), rev’d, 231 Conn. 469 (1994), aff’d on remand, 37 Conn. App. 266 (1995).

Claim for increased disability benefits was not barred by approved stipulation as said stipulation only refers to settlement of claims for occupational disease occurring between 1947 and 1974. Occurrences after 1974 constituted new evidence of a new injury which concerned parties other than those participating in the prior settlement. See also, Muldoon, § 31-275(1), § 31-275(15), § 31-299b and § 31-284(a). Subsequent decisions.

Chemero v. Westreco, Inc., 10 Conn. Workers’ Comp. Rev. Op. 142, 1081 CRD-7-90-7 (June 29, 1992).

Where finding is clear as to basis for conclusion and additional evidence proffered is merely cumulative trier’s denial of claimant’s Motion for Articulation and Motion for Modification will not be disturbed. See also, Chemero, § 31-296 and § 31-301. Factual findings.

Nasinka v. Ansonia Copper and Brass, 10 Conn. Workers’ Comp. Rev. Op. 85, 1153 CRD-5-90-12 (April 20, 1992).

See, Nasinka, § 31-301. Factual findings and § 31-301-9. Additional evidence.

Gillette v. State/J.B. Gates Correctional Unit, 10 Conn. Workers’ Comp. Rev. Op. 69, 1145 CRD-2-90-11 (March 26, 1992), vacated and reissued (July 8, 1992).

No grounds exist under § 31-315 for modification of a voluntary agreement for claim of state employee to receive benefits pursuant to § 5-142(a). Trier found claimant was not in the actual performance of guard duties at the time of his injury. See also, Gillette, § 5-142(a) and § 31-296.

Keating v. Allegheny Ludlum Steel Corp., 10 Conn. Workers’ Comp. Rev. Op. 28, 1102 CRD-3-90-8 (January 13, 1992).

CRB affirmed trier’s ruling which reopened a voluntary agreement executed in 1985 for permanent partial disability of the back and ordered temporary total benefits be paid for said period in question as record indicates that at the time the 1985 agreement was executed and approved it was not an unreasonable inference claimant was anticipating returning to work. See, Vetre v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 20, 221 CRD-6-83 (November 14, 1985). Keating, remanded under § 31-349. See also, Keating, § 31-294d.

Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (December 27, 1991).

Remanded as employment contract provided for time and a half for each Sunday worked and two (2) percent commission on sales. Computations on Voluntary Agreement derived from inconsistent or mistaken facts. See also, Fiore, § 31-296 and § 31-310.

Lagueux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 876 CRD-6-89-6 (August 13, 1991).

CRD limited to review of record before trial commissioner. Any offer of new evidence which would arguably alter the trier’s decision should be made in accordance with § 31-315. See also, Lagueux, § 31-307, § 31-308a.

Ericson v. Perreault Spring & Equipment Company, 9 Conn. Workers’ Comp. Rev. Op. 171, 1008 CRD-5-90-4 (July 17, 1991).

Trial commissioner’s ruling granting claimant’s request to reopen voluntary agreement to allow evidence on whether certain profit sharing sums paid at year end should have been included in the computation of his average weekly wage provided by § 31-310 will not be disturbed as § 31-315 provides a commissioner with ongoing jurisdiction during the whole compensation period applicable to the injury in question. See also, Ericson, § 31-310.

Castro v. General Electric, 9 Conn. Workers’ Comp. Rev. Op. 73, 904 CRD-6-89-8 (February 20, 1991).

Voluntary Agreement approved for specific benefits subject to modification where claimant remained totally disabled. See also, Castro, § 31-307.

Tutsky v. Y.M.C.A. of Greenwich, 9 Conn. Workers’ Comp. Rev. Op. 29, 902 CRD-7-89-8 (January 17, 1991), aff’d, 28 Conn. App. 536 (1992).

Motion to Reopen denied where evidence proffered by claimant would not change ultimate conclusion.

Knudsen v. GSD, Inc., 8 Conn. Workers’ Comp. Rev. Op. 81, 829 CRD-8-89-3 (May 9, 1990).

Motions to Reopen governed by § 31-315. Determination of whether changed conditions of fact exist is a conclusion to be drawn by the trier. See, Velilla, infra.

Velilla v. UTC/Hamilton Standard Div., 8 Conn. Workers’ Comp. Rev. Op. 66, 926 CRD-1-89-10 (April 17, 1990).

Motion To Reopen. Trial commissioner’s denial of Motion to Reopen will not be disturbed where the new evidence which claimant sought to proffer was a decision of a Social Security Administrative Law Judge as to supplemental Social Security benefits. See also, Velilla, § 31-301. Factual findings.

Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 761 CRD-7-88-8 (February 5, 1990).

Section 31-308a benefits when construed with § 31-307 and § 31-309 cannot exceed basic compensation rate, § 31-315. Decision modifiable where trial commissioner without jurisdiction to order payments in excess of those permitted by statute.

Garfitt v. Pfizer, Inc., 7 Conn. Workers’ Comp. Rev. Op. 62, 742 CRD-3-88-6 (August 11, 1989).

Additional permanency award justified where change of circumstance supported by medical evidence.

Chrystal v. Richardson Construction Co., 7 Conn. Workers’ Comp. Rev. Op. 36, 728 CRD-2-88-4 (July 25, 1989).

Modification of benefits. Motion to Reopen Stipulation denied where claimant conceded there had been no fraud or misrepresentation nor did claimant demonstrate a basis for reopening pursuant to § 31-315.

Davis v. Al’s Auto Service, 7 Conn. Workers’ Comp. Rev. Op. 3, 612 CRD-6-87 (June 9, 1989).

Affirmed trial commissioner’s denial of respondent’s Motion to Reopen under § 31-315 where respondent had opportunity to present evidence at earlier hearing.

Tutsky v. Y.M.C.A. of Greenwich, 6 Conn. Workers’ Comp. Rev. Op. 167, 543 CRD-7-87 (June 5, 1989), no error, 21 Conn. App. 806 (1990).

Motion to Reopen denied; evidence supports conclusions of trial commissioner. See, Fair, § 31-301. Factual findings.

Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989), no error, 212 Conn. 441 (1989).

Trial commissioner’s ruling denying respondents’ Motion to Reopen affirmed where new testimony would be merely cumulative. See also, Besade, § 31-275(1), § 31-301(f)[formerly 31-301(b)], § 31-307 and subsequent decision at Besade, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (February 28, 1994), aff’d, 37 Conn. App. 903 (1995).

Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. 64, 550 CRD-7-87 (December 1, 1988).

See, Murdock, § 31-301-9. Additional evidence.

Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988).

Earlier stipulation did not preclude finding as to increased disability due to TMJ syndrome.

Imbrogno v. Stamford Hospital, 5 Conn. Workers’ Comp. Rev. Op. 99, 610 CRD-8-87 (June 9, 1988).

Motions to Modify and or Reopen must provide support as to elements provided in statute. Commissioner’s denial of motion affirmed.

Bjelka v. Norwalk Hospital, 5 Conn. Workers’ Comp. Rev. Op. 21, 370 CRD-7-84 (March 28, 1988).

CRD held evidence uncovered in a federal proceeding subsequent to hearings in instant matter and which tended to show asbestos exposure at another employer’s facility was grounds to reopen.

Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (January 22, 1987).

New evidence showing increased incapacity would arguably be grounds for opening and modifying award.

Tomkinson v. Stockwell, 3 Conn. Workers’ Comp. Rev. Op. 101, 218 CRD-4-83 (November 28, 1986).

Motion to Reopen denied where respondents claim of no receipt of hearing notices was disputed by signed mailing return receipts.

Murphy v. West Haven, 3 Conn. Workers’ Comp. Rev. Op. 88, 126 CRD-3-82 (November 13, 1986).

To modify or open award statutory requirements must be satisfied.

Wiktor v. Connecticut Stamping & Bending, 3 Conn. Workers’ Comp. Rev. Op. 57, 297 CRD-6-84 (May 1, 1986).

To comply with statute’s requirements some evidence of changed conditions must be demonstrated.

Velilla v. UTC/Hamilton Standard Div., 3 Conn. Workers’ Comp. Rev. Op. 35, 416 CRD-1-85 (February 19, 1986).

Modification of award requires evidence of change of circumstances.

Vetre v. New Britain, 3 Conn. Workers’ Comp. Rev. Op. 20, 221 CRD-6-83 (November 14, 1985).

Modification of award permitted where claimant’s capacity for gainful employment changed.

Kevorkian v. Peter Paul, Inc., 2 Conn. Workers’ Comp. Rev. Op. 26, 121 CRD-5-82 (July 11, 1983).

Statutory requirement for modification held not applicable where voluntary agreement date and date of disability differ.

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