Fecto v. William Kelly/Terrance Kelly d/b/a Kelly’s Contracting

CASE NO. 1921 CRB-1-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 26, 1995

JOHN FECTO

CLAIMANT-APPELLANT

v.

WILLIAM KELLY/TERRANCE KELLY d/b/a KELLY’S CONTRACTING

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The parties agreed to waive oral argument before the Compensation Review Board.

The claimant proceeded pro se on appeal. He was represented at trial by Angelo P. Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794.

The respondent employer was represented by Robert Wenten, Esq., Wenten, Rosenstein & Magistrali, 75 Park Place, P. O. Box 568, Winsted, CT 06098.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 8, 1993 Finding and Award of the Commissioner acting for the First District was considered by a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant petitioned for review from the December 8, 1993 Finding and Award of the Commissioner for the First District, in which the commissioner determined that the claimant was entitled to reasonable medical expenses, but not entitled to total or partial disability benefits.1 The claimant then agreed to withdraw his appeal in an Agreement and Petition to Compromise and Order dated March 4, 1994. Under the terms of that stipulation, the claimant agreed to accept $1,700 from the respondents in full accord and satisfaction of his claims. The claimant received a check for $1,451.13 and his attorney received a check for $248.57, both dated March 7, 1994. Both checks were cashed, and the claimant signed a Withdrawal of Appeal form dated March 7, 1994. The commissioner approved the agreement on March 22, 1994.

On March 30, 1994 the parties were notified that the Workers’ Compensation Commission could not accept the withdrawal of appeal, as the stipulation failed to reflect the date signed by the parties. The claimant indicated in a letter dated July 13, 1994 that he no longer wished to withdraw his appeal. He does not dispute the respondents’ allegation that he has kept the money paid pursuant to the settlement, and does not deny that he has refused to indicate the date that he signed the stipulation. The respondent-employer has also filed a sworn affidavit from its attorney stating that the claimant signed the stipulation on March 2, 1994.

To allow the claimant’s conduct in this case to go unnoticed would do substantial injustice to the respondents, who entered into a settlement agreement with the claimant and paid the claimant accordingly. The fact that a technical defect prevented this Board from allowing withdrawal of the claimant’s appeal does not give the claimant license to ignore his obligation under the settlement and keep the respondents’ money at the same time. We refuse to condone such conduct. The claimant is hereby ordered to date his signature on the stipulation, or else to return the full amount paid by the respondents along with ten percent interest from the date of receipt of the money.

The claimant’s appeal is dismissed. If the claimant chooses not to date the stipulation and repays the respondent in full within ninety days of the date of this opinion, he may initiate another appeal of the commissioner’s decision with this Board. Beyond such date, the dismissal of the claimant’s appeal will be deemed final.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The claimant suffered a compensable injury on or about July 18, 1986 while employed by the respondent. See Fecto v. Kelly’s Contracting, 9 Conn. Workers’ Comp. Rev. Op. 256, 257, 1027 CRD-5-90-5 (Nov. 27, 1991). BACK TO TEXT