Wallin v. City of Danbury

The claimant was represented by Bernard Pitterman, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The employer was represented by Robert Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Trnpk., Vernon, CT 06066.

The respondent Second Injury Fund was represented by Ernie R. Walker, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141, who did not file a brief or appear at oral argument.

This Petition for Review from the November 19, 1993 Findings/Dismissal & Award of the Commissioner acting for the Seventh District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the trial commissioner’s November 19, 1993 decision denying the claimant’s request to reopen an approved voluntary agreement. In support of his appeal, the claimant contends that “changed conditions of fact” exist which support the reopening of the voluntary agreement. We affirm the trial commissioner.

The claimant in the instant case sustained a compensable injury to his back on June 23, 1989. The claimant underwent fusion surgery to his back on November 27, 1989. On November 27, 1990, the claimant signed a voluntary agreement for a twenty percent permanent partial impairment of the lumbar spine, which was approved by a commissioner on February 22, 1991. Subsequently, the claimant requested to reopen the voluntary agreement, and a formal hearing was held on that issue on April 14, 1993. The trial commissioner concluded that no changes of fact had occurred, nor was the agreement based upon inadvertence or mistake of fact, and thus denied the claimant’s request to reopen the voluntary agreement.

Section 31-315 C.G.S.1 provides the mechanism for reopening an approved stipulation. Section 31-315 permits modification of an award or a voluntary agreement if the claimant’s condition changes, or if changed conditions of fact arise which necessitate an alteration of the agreement to further the spirit of the Workers’ Compensation Act. Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541 (1992). We have stated that 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 an unreasonable result was reached. Gonzalez v. Electric Transport (Penske), 13 Conn. Workers’ Comp. Rev. Op. 6, 1729 CRB-1-93-5 (October 13, 1994). The determination of whether changed conditions of fact exist which support a reopening of a voluntary agreement is a question of fact. Knudsen v. GSD Inc., 8 Conn. Workers’ Comp. Rev. Op. 81, 829 CRD-8-89-3 (May 9, 1990). We will not disturb a factual determination unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In support of his appeal, the claimant argues that diagnostic tests show that the fusion sight of the claimant’s surgery of November 27, 1989 was not successful. However, the diagnostic tests which the claimant refers to were all issued prior to the approval of the voluntary agreement on February 22, 1991. (Claimant’s Brief, p. 3). In further support of his appeal, the claimant argues that he was temporarily totally disabled as of December, 1990. This allegation is not based upon a change of facts which occurred after the approval date, but rather was known to the claimant prior to the date of approval. (See Finding of Fact No. 9). We agree with the trial commissioner’s conclusion that the claimant relies on evidence which was known to the claimant at the time the voluntary agreement was approved. We further agree with the trial commissioner’s determination that the medical reports relied upon by the claimant do not constitute changed conditions because they existed prior to the date of approval. See Loehn v. Vallerie Transportation Service, 12 Conn. Workers’ Comp. Rev. Op. 267, 1544 CRB-7-92-10 (June 2, 1994) (Motion to reopen improperly granted where the medical evidence relied upon to support reopening existed prior to date of approval of voluntary agreement).

The commissioner properly concluded that the claimant did not have sufficient reason pursuant to §31-315 C.G.S. to reopen the approved voluntary agreement.

The commissioner ’s decision is affirmed, and the claimant’s appeal is dismissed.

Commissioners George Waldron and Amado J. Vargas concur.

1 Section 31-315 provides, in pertinent part, that a voluntary agreement may be modified “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 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.” BACK TO TEXT