Fabian v. Pitney Bowes, Inc.

The claimant was represented by Ernest L. Josem, Esq., 96 East Ave., Norwalk, CT 06851, who did not appear at oral argument.

The employer was represented by Michael Kaelin, Esq., Kelley, Drye & Warren, 2 Stamford Plaza, 281 Tresser Blvd., Stamford, CT, 06901-3229.

The insurer was represented by Scott Wilson Williams, Esq. and James D. Moran, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the June 13, 1995 Finding and Order of the Commissioner acting for the Seventh District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a timely petition for review from the June 13, 1995 Finding and Order of the trial commissioner acting for the seventh district. The respondents filed a motion to dismiss the claimant’s appeal based upon the late filing of the reasons of appeal. On January 26, 1996, the Compensation Review Board issued a ruling denying the motion to dismiss. Subsequently, the respondents filed a motion for reconsideration of the ruling on the motion to dismiss. In support of their motion for reconsideration, the respondents contend that the board erroneously determined in the denial of the motion to dismiss that the respondents had filed an untimely motion to dismiss. Specifically, the respondents contend that their motion to dismiss was filed on July 13, 1995 rather than July 17, 1995. We agree.

In the instant case, the claimant filed a timely petition for review on June 23, 1995 and filed his reasons of appeal on July 12, 1995. The claimant was required to file his reasons of appeal on or before July 3, 1995, pursuant to Section 31-301-21 of the Connecticut Agency Regulations. Thus, pursuant to Practice Book § 40562 the respondents were required to file their motion to dismiss on or before July 13, 1995. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987) (where an appellee fails to file the motion to dismiss within ten days following the defect the motion to dismiss comes too late and the defect is deemed waived).

The board erroneously stated in the January 26, 1996 ruling that the respondents filed their motion to dismiss on July 17, 1995. Upon reconsideration, it is clear that the respondents’ motion to dismiss was timely filed on July 13, 1995. The motion to dismiss the claimant’s appeal is granted. See Lennon v. Genest Subaru Motors, 13 Conn. Workers’ Comp. Rev. Op. 63, 1589 CRB-5-92-12 (Dec. 28, 1994); Harper v. Hartford, 13 Conn. Workers’ Comp. Rev. Op. 58, 1600 CRB-1-92-12 (Dec. 27, 1994). In granting the motion to dismiss, we note that the respondents contended that it was not until July 13, 1995 that they were notified that an appeal had been filed on June 23, 1995, and that the claimant did not dispute this contention.

Even if we were to consider the merits of the claimant’s appeal, we would affirm the trial commissioner’s decision. Specifically, “an Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless Sec. 31-3153, which allows for modification, is satisfied.” Mongillo v. Terminal Taxi Co., 12 Conn. Workers’ Comp. Rev. Op. 197, 199, 1455 CRB-3-92-7 (March 7, 1994) (citations omitted). “Like a stipulated judgment in Superior Court, an Award by Stipulation may be set aside without the consent of all parties only if it was obtained by fraud, misrepresentation, accident or mistake.” Gonzalez v. Electric Transport (Penske), 13 Conn. Workers’ Comp. Rev. Op. 6, 8, 1729 CRB-1-93-5 (Oct. 13, 1994). Furthermore, 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.” Id. (citing Housing Authority v. Lamothe, 225 Conn. 757, 767 (1993)).

In the instant case, the claimant entered into a stipulation in settlement of his workers’ compensation claim for $82,500.00, which was approved by a trial commissioner on December 10, 1991. Subsequently, 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, in his decision of June 13, 1995, found that the employer’s pension plan specifically provided that the pension benefits would be offset by any workers’ compensation benefits. The trial commissioner further found 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....” (Finding D).

The record fully supports the trial commissioner’s denial of the claimant’s motion to reopen the stipulation pursuant to § 31-315. We find no abuse of discretion on the part of the trial commissioner. See Gonzalez, supra.

The claimant’s appeal is dismissed.

Commissioners George Waldron and Robin L. Wilson concur.

1 Section 31-301-2 provides in pertinent part: “Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal.” BACK TO TEXT

2 Practice Book 4056 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.” BACK TO TEXT

3 Section 31-315 provides, in pertinent part, that an award or 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