Perez v. Franklin Mushroom Farm

The claimant was represented by Howard B. Schiller. Esq., 55 Church St., P.O. Box 699, Willimantic, CT 06226.

The respondents were represented by Ruth Tower, Esq., Edward M. Henfey & Associates, 55 Farmington Ave., Suite 500, Hartford, CT 06105.

This Petition for Review from the September 29, 1995 Decision on Claimant’s Motion to Vacate Stipulation of the Commissioner acting for the Second District was heard May 10, 1996 before a Compensation Review Board panel consisting of Commissioners George Waldron, Robin L. Wilson and Michael S. Miles.

OPINION

GEORGE WALDRON, COMMISSIONER. The respondents have petitioned for review from the September 29, 1995 decision of the trial commissioner acting for the Second District 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. Accordingly, the respondents contend that it was an abuse of discretion for the trial commissioner to grant the motion to reopen the stipulation. We find no error on the part of the trial commissioner.

The trial commissioner found the following relevant facts. The claimant’s primary language is Spanish and he does not read or write English. The claimant alleges that he suffered a compensable injury on June 21, 1993, which was contested by the employer. A formal hearing was scheduled for October 13, 1994, at which time the claimant was represented by an attorney.1 The claimant first learned that there was an agreement to settle his claim when he arrived at the hearing on October 13, 1994. At that time, the claimant’s attorney indicated to the claimant, through his wife, that the respondents had offered $7,500.00 to settle his claim. The claimant’s wife acted as an interpreter, but was not fully bilingual and had difficulty understanding some of the terminology. On the morning of October 13, 1994, prior to the hearing with the trial commissioner, the claimant’s wife asked the claimant’s attorney three times for an interpreter. The claimant’s attorney replied that none was available and that she was making an adequate translation.

The claimant’s attorney, who drafted the stipulation, originally provided in paragraph nine that the respondents would pay all medical bills to the date of the stipulation.2 When the claimant’s attorney initially explained the stipulation to the claimant on October 13, 1994, he explained the original version, which provided that the respondents would pay all medical bills to the date of the stipulation. (Testimony of claimant’s attorney, 8/14/95 TR. at p. 16). Subsequently, the respondents’ attorney asked the claimant’s attorney to change paragraph nine in order to reflect what he understood to be the agreement, namely that the claimant was responsible for all medical bills both past and future. The claimant’s attorney agreed to make the change to paragraph nine and initialed the change on the stipulation. However, the claimant was not present during this discussion, and he did not initial the change. (Findings No. 16 and 17). The claimant’s attorney testified that the claimant may have signed the stipulation prior to the change being made to paragraph nine. (Finding No. 36; 8/14/95 TR. at p. 35-36).

We emphasize that it is clear and undisputed that the trial commissioner who approved the stipulation on October 13, 1994 properly performed his duties. The record indicates that the trial commissioner fully and properly canvassed the claimant regarding his acceptance and understanding of the stipulation, but that the claimant’s wife failed to notify the trial commissioner that she did not feel capable of translating the language. Moreover, neither the claimant or his wife notified the trial commissioner that the terms of the stipulation as explained by the trial commissioner contradicted the terms which had been explained by the claimant’s attorney. (Findings No. 46-51).

“[A]n Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless Sec. 31-315 3, 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 contended that the change to paragraph nine was made without his knowledge or consent. The trial commissioner found that the claimant “did not intend to enter into” the stipulation which was approved on October 13, 1994. We have consistently held that it “is the trial commissioner, as the trier of facts, who determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 349, 1675 CRB-2-93-3 (July 29, 1994)Aff’d., 39 Conn. App. 935 (1995) (citations omitted). The trial commissioner’s conclusion that the claimant had sufficient reason pursuant to § 31-315 to reopen the approved voluntary stipulation is supported by the record.

We note that the trial commissioner found that the claimant did not accept the proceeds of the stipulation, and that the claimant filed the motion to reopen very soon after the approval date. (Findings No. 25-27). Certainly, the conclusion that the claimant entered into the stipulation by accident or mistake is a reasonable inference from the facts as found by the trial commissioner, including the claimant’s wife’s difficulty in interpreting the language of the stipulation and the change made to paragraph nine at the last moment. This conclusion is further supported by the fact that on October 13, 1994 the claimant was provided with a form in Spanish titled “STIPULACION” which stated that the claimant was relinquishing his right to payments for all future medical bills, but did not address past medical bills.

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

Commissioners Michael S. Miles concurs.

ROBIN L. WILSON, COMMISSIONER, CONCURRING. In the instant case, the facts as found by the trial commissioner indicate that the trial commissioner who approved the stipulation on October 13, 1994 fully performed his duties, specifically questioning the claimant regarding his acceptance of the terms of the stipulation. See Duni v. United Technologies Corp./ Pratt & Whitney Aircraft Division, 239 Conn. 19, 27, fn. 9 (1996); see also Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480, fn. 9 (1994). Prior to approving the stipulation, the claimant, through his wife, indicated to the trial commissioner on October 13, 1994 that he understood all of the terms of the stipulation. During the stipulation approval process, neither the claimant nor his wife notified the trial commissioner as to any concerns regarding the terms of the stipulation or the ability of the wife to provide an adequate interpretation for the claimant. Rather, it appears that any misunderstanding on the part of the claimant was due solely to his attorney’s last minute change to the stipulation and possibly to his wife’s poor interpretation skills.

In my opinion, it is not the responsibility of this tribunal to monitor attorneys regarding the exercise of due diligence in representing parties. However, out of concern for the claimant’s due process, I agree with the majority in affirming the trial commissioner’s decision. Moreover, the standard for reviewing a ruling on a motion to reopen is whether an abuse of discretion has occurred, which is a very high standard. Gonzalez, supra, at p.8. I write separately in order to emphasize that ordinarily trial commissioners should be circumspect regarding the power to reopen a stipulation. In addition, I note that a further reason for using the power to reopen with restraint is the need to obtain finality in litigation. See Duni, supra; see also Muldoon, supra. For the above reasons, I concur with the result reached by the majority in affirming the trial commissioner’s ruling which granted the claimant’s motion to vacate the approved stipulation.

2 The claimant’s medical bills as of October 13, 1994 totaled approximately $5,000.00. (Finding No. 31). 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