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Longo v. Herbert Leibovitz

CASE NO. 3464 CRB-3-96-11



JANUARY 15, 1998











The claimant was represented by Lynne G. Rozen, Esq., 150 West Main St., Branford, CT 06405.

The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Rd., Fairfield, CT 06430.

This Petition for Review from the November 8, 1996 Finding and Order of the Commissioner acting for the Third District was heard June 13, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.


JESSE M. FRANKL, CHAIRMAN. The claimant has filed a petition for review from the November 8, 1996 Finding and Order of the Commissioner acting for the Third District. In that decision, the trial commissioner found that the respondents were entitled to a partial credit for the claimant’s third party settlement against its workers’ compensation liability in accordance with § 31-293. In support of her appeal, the claimant contends that the trial commissioner improperly concluded that the respondents had a right to any credit pursuant to § 31-293 because the claimant’s recovery was the result of a settlement and no action was filed against the third party tortfeasor by either the claimant or the respondents.

The trial commissioner found the following relevant facts. The claimant was employed by the respondent employer on August 19, 1992 when she was involved in an automobile accident. The employer and its insurer, Liberty Mutual, accepted liability for the claimant’s injuries. Liberty Mutual paid the claimant workers’ compensation benefits through July 7, 1993 which totaled $52,789.86. Sometime prior to July 7, 1993, the claimant settled a negligence claim against the third party tortfeasor in the August 19, 1992 accident. The claimant settled that claim for $100,000.00 without filing an action.

The claimant was in agreement that Liberty Mutual had third party lien rights in the amount of $52,789.86. (Findings No. 13-17 and E; 6/4/96 TR. at 9). The claimant and her attorney entered into a written agreement with Liberty Mutual in which the claimant agreed to fully settle her workers’ compensation claim with Liberty Mutual in exchange for Liberty Mutual’s waiver of approximately $32,000.00 of its third party lien. Specifically, in said agreement it was agreed that the claimant would pay Liberty Mutual $20,000.00 towards its lien and that Liberty Mutual would waive the remaining amount of its lien. The agreement provides that in exchange for Liberty Mutual’s waiver of its lien (except for $20,000.00) on the $100,000.00 settlement award, the claimant agreed to the full and final settlement of her workers’ compensation claim including “total, partial, permanent partial, specific and for permanent disability resulting from the injuries above described and for all claims for medical, surgical and hospital expenses, past present and future....” (Agreement at p. 5-6). The agreement is signed by the claimant and dated August 6, 1993. This agreement was not reviewed or approved by a trial commissioner. The claimant’s attorney sent Liberty Mutual a check in the amount of $20,000.00 on February 8, 1994. (Claimant’s Exh. H).

Section 31-293 (rev. to 1991)1 allows an injured employee to sue a third party tortfeasor in a private cause of action, and allows the employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor by intervening in the claimant’s cause of action or by bringing a separate cause of action. Libby v. Goodwin Pontiac-GMC Truck, Inc., 241 Conn. 170, 174 (1997). The “employer’s statutory right to subrogation of the proceeds of the employee’s claim against the tortfeasor implements the public policy of preventing double recovery by an injured employee....” Id. Pursuant to § 31-293, an employer may seek reimbursement for identifiable future benefits, along with a credit for unknown future benefits against the net proceeds of a third party recovery. Enquist v. General Datacom, 218 Conn. 19, 25-27 (1991).

Our Supreme Court has recently addressed the application of § 31-293 in Libby v. Goodwin Pontiac-GMC Truck, Inc., 241 Conn. 170, 178 (1997). In that case, the court stated that in cases involving an injury which occurred prior to July 1, 1993, an employer is not entitled to a credit for the amount of an employee’s settlement with a third party tortfeasor unless the employer has intervened in the employee’s action against the tortfeasor or has brought a direct action itself. Id. at 178. In Libby, supra, the claimant received a settlement from the third party tortfeasor without filing a cause of action, nor did the employer file a cause of action. Id. at 173. It is important to note that in Libby, supra, the “defendants (respondents) were not involved in the settlement, and neither the plaintiff (claimant) nor the third party paid or promised to pay the defendants any settlement proceeds.” Id. at 173 (emphasis added).

Thus, the facts in Libby, supra, are readily distinguishable from the facts in the instant case, where the claimant specifically negotiated with Liberty Mutual regarding reimbursement from the $100,000.00 settlement. Certainly, it would not be reasonable to expect Liberty Mutual to file its own cause of action against the third party tortfeasor when the claimant’s attorney agreed that Liberty Mutual had a right to reimbursement from said settlement. (Finding No. 36; see also Claimant’s Exh. H). In Libby, the respondents did not attempt to protect their rights under § 31-293 prior to the claimant’s settlement, nor were the respondents made any promises regarding said settlement. Thus, the court held that the respondents’ failure to bring an action against the third party tortfeasor pursuant to § 31-293(a) constituted a waiver of their reimbursement rights. Libby, supra, at p. 177.

In contrast to the facts of Libby, supra, Liberty Mutual in the instant case did not choose to sit complacently on its rights. Rather, a reasonable inference is that Liberty Mutual’s failure to strictly adhere to the provisions of § 31-293 resulted from its reliance on the agreement which was signed by the claimant.2 The trial commissioner thus concluded that Liberty Mutual did not forfeit its right to reimbursement pursuant to § 31-293. The trial commissioner’s conclusion is consistent with the well established principle of workers’ compensation law which is the “avoidance of two independent compensations for the injury.” Enquist, supra, at 26. Moreover, the power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Finally, we note that as the claimant has not filed a motion to correct, we are limited to the findings of fact made by the trial commissioner. Bell v. U.S. Home Care, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995), aff’d., 40 Conn. App. 934 (1996) (per curiam); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991).

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The Connecticut Supreme Court has specifically stated that the applicable version of § 31-293 is that in effect on the date of the injury. Libby v. Goodwin Pontiac-GMC Truck, Inc., 241 Conn. 170, 178-9, fn. 7 (1997). In the instant case, the claimant’s injury occurred on August 19, 1992. BACK TO TEXT

2 Indeed, the claimant states in her brief, “In this case, Liberty Mutual relied on the existence of an unapproved agreement and failed to safeguard its rights by filing an action under Sec. 31-293.” (Claimant’s Brief at p. 8). Again, the claimant states, “In the instant case, Liberty Mutual, relying on an unapproved agreement, failed to bring a direct action against the tortfeasor to safeguard its legal rights.” (Claimant’s Brief at 10). BACK TO TEXT

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