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Mulligan v. N.C.H. Corporation Chemsearch Division

CASE NO. 3653 CRB-04-97-07



SEPTEMBER 17, 1998











The claimant was represented by Kerry M. Wisser, Esq., Weinstein & Wisser, P.C., 29 South Main Street, Suite 207, West Hartford, CT 06107.

The respondents were represented by Kevin M. Blake, Esq., Cotter, Cotter & Sohon, 500 Boston Post Road, Milford, CT 06460.

This Petition for Review from the July 18, 1997 Finding Re: 31-315 Motion to Reopen Stipulation of the Commissioner acting for the Seventh District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 18, 1997 Finding Re: 31-315 Motion to Reopen Stipulation of the Commissioner acting for the Seventh District. They argue on appeal that the trier erred by finding that mutual mistake justified the opening of the stipulation at issue in this case.1 We affirm the trial commissioner’s decision.

The claimant was employed by the respondent Chemsearch on April 10, 1987, when he was seriously injured in a motor vehicle accident. He filed a workers’ compensation claim, which was accepted by the respondents. He also instituted a lawsuit against a third party tortfeasor seeking damages for the injuries he suffered. The respondents alleged a lien of approximately $200,000 for workers’ compensation benefits paid to the claimant, and successfully moved to intervene in the suit over the claimant’s objection. The court then rendered a stipulated judgment awarding the claimant $1,500,000 in damages in discharge of all claims against the defendants. The amount of the challenged workers’ compensation lien was held in escrow by claimant’s counsel, and the claimant reserved the right to appeal regarding the respondents’ intervention. The Appellate Court initially declined to consider the claimant’s appeal, but the Supreme Court reversed, ruling that the claimant had properly reserved his right to challenge the employer’s lien on the settlement proceeds. See Mulligan v. Hall, 229 Conn. 224 (1994), reversing 32 Conn. App. 203 (1993). The Appellate Court was ordered to consider the Motion to Intervene on its merits.

No final determination was reached on this issue by the Appellate Court, however. Before the Motion to Intervene could be reargued, the claimant and respondents resolved the issue by entering into an Award by Stipulation to fully and finally resolve all workers’ compensation claims. The claimant agreed to withdraw his appeal, while the respondents withdrew an appeal regarding the issue of termination of compensation benefits without filing a Form 36. See Mulligan v. N.C.H. Corporation Chemsearch Division, 12 Conn. Workers’ Comp. Rev. Op. 223, 1499 CRB-7-92-8 (March 22, 1994). The respondents released all of the third party litigation funds that were being held in escrow ($208,921.28) to the claimant, who received the entire proceeds less attorney’s fees.

The trial commissioner found that this agreement went through various stages of draft after the parties initially agreed to withdraw the appeals and disburse the funds. An “Agreement of Adjustment and Stipulation by Award” was executed on October 24, 1994, according to the date typed on the document. Another commissioner approved it as a Finding and Award by Stipulation on June 8, 1995, without the claimant or his attorney being present, and without a notarized affidavit being submitted. The file also lacked an executed copy of a “Stipulation and What It Means” form, which is used by this Commission to ensure that the commissioner has explained to the claimant the full consequences of settling his case. See Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 48, 3052 CRB-3-95-4 (Oct. 16, 1996). Apparently, the commissioner who approved the stipulation sent a copy of that form to the claimant’s counsel for signature a number of weeks after the June 8, 1995 hearing. The claimant refused to sign that form, having become aware that the long-term disability carrier intended to set off the full amount of the settlement against the claimant’s long-term disability benefits, and was demanding that the claimant repay an alleged $40,164.45 overpayment. The claimant disavowed the stipulation, and filed a Motion to Reopen.

The trier (a different commissioner) found that the stipulation did not represent that the money was for the third-party suit against the tortfeasors, nor did it state that there would be an offset. The claimant thought that neither he nor the commissioner had attached the proper significance to the language of the stipulation when it was approved. He sought modification of the Finding and Award to clarify that the $208,921.28 does not represent a payment of workers’ compensation benefits, but a settlement of a disputed claim accompanied by a waiver of any possible workers’ compensation rights. The respondents argued that the claimant could have, but did not, attend the stipulation approval hearing, and understood the ramifications of the stipulation at the time he entered into it, having previously signed a Reimbursement Agreement in 1992.

The trier concluded that the claimant had met his burden of proving that the stipulation should be re-opened and modified, as the commissioner had not followed the standard stipulation approval policy, certain “hold harmless” language in the stipulation was overly broad and against all parties’ interest, the respondents had not shown that the claimant was notified of the stipulation approval hearing, and the failure of the respondents’ attorney to discuss the long-term disability claims and reimbursement constituted harmful misrepresentation by omission. The respondents have appealed that decision to this board. They have not specifically mentioned the denial of their Motion to Correct, in which the commissioner explained that “the stipulation was not negotiated in good faith nor were all parties diligent and thorough in the drafting of same. . . . I believe no final ruling is in place of the propriety of Third Party Intervenor.”

An award or agreement is subject to modification under § 31-315 when “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 the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter.” The statute also gives a commissioner the same power to modify an award as a superior court judge has to modify a judgment, i.e., in cases of accident, fraud, or mistake of fact. Marone v. Waterbury, 244 Conn. 1, 17 (1998). This board will not disturb a commissioner’s decision to grant or deny a § 31-315 motion unless the appellant is able to show that the commissioner abused her discretion in making her decision. Besade v. Interstate Security Services, 212 Conn. 441, 453 (1989); Courtright v. State of Connecticut/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998).

The respondents contend that the trier abused her discretion insofar as she made mistake the basis of her decision to reopen the award. The respondents argue that Fabian v. Pitney Bowes, Inc., 3104 CRB-7-95-6 (Dec. 23, 1996), is directly on point, and should have led the trier to deny the claimant’s request to modify the stipulation. In Fabian, this board technically dismissed the claimant’s appeal for failure to file timely Reasons for Appeal under Admin. Reg. § 31-301-2. As an alternative ground for affirming the trier’s decision, however, we noted that the claimant filed a motion to reopen his $82,500 settlement agreement on the ground that “he would not have entered into the stipulation if he had known that the proceeds would offset his pension benefits.” In fact, the trier had found that the employer’s pension plan specifically provided that pension benefits would be offset by any workers’ compensation benefits received, and that this provision was available for the claimant’s perusal prior to the approval of the stipulation. Thus, we stated that the record supported the trier’s denial of the § 31-315 motion to reopen.

The instant case is not identical to Fabian, and does not warrant our tampering with the trier’s decision. The trier here granted the motion to open, rather than denying it. We must decide on review whether her decision to reopen the 1995 award was an abuse of discretion; it is not our duty to look at the evidence anew and decide whether a reasonable commissioner could have also denied that motion, as was our obligation in Fabian. See Costa v. United Nuclear Corp., 16 Conn. Workers’ Comp. Rev. Op. 101, 108, 2296 CRB-2-95-1 (Nov. 20, 1996); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). In that light, there were several reasonable grounds underlying the trial commissioner’s decision to grant the motion to open, and she did not abuse her discretion in doing so.

We have previously discussed the serious ramifications of a claimant’s entry into a stipulation, and the concurrent necessity for a commissioner to take great pains in assuring that a claimant understands the nature and scope of a stipulation before he approves such an agreement. Festa v. Hamden, 16 Conn. Workers’ Comp. Rev. Op. 46, 3052 CRB-3-95-4 (Oct. 16, 1996). In recognition of these concerns, this Commission has promulgated a form entitled “Stipulation and What It Means” that enumerates the consequences of a stipulation from the claimant’s point of view. Before a claimant may accede to a stipulation, the trier must canvass the claimant to ensure that he has considered the issues mentioned in the form, and that he still wants to settle his case. Id. If either party is no longer in agreement with the provisions of a stipulation at the time it is submitted for ratification, the commissioner is entitled to withhold his approval. Secola v. State of Connecticut Comptroller’s Office, 3102 CRB-5-95-6 (February 26, 1997). In order to ascertain the true intent of the parties, the commissioner must first ensure that both sides—especially the claimant—meaningfully understand the document on which they are purporting to agree.

The failure of a commissioner to follow this canvassing procedure does not automatically invalidate the approval of a stipulation. However, where this procedure has not been followed, and confusion has subsequently resulted to the detriment of either party, a finder of fact may determine that grounds exist for reopening the agreement. Such was the case here. The trial commissioner could reasonably have concluded from the claimant’s testimony that he believed that the stipulation was to allow him to collect the money that was being held in escrow. See, e.g., Nov. 4, 1996 Transcript, p. 67 (“I thought that by signing that agreement that it would close my case, I would get the money released in your office to me and life would go on”). The stipulation itself does not specify whether or not the respondents’ intervention in the third-party suit was proper, and there is no mention of the long-term disability policy anywhere in that document. The trier was also entitled to find that the respondents’ attorney and the commissioner who approved the stipulation committed harmful error by failing to address the impact of the settlement on the long-term disability claims. Under these circumstances, we cannot say that the trial commissioner abused her discretion in reopening the 1995 award.

The trial commissioner’s decision is thus affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 The respondents actually included 18 separate allegations of error in their Reasons of Appeal. We will restrict our discussion on review to those issues raised in the respondents’ brief or at oral argument. See Maio v. L.G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 198 n.1, 1734 CRB-5-93-5 (March 22, 1995). BACK TO TEXT

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